Bianca Gainey v. State of Connecticut Department of Transportation et al. (2014)

MEMORANDUM OF DECISION

Trial in the captioned matter before the court occurred on Wednesday, February 26, 2014.   The Plaintiff seeks damages for injuries sustained on September 20, 2010, while a passenger on a bus operated by North–East Transportation Company, Incorporated, which bus (Bus # 16) was owned and/or leased by the State of Connecticut Department of Transportation.

The Plaintiff, who is now twenty-five (25) years old and the single mother of five (5) children, was returning from morning Adult Education classes ¹ and a passenger when the bus stopped at a designated location in Waterbury.   Contemporaneous with that stop, the Plaintiff descended two (2) steps in preparation for her exit and injured her left knee when it came into contact with the bus door as it closed on that knee.   The Northeast driver, Mary Mulhall, completed an accident report in which she conceded that, having already opened the bus door, she realized she had not simultaneously opened the rear door and, though she then attempted to open the rear door, she instead closed it (Plaintiff Exh. # 1)—which is when the contact to the Plaintiff's knee occurred.

A Northeast employee transported the Plaintiff to Saint Mary's Hospital where she was diagnosed with a left knee contusion without any apparent abrasion, edema, or erythema.²  She was given naproxen for pain and an ace wrap for her knee.   Her instructions were to bear weight as tolerated, to rest the knee while keeping it elevated, to return if there were new pains or concerns and/or to follow with her own physician in one-two (1–2) weeks if not improved.   Although she testified to having low back pain at the accident scene (which is noted on the hospital report), the focus of her hospital treatment was on the left knee;  no fracture or dislocation was seen on x-ray.

Two (2) months later in November of 2010, Ms. Gainey was seen at Sampino Chiropractic Center where she complained of her left knee having recently given out and of having experienced low back pain one week following the injury.   (Plaintiff Exh. 2B, at p. 1.) ³ The report from that facility notes the patient had to leave before treatment was rendered and, though “contacted several times” (id.), she never returned and thus received no treatment there.   She was, however, treated at the Howe Chiropractic Center in Waterbury from December 7–March 26, 2012, for both her low back and left knee.   Dr. Howe's diagnosis on January 9, 2012, was of “lumbago and left knee internal derangement and sprain.”   Pl. Exh. 2C, at 5. That practitioner, on March 29, 2012, assessed a 5% permanency of the left knee and a 5% permanency of her lumbar spine.   Id., at 6–8.   The total amount of medical expenses incurred is $3,707.19.  (Pl.Exh. 3.)

At trial, Ms. Gainey testified her left knee occasionally bothers her in inclement weather or when walking a long time but twice, on cross examination, she agreed that her back was now “fine.”

The bus driver was a trained, experienced driver who, as here earlier stated, completed and signed an accident report for Northeast.   Her report of the accident was as follows:

When I stopped at South Main Street in front of Walgreen's, I secured the bus and opened the service door.   When I realized I had not opened the back door, I went to open it and instead I closed it.   That's when a young girl said “What the F?.” I opened the door and I told her to hold on, to just hold on.   She just got off the bus swearing and said something about her knee.   She never came over to me.

Ms. Mulhall testified she was alerted to the incident as a result of the above stated comment by the Plaintiff.   She testified there were sensors on all bus doors, that the doors were made of rubber (Pl.Exh. E), and that, because the doors automatically opened on contact with a body part, it was not possible for the Plaintiff to have been pinned for more than a second before it opened again.

It is so that momentary inattention constitutes negligence if that act proximately results in injury to another and the court finds that here occurred.   The medical record from Saint Mary's Hospital documents the patient's complaints of pain and difficulty ambulating;  naproxen, commonly prescribed to alleviate pain, tenderness, and/or inflammation, was prescribed.   The Plaintiff incurred medical expenses in the amount earlier herein stated and the court finds those expenses were proximately caused by the driver's negligence in failing to open the front and rear doors simultaneously and, upon realizing her mistake, Ms. Mulhall then closed the rear bus door when she should have opened it.   Two months after the incident, Debra Day, D.C., noted visible swelling below the Plaintiff's left knee and the court has no evidence to conclude that swelling was as a result of some other occurrence.   Dr. Howe, another chiropractic who treated her from December 2011, to March 2012, noted restricted movement of the knee with decreased flexion and compromised stability.   He also noted lumbar motion and lateral flexion of the back together with a pinching sensation during low back movement.   Though the court concludes the patient experienced pain for some short period of time after the incident, the court has greater difficulty with the permanency ratings to the knee and back.

Defense counsel introduced at trial numerous Facebook photographs of the Plaintiff;  those photos show her bending, crouching, flexing her knee (which puts pressure on the lumbar spine) while bending at the waist with her posterior extended outward, and photos of her at work in various dance moves, one of which depicted a male riding on her back without any obvious expression of pain and/or discomfort.   Def. Exhs. F, I. The photographs spanned 2010–2014, some of which showed her at work in the entertainment industry;  at least five (5) of the photographs were juxtaposed with medical providers' entries for the same time periods, which entries chronicled physical limitations the plaintiff had reported to her treaters.   Those photographs and the Plaintiff's complaints at trial were entirely inconsistent with the claims of permanent disability to either her left knee or back.   The court does not credit those claims.

ADJUDICATION

The court having found negligence which proximately caused damages consisting of medical bills in the amount of three thousand seven hundred seven dollars and nineteen cents ($3,707.19—Exh.# 3) and pain and suffering for a limited period following the accident (which pain and suffering the court values at five (5) thousand five hundred dollars ($5,500.00).   Judgment for the Plaintiff enters this date in the amount of nine thousand two hundred seven dollars and nineteen cents ($9,207.19)

SO ORDERED this 13th day of March 2014.

Sheedy, J.T.R.

FOOTNOTES

FN1. The Plaintiff did not complete her high school degree..  FN1. The Plaintiff did not complete her high school degree.

FN2. Pl. Exh. F, p. 2..  FN2. Pl. Exh. F, p. 2.

FN3. The report of 11/16/10 states the Plaintiff had in the interim been treated by a Dr. Devito;  there are, however, no records to verify such treatment..  FN3. The report of 11/16/10 states the Plaintiff had in the interim been treated by a Dr. Devito;  there are, however, no records to verify such treatment.

Sheedy, Barbara J., J.T.R.