LINDA ABATE ET AL. v. CITY OF NEW BRITAIN.

2009 Ct. Sup. 3590
No. CV 07 5004438SConnecticut Superior Court Judicial District of New Britain at New Britain
February 18, 2009

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION
HENRY S. COHN, Judge.

The plaintiff, Linda Abate, commenced this suit under General Statutes § 13a-149 against the city of New Britain (the city), alleging that she was injured due to the failure of the city to maintain a sidewalk under its control. Section 13a-149 provides in part as follows: “Any person injured in person . . . by means of a defective road or bridge may recover damages from the party bound to keep it in repair . . . No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury . . . if it appears that there was no intention to mislead or that such town . . . was not in fact misled thereby.”

The court makes the following findings of fact:

1. The plaintiff was born in Connecticut and lived as a child at 351 Broad Street, New Britain, where her family still resides.
2. The plaintiff is a graduate of Capitol Region Community College and has a nursing license.
3. The plaintiff’s first position was at the New Britain Hospital For Special Care; later, she worked in Forestville at a convalescent home.
4. In approximately 1989, the plaintiff, her husband and children moved to Franklin, Tennessee.
5. The plaintiff took a post at Harpath Convalescent Center, a facility with 89 residents.
6. The plaintiff served as director of nursing at Harpath for sixteen years, resigning in November 2006.

CT Page 3591

7. The plaintiff had many responsibilities at Harpath. She was a “hands-on” supervisor, often caring for patients directly, and not just leaving treatment to her staff.
8. The Harpath post was very stressful for the plaintiff. In July 2006, she took a demotion in title so she did not have to have as much responsibility. Her family urged her to lessen her tension by decreasing her work hours or retiring.
9. Prior to November 2006, the plaintiff had foot surgery. She developed osteoporosis and needed back surgery in 2005.
10. In 1993, the plaintiff first saw Dr. David Bums, a psychiatrist, who diagnosed an emotional illness and treated her with medication.
11. The plaintiff suffered an accident on June 25, 2006. She was walking her dog on a leash when two dogs attacked her dog. In this incident, she was pulled by her dog to the ground. She fractured her jaw and sternum. Her jaw was wired shut for several weeks (until September 2006) and she needed teeth repair. In a pending lawsuit against the owners of the dogs, she claims physical pain and emotional suffering.
12. The plaintiff enjoys walking as a means of reducing her stress. She continues to walk today. She also has held picnics at her home for family and friends. She likes to decorate her home and keep it neat. She also takes part in activities in Nashville, including the symphony.
13. In late 2006, the plaintiff accepted employment with Green Hills nursing home in Nashville as director of nursing to start December 4, 2006. Her pay at Harpath was approximately $52, 000. Her salary at Green Hills was set at $75,000.
14. The plaintiff was pleased with the prospect of new employment with a raise in salary. The Green Hills position was to start immediately CT Page 3592 after the Thanksgiving holiday, 2006.
15. On November 28, 2006, the plaintiff returned to New Britain to visit her mother. This was her first visit to Connecticut in approximately 5 years. In addition, she had not been to the family home on Broad Street in ten years.
16. When she arrived at the family home, the plaintiff learned that her mother was going to a physical therapy appointment at 3:00 P.M. and that the family was gathering from parts of Connecticut and outside of Connecticut later that evening.
17. The plaintiff decided to take a walk to a cemetery nearby where her father and other relatives are buried. She proceeded along streets east and north of the family home.
18. After her cemetery visit, to extend her walk, the plaintiff chose to return to 351 Broad Street by a different route, and walked along streets south and west of the home.
19. The plaintiff passed 365 Broad Street, two houses away from her destination, 351 Broad Street. The weather was bright and cool, she was not carrying anything, she had no alcohol to drink, she was wearing walking shoes, and had taken all prescribed medication. She was observant of her surroundings, looking where she was going. The plaintiff observed that the sidewalk was uneven.
20. At this time, about 4:00 P.M., a male walker approached the plaintiff from the other direction. She moved to the right to proceed past the man.
21. In the act of moving out of the way of the approaching person, the plaintiff caught her toe on the sidewalk and fell to the ground.
22. The sidewalk on which the plaintiff tripped had been raised by the roots of a tree growing adjacent to the sidewalk. The sidewalk was displaced by 2″, when the guidelines of the city allow for the maximum of CT Page 3593 1.”
23. The plaintiff managed to lift herself up and move to a postal van at 361 Broad. She rested there for a few minutes and then managed to climb up to the second floor of 351 Broad. There she was assisted by her brother.
24. The plaintiff was taken by ambulance to the Hospital Of Central Connecticut at 4:30 P.M. She was diagnosed as having suffered a pubic bone fracture and was discharged with crutches.
25. Until she left for Tennessee two days later, the plaintiff resided on the first floor of the family home in an unrented apartment. It had no heat. She used her mother’s walker in lieu of crutches.
26. When the plaintiff returned to Tennessee, she was in pain and taking medication. She could not care for herself and had to be assisted by her husband. Her daughter had to bathe and dress her.
27. The plaintiff’s orthopedic doctor, Frank Berklacich, reviewed imaging studies and made the following diagnosis: The plaintiff had broken both the superior and interior pubic ramus. She had a comminuted fracture. She also had a hematoma in her pelvis. These injuries were the result of her fall on November 28, 2006.
28. Dr. Berklacich gave the plaintiff a disability of the whole body of 6%. Her life expectancy was proved to be 26.1 years.
29. Dr. Berklacich also stated that it was more likely than not that the plaintiff would require additional treatment for stenosis sooner because of the fall. She had had back surgery at L3 L4 and would probably need surgery on L5.
30. During the time of the plaintiff’s recovery, Dr. Berklacich found it necessary to increase the plaintiff’s pain medication.

CT Page 3594

31. The plaintiff’s recovery took until June 2007. Dr. Berklacich found her unable to work until then. After that date, he believed that she could take a position as director of nursing, but would have to be careful not to over-exert herself. She would have to work as a director of nursing with restrictions.
32. The plaintiff was unable to take the post at Green Hills because of her period of recovery.
33. The plaintiff has not attempted to obtain a position of director of nursing since the November 28, 2006 accident.
34. In September 2007, the plaintiff became employed at a nursing home in Murphysboro, Tennessee as an MDS coordinator. She was paid $55,744. She gave up this position as it was an hour commute from her home and caused her stress.
35. In July 2008, the plaintiff obtained employment nearer to her home as an MDS coordinator. Her salary was $56,784. She was laid off from this job on December 31, 2008. She has applied for other positions and has some good leads.
36. Dr. Burns, the plaintiff’s psychiatrist, noted prior to the accident that the plaintiff was suffering tension in her familial relations and at work. When he saw her immediately prior to the accident, she stated that she was pleased with the prospect of her new job at Green Hills and she was improved mentally. After the accident, she was very depressed and tense. He prescribed a higher dose of medicine.
37. The city owns and controls the sidewalk at 365 Broad Street and has the duty to keep and repair the sidewalk. The city sent a sidewalk inspector to the scene after the plaintiff’s fall and found that the sidewalk was in violation of the city’s standards.

Regarding liability, the leading case on sidewall accidents states as follows: “To bring a successful claim under § 13a-149, the plaintiff must prove, by a fair preponderance of the evidence, (1) that the highway was CT Page 3595 defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.” (Internal quotation marks omitted.) DeMatteo v. New Haven, 90 Conn.App. 305, 308, 876 A.2d 1246, cert. denied, 275 Conn. 931, 883 A.2d 1242 (2005).

The plaintiff has satisfied the first three points here, and the city has not vigorously contested them. The sidewalk was defective under the city’s standards, the city should have known of the defect, and the city had a reasonable time to remedy the defect. The city claims that the plaintiff was contributorily negligent.

It is true that if the plaintiff had been contributorily negligent, even one percent, she cannot recover under § 13a-149. Williamson v. Commissioner, 209 Conn. 310, 321, 551 A.2d 704 (1988); Smith v. New Haven, 258 Conn. 56, 779 A.2d 104 (2001). In order to find contributory negligence, however, the court must conclude that the plaintiff did not use reasonable care. The official civil jury instructions summarize “reasonable care” as follows: “In determining the care that a reasonable prudent person would use in the same circumstances, you should consider all of the circumstances which were known or should have been known to the [plaintiff] at the time of the conduct in question. Whether care is reasonable depends upon the dangers that a reasonable person would perceive in those circumstances. It is common sense that the more dangerous the circumstances, the greater the care that ought to be exercised.” § 3.6-4, Civil Jury Instructions, relying on Galligan v. Blais, 170 Conn. 73, 77, 364 A.2d 164 (1976); Pleasure Beach Park Co. v. Bridgeport Dredge Dock Co., 116 Conn. 496, 503, 165 A. 691 (1933) Geoghegan v. G.Fox Co., 104 Conn. 129, 134, 132 A. 408 (1926).

The court concludes, as a matter of fact, that the plaintiff was not contributorily negligent.[1] At the time of the incident, she was not carrying any object, looking around, waiving to a friend, or impaired. She was aware of her surroundings. She did state that she had been over the sidewalk as a child and even had seen the tree planted that raised the slab. But this was many years ago and she had not even been to her mother’s home, two doors down, for ten years. She was aware that the sidewalk was uneven and was cautious as a walker would be under these circumstances. She was not obliged to stop as the man approached her, but could move to the right to let him pass. Since the plaintiff has met CT Page 3596 the four factors of the DeMatteo decision, the court finds that the city is liable to the plaintiff for her fall on November 28, 2006.

The plaintiff is entitled to damages that are “fair, just and reasonable.” Monti v. Wenkert, 287 Conn. 101, 114, 947 A.2d 261 (2008). The parties agreed that the plaintiff’s medical bills are reasonable in the amount of $17,000 (subject to the collateral source rule of General Statutes §§ 52-225a, 52-572h). The parties also agree that the plaintiff is entitled to lost wages in the amount of $37,500 (covering the period from December 2006 to June 2007).

The parties differ concerning the lost opportunity suffered by the plaintiff in losing her position at Green Hills. The plaintiff seeks damages for the additional amount in wages she would have earned over the eight-year period that the plaintiff would have worked at Green Hills until age 65. The court concludes, however, that she would not have been satisfied with the Green Hills position. It was a larger facility than Harpath with 150 beds. She was under medication for constant pressure before her November 28 fall. Most likely by February of 2008 she would have left Green Hills. Since the period of lost wages period is until June 2007, the court awards $17,000 for her lost expectancy ($2,080 per month for 8 months, through January 2008).

As to non-economic damages, the court awards $20,000 for her trauma and loss of life’s pleasures, $20,000 for her disability and a likely future operation, and $5,000 for her worsened mental health.[2]

So ordered.

[1] “[T]he reasonableness of the plaintiff’s decision . . . [is] a factual issue . . . [for] the trier of fact.” Sullivan v. Norwalk, 28 Conn.App. 449, 454, 612 A.2d 114 (1992).
[2] While the mental health of the plaintiff was not initially disclosed to the city, it was sufficiently disclosed to the city in the course of the lawsuit to satisfy § 13a-149, as quoted above.

CT Page 3597