2009 Ct. Sup. 13511
No. CV 05-4007705 SConnecticut Superior Court Judicial District of New Haven at New Haven
July 1, 2009
MEMORANDUM OF DECISION
CORRADINO, J.
This is a suit against the city and a city police officer in which the plaintiff claims injury as a result of an auto accident with a police vehicle. The case was tried to the court.
The factual background to this accident is straightforward. The plaintiff was driving her car down Shelton Avenue which intersects with Hazel Street. There is no stop sign or other traffic control on traffic proceeding down Shelton Avenue but there is a stop sign on Hazel Street for traffic about to enter or cross Shelton Avenue. The plaintiff testified as she approached the intersection of streets she saw the defendant’s police vehicle and realized it was not going to stop at the stop sign. The plaintiff, who was not wearing a seat belt, stated she tried to avoid the accident by swerving to the left but the defendant’s vehicle collided with hers. The plaintiff claims that her vehicle was pushed by the impact into the opposite lane of traffic.
The defendant police officer said she in fact stopped at the stop sign, looked both ways and did not see the plaintiff’s vehicle prior to entering the intersection. The plaintiff basically claims that the defendant violated § 14-301 of the General Statutes by failing to stop at the Hazel Street stop sign. Because there was a stop sign on Hazel Street, traffic proceeding down Shelton Avenue would have the right of way. The defendant claims that at the time of the accident it was raining. On direct she said it was “not really foggy but just cloudy. Like a dusky day” and it was “a little misty” at the time of the accident. On cross by plaintiff’s counsel, the defendant said it was dark. Not surprisingly the plaintiff said that at the time of the accident it was not dark, in fact it was daylight, it was not raining and it had not rained earlier in the day.
The defendant has raised the defenses of contributory and comparative negligence relying in large part on what she conceives to be a violation of § 14-96a of the general statutes which requires headlights to be on CT Page 13512 under certain conditions. The defendant said at the time of the accident she had her headlights on but the plaintiff did not and she opined that if the plaintiff had had her headlights on she would have seen her on Shelton Avenue approaching the intersection.
(1)
The court will try to discuss what it considers critical testimony as to the cause of this accident as it relates to factual issues and claims just discussed.
On cross the defendant presented the following testimony in response to questioning by plaintiff’s counsel:
Q. Okay. So the accident occurred no later than 8:00 p.m.?
A. Correct.
Q. And we’ve already established that sunset that day wasn’t for another eighteen minutes, correct
A. Right.
Q. So it wasn’t dark out when the accident occurred, was it?
A. It was cloudy, yes. It was dark.
Q. It was cloudy but it wasn’t dark. The sun had not set. Are you disputing —
A. You couldn’t see the sun because of the clouds so it was —
Q. Okay.
A. Like a gray day.
Q. Gray day. Okay but you said you could see clearly when you looked both ways,
didn’t you? I think you just said that in response to your lawyer’s questions.
CT Page 13513
A. Well, the intersection was clear.
MR. WILLIAMS: I object actually, your Honor. I believe that there was no testimony about that.
It is unclear to the court why the objection was made. Earlier on direct defense counsel asked the following questions and received the following answers:
Q. Did you see any moving vehicles prior to proceeding from the stop sign?
A. No.
Q. Did you see plaintiff’s vehicle prior to you proceeding from the stop sign after you had stopped?
A. No.
Q. Why did you proceed into the intersection at that point?
A. I thought the intersection was clear.
The court will try to comment on the foregoing testimony. First what strikes the court is the fact that even if it erred in admitting the document introduced by the plaintiff to indicate the time of sunset, the defendant seems to agree that sunset occurred almost twenty minutes after the accident. It was dusk and the police report indicates it was; it was prepared shortly after the accident. The court can take judicial notice of dusk and what it implies and thus it is unclear as why the defendant would not have been able to observe the plaintiff’s vehicle if she had indeed looked both ways before going through the stop sign and whether or not the plaintiff had her lights on. In other words the defendant cannot have it both ways. If in fact the plaintiff was speeding, which has to be the basis of any defense position, then when the defendant looked to her left at the stop sign the plaintiff’s car would have been close enough for her to observe it.
In light of the foregoing even if the plaintiff was in violation of § 14-96a at the time of the accident it is irrelevant. As noted i Connecticut Law of Torts 3d et, Wright, Fitzgerald, Ankerman at § 38,
It should be remembered that merely the establishing of negligence per se is not enough to entitle the CT Page 13514 plaintiff to a judgment, as the plaintiff must also show the causative link between the negligence and the result. There is no such thing as negligence in the air. Conduct, however careless, which exposes no one to harm, is not actionable negligence.
See also Pietrycka v. Simolais, 98 Conn. 490, 495 (1923); Beale v. Yale New Haven Hospital, 89 Conn.App. 556, 566 (2005).
Another aspect of the questioning and response struck the court but is perhaps a hypertechnical observation on which the court does not base its decision. It is an odd response to say to a question as to why did you proceed into the intersection — well, the intersection was clear — as if safe entry therein just depended on an observation of the intersection.
More to the point are what the court has to consider evidentiary admissions by the defendant which the court understands are not conclusive and may be explained and are admissible “for what they are worth,” Kueza v. Stone, 154 Conn. 194, 197-98 (1967); Remkiwica v. Reinkiewicz, 180 Conn. 114, 118 (1980), see generally Tait’s Handbook of Connecticut Evidence, 4th ed, Tait Prescott §§ 8.16.4 et seq., pp. 485, et seq.
After the accident the defendant exited her vehicle to see if the plaintiff was okay. The plaintiff testified the officer asked how she was, she said “you didn’t see me, you ran the stop sign.” The plaintiff said in response the defendant said: “. . . I know. I’m sorry. It’s totally my fault. I ran the stop sign.” This was said according to the plaintiff immediately after the impact.
The defendant’s explanation of the foregoing was not convincing. In response to her lawyer’s questions she said the accident was traumatic, she was “shaken up.” She said . . . “I apologized. I told her (the plaintiff) it was my fault. I didn’t see you.” When asked what she meant by saying the accident was her fault and she did not see the plaintiff’s car she said what she meant was: “The fact that I had a stop sign and technically she had a right of way.” The explanation is not convincing. Here we have a police officer on the force for several years saying the accident was my fault. If she had looked both ways prior to proceeding through the stop sign how or why would she admit fault? She just as early could have said I didn’t see you and that is all. She did not and the court concludes this evidence is of some worth even if it is not conclusive standing alone.
But it does not stand alone and based on this evidence and the CT Page 13515 preceding observations of the court, the court concludes the plaintiff has established negligence based on a violation of § 14-301
which caused the accident and failure to keep a property lookout. Also, based on its analysis of the facts the court cannot find contributory or comparative negligence. In other words even if the plaintiff was driving down Shelton Avenue at a high rate of speed without her lights on, the accident would not have happened if the defendant had not run the stop sign without looking both ways and/or observing the on coming vehicle.
(2)
The court will now discuss damages. The plaintiff said that as a result of the accident her chest hit the steering wheel and her shoulder hit the dashboard. She experienced immediate pain at the scene to her shoulder and was taken to St. Raphael’s hospital by ambulance. There her shoulders hurt badly and she said she told a medical treater this. She was given medication and told she should see a chiropractor which she did. The plaintiff testified as to the treatment she received and was eventually referred for an MRI when she returned to the hospital on one occasion. The hospital recommended the MRI according to the plaintiff and the MRI report was sent to the chiropractor.
The plaintiff then testified as to how the accident affected her and about the injuries she suffered from. The accident happened in May 2004 and the trial was on February 2009. She testified she still experienced trouble with her shoulder. She is employed at Yale and works there as a cashier at a store for students during the school year. She acts mostly as a cashier but does stock shelves on occasion. In the summer she performs custodial duties which involves cleaning bathrooms from the fifth floor to the basement, she also does a lot of lifting and climbing steps in this job. Because of the pain caused by her work duties she favors using her left hand but the pain is a daily occurrence. However, she testified she went back to work a couple of days after the accident. Although her job duties cause her pain, she says that she has to live with it. The chiropractor gave her home exercise but they caused her pain and he told her to stop them. She uses Ben Gay but she stopped taking medication because it did not help. The plaintiff also testified that prior to the accident her shoulder never bothered her and she had never inured it.
As far as the effect the injury has had on her life activities she testified she has a nine-year-old son and she used to be active with him, baseball and other physical things, but she has had to stop doing this. CT Page 13516
A chiropractic report was entered as an exhibit. Dr. Barone diagnosed the plaintiff with a right shoulder sprain with partial thickness rotator cuff tear. He notes she was refereed for an MRI in July 2004 and the findings included a partial thickness rotator cuff tear. He stated that with a reasonable degree of medical probability that there is a causal relationship between the plaintiff’s ongoing condition and clinical findings and the May 31, 2004 accident. He stated the plaintiff reached maximum medical improvement as of the date of his November 21, 2008 report. The report states that healing of her type of injury is often incomplete; such an injury weakens supporting structures which makes them susceptible to minor stress ordinarily not causing symptoms. The plaintiff’s injuries tend to predispose one to degenerative changes and arthritis. The chiropractor gave the plaintiff a 26.25% permanent partial impairment to the right shoulder. He used a range of motion method of calculation and relied upon the 5th edition of the “Guidelines to the Evaluation of Permanent Injury.” The plaintiff’s expert did not testify and the defendant presented no expert of her own. Several points were brought out by the defendant, however. The ambulance report filled out by American Medical Response lists no complaints of shoulder injury, but only of the head, neck and upper back. The hospital report prepared by Emergency Room staff has a box entitled “location of pain/injuries.” Neck and back are listed but the right shoulder which is listed is not circled. Insofar as it is legible there is no indication by diagram or written notation of a shoulder injury in this May 31, 2004 report. The plaintiff also indicated any pain she had was “moderate.”
However, medical treatment records which are part of exhibit 1 indicate that as of June 4, 2004, five days after the accident, the plaintiff complained of right shoulder pain and on June 16, 2004 she complained of pain in the area of the rotator cuff. The doctor’s impression on that date was that there was a sprain to the right shoulder and partial tear of the rotator cuff. In 2006 she returned to St. Raphael’s on complaint of right shoulder pain. In light of the complete medical record including complaints of right shoulder pain within days of the accident, the court cannot place great negative weight on notations in an ambulance and Emergency Room report done immediately after the accident. There is no credible evidence that the shoulder was not injured, the range of motion tests indicated injury, the plaintiff testified to such injury, and the chiropractor diagnosed a sprain. The doctor reviewing the MRI concluded that his observations were “compatible with a an intrasubstance tear” which at the very least indicate some physical changes resulting from an accident.
With reference to the MRI, Dr. Barone in reaching his diagnosis of a sprain with partial thickness rotator cuff tear did rely on the just CT Page 13517 mentioned July 2004 MRI report, where the doctor reading the MRI said there was no evidence of a full thickness rotator cuff tear but further stated that his observations were “compatible with an intrasubstance tear.” The defendant argues that the MRI report does not specifically say there was a tear. The Random House Dictionary for “compatible” in definition 3. defines the word as “3. consistent, congruous (often followed by with): His claims are not compatible with the facts.” If we take the obverse of the last sentence cited as an example by the dictionary — “His claims are compatible with the facts,” no one could doubt that the speaker is saying the facts asserted are supported by the claims. Why should not the same analysis of the wording here be similarly construed?
Also and perhaps more to the point, it should be noted that the percentage disability rating was based on range of motion tests not on a causative analysis of why there was a limitation to the plaintiff’s range of motion. She complained to medical treaters about right shoulder pain from a few days after the accident and still does.
In any event the court based on the foregoing awards economic damages in the amount of $6276.73 representing the four bills submitted, AMR, hospital bill, Dr. Aiello, and Barone Chiropractic.
As to non-economic damages the court notes that this is a woman who at the time of trial was 40 years old with a life expectancy of 38.9 years but to this must be added the over three and a half years before trial.
There is a fairly high disability percentage but militating against a very large award on this basis is the real life testimony presented. The plaintiff was back to work only two days after the accident at a time in the school year when custodial duties requiring greater physical exertion had or were about to begin. There was no testimony presented as to interference with any other life activities except for interaction with her nine-year-old in sports-related activity. There was no mention for example of difficulty in performing household chores.
On the other hand this is a young woman who has almost forty years to live. The court concludes that she received a right shoulder injury as a result of this accident and the injury is permanent as established by her testimony and that of Dr. Barone. The court believes an award of non-economic damages in the amount of $40,000.00 is fair and reasonable under the circumstances.
Total award for which judgment should enter: CT Page 13518
CT Page 13519