Superior Court of Connecticut, Judicial District of Waterbury, Waterbury
MEMORANDUM OF DECISION
Barbara Brazzel-Massaro, J.
This case came to the court by way of writ, summons and complaint with a return date of June 28, 2011. The plaintiff alleges that the defendant Collin Stevens owned, possessed, maintained and controlled the residential apartments at 77 Draher Street in the city of Waterbury. The plaintiff filed a motion for default for failure to appear which was granted on July 12, 2011. Thereafter, the plaintiff filed a motion for judgment which was denied without prejudice on December 23, 2014 by the court, Taylor, J., because there was no affidavit of debt and testimony was needed on the issue of damages. (Entry #104.10.) The plaintiff filed a second motion for judgment on February 10, 2014 and the matter came to the court on the hearing and damages calendar scheduled for April 30, 2015. At that hearing, the plaintiff testified as to the incident in which she fell on the stairway and testified as to her injury. The plaintiff submitted an affidavit of debt as to her damages. At the conclusion of the hearing the court continued the matter for the plaintiff to submit the medical reports and bills on the issue of damages. The plaintiff has filed an affidavit of debt and military affidavit. The plaintiff appeared through counsel on August 11, 2015 and submitted a number of medical reports from Waterbury Hospital, Chase Outpatient Clinic with Waterbury Hospital, New England Musculoskeletal Institute and John Dempsey Hospital with the University of Connecticut Health System.
The court makes the following findings of fact. On November 10, 2009, the plaintiff Autumn Krantz was visiting a friend at 77 Draher Street in the city of Waterbury at approximately 6-7 p.m. The plaintiff was familiar with the property because she had visited on prior occasions. The property was a multifamily structure and she was visiting her friend on the third floor of the residence. On this night as she was leaving the apartment and coming down the stairway between the second and third floors she fell. The stairway did not have any light in the area between the floors. There were no windows between these floors. At the time of the incident, the defendant Collin Stevens owned, possessed, maintained and controlled the property. He has failed to appear and default has been entered as to him.
" It is well established that in cases tried before courts, trial judges are the sole arbiter of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . it is the quintessential function of the fact finder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). The trier of fact must evaluate the credibility of both testimonial and documentary evidence. Coombs v. Phillips, 5 Conn.App. 626, 627, 501 A.2d 395 (1985) (per curiam). " The fact finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).
The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct. Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). " It is well established that [t]he trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what--all, none, or some of a witness's testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).
In evaluating the credibility of the witness, this Court considered her appearance and demeanor on the witness stand, the consistency or inconsistency of her testimony, her memory or lack thereof of certain events, her manner in responding to questions and whether she was candid and forthright or evasive and incomplete, her interest or lack of interest in the case and the consistency or inconsistency of her testimony in relation to other evidence, including exhibits in the case. (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).
The plaintiff came to this court for a hearing and damages. The defendant has been defaulted for failure to appear. The case is one of premises liability in that the plaintiff contends she fell on the stairs at the dwelling where her friend resides. Here, there is no question that the plaintiff was a business invitee on the premises and that there was existing for a period of time a lack of lighting in the stairway. The plaintiff also testified that notice of the defect had been provided to the landlord. The plaintiff alleges that as a result of the fall she suffered a fracture of the humerus which required medical attention including eventual surgery in 2012.
The testimony and exhibits in this matter raise a question as to the credibility or reliability of the testimony as compared to the medical reports or lack thereof which were introduced to the court.
In evaluating the credibility of the only witness, Ms. Krantz, this Court considered her appearance and demeanor on the witness stand, the consistency or inconsistency of her testimony, her memory or lack thereof of certain events, her manner in responding to questions and whether they were candid and forthright or evasive and incomplete, her interest or lack of interest in the case and the consistency or inconsistency of her testimony in relation to other evidence, including exhibits in the case.
In a premises liability case, the duty of care owed by the defendant to the plaintiff is determined by the status of the plaintiff relative to the defendant's premises. Here as noted above, the plaintiff testified and there was no contrary testimony that the plaintiff was a business invitee, so that the defendant is obligated to use reasonable care to keep the premises reasonably safe, or at least to warn an invitee of any hazard which might render the premises unsafe. Under the theory of premises liability, " for the plaintiff to recover for breach of duty owed to him as a business invitee, it is incumbent upon him to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it." Mott v. Wal-Mart Stores, L.P., 139 Conn.App. 618, 627, 57 A.3d 391 (2012). There is no question as to the legal liability in this action based upon testimony and the default which has been entered. The court has examined the plaintiff's exhibits, affidavit of debt and testimony in determining what damages are to be awarded.
At the hearing on April 30, 2015, the plaintiff testified as to the injury which was the result of the fall on the stairs. She testified that she did not immediately seek medical care and although an ambulance arrived at the scene she did not go to the hospital. The exhibits which were submitted include a partial report of the Waterbury Hospital. (Exhibit 4.) The exhibit is actually the discharge instructions and a notation of the physician documents. The document is not a full report of the emergency room visit. However, the report does provide some information as to the complaint and diagnosis of the plaintiff which are consistent with the claims of the plaintiff. The report indicates that she fell and has left arm pain. However, the treatment at the hospital consisted of the X-ray that revealed a fracture and the placement of the arm in a splint. The plaintiff was released with instructions to follow up in 1-2 days with the orthopedic doctor. The affidavit of debt for the treatment indicates a bill of $1, 613.50 for the services. Thereafter, the plaintiff did not receive medical attention until November 21 or 23, 2009. The reports of the Chase Clinic of Waterbury Hospital (Chase) show treatment of the fracture which demonstrated a gradual improvement. The assessment of the healing includes a concern because of the plaintiff's smoking which would cause a delay in healing. The treatment by the physicians also included a notation that within a week a change to a brace (not a cast) was made because the plaintiff was not tolerating the splint. (Exhibit 6.) The reports show a slow improvement with no signs of " acute distress." The last treatment with Chase noted in the exhibits was October 18, 2010. At this time the assessment contained in the notes was to engage in physical therapy and follow up in three weeks. (Exhibit 11.) There are no physical therapy notes introduced nor any further follow up at the time of the initial treatment. The affidavit of debt sets forth a cost of $1, 680.50 for treatment at Chase Outpatient Clinic. The plaintiff provided in the affidavit of debt a cost for physical therapy but no bills, no reports nor verification as to whether this was after surgery or at some other time. It is difficult to determine based upon the exhibits when and what treatment was included in the physical therapy costs.
Approximately two years later the plaintiff underwent surgery on the left humerus which she states was a result of the injury she sustained in the fall. The plaintiff apparently returned to St. Mary's Hospital for some treatment and was referred to the University of Connecticut Hospital. She testified about swelling and difficulty with the arm which caused her to return. The plaintiff did not testify as to ongoing physical therapy or medical treatment but testified to making the decision to have surgery. The report of New England Musculoskeletal Institute provides that there is " nonunion in the midshaft of the humerus." (Exhibit 3.) This surgery was completed and the plaintiff submitted a bill of $14, 604.04. The plaintiff has not submitted any additional bills for treatment after this time. Therefore, the medical bills for reimbursement which are proven to be associated with the fracture to the left humerus amount to a total of $17, 826.04. The plaintiff also seeks an award for non-economic damages for the scar which she has on her arm from the surgery and the past and future pain and suffering, loss of movement and inability to take part in her daily activities in the same manner. The plaintiff is approximately 36 years of age at this time. She has 5 children and one child with special needs who requires her to be physically healthy. Although the plaintiff in her testimony contends that she suffered great pain after the fall, the reports of the medical providers do not support the description at trial. While this court does not discredit the plaintiff's testimony as to pain and suffering, the reports from the visits of no acute distress and the concerns about healing because of her life choices does negate her exaggerated testimony. Also the court gives credence to the ...