Arline v. Town of East Haven

George ARLINE, Acting Through His Parent/Guardian, Christine Palluotto v. TOWN OF EAST HAVEN et al.

No. CV156055653

Superior Court of Connecticut, Judicial District of New Haven, New Haven

September 27, 2019

UNPUBLISHED OPINION

Wilson, J.

STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiff, George Arline, through his guardian and next of kin, Christine Palluotto (plaintiff) commenced this negligence action by service of writ, summons and complaint against the Town of East Haven and the Town of East Haven Recreation Department (collectively defendant). The complaint is in four counts which allege the following facts. On or about July 4, 2013, at approximately 6:45 p.m., the plaintiff, George Arline, was a patron and/or invitee at Cosey Beach Park & Splash Pad which was located at or near Cosey Beach Avenue in East Haven, Connecticut. Said premises were owned, controlled, maintained, possessed, and/or managed by the defendant. At said time and place, there existed a defective, unsafe, dangerous, and/or hazardous condition in that there was a monument located at or near said premises which had sharp and/or hard edges and had a round marble base.

On the above stated date, the plaintiff, George Arline, was attempting to walk past the monument located at Cosey Beach Park & Splash Pad when he was caused to suddenly and without warning slip and collide with the monument. As a result of his fall, George sustained a laceration to his head, pain and suffering, and permanent scarring. The injuries and damages suffered by the plaintiff were the result of the defendant’s negligence in that it caused or permitted said monument to have sharp edges; it failed to properly maintain the splash park; the surfaces of the splash park was made of material that became slick when wet; the town failed to erect or maintain proper safeguards, warnings, signs and otherwise failed to warn about the dangerous or unsafe condition; it failed to properly inspect the monument and it maintained the monument in a dangerous and unsafe condition.

On September 16, 2013, the plaintiff, in accordance with the provisions of General Statutes § 13a-149, gave notice to the Town of East Haven setting forth the injuries he sustained, a general description of the injuries, and the cause thereof and the time and place of its occurrence. The plaintiff in his notice to the Town, specifically states in relevant part that "For and on behalf of George Arline, acting through his parent and guardian, Christine Palluotto, [the plaintiff] hereby give[s] you Notice of Intention to claim damages from the Town of East Haven, its officers, employees and/or agents for and on account of injuries which were suffered and sustained by [the plaintiff], when on July 4, 2013, at approximately 6:45 p.m., [the plaintiff] fell as a result of a raised ledge of a commemorative monument that constituted a tripping hazard, located at the entrance of Cosey Beach Park & Splash Pad. Therefore, pursuant to Connecticut General Statutes § 13a-149, [the plaintiff] hereby give[s] notice of his intent to pursue a claim for personal injuries."

The defendant filed an answer and special defenses, denying the claims alleged by the plaintiff and further alleging that the plaintiff’s injuries were caused by his own negligence; that if the defendant is found to be negligent its negligence was not the sole proximate cause of the plaintiff’s injuries that the defendant is immune from suit under § 52-557n and/or 13a-149; and that the defendant is not legally liable for the injuries pursuant to General Statutes § 52-557f, including § 52-557g in that the defendant made the subject property available to the plaintiff for recreational purposes at no charge. The case was tried to the court on December 18, 2018. Proposed findings of fact and conclusions of law were submitted on March 28, 2019, and April 16, 2019, by the defendant and plaintiff respectively.

STANDARD OF REVIEW

"It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony ... The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).

"It is well established that in cases tried before courts, trial judges are the sole arbiters 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. Phillii ps, 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 (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). "[T]he trier of fact’s assessment of the credibility of ... witnesses ... is made on the basis of its firsthand observation of their conduct, demeanor and attitude ... The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006). "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’ 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).

BURDEN OF PROOF/STANDARD OF PROOF

The burden of proof is on the plaintiff to prove all of the essential allegations of his complaint and on the defendant to prove all of the essential elements of its affirmative defenses. See Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). "While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it ... The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of [its] cause of action by a fair preponderance of the evidence." Gulycz v. Stop and Shop, 29 Conn.App. 519, 523, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992). Failure to do so results in judgment for the defendant. Id. In Connecticut, "[a] special [d]efense is an affirmative defense that must be proven by the defendant." (Internal quotation marks omitted.) Caciapoli v. Lebowitz, Superior Court, judicial district of New Haven, Docket No. CV 08 5020658 (March 4, 2010, Berdon, J.T.R.). Like the plaintiff, the defendant must prove all of the essential elements of its affirmative defense by a fair preponderance of the evidence.

The ordinary civil standard of proof is the fair preponderance of the evidence standard. See Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992). "The burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981). The standard of proof, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

FINDINGS OF FACT

From the credible testimony and evidence presented the court finds the following facts to have been proven by a fair preponderance of the evidence. On July 4, 2013, about 3:00 pm, the plaintiff, Christine Palluotto, her five children including the plaintiff George Arline, and her goddaughter went to Cosey Beach in East Haven, Connecticut. Palluotto brought lunch and they all had lunch. The kids played in the sand and in the shallow part of the water. Around 6:30 p.m. Palluotto and the children were getting ready to leave the beach to go across the street to rinse off at the Cosey Beach Park and Splash Pad (Splash Pad). At the time of plaintiff George’s fall, the Splash Pad was town-owned property and was located approximately fifty feet from Cosey Beach. The defendant acknowledged that it owns the property and there is no dispute that at the time of plaintiff George’s fall, the town possessed and controlled the property and was responsible for the maintenance and inspection of the property. Entrance to the Splash Pad is free and opened to the public. In the middle of the walkway entrance to the Splash Pad, there is...