Santana v. Hu
| Decision Date | 21 February 2018 |
| Docket Number | CV156056927S |
| Court | Connecticut Superior Court |
| Parties | Long Name: Jose Santana v. Yingying Hu |
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.
The plaintiff Jose Santana (plaintiff), commenced this premises liability action by service of writ, summons and complaint against the defendant, YingYing Hu (defendant). The complaint was returned to court on September 2, 2015, and alleges the following facts. The defendant is the owner of residential property located at 71 Smith Street, West Haven, Connecticut. On October 20, 2014, the defendant was in control of the property including the common areas and exterior stairway leading up to the front door of the property and therefore had a duty to maintain the premises to render it safe. At all relevant times the defendant and her agents, servants and/or employees knew, or with reasonable diligence should have known that pedestrians heavily traveled the subject premises. On or about October 20, 2014, the plaintiff was lawfully on the premises as a tenant residing at said premises and on that date the plaintiff was descending said exterior stairway, when a step suddenly and without warning, gave way causing the plaintiff to fall to the ground which resulted in the plaintiff sustaining severe injuries.
The plaintiff further alleges that the defendant and her agents servants and/or employees knew, or with the exercise of reasonable care should have known that said defective step existed, that the exterior stairway was defective, rotted and/or in a state of disrepair, thereby creating a hazardous and dangerous condition that posed a serious risk of injury to persons who were likely to be present upon the premises. The plaintiff claims he suffered injuries and damages to his right knee which resulted in the need for surgery and injuries to his lower back.
The defendant denied the allegations in the plaintiff’s complaint and further claimed during trial that the plaintiff’s slip and fall was contrived in retaliation against the defendant for commencing an eviction action against the plaintiff. The defendant also asserted the special defense of comparative negligence and alleged that the plaintiff’s injuries were caused by his own negligence in that he failed to make reasonable use of his faculties; he failed to be watchful of his surroundings and general conditions prevailing; and he knew or should have known of the condition then there existing but failed to use reasonable care for his own safety. The plaintiff denied the allegations in the defendant’s special defense. The case was tried to the court on September 6 and 7, 2017. The court ordered the parties to submit proposed findings and briefs on October 10, 2017. At the request of the plaintiff, an extension of time was granted to November 7, 2017.
It is well established that " [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence ... Credibility must be assessed ... not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude ... An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] ... [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007); see also Dadio v Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937). Such observation may include all genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand but only to the extent that they bear on the witness’s credibility. See State v. McLaughlin, 126 Conn. 257, 264-65, 10 A.2d 758 (1939). It is generally inappropriate for the trier [of fact] to assess the witness’s credibility without having watched the witness testify under oath. Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).
(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. See 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 (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).
The burden of proof is on the plaintiff to prove all of the essential allegations of its 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." Gulyez 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 defense 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. 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).
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 September 19, 2012, the defendant purchased the property located at 71 Smith Street West Haven, Connecticut through foreclosure proceedings and was the owner of the property on October 20, 2014. The defendant was responsible for the maintenance of the property, and the common areas thereon, including the front porch area. The defendant delegated the responsibility for maintaining the property to her husband, John Wei. Wei went to the property located at 71 Smith Street every week or every other week and walked up and down the front stairs of 71 Smith Street...
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