Rockhill v. Danbury Hospital

 ANNA ROCKHILL v. DANBURY HOSPITAL
(AC 37864)
DiPentima, C. J., and Beach and Sheridan, Js.*
Syllabus
The plaintiff, a business invitee of the defendant hospital, sought to recover
damages for negligence in connection with personal injuries she sus-
tained when she struck her toe against an obstacle while walking in a
crosswalk to the parking lot of the hospital, which caused her to fall
and break one of her toes and to sustain other injuries. The case was
tried to the court, which rendered judgment for the plaintiff, from which
the defendant appealed to this court. Held:
1. The defendant could not prevail on its claim that the trial court erroneously
found that the defect in the walkway that caused the plaintiff’s injuries
was a reasonably foreseeable hazard; that court, which reviewed reports
prepared by members of the defendant’s security and medical staff, and
photographs depicting the alleged defect and the surrounding area, and
which heard the testimony of the plaintiff and her daughter describing
the fall and the defect, had before it adequate evidence of a broken slab
of pavement that contained a chip in a well traveled walkway that had
existed for a sufficient period of time, and, thus, its findings relating to
this claim were not clearly erroneous and its conclusions were not unrea-
sonable.
2. The trial court reasonably found, on the basis of the evidence presented,
that the defect in the crosswalk was the actual cause of the plaintiff’s
fall; that court’s finding that the plaintiff struck her toe on some obstacle
while walking in or next to the crosswalk was reasonably supported by
the evidence and the inferences drawn therefrom, namely, that there
was broken pavement at the corner where the plaintiff’s foot had hit,
that when a security officer examined the area of the fall, he identified
only the defect in question, that the sensation the plaintiff felt when
striking her foot was the inside of the broken pavement, and that the
defect caused the fall based on the proximity of the plaintiff’s location
after the fall to the location of the defect.
3. The trial court’s finding that all of the plaintiff’s medical costs were
substantially caused by the fall was supported by the record and was
not clearly erroneous; that court’s findings that the plaintiff’s fall was
a substantial factor in bringing about her injuries and exacerbating her
preexisting spinal stenosis were supported by the record, there having
been expert testimony that the plaintiff’s fall was a significant factor in
her accelerated need for surgery, the relevant medical records admitted
into evidence having indicated that the plaintiff began significantly com-
plaining to her physician of chronic back pain shortly after the incident
and prior to seeking surgical treatment, and the testimony and medical
records having demonstrated that, prior to the fall, despite the radiologi-
cal presence of the plaintiff’s preexisting condition, the plaintiff led an
active and independent lifestyle.
4. The trial court did not abuse its discretion in denying the defendant’s
motion to preclude the expert testimony of K, one of the plaintiff’s
treating physicians: K’s reliance on the plaintiff’s statements to him
pertaining to her medical history did not render his opinion factually
baseless, and the plaintiff’s recitation of her medical history to K was
reinforced by other medical records admitted into evidence, on which
K relied, describing her complaints regarding back pain shortly after
the fall and the extensive treatment she received thereafter; moreover,
although K testified that his apportionment between the plaintiff’s preex-
isting condition and the fall was admittedly arbitrary, he nonetheless
opined that the plaintiff’s fall was a significant factor in causing her
accelerated need for surgery, his opinion was supported by the plaintiff’s
medical history and had a reasonable foundation in the evidence, and
it was within the province of the court, as the trier of fact, to credit
some, all or none of K’s testimony regarding his conclusion that the
plaintiff’s fall exacerbated her preexisting condition.
Argued April 24—officially released August 29, 2017
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendant’s negligence, brought
to the Superior Court in the judicial district of Danbury
and tried to the court, Doherty, J.; thereafter, the court
denied the defendant’s motion to preclude certain evi-
dence; judgment for the plaintiff, from which the defen-
dant appealed to this court; subsequently, the court,
Doherty, J., issued an articulation of its decision.
Affirmed.
Michael G. Rigg, for the appellant (defendant).
James P. Sexton, with whom were Michael S. Taylor
and, on the brief, Marina L. Green, for the appellee
(plaintiff).
Opinion
BEACH, J. The defendant, Danbury Hospital, appeals
from the judgment of the trial court rendered in favor
of the plaintiff, Anna Rockhill, following a trial to the
court. On appeal, the defendant claims that the court
erroneously found that (1) a defect on the defendant’s
property that allegedly caused the plaintiff to fall was
a reasonably foreseeable defect; (2) the defect caused
the plaintiff to fall; and (3) all of the plaintiff’s medical
expenses were caused by the fall rather than by her
preexisting spinal stenosis. The defendant also claims
that the court abused its discretion in admitting the
testimony of the plaintiff’s expert witness pertaining to
the causation element of her negligence claim. We
affirm the judgment of the trial court.
The trial court’s memorandum of decision sets forth
the following relevant facts. On June 16, 2010, the plain-
tiff and her daughter, Cynthia Fusco, were visiting the
plaintiff’s husband, who was receiving medical care at
Danbury Hospital. After their visit, the plaintiff and
Fusco exited the hospital’s main building and walked
onto a walkway leading toward the parking lot. The
plaintiff and Fusco were familiar with this walkway, as
they had made this same trip several times in the past.
While the plaintiff and Fusco were walking along the
pathway, the plaintiff hit something with her foot and
fell to the ground. As a result of the fall, she sustained
injuries to her right foot and ankle. It later was deter-
mined that she had broken her big toe and damaged
the fifth metatarsal of her right foot. Within minutes
of the fall, the plaintiff was taken to the defendant’s
emergency department by hospital staff where she was
examined and treated for her injuries. As a result of
her fall, the plaintiff experienced chronic lower back
pain from a protruded disk that required several epi-
dural steroid injections and, eventually, a surgical
decompression procedure.
A trial to the court was held on August 26, 2014. On
February 2, 2015, the court issued a memorandum of
decision and rendered judgment in favor of the plaintiff.
The court made detailed findings pertaining to both
liability and damages. With respect to liability, the court
noted that ‘‘the evidence [presented at trial] permits
the court to find that the plaintiff struck her right toe
against some obstacle while walking in or next to the
crosswalk, which caused the fracture for which she
was treated minutes later in the emergency depart-
ment.’’ The court further noted that the ‘‘area where
the defect exists is contiguous with the crosswalk, a
heavily traveled area used daily by patients and other
invitees of the hospital.’’ As to damages, the court found
that the plaintiff’s total damages were $181,076.45. The
court further found that the plaintiff was contributorily
negligent in each way alleged in the defendant’s special
defenses.1 The court found the plaintiff 40 percent at
fault for the injuries she sustained. As a result, the court
awarded judgment to the plaintiff in the amount of
$108,645.87, plus taxable costs. This appeal followed.2
Additional facts will be set forth as necessary.
I
The defendant sets forth three claims challenging
the factual findings of the trial court. Specifically, the
defendant argues that the court erroneously found that
(1) the divot3 that caused the plaintiff’s injuries was a
reasonably foreseeable hazard; (2) the divot actually
caused the plaintiff to fall; and (3) the plaintiff’s fall
caused all of her medical expenses. We disagree.
Before we address the defendant’s individual claims,
we set forth the guiding legal principles and our stan-
dard of review. ‘‘The essential elements of a cause of
action in negligence are well established: duty; breach
of that duty; causation; and actual injury. . . . If a
plaintiff cannot prove all of those elements, the cause
of action fails. . . . [I]n a negligence action . . . [a]
causal relation between the defendant’s wrongful con-
duct and the plaintiff’s injuries is a fundamental element
without which a plaintiff has no case . . . .’’ (Citations
omitted; internal quotation marks omitted.) Right v.
Breen, 88 Conn. App. 583, 586–87, 870 A.2d 1131 (2005),
rev’d on other grounds, 277 Conn. 364, 890 A.2d 1287(2006).
Notably, the present case was tried to the court. When
the court is the finder of fact, ‘‘inferenc[es] of fact [are]
not reversible unless the inferenc[es] [were] arrived at
unreasonably. . . . We note as well that [t]riers of fact
must often rely on circumstantial evidence and draw
inferences from it. . . . Proof of a material fact by
inference need not be so conclusive as to exclude every
other hypothesis. It is sufficient if the evidence pro-
duces in the mind of the trier a reasonable belief in the
probability of the existence of the material fact. . . .
Moreover, it is the exclusive province of the trier of
fact to weigh the conflicting evidence, determine the
credibility of witnesses and determine whether to
accept some, all or none of a witness’ testimony. . . .
Thus, if the court’s dispositive finding . . . was not
clearly erroneous, then the judgment must be affirmed.’’
(Emphasis omitted; internal quotation marks omitted.)
Palkimas v. Fernandez, 159 Conn. App. 129, 133–34,
122 A.3d 704 (2015).
A
The defendant first claims that the court erroneously
found that the divot causing the plaintiff’s injuries was
a reasonably foreseeable trip hazard. In support of this
claim, the defendant raises two arguments. First, the
defendant argues that this finding was improper as a
matter of law because the divot is insufficient in size
to constitute a reasonably foreseeable hazard; that is,
the divot is ‘‘trivial’’ as a matter of law. Second, it argues
that the court’s finding was speculative and unsup-
ported by the record because the plaintiff failed to sat-
isfy her burden of establishing that the divot was a
reasonably foreseeable hazard. In response, the plaintiff
argues that the size of the divot is presumptively a
question for the finder of fact and that the trial court’s
finding that the divot was a reasonably foreseeable trip
hazard is sufficiently supported by evidence in the
record. We agree with the plaintiff.
In its memorandum of decision, the court concluded
that ‘‘[t]he evidence elicited at trial permits the court
to find that in or near the crosswalk where the plaintiff
alleges to have fallen, there did exist a portion of uneven
surface where the blocks of cement or other materials
meet to form the crosswalk and the adjacent walkway.
In addition, a small edge of raised surface appeared to
have been chipped or otherwise broken off.’’ The court
further noted that the area in question was ‘‘well worn’’
and that the defect ‘‘is a specific condition which existed
for a sufficient length of time as to give the defendant
constructive notice of its existence.’’ The court also
found that the divot ‘‘is easily visible when looked upon
directly and . . . there [were] no express signs or paint
or other warnings located in its proximity to point it
out.’’
After this court acted on the defendant’s motion for
review of the trial court’s denial of the defendant’s
motion for articulation, the trial court articulated its
ruling as to the ‘‘trivial defect’’ rule. The court stated
that the divot, ‘‘which was the subject of extensive
testimony and which was illustrated in the photographs
comprising . . . [the] plaintiff’s exhibit 1, was found
by this court of sufficient size and orientation to permit
the court to find that the plaintiff, Anna Rockhill, had
proved, by a fair preponderance of the evidence, her
allegation that it was the proximate cause of her fall
on June 16, 2010, on the premises of the defendant . . .
and that it was of sufficient size and duration so as to
put the defendant on notice of its existence.’’
We necessarily begin with the defendant’s argument
that the divot causing the plaintiff’s injury was insuffi-
cient in size as a matter of law. In support of this argu-
ment, the defendant contends that our Supreme Court’s
decision in Older v. Old Lyme, 124 Conn. 283, 199 A.
434 (1938), demonstrates that Connecticut adheres to
a trivial defect rule,4 as adopted by other jurisdictions.
In essence, the defendant invites this court to examine
the evidence and make its own factual finding to deter-
mine whether the divot was a reasonably foreseeable
hazard or otherwise to conclude that the divot was too
small to support liability as a matter of law. Neither
approach is supported by our precedent.
In Older, the plaintiff sustained injuries while she
was walking on public property and sought to hold the
municipality liable. The area in which she was walking
was described by the court to be the outer edge of a
sidewalk that extended ‘‘to the edge of the traveled
portion of the adjoining highway.’’ Id., 285. While the
plaintiff was walking in that area, ‘‘she caught the heel
of one of her shoes, fell, and sprained her ankle.’’ Id.The hole that the plaintiff caught her heel in was ‘‘about
[two] inches in width and about [one] inch in depth.’’
(Internal quotation marks omitted.) Id. Judgment was
rendered in her favor. Id., 284.
Our Supreme Court reversed. It discussed liability
pursuant to a statutory predecessor of General Statutes
§ 13a-149, the highway defect statute. Liability was
determined by standards somewhat different from the
more general considerations underlying common-law
premises liability. The court defined a highway defect
to be ‘‘such an object or condition in, upon or near the
traveled path as would necessarily obstruct or hinder
one in its use for the purpose of traveling, or which
from its nature and position would be likely to produce
that result or injury to one so traveling upon it.’’ Id.
The only obligation of the municipality was to keep
streets and sideways in a reasonably safe condition for
travel. Id. The court noted that the question of whether
a condition constituted a highway defect depended on
‘‘a great variety of circumstances’’; it ‘‘is in general [a
question] of fact,’’ but whether the facts found warrant
the conclusion of liability could be a question of law.
Id., 285. The court concluded that the ‘‘subordinate facts
as to its size and shape and especially its location at
the extreme outer edge of the walk, comparable to the
curb in usual forms of construction, and where persons
would not ordinarily be expected to travel,’’ did not
support the conclusion of liability. Id.
In Older, then, the factor that a person was not likely
to walk in the location of the defect was a significant,
perhaps controlling, factor. See id.; see also Ferreira
v. Pringle, 255 Conn. 330, 341–42, 766 A.2d 400 (2001)
(seeking to hold municipality liable for defective high-
way, ‘‘may involve issues of [fact; however, whether]
the facts alleged would, if true, amount to a highway
defect according to the statute is a question of law’’
[internal quotation marks omitted]). There is in Older
no mention of a ‘‘trivial defect rule,’’ nor need there be.
There simply was a recognition that in any particular
case, evidence may be insufficient to support an essen-
tial element of the cause of action. The court did not
establish a minimum ‘‘depth’’ requirement for liability.
In addition to its reliance on Older, the defendant
also directs this court to authority in other jurisdictions
that have adopted a less deferential standard of appel-
late review in determining whether a defect is ‘‘trivial’’
as a matter of law. In Alston v. New Haven, 134 Conn.
686, 60 A.2d 502 (1948), however, our Supreme Court
declined to adopt such an approach. It stated that the
defendants ‘‘cited numerous cases from other jurisdic-
tions claimed by them to establish that in other states
courts are much more inclined to rule on the character
of the defect as a matter of law. A detailed analysis of
those cases would serve no useful purpose. In many
states the appellate court has more power than this
court over questions of fact.’’ Id., 688.
Our Supreme Court in Alston further stated that while
‘‘courts and juries have refused to hold municipalities
liable for slight defects . . . in only one case [Older v.
Old Lyme, supra, 124 Conn. 283] has such a defect been
held too slight as a matter of law to form the basis of
a judgment for the plaintiff.’’ Alston v. New Haven,
supra, 134 Conn. 688. Furthermore, it noted that the
alleged defect in Older ‘‘was not only slight but was in
a place where pedestrians were not apt to walk.’’ Id.,
689. Our Supreme Court ultimately reiterated our long-
standing approach to questions of fact in negligence
claims, which is that ‘‘[u]nless only one conclusion can
reasonably be reached, the question is one of fact for
the trier.’’ Id., 688. We are thus required by binding
authority to reject the invitation to impose a firm ‘‘trivial
defect’’ rule.
Our resolution of this claim, then, is guided by the
following traditional legal principles. It is undisputed
that the plaintiff in the present case was a business
invitee of the defendant. The fact finder is the exclusive
arbiter in determining whether the elements of negli-
gence are satisfied, including whether the defect caus-
ing injury is reasonably foreseeable. See Ruiz v. Victory
Properties, LLC, 315 Conn. 320, 330, 107 A.3d 381(2015). In order ‘‘to prevail on a negligence claim as
a business invitee in a premises liability case, it [is]
incumbent upon [the plaintiff] to allege and prove that
the defendant either had actual notice of the presence
of the specific unsafe condition which caused [his
injury] or constructive notice of it. . . . [T]he notice,
whether actual or constructive, must be notice of the
very defect which occasioned the injury and not merely
of conditions naturally productive of that defect even
though subsequently in fact producing it. . . . In the
absence of allegations and proof of any facts that would
give rise to an enhanced duty . . . [a] defendant is
held to the duty of protecting its business invitees from
known, foreseeable dangers.’’ (Internal quotation marks
omitted.) Porto v. Petco Animal Supplies Stores, Inc.,
167 Conn. App. 573, 578–79, 145 A.3d 283 (2016).
Furthermore, ‘‘whether the injury is reasonably fore-
seeable ordinarily gives rise to a question of fact for
the finder of fact, and this issue may be decided by the
court only if no reasonable fact finder could conclude
that the injury was within the foreseeable scope of the
risk such that the defendant should have recognized
the risk and taken precautions to prevent it. . . . In
other words, foreseeability becomes a conclusion of
law only when the mind of a fair and reasonable [per-
son] could reach only one conclusion; if there is room
for reasonable disagreement the question is one to be
determined by the trier as a matter of fact.’’ (Citation
omitted; internal quotation marks omitted.) Ruiz v. Vic-
tory Properties, LLC, supra, 315 Conn. 330; see also
Doe v. Saint Francis Hospital & Medical Center, 309
Conn. 146, 188, 72 A.3d 929 (2013) (question for fact
finder to determine whether plaintiff’s injuries were
foreseeable). With these principles in mind, we turn to
the question of whether the court’s factual findings are
sufficiently supported by the record.
Two reports were introduced into evidence. While
the plaintiff received medical attention at the scene, a
Danbury Hospital security officer spoke to Fusco and
prepared an incident report. That report provided in
relevant part: ‘‘[The plaintiff] exited the hospital via the
main lobby after visiting her husband . . . . While
crossing the main drive crosswalk she tripped and fell
to the ground. She was assisted to the [emergency
department] for examination.’’ The security officer also
transcribed Fusco’s description of the incident in the
report, which stated: ‘‘[The plaintiff] fell while walking
across the main drive crosswalk. The witness believes
that the right foot of her mother slipped into the crack
causing her to fall.’’ The report also noted the officer’s
personal observation and assessment of the location in
question, and stated that the ‘‘[c]rosswalk path is
slightly unlevel [and] at the end of the crosswalk near
the elevator there is a crack where the slab’s corner
has been chipped.’’ The report ended with a notation
that photographs were taken of the incident location.
The photographs were admitted into evidence.
Second, the emergency department’s medical staff
prepared a report at the time of the plaintiff’s admission
to the emergency room on June 16, 2010, following
her fall. That report provided in relevant part: ‘‘[T]his
pleasant [seventy-nine] year old female fell out in the
parking [area], and then had right foot pain for which
she was brought in. Advanced triage [led to] two x-rays
of the right foot and ankle . . . . She is accompanied
by her daughter who said that she is in pretty good
health despite all of the medical problems she has, and
there is no history of her feeling dizzy or having . . .
neurologic symptoms which would cause her to have
tripped and fallen. She has pain in her right foot in the
front some pain in the ankle on any kind of movement
but the worse pain is in the right foot frontal with the
pain being fairly sharp worse with movement.’’ The
report also noted that the plaintiff’s chief complaint
was that she ‘‘fell in the hospital parking lot by the
elevators where there is a bump in the walkway.’’
In addition, both Fusco and the plaintiff testified at
trial. Fusco was called first to testify and stated that
when the plaintiff fell, she reached down to assist the
plaintiff. While aiding the plaintiff, Fusco noticed ‘‘[t]hat
there was this broken pavement at the corner where
she—her right foot had hit.’’ Fusco also testified that
the plaintiff told her shortly after the fall that her ‘‘foot
hit the pavement right there’’ and that she immediately
complained of foot pain. Fusco also positively identified
the gap in the concrete depicted in the plaintiff’s exhibit
1 as the concrete gap that she referred to in her tes-
timony.
The plaintiff’s recollection of the events was not as
detailed as Fusco’s. She testified that it felt like she
had ‘‘hit a block with [her] big toe.’’ The plaintiff further
testified that she was walking ‘‘to the elevator and just
hit that spot.’’ It was the plaintiff’s belief that the ‘‘spot’’
caused the fall, but she admitted that she did not actu-
ally see what caused her fall.
The court reviewed the reports written by members
of the defendant’s security staff and medical staff, the
photographs depicting the alleged defect and the sur-
rounding area, and the testimony of the plaintiff and
Fusco describing the fall and the divot. We conclude
that there is adequate evidence in the record reasonably
supporting the court’s factual findings and conclusions.
More specifically, the evidence presented at trial rea-
sonably described a broken slab of pavement that con-
tained a chip in a well traveled walkway that had existed
for a sufficient period of time.5 This evidence suffi-
ciently supports the court’s findings. Accordingly, the
court’s findings relating to this claim were not clearly
erroneous, and its conclusions were not unreasonable.6
B
The defendant next claims that the plaintiff did not
satisfy her burden of proving that the defect actually
caused her injuries. Specifically, the defendant con-
tends that, other than the evidence that the plaintiff’s
toe struck ‘‘something,’’ nothing in the record supports
the court’s finding that the divot was the actual cause
of her injuries. In response, the plaintiff argues that
there is more than sufficient evidence supporting the
court’s findings pertaining to this claim. We agree.
In its memorandum of decision, the trial court found
that ‘‘the plaintiff struck her right toe against some
obstacle while walking in or next to the crosswalk,
which caused the fracture for which she was treated
minutes later in the emergency department.’’ The court
further found that ‘‘where the plaintiff alleges to have
fallen, there did exist a portion of uneven surface where
the blocks of cement or other materials meet to form
the crosswalk and the adjacent walkway. In addition,
a small edge of raised surface appeared to have been
chipped or otherwise broken off.’’ The court identified
that uneven surface as the area depicted in the photo-
graphs admitted into evidence.
Before we address the defendant’s claim, we set forth
the following relevant legal principles. ‘‘To prevail on
a negligence claim, a plaintiff must establish that the
defendant’s conduct legally caused the injuries. . . .
The first component of legal cause is causation in fact.
Causation in fact is the purest legal application of . . .
legal cause. The test for cause in fact is, simply, would
the injury have occurred were it not for the actor’s
conduct.’’ (Citations omitted; internal quotation marks
omitted.) Paige v. St. Andrew’s Roman Catholic Church
Corp., 250 Conn. 14, 24–25, 734 A.2d 85 (1999).
The defendant takes issue with the court’s conclusion
that the plaintiff struck her toe on ‘‘some obstacle’’ by
arguing that this conclusion is too imprecise or specula-
tive. The defendant further argues that this imprecise
conclusion is based on the plaintiff’s similarly imprecise
testimony that she ‘‘felt her right toe strike something
as she was walking . . . .’’ Although these statements
in a vacuum may perhaps be imprecise, there is signifi-
cantly more evidence in the record supporting the
court’s finding that the divot was the actual cause of
the plaintiff’s injuries than the defendant sets forth. The
opinion read as a whole shows that the court concluded
that the plaintiff tripped on the defect identified by
the witnesses.
As noted in part I A of this opinion, Fusco testified
at trial and described the plaintiff’s fall and what she
noticed thereafter. When Fusco was asked what she
observed in the area immediately next to where the
plaintiff fell, she testified that ‘‘there was this broken
pavement at the corner where she—[the plaintiff’s] right
foot had hit.’’ Fusco also was shown the photographs
taken by the security officer to whom she indicated
that the ‘‘gap in the concrete’’ was the cause of her
mother’s fall. The plaintiff corroborated Fusco’s testi-
mony through her own testimony and described the
sensation of striking what felt like a ‘‘block’’ with her
right foot during the incident in question. Additionally,
the report prepared by the security officer stated that
‘‘at the end of the crosswalk near the elevator there is
a crack where the slab’s corner has been chipped.’’
In our view, the court made several reasonable infer-
ences from facts. We have found in the record evidence
that (1) when the security officer examined the area,
he identified only the defect in question; (2) the sensa-
tion that the plaintiff felt when striking her foot was
the inside of the divot; and (3) the defect caused the
fall based on the proximity of the plaintiff’s location
after the fall to the divot’s location. We thus conclude
that the court reasonably found that the divot was the
actual cause of the plaintiff’s fall. Accordingly, the
court’s findings with respect to this claim were not
clearly erroneous.
C
Finally, the defendant claims that the court errone-
ously found that all of the plaintiff’s medical bills were
the result of her fall. Specifically, the defendant argues
that ‘‘[d]espite the fact that [a medical expert] testified
that only half of the 10 percent impairment he assigned
to [the] plaintiff’s back was related to the fall, the trial
court concluded that 100 percent of the medical treat-
ment was caused solely by the fall.’’ In response, the
plaintiff contends that the evidence at trial supports
the court’s conclusion that all of her medical bills were
substantially caused by the fall. We agree with the
plaintiff.
In its memorandum of decision, the court found that
‘‘the plaintiff . . . has proven by a fair preponderance
of the evidence that she did sustain the injuries and
losses which she alleged in her complaint, including the
injuries which exacerbated prior conditions of spinal
stenosis and low back pain, and that those injuries and
losses were caused by the negligence of the defendant
. . . .’’ Following this court’s granting of the defen-
dant’s motion for review of the trial court’s denial of
its motion for articulation, the trial court articulated its
decision in relevant part: ‘‘The evidence and testimony
gave the court a factual basis for its finding that subse-
quent to her fall, the plaintiff underwent surgery, which
required her to undergo rehabilitative care and treat-
ment and which required her to purchase or otherwise
acquire various items of rehabilitative equipment, drugs
and miscellaneous items to promote her rehabilitation.
As a proximate result of her fall, she incurred medical
costs and expenses in a total amount of $131,076.45.
The defendant offered no evidence or testimony which
would permit the court to find that any of those
expenses were incurred for anything other than the
fractures which she sustained as a result of her fall
on the defendant’s premises on June 6, 2010, and the
exacerbation of her preexisting back injuries.’’
Our inquiry is guided by the following legal principles.
As noted previously in this opinion, one of the elements
that a plaintiff must prove in order to prevail on a claim
of negligence is legal cause. Legal cause comprises two
components: (1) cause in fact and (2) proximate cause.
See Winn v. Posades, 281 Conn. 50, 56–57, 913 A.2d 407(2007). We noted previously that ‘‘[t]he test for cause
in fact is, simply, would the injury have occurred were
it not for the actor’s conduct.’’ (Internal quotation marks
omitted.) Gurguis v. Frankel, 93 Conn. App. 162, 167,
888 A.2d 1083, cert. denied, 277 Conn. 916, 895 A.2d
789 (2006). ‘‘The second component of legal cause is
proximate cause . . . . [T]he test of proximate cause
is whether the defendant’s conduct is a substantial fac-
tor in bringing about the plaintiff’s injuries. . . . Fur-
ther, it is the plaintiff who bears the burden to prove
an unbroken sequence of events that tied his injuries
to the [defendants’ conduct]. . . . The existence of the
proximate cause of an injury is determined by looking
from the injury to the negligent act complained of for
the necessary causal connection. . . . This causal con-
nection must be based upon more than conjecture and
surmise.’’ (Internal quotation marks omitted.) Id., 167–
68. We review challenges to the finding of causation
under the clearly erroneous standard because the con-
clusion of negligence is factual. See Twin Oaks Condo-
minium Assn., Inc. v. Jones, 132 Conn. App. 8, 11,
30 A.3d 7 (2011) (‘‘[t]he conclusion of negligence is
necessarily one of fact’’), cert. denied, 305 Conn. 901,
43 A.3d 663 (2012); see also Gurguis v. Frankel, supra,
168 (reviewing challenge to finding of causation under
clearly erroneous standard).
Because the court concluded that the plaintiff’s injur-
ies were caused, at least in part, by an exacerbation of
a prior condition, a discussion of the eggshell plaintiff
doctrine is relevant to our inquiry. ‘‘The eggshell plain-
tiff doctrine states that [w]here a tort is committed, and
injury may reasonably be anticipated, the wrongdoer
is liable for the proximate results of that injury, although
the consequences are more serious than they would
have been, had the injured person been in perfect
health. . . . The eggshell plaintiff doctrine is not a
mechanism to shift the burden of proof to the defen-
dant; rather, it makes the defendant responsible for all
damages that the defendant legally caused even if the
plaintiff was more susceptible to injury because of a
preexisting condition or injury. Under this doctrine,
the eggshell plaintiff still has to prove the nature and
probable duration of the injuries sustained.’’ (Internal
quotation marks omitted.) Iazzetta v. Nevas, 105 Conn.
App. 591, 593 n.4, 939 A.2d 617 (2008); see also W.
Prosser & W. Keeton, Torts (5th Ed. 1984) § 43, p. 292.
At trial, one of the plaintiff’s treating physicians,
David L. Kramer, testified as an expert witness with
respect to her treatment and the cause of her acceler-
ated need for surgery. Kramer testified that although
he ‘‘did come up with an admittedly arbitrary apportion-
ment, [he] still assigned 5 percent, or half of her acceler-
ated need for surgery, to an underlying and natural
degenerative condition.’’ The defendant argues that
Kramer’s opinion was arbitrary, and that this statement
indicates that the cause of her accelerated need for
surgery was her degenerative condition. The defen-
dant’s argument misses the point and takes Kramer’s
testimony out of context.
Kramer testified that it was his medical opinion that
‘‘at the end of the day a lot of this is degenerative in
nature, but to some extent, as far as [he] understood
it, [the plaintiff’s] clinical picture deteriorated after the
fall, and there may have been some acceleration in the
need for surgery subsequent to that fall, and so to the
extent that [he] had already minimized her impairment
rating, [he] still apportioned a significant percentage of
that to an underlying degenerative condition.’’ Specifi-
cally, Kramer testified that in his opinion, the plaintiff’s
fall ‘‘may have contributed to some accelerated deterio-
ration’’ leading to her subsequent medical treatment.
Moreover, Kramer testified that spinal stenosis, like
other advanced conditions, may show significant dam-
age when viewed through a radiological image, but an
individual with such a condition may feel no effects or
be only slightly affected by the condition in her daily
life and not require extensive medical treatment.7
A plaintiff with a ‘‘dormant’’ condition, such as the
plaintiff’s preexisting spinal stenosis here, is entitled to
recover full compensation for a resulting disability. See
Tuite v. Stop & Shop Cos., 45 Conn. App. 305, 310–11,
696 A.2d 363 (1997). Contrary to the defendant’s argu-
ment, the court was not required to find that the plain-
tiff’s medical treatment and costs were ‘‘solely the result
of the plaintiff’s fall’’ in order to recover full compensa-
tion from the defendant. Instead, the proper inquiry to
determine whether the defendant was liable for all the
medical costs resulting from the plaintiff’s fall is
whether the fall was a ‘‘substantial factor in bringing
about the plaintiff’s injuries.’’ (Internal quotation marks
omitted.) Barry v. Quality Steel Products, Inc., 263
Conn. 424, 433, 820 A.2d 258 (2003). In the present case,
the court found that the plaintiff’s fall was a substantial
factor in bringing about her injuries and that finding is
supported by the record. It was not illogical to conclude
that all of the medical costs were substantially caused
by the fall, even if the plaintiff had a preexisting con-
dition.
In addition to Kramer’s testimony that the plaintiff’s
fall was a significant factor in her accelerated need
for surgery, the relevant medical records admitted into
evidence indicate that the plaintiff began significantly
complaining of chronic back pain to Dr. Sanjay Gupta
shortly after the incident and prior to seeking surgical
treatment from Kramer. The record also includes
Fusco’s testimony and the plaintiff’s medical records,
which indicate that prior to the fall, despite the radiolog-
ical presence of her preexisting condition, the plaintiff
led an active and independent lifestyle. Parenthetically,
there is nothing in the record to suggest that an interven-
ing event broke the chain of causation.
In short, the court’s conclusion that the plaintiff’s fall
was a substantial factor in exacerbating her preexisting
condition of spinal stenosis and, therefore, that the
defendant was liable for all of the medical costs
resulting therefrom is supported by the record. Accord-
ingly, the court’s findings relating to this claim are not
clearly erroneous, nor are the conclusions unrea-
sonable.8
II
The defendant also claims that the court abused its
discretion in denying its motion in limine seeking to
exclude an expert witness’ testimony. Prior to the intro-
duction of Kramer’s deposition testimony, the defen-
dant made a motion in limine to exclude his testimony
on the ground that he ‘‘lacked a factual basis upon
which to predicate an opinion that claimed damages
were related to the alleged occurrence.’’ The court
reserved decision on the motion pending evidence at
trial. Later, in its memorandum of decision, the court
denied the defendant’s motion in limine. On appeal, the
defendant claims that the court abused its discretion
in admitting Kramer’s testimony. We disagree.
As an initial matter we note our standard of review.
‘‘[T]he trial court has broad discretion in ruling on the
admissibility . . . of evidence . . . [and its] ruling on
evidentiary matters will be overturned only upon a
showing of a clear abuse of the court’s discretion. . . .
We will make every reasonable presumption in favor
of upholding the trial court’s ruling, and only upset it
for a manifest abuse of discretion.’’ (Internal quotation
marks omitted.) Desrosiers v. Henne, 283 Conn. 361,
365, 926 A.2d 1024 (2007).
In its memorandum of decision, the court noted the
defendant’s prior motion in limine to exclude Kramer’s
testimony on the grounds that he ‘‘lacked a factual
basis upon which to predicate an opinion that claimed
damages were related to the alleged occurrence.’’ The
court denied the motion and stated in relevant part:
‘‘Having taken into consideration the totality of the evi-
dence offered at trial, the court has denied the defen-
dant’s motion in limine, which seeks the preclusion of
Dr. Kramer’s testimony, and has reviewed that deposi-
tion testimony and has given it the weight which the
court finds it deserves.’’
In the court’s later articulation regarding its denial
of the defendant’s motion in limine pertaining to this
claim, the court stated in relevant part: ‘‘In the instant
case, the court found that the facts upon which Dr.
Kramer’s opinions are predicated are not without sub-
stantial value. His report states that based on the
patient’s history, as she reported it to him, and as set
forth in the records of Dr. [S. Javed Shalid, a neurolo-
gist] and Dr. [David S. Kloth, a pain management spe-
cialist], which he reviewed, there was a factual basis on
which to form his opinions that the fall was a significant
factor in the need for her subsequent lumbar decom-
pression, her increase in back pain and her lack of
tolerance for standing and walking. The court found
that Dr. Kramer’s opinions were based on reasonable
probabilities rather than mere speculation and, for that
reason, they were admissible in establishing causation.’’
Our standard regarding the admissibility of expert
testimony is well settled. ‘‘Expert testimony should be
admitted when: (1) the witness has a special skill or
knowledge directly applicable to a matter in issue, (2)
that skill or knowledge is not common to the average
person, and (3) the testimony would be helpful to the
court or jury in considering the issues. . . . In other
words, [i]n order to render an expert opinion the wit-
ness must be qualified to do so and there must be a
factual basis for the opinion.’’ (Citations omitted; inter-
nal quotation marks omitted.) Sullivan v. Metro-North
Commuter Railroad Co., 292 Conn. 150, 158, 971 A.2d
676 (2009); see also Conn. Code Evid. § 7-2.9
We begin with the defendant’s argument that Kramer
lacked a sufficient factual basis for his opinion that the
plaintiff’s fall caused her accelerated need for surgery.
The record indicates that the plaintiff advised Kramer
of her medical history when she initially met with him
on June 21, 2012. During this time, the plaintiff ‘‘com-
plained of symptoms consistent with lumbar spinal ste-
nosis, namely an inability to stand and walk for any
length of time. She described a spinal history which
was significant for three prior surgical procedures per-
formed in the distant past.’’ The plaintiff also informed
Kramer that ‘‘she was involved in a slip and fall, subse-
quent to which her symptoms of spinal stenosis seemed
to have progressed.’’ Furthermore, in Kramer’s narra-
tive summary regarding the diagnosis and treatment of
the plaintiff, Kramer concluded, inter alia, that ‘‘[w]ithin
a reasonable degree of medical probability, the fall of
June 16, 2010 seems to have intensified this patient’s
symptoms of spinal stenosis. Based upon this patient’s
history, the fall was a significant factor in the need for
her subsequent lumbar decompression.’’ This narrative
was introduced into evidence at trial.
‘‘[O]ur case law is clear that a physician’s medical
opinion is not inadmissible because it is formed, in
whole or in part, on the basis of hearsay statements
made by a patient. See George v. Ericson, 250 Conn.
312, 320, 736 A.2d 889 (1999) (although ‘‘[i]t is the gen-
eral rule that an expert’s opinion is inadmissible if it is
based on hearsay evidence . . . [o]ne exception to this
rule . . . is the exception which allows a physician to
testify to his opinion even though it is based, in whole
or in part, on statements made to him by a patient for
the purpose of obtaining from him professional medical
treatment or advice incidental thereto’’ [citation omit-
ted; internal quotation marks omitted]). The rationale
for this exception is that ‘‘the patient’s desire to recover
his health . . . will restrain him from giving inaccurate
statements to a physician employed to advise or treat
him.’’ (Internal quotation marks omitted.) Milliun v.
New Milford Hospital, 129 Conn. App. 81, 96, 20 A.3d
36 (2011), aff’d, 310 Conn. 711, 80 A.3d 887 (2013).
Kramer’s reliance on the plaintiff’s statements to him
pertaining to her medical history did not, then, render
his opinion factually baseless. Moreover, the plaintiff’s
recitation of her medical history to Kramer was rein-
forced by other medical records admitted into evidence,
which were also relied on by Kramer, describing her
complaints regarding back pain shortly after the fall
and the extensive treatment she received thereafter.
We thus find no merit to the defendant’s argument that
Kramer lacked a sufficient evidentiary basis on which
to base his opinion.
Finally, the defendant challenges the admission of
Kramer’s opinion by again taking issue with Kramer’s
division of the cause of the plaintiff’s 10 percent spinal
stenosis injury equally between her preexisting condi-
tion and the fall, and his statement that it was ‘‘an
admittedly arbitrary apportionment . . . .’’ We
addressed this issue in part I C of this opinion. There,
we noted that the defendant took the challenged state-
ment out of context. Although the precise calculation
of the apportionment was characterized by Kramer as
somewhat arbitrary, it was nonetheless his medical
opinion that the plaintiff’s fall was a significant factor
in causing her accelerated need for surgery. Kramer’s
opinion was supported by the plaintiff’s medical history,
as evidenced by the plaintiff’s conversations with
Kramer and her medical records.
Furthermore, as noted previously in this opinion,
Kramer opined that the plaintiff’s fall was a factor con-
tributing to her accelerated need for surgery and that
her symptoms appeared to progress significantly after
the fall. Kramer also testified that his apportionment
was ‘‘admittedly arbitrary . . . .’’ This statement is not
necessarily inconsistent with a finding that the fall was
a substantial factor; in any event, it is ‘‘the exclusive
province of the trier of fact to weigh the conflicting
evidence, determine the credibility of witnesses and
determine whether to accept some, all or none of a
witness’ testimony.’’ (Emphasis omitted; internal quota-
tion marks omitted.) Palkimas v. Fernandez, supra,
159 Conn. App. 133. In the present case, the court, as
the arbiter of credibility, was free to credit some, all
or none of Kramer’s testimony regarding his conclusion
that the plaintiff’s fall exacerbated her preexisting con-
dition.
We thus conclude that, in light of the sufficient evi-
dentiary foundation supporting Kramer’s testimony and
his conclusion that the plaintiff’s fall was a substantial
contributing factor with respect to the plaintiff’s accel-
erated need for surgery, his opinions had reasonable
foundation.10 Accordingly, the court did not abuse its
discretion in admitting Kramer’s testimony.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
In its memorandum of decision, the court noted that the defendant raised
several special defenses alleging that the plaintiff ‘‘[1] failed to keep and
maintain a reasonable and proper lookout; [2] failed to make reasonable
and proper use of her senses and of her faculties; [3] failed to take the
necessary and proper precautions to observe the conditions then and there
existing; [4] failed to be watchful of her surroundings; [5] failed to use
reasonable care for her own safety commensurate with the existing circum-
stances and conditions; and/or [6] failed to take into account a condition
that was open and obvious; [7] failed to observe and avoid whatever dangers
or conditions of dangers she alleges to have been presented at said time
and place; [8] failed to be watchful of where she was walking and stepping;
and/or [9] [f]ailed to use reasonable care for her own well-being/safety under
the conditions and circumstances then and there existing.’’
2
During the pendency of this appeal, the defendant filed a motion for
articulation, which the court denied. The defendant then filed a motion for
review of the trial court’s decision denying the relief requested therein,
which this court granted. The trial court then issued an articulation in
compliance with this court’s order. The court’s articulation is discussed in
more detail in this opinion.
3
The parties erroneously used the word ‘‘divot’’ to refer to a shallow hole
or decompression in the surface. From the photographs introduced into
evidence, one can see, perhaps, some similarity to the disturbance of turf
caused by a golf club. A ‘‘divot’’, however, is the turf dislodged by the swing,
not the resulting hole. Merriam-Webster’s Collegiate Dictionary (11th Ed.
2003). With this reservation, we will use the same terminology as the parties.
4
Other jurisdictions have adopted a de minimis or trivial defect rule in
which an alleged defect can be held to be insignificant or trivial as a matter
of law. See, e.g., Czochanski v. Tishman Speyer Properties, Ltd., 45 Fed.
Appx. 45, 47 (2d Cir. 2002) (‘‘New York courts often rely on the judge’s
examination of photographs to determine whether a defect is trivial as a
matter of law’’); Ursino v. Big Boy Restaurants of America, 192 Cal. App.
3d 394, 399, 237 Cal. Rptr. 413 (1987) (identifying trivial defect rule as
procedural ‘‘check valve’’ to avoid imposing absolute liability upon property
owner); Gleason v. Chicago, 190 Ill. App. 3d 1068, 1069–70, 547 N.E.2d 518(1989) (affirming court’s grant of summary judgment because alleged defect
too slight to be actionable).
5
The court found that the walkway where the plaintiff fell was ‘‘a conver-
gence of large, well-worn slabs of stone or some concrete material. The
paint on the slabs is worn and flaked.’’ On appeal, the defendant has not
specifically contested the length of time that the defect existed.
6
The defendant also argues that this court should review the photographs
depicting the divot de novo. We disagree. We are cognizant that the trial
court remains in a superior position to credit and weigh the evidence as it
did in this case, including the photographs. As noted previously, the proper
inquiry regarding the court’s factual findings is whether the trial court could
reasonably have drawn the inferences it did from the evidence presented.
See Cagianello v. Hartford, 135 Conn. 473, 476, 66 A.2d 83 (1948). In light
of our conclusion that the court’s findings were not clearly erroneous, we
need not further address this claim.
7
Kramer testified in relevant part during his deposition: ‘‘[N]ot surpris-
ingly, eighty year old people have the ugliest looking X-rays and [magnetic
resonance imaging] scans, and yet, as a group, they tend to have one of the
lower incidents of neck and lower back pain. So, tempting as it is to look
at that time and X-ray that shows severe arthritis, it does not necessarily
require treatment.
***
‘‘[The plaintiff] was functioning apparently at a reasonably high level with
radiographically severe spinal stenosis and may have been more vulnerable
to even an innocuous physical insult like the fall she described. We see that
all the time in the emergency room where elderly people have been living
their lives and experiencing their subclinical degenerative changes with
ongoing narrowing of the spinal canal and then they have a little slip and
fall or a little car accident, and they become catastrophically [a]ffected if
it’s in the neck, for instance.’’
8
In a related claim, the defendant contends that the trial court’s articula-
tion shifted the burden of proof to the defendant to prove that the plaintiff’s
expenses were not caused by her fall. Specifically, the defendant challenges
the following portion of the court’s articulation: ‘‘The defendant offered no
evidence or testimony which would permit the court to find that any of
those expenses were incurred for anything other than the fractures which
she sustained as a result of her fall on the defendant’s premises on June 6,
2010, and the exacerbation of her preexisting back injuries.’’
For the following reasons we disagree with this claim. When a party
claims that the trial court applied an incorrect burden of proof, an appellate
court does not presume error in the absence of a clear expression of what
burden the court actually employed. See Kaczynski v. Kaczynski, 294 Conn.
121, 131, 981 A.2d 1068 (2009). It appears to this court that the challenged
language simply reiterated that the plaintiff had satisfied her burden and
noted that there was no evidence introduced to the contrary. The language
was a comment on the state of the evidence, not on the burden of proof.
In any event, we do not presume error on the part of the trial court. Jalbert
v. Mulligan, 153 Conn. App. 124, 145, 101 A.3d 279, cert. denied, 315 Conn.
901, 104 A.3d 107 (2014).
9
Section 7-2 of the Connecticut Code of Evidence provides: ‘‘A witness
qualified as an expert by knowledge, skill, experience, training, education
or otherwise may testify in the form of an opinion or otherwise concerning
scientific, technical or other specialized knowledge, if the testimony will
assist the trier of fact in understanding the evidence or in determining a
fact in issue.’’
10
At the conclusion of its brief, the defendant, without any further analysis,
claims that Kramer’s opinions were not expressed to a reasonable degree
of medical certainty. We will not review claims not supported by analysis.
See Nowacki v. Nowacki, 129 Conn. App. 157, 164–65, 20 A.3d 702 (2011).