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MARIA DIAZ v. MANCHESTER MEMORIAL HOSPITAL
(AC 37204)
DiPentima, C. J., and Sheldon and Prescott, Js.
Argued October 22—officially released December 15, 2015
(Appeal from Superior Court, judicial district of
Hartford, Wiese, J.)
Megan Piltz, with whom, on the brief, was Vincent
F. Sabatini, for the appellant (plaintiff).
Michael D. Neubert, with whom, on the brief, were
Gretchen G. Randall and Corey S. Fitzgerald, for the
appellee (defendant).
Opinion
DiPENTIMA, C. J. The plaintiff, Maria Diaz, appeals
from the judgment rendered by the trial court in favor
of the defendant, Manchester Memorial Hospital, on
her premises liability claim. On appeal, the plaintiff
claims that the court erroneously found that the defen-
dant did not have constructive notice of an unsafe con-
dition on its premises.1 We affirm the judgment of the
trial court.
The memorandum of decision of the court sets forth
the following relevant facts. On the evening of January
18, 2011, the plaintiff slipped and fell on a well illumi-
nated sidewalk leading to the entrance of the defen-
dant’s emergency department in Manchester. Earlier
that evening, the plaintiff had driven a sick friend to
the defendant’s emergency department. The plaintiff
dropped off her friend at the emergency department’s
entrance and then drove her car to the nearby parking
area. After parking her car, the plaintiff elected to use
the sidewalk rather than ‘‘[walk] directly from the park-
ing area to the [emergency department] entrance. . . .
As [the plaintiff] approached the [elevated] sidewalk,
she noticed that there was no snow on it, but it was
shiny in appearance. . . . As she proceeded to walk
on the sidewalk, she slipped and fell backward hitting
her head.’’
The court made detailed findings as to the defendant’s
efforts to keep the premises clear of snow and ice. The
weather throughout the day of the accident was a ‘‘mix
of snow, freezing rain, and rain.’’ Due to the inclement
weather, the snow removal service company retained
by the defendant spent nearly eight hours, beginning
at 2 a.m. on January 18, clearing parking areas and
sidewalks on the defendant’s grounds. In addition to
this work, the snow removal service company had pre-
treated parking areas, driveways, sidewalks, and
entrances, including the emergency department’s
entrance, with calcium magnesium acetate, which is
‘‘highly effective for pretreating and deicing surfaces.’’
As a general practice, the defendant also relied on
its own staff for snow and ice removal. Members of the
engineering department conducted two inspections per
day of the defendant’s grounds: (1) the first inspection
started at the beginning of the first shift at 6 a.m.; and
(2) the second inspection started at the beginning of
the second shift at 3 p.m. As required, the engineering
department staff would remove snow and treat areas
with calcium magnesium acetate. On the day of the
accident, records kept by the engineering department
indicated that staff members removed snow and treated
areas of the defendant’s grounds with calcium magne-
sium acetate at various times throughout the day. In
the process of removing snow and deicing, the staff
members ‘‘follow[ed] a pattern of work which would
take them on a route around the entire hospital site
concentrating on entrances to the building, including
the [emergency department] entrance.’’
The defendant’s security staff also was involved in
the snow and ice removal procedures. On the day of
the accident, the defendant assigned four security
employees to the 4 p.m. to midnight shift. As part of
their duties, the security staff would ‘‘[perform] rounds
or inspections of the interior and exterior portions of
the premises.’’ Thus, ‘‘[t]he exterior premises would be
inspected four to five times by security staff.’’ If the
situation required it, the security staff would address
‘‘slippery conditions identified during these inspec-
tions.’’ Moreover, the security staff had the ‘‘ability to
direct the [defendant’s] engineering department to take
remedial measures.’’
The bench trial began on December 17, 2013, and
lasted two days. On April 10, 2014, the court rendered
judgment in favor of the defendant. Specifically, the
court found that the defendant had no actual or con-
structive notice of the presence of ice on the sidewalk,
and, as a result, it ‘‘did not breach its duty to inspect
and maintain the sidewalk to render it reasonably safe.’’
Accordingly, the court concluded that the plaintiff
‘‘failed to sustain her burden of proof in [her] premises
liability claim.’’ This appeal followed.2 Additional facts
will be set forth as necessary.
The dispositive issue in this appeal is whether the
court properly found that the defendant did not have
constructive notice of the presence of ice on the side-
walk.3 The plaintiff argues that the court ‘‘completely
ignored the legal principle of constructive notice.’’ In
support of her claim on appeal, the plaintiff points to
the dearth of discussion of constructive notice in the
analysis section of the court’s memorandum of deci-
sion. The defendant, however, asserts that the court’s
finding was supported by the evidence presented at
trial. We agree with the defendant.
The well established standard of review applicable
to this claim guides our analysis. ‘‘To the extent that
the defendant challenges the trial court’s factual find-
ings, we review such claims under our clearly erroneous
standard of review. . . . A court’s determination is
clearly erroneous only in cases in which the record
contains no evidence to support it, or in cases in which
there is evidence, but the reviewing court is left with
the definite and firm conviction that a mistake has been
made.’’ (Citation omitted; internal quotation marks
omitted.) Considine v. Waterbury, 279 Conn. 830, 858,
905 A.2d 70 (2006).
When the court is the finder of fact, ‘‘inference[es]
of fact [are] not reversible unless the [inferences were]
arrived at unreasonably. . . . We note as well that [t]ri-
ers 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 produces 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,
A.3d (2015).
Applying the general principles of premises liability4
and guided by the applicable standard of review, we
consider the facts of this case. It is undisputed that the
plaintiff was a business invitee so that the defendant
had a duty to keep its premises in a reasonably safe
condition. See Riccio v. Harbour Village Condomin-
ium Assn, Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007).
‘‘Nevertheless, [f]or [a] plaintiff to recover for the
breach of a duty owed to [her] as [a business] invitee,
it [is] incumbent upon [her] to allege and prove that
the defendant either had actual notice of the presence
of the specific unsafe condition which caused [her
injury] or constructive notice of 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. . . . Accordingly, business own-
ers do not breach their duty to invitees by failing to
remedy a danger unless they had actual or constructive
notice of that danger.’’ (Citation omitted; internal quota-
tion marks omitted.) DiPietro v. Farmington Sports
Arena, LLC, 306 Conn. 107, 116–17, 49 A.3d 951 (2012);
see also Drible v. Village Improvement Co., 123 Conn.
20, 23, 192 A. 308 (1937) (property owner is not insurer
of invitee’s safety).
‘‘The controlling question in deciding whether the
[defendant] had constructive notice of the defective
condition is whether the condition existed for such a
length of time that the [defendant] should, in the exer-
cise of reasonable care, have discovered it in time to
remedy it. . . . What constitutes a reasonable length
of time is largely a question of fact to be determined
in the light of the particular circumstances of a case.’’
(Citation omitted; internal quotation marks omitted.)
Considine v. Waterbury, supra, 279 Conn. 870; see Con-
gdon v. Norwich, 37 Conn. 414, 419 (1870) (‘‘[a]ccumula-
tions of snow and ice [which] may produce such a
condition of the road as to cause it to be dangerous
and defective’’ is question of fact).5
The crux of the plaintiff’s argument is that she pre-
sented circumstantial evidence that the court failed to
examine. She points to various pieces of evidence to
support her claim that the defendant had constructive
notice of the presence of ice on the sidewalk. First, the
plaintiff notes that the president of the snow removal
service company testified that the company had sent
the defendant a winter advisory e-mail warning of the
expected weather conditions throughout the day of Jan-
uary 18, 2011. She also alludes to his testimony that
a representative of the defendant excused the snow
removal service company at approximately 9:38 a.m.
on that day. Because the defendant was aware of the
weather conditions and it allowed the snow removal
service company to depart, the plaintiff argues that
there was circumstantial evidence from which it could
be inferred that the defendant had constructive notice
of the ‘‘hazardous icy conditions.’’
Next, the plaintiff argues that the court should have
determined on the basis of the testimony of her expert
witness that the defendant had constructive notice of
the unsafe condition of the sidewalk. Gilbert E. Nichols,
a senior engineer employed by Forensic Engineering,
testified on direct examination to consulting weather
reports, reviewing imagery and photographs of the hos-
pital, and reading the plaintiff’s deposition testimony.
He concluded that because the emergency department’s
entrance faced north, it caused a shadow to form on
the sidewalk, which made the sidewalk ‘‘substantially
more prone’’ to the formation of ice. On cross-examina-
tion, however, Nichols acknowledged that he did not
have any information as to when the sidewalk was
treated with a deicer. The plaintiff, nonetheless, argues
that because the defendant excused the snow removal
service company and Nichols testified that the emer-
gency department’s entrance was ‘‘substantially more
prone’’ to the formation of ice, the defendant ‘‘knew it
was [its] duty to check for refreeze throughout the
remainder of the day.’’6
Finally, the plaintiff directs our attention to the testi-
mony of the defendant’s director of the engineering
department and the defendant’s second shift security
sergeant supervisor to support her claim that the defen-
dant had constructive notice of the ice on the sidewalk.
The director of the engineering department acknowl-
edged that the defendant occasionally received com-
plaints from visitors concerning icy conditions. The
second shift security sergeant supervisor testified that
visiting hours ended at 8 p.m. The plaintiff contends that
because of the previous complaints and the increased
traffic at the emergency department’s entrance at
around 8 p.m., the defendant’s employees should have
discovered and remedied the icy condition that caused
the plaintiff to fall.
This argument fails and, in fact, undermines her posi-
tion because, in making it, the plaintiff concedes that
there was evidence to support the court’s finding,
which, in turn, leaves us with the definite and firm
conviction that no mistake has been made. See Consid-
ine v. Waterbury, supra, 279 Conn. 858 (‘‘[a] court’s
determination is clearly erroneous only in cases in
which the record contains no evidence to support it,
or in cases in which there is evidence, but the reviewing
court is left with the definite and firm conviction that
a mistake has been made’’ [internal quotation marks
omitted]). The record demonstrates that the court, as
the fact finder, had various sources of evidence to sup-
port its finding that the defendant did not have construc-
tive notice of the icy sidewalk because the plaintiff
failed to prove for how long the ice existed prior to her
fall. It was well within the province of the court to rely
on the evidence presented by both parties and to draw
inferences from it, including testimonial and photo-
graphic evidence, as well as weather reports. See Palki-
mas v. Fernandez, supra, 159 Conn. App. 133. It bears
noting that ‘‘[t]he sifting and weighing of evidence is
peculiarly the function of the trier [of fact].’’ (Internal
quotation marks omitted.) Heritage Square, LLC v.
Eoanou, 61 Conn. App. 329, 333, 764 A.2d 199 (2001).
Thus, the court reasonably found that although ice
caused the plaintiff to slip, the defendant did not have
constructive notice because ‘‘[i]t [was] not known for
what period of time the ice existed prior to her fall.’’
Notwithstanding the plaintiff’s contention that the
court ‘‘failed to apply the legal principle of constructive
notice to the evidence presented at trial,’’ we are ‘‘enti-
tled to presume that the trial court acted properly and
considered all the evidence.’’ (Internal quotation marks
omitted.) Doe v. Rapoport, 80 Conn. App. 111, 116, 833
A.2d 926 (2003). Therefore, we do not ‘‘duplicate the
trial court’s weighing process [of the evidence], but
rather . . . [we] determine whether its conclusion was
reasonable. In the absence of clear error, this court
should not overrule the thoughtful decision of the trial
court, which has had an opportunity to assess the legal
issues which may be raised and to weigh the credibility
of at least some of the witnesses. . . . Thus, this court’s
review is limited to whether the trial court’s conclusion
was reasonable.’’ (Internal quotation marks omitted.)
Id. Accordingly, we defer to the court’s finding that the
defendant did not have constructive notice of the icy
sidewalk because it was supported by the evidence.
Ultimately, what underlies the plaintiff’s claim is dis-
satisfaction with the extent of analysis on the issue of
constructive notice. Specifically, she claims that the
court ‘‘never actually addressed whether [the defen-
dant] had constructive notice’’ because the court, in
the analysis section of its memorandum of decision,
commented only once on the issue. This dissatisfaction
is not a valid basis for reversing the court’s decision.
‘‘The controlling question in deciding whether the
[defendant] had constructive notice of the defective
condition is whether the condition existed for such a
length of time that the [defendant] should, in the exer-
cise of reasonable care, have discovered it in time to
remedy it. . . . What constitutes a reasonable length
of time is largely a question of fact to be determined
in the light of the particular circumstances of a case.’’
(Citation omitted; emphasis added; internal quotation
marks omitted.) Considine v. Waterbury, supra, 279
Conn. 870. Here, the court made findings of fact neces-
sary for a determination of constructive notice: ‘‘In
applying the applicable law to the facts, the court finds
that Diaz has failed in her burden to prove that the
hospital breached its duty to maintain the sidewalk in
a reasonably safe condition at the time of her fall on
January 18, 2011. The hospital through its maintenance
work and inspections, exercised reasonable care in an
effort to identify and treat any icy conditions. The hospi-
tal had no actual notice of ice on the sidewalk at the
time and place of Diaz’ fall. It is not known for what
period of time the ice existed prior to her fall. The
hospital was unable, nor did it have the duty, to warn
Diaz of icy conditions for which the hospital had neither
actual [nor] constructive notice. Further, Diaz had
actual notice of the presence of ice and chose to pro-
ceed to move forward until she fell backward. Accord-
ingly, the hospital did not breach its duty to inspect
and maintain the sidewalk to render it reasonably safe.’’
(Emphasis added.) If the plaintiff was dissatisfied with
the court’s analysis of the constructive notice issue, the
onus was on her to seek an articulation7 of the court’s
decision because this court ‘‘cannot speculate on what
predicate facts the court found to make its conclusion.’’
Martin v. Stop & Shop Supermarket Cos., 70 Conn.
App. 250, 252, 796 A.2d 1277 (2002).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also claims on appeal that the court erroneously rendered
judgment in favor of the defendant because she proved all the elements of
a negligence claim. Because our resolution of the plaintiff’s first claim of
constructive notice is dispositive of her second claim, we do not reach it.
2
In its appellate brief, the defendant presented two alternative bases for
affirming the judgment of the court. First, the defendant argued that the
ongoing storm doctrine precluded it from owing the plaintiff a duty at the
time of the accident. Second, the defendant claimed that the plaintiff was
barred from recovery due to her alleged contributory negligence. Because
we affirm the court’s judgment, we do not address these issues.
3
We note that the court also found that the defendant did not have actual
notice of the presence of ice on the sidewalk. The plaintiff does not challenge
this finding on appeal.
4
We note that a premises liability claim is a negligence cause of action.
See Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 560, 707 A.2d
15 (1998). ‘‘The essential elements of a cause of action in negligence are
well established: duty; breach of that duty; causation; and actual injury.’’
(Internal quotation marks omitted.) Id., 566.
5
Oral argument of this appeal took place at the Litchfield Law School,
which was founded in 1774 by Tapping Reeve, former Chief Justice of the
Connecticut Supreme Court. It seems particularly fitting to cite relevant
case law written by an alumnus of the law school, Justice Origen Storrs
Seymour. See Litchfield Historical Society, ‘‘Origen Storrs Seymour,’’ (2010),
available at http://www.litchfieldhistoricalsociety.org/ledger/students/2275
(last visited December 2, 2015) (copy contained in the file of this case in
the Appellate Court clerk’s office).
6
We note that the court’s memorandum of decision does not address
Nichols’ testimony. The court’s omission, however, does not indicate error
because ‘‘[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 their testimony.’’ Morgan v. Hill, 139 Conn. 159, 161, 90 A.2d
641 (1952). As a reviewing court, we restrict ‘‘our function . . . to [deter-
mine] whether the facts set forth in the memorandum of decision are sup-
ported by the evidence or whether the facts as found are clearly erroneous
in light of the evidence and the record as a whole.’’ Branigan v. Cohen, 3
Conn. App. 580, 581, 490 A.2d 1019 (1985). Our review of the record gives
us confidence that the absence of Nichols’ testimony in the court’s memoran-
dum of decision is of little consequence.
7
‘‘[T]he appellant bears the burden of providing an appellate court with
an adequate record for review. . . . It is, therefore, the responsibility of
the appellant to move for an articulation or rectification of the record where
the trial court has failed to state the basis of decision . . . [or] to clarify
the legal basis of a ruling.’’ (Internal quotation marks omitted.) East Windsor
v. East Windsor Housing, Ltd., LLC, 150 Conn. App. 268, 278 n.10, 92 A.3d
955 (2014); see Practice Book §§ 61-10 and 66-5.