Knox v. USA

Filing 156

MEMORANDUM OF DECISION. In support of the Court's granting defendant's oral motion for judgment on partial findings (Doc. ##152, 153), the attached Memorandum constitutes the Court's findings of fact and conclusions of law pursuant to Rules 52(a) and (c) of the Federal Rules of Civil Procedure. Signed by Judge Sarah A. L. Merriam on 9/9/2016. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
ANITRA KNOX
:
:
v.
:
:
UNITED STATES
:
:
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Civ. No. 3:12CV01741(SALM)

September 9, 2016

MEMORANDUM OF DECISION
Pro se plaintiff Anitra Knox (“plaintiff”) brings this
single-count personal injury action against defendant United
States (“defendant”) pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§1346(b), 2671, et seq. Plaintiff alleges
that she slipped and fell at the West Haven Veteran’s
Administration Hospital (“WHVA”), and as a result, sustained
personal injuries. Plaintiff seeks monetary damages. A bench
trial was held on September 1, 2016.
At the close of plaintiff’s evidence, defendant made an
oral motion to dismiss. The Court construed this motion as one
for judgment on partial findings under Federal Rule of Civil
Procedure 52(c)1, “which allows the court to enter judgment as a
matter of law in the moving party’s favor at any point in the
proceedings when the non-moving party has been fully heard on an

Counsel for defendant represented to the Court at the final
pretrial conference that he might bring a motion pursuant to
Rule 52 at the close of plaintiff’s evidence.
1

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issue during a non-jury trial and the court finds against the
party.” Fabricated Wall Sys., Inc. v. Herman Miller, Inc., No.
3:08CV01313(SRU), 2011 WL 5374130, at *1 (D. Conn. Nov. 8, 2011)
(citing Fed. R. Civ. P. 52(c); AmBase Corp. v. SDG Inc., No.
3:00CV1694(DJS), 2005 WL 1860260, at *2 (D. Conn. Aug. 3,
2005)). “A Rule 52(c) motion made by a defendant may be granted
where the plaintiff has failed to make out a prima facie case or
where the plaintiff has made out a prima facie case but the
court determines that a preponderance of the evidence goes
against the plaintiff’s claim.” Fabricated Wall Sys., 2011 WL
5374130, at *1 (citation and internal quotations omitted).
“The court’s task on such a motion is to weigh the
evidence, resolve any conflicts in it, and decide for itself
where the preponderance lies ... Rule 52(c) implies the same
inquiry the court makes to resolve all of the legal and factual
matters under Rule 52(a).” Id. (citation omitted); see also
LaMarca v. United States, 31 F. Supp. 2d 110, 123-24 (E.D.N.Y.
1998) (On a Rule 52(c) motion: “The court does not evaluate the
evidence under the standards governing a directed verdict. It
does not draw any special inferences in the non-movant’s favor,
or consider the evidence in the light most favorable to the nonmoving party. Instead the court acts as both judge and jury,
weighing the evidence, resolving any conflicts, and deciding
where the preponderance lies.” (citation omitted)).
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Plaintiff presented only her testimony. The entirety of
defendants’ exhibits, marked 12 through 28, were entered into
evidence by agreement of the parties. [Doc. ##154, 155].
Plaintiff’s Exhibit 10, the deposition of her treating doctor,
Dr. Jonathan Grauer, was also entered into evidence by agreement
of the parties. [Doc. #154]. After considering plaintiff’s
testimony, as well as the documentary evidence, the Court
granted defendant’s oral motion for judgment on partial findings
[Doc. ##152, 153], finding that plaintiff had failed to prove
all elements of her claim; specifically that she failed to
provide any evidence that defendant had notice of an alleged
defect which resulted in her slip and fall. In support of this
Ruling, the following constitutes the Court’s findings of fact
and conclusions of law pursuant to Rules 52(a) and (c) of the
Federal Rules of Civil Procedure.
FINDINGS OF FACT
Based on the entire record developed during trial,
including the credible testimony and the admitted exhibits, the
Court finds the following facts established.
At approximately 9:00PM on February 1, 2012, plaintiff, who
was on her way to visit her father in the hospital, slipped and
fell in the hallway of the WHVA. See Def. Ex. 24; see also Doc.

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#139 at 11 (stipulation of fact).2 Although plaintiff offered no
testimony on this point, her complaint alleges that she slipped
and fell as a result of a highly waxed floor. See Doc. #1,
Complaint at ¶8 (“The area upon which the plaintiff, ANITRA
KNOX, fell was in a dangerous and defective condition likely to
cause harm to persons lawfully walking thereupon, such as the
plaintiff, as it was highly waxed hallway floor that was a slick
and slippery surface and that was inherently dangerous and
slippery that had been present for some time.” (sic)). The
documentary evidence also suggests that plaintiff contends that
she slipped as the result of a highly waxed floor. See Def. Ex.
21 (Standard Form (“SF”) 95 alleging plaintiff fell due to
“heavily waxed floors”); Def. Ex. 13 at 13-03 (medical record
dated February 2, 2012, stating plaintiff: “suffered a fall at
the VA Hospital in West Haven last night. She notes that the
floors were especially waxed and this is what caused her to
fall.”).
Surveillance video of the slip and fall shows plaintiff
falling forward and landing on her right knee and forearm. See
Def. Exs. 23, 23B; see also Def. Ex. 12 at 12-01; Def. Ex. 15 at

Although the controlling version of the Trial Memorandum was
filed by defendant, plaintiff later indicated that she had no
objection to this version. See Doc. #144 at 2. Accordingly, the
Court deemed the Trial Memorandum filed by defendant at docket
entry 139 as a Joint Trial Memorandum for purposes of the bench
trial. See id.
2

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15-01. Plaintiff can then be seen on her hands and knees trying
to gather herself, before sitting on the ground and rubbing her
right knee. See Def. Ex. 23. WHVA security officers are then
seen responding to the fall and offering plaintiff a wheelchair,
which plaintiff refused. See id.; see also Def. Ex. 24 at 24-01.
The video next shows plaintiff ambulating on her own, eventually
travelling out of the surveillance camera’s view. See Def. Ex.
23.
Plaintiff initially refused medical treatment after her
fall. See Def. Ex. 24 at 24-02. However, later that evening,
plaintiff presented to the WHVA emergency department with
complaints of right arm, knee and lower back pain. See id.; see
also Def. Ex. 12. Plaintiff was discharged in stable condition
“with minor soft tissue trauma.” Def. Ex. 12 at 12-02. An x-ray
taken that night, the results of which became available the next
day, revealed that plaintiff suffered an elbow injury,
specifically, an impacted right radial head fracture. See id. at
12-04.
Plaintiff focused her testimony on the treatment she
received for her injuries, which is largely supported by the
documentary evidence. She also testified about her activities of
daily living both before and after the fall, generally stating
that she is no longer able to perform many of her prior
activities since the fall. Plaintiff testified that she
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continues to suffer pain and other symptoms as a result of the
February 1, 2012, slip and fall.
CONCLUSIONS OF LAW
I.

Federal Tort Claims Act
Plaintiff brings this negligence action pursuant to the

FTCA. See Doc. #1, Complaint. Under certain circumstances, the
FTCA provides for a limited waiver of the government’s sovereign
immunity where a government employee commits a tort “within the
scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act
or omission occurred.” 28 U.S.C. §1346(b)(1). “Thus, for
liability to arise under the FTCA, a plaintiff’s cause of action
must be ‘comparable’ to a ‘cause of action against a private
citizen’ recognized in the jurisdiction where the tort occurred,
... and his allegations, taken as true, must satisfy the
necessary elements of that comparable state cause of action[.]”
Chen v. United States, 854 F.2d 622, 626 (2d Cir. 1988)
(internal citation omitted); see also Davis v. United States,
430 F. Supp. 2d 67, 73 (D. Conn. 2006) (“Under the FTCA the
government’s liability is determined by the application of the
law of the place where the act or omission occurred.” (citing 28
U.S.C. §1346(b)). Here, because plaintiff’s accident occurred in
Connecticut, and as stipulated to by the parties, Connecticut
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premises liability law applies to the merits of this case. See
Doc. #139 at 11.
In a civil case such as this, “the plaintiff bears the
burden of proving the elements of [her] claim by a preponderance
of the evidence[,]” meaning “the fact is more likely true than
not true.” Watson v. United States, No. 14CV6459, 2016 WL
748489, at *13 (E.D.N.Y. Feb. 25, 2016) (citation omitted).
II.

Negligence and Premises Liability under Connecticut Law
A. Elements, Generally
Plaintiff’s premises liability claim sounds in negligence.

See Maffucci v. Royal Park Ltd. P’ship, 707 A.2d 15, 20-21
(Conn. 1998). Under Connecticut law, “[t]he essential elements
of a cause of action in negligence are well established: duty;
breach of that duty; causation; and actual injury.” Id. at 24
(quoting RK Constructors, Inc. v. Fusco Corp., 650 A.2d 153, 155
(Conn. 1994)). “The existence of a duty is a question of law.
... Only if such a duty is found to exist does the trier of fact
then determine whether the defendant violated that duty in the
particular situation at hand.” Gordon v. Bridgeport Hous. Auth.,
544 A.2d 1185, 1191 (Conn. 1988) (collecting cases) (internal
citations omitted).
“In general, there is an ascending degree of duty owed by
the possessor of land to persons on the land based on their
entrant status, i.e., trespasser, licensee or invitee.”
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Considine v. City of Waterbury, 905 A.2d 70, 89 (Conn. 2006)
(quoting Morin v. Bell Court Condo. Ass’n, Inc., 612 A.2d 1197,
1199 (Conn. 1992)). Here, it is undisputed that plaintiff, as a
visitor of the WHVA, was a business invitee. See Diaz v.
Manchester Mem’l Hosp., 130 A.3d 868, 871 (Conn. App. Ct. 2015)
(“It is undisputed that the plaintiff [a hospital visitor] was a
business invitee[.]” (citation omitted) (alteration added)); see
also Hellamns v. Yale-New Haven Hosp., Inc., 82 A.3d 677, 680
(Conn. App. Ct. 2013)(finding that “[i]t is undisputed that
plaintiff [a hospital patient], was a business invitee[]” of the
hospital (alteration added)).
“A possessor of land has a duty to an invitee to reasonably
inspect and maintain the premises in order to render them
reasonably safe. ... In addition, the possessor of land must
warn an invitee of dangers that the invitee could not reasonably
be expected to discover.” Considine, 905 A.2d at 89 (quoting
Morin, 612 A.2d at 1199). Accordingly, for defendant to be found
liable for plaintiff’s injuries, “plaintiff must prove (1) the
existence of a defect, (2) that the defendant knew or in the
exercise of reasonable care should have known about the defect
and (3) that such defect had ‘existed for such a length of time
that the [defendant] should, in the exercise of reasonable care,
have discovered it in time to remedy it.’” Martin v. Stop & Shop
Supermarket Cos., Inc., 796 A.2d 1277, 1278 (Conn. App. Ct.
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2002) (quoting Cruz v. Drezek, 397 A.2d 1335, 1339 (Conn.
1978)).
B. Existence of a Defect
The Court turns first to whether plaintiff has proved the
existence of a defect. In response to defendant’s Rule 52
motion, plaintiff argued that the presence of a wet rug
contributed to her fall. She did not, however, present any
testimony on this theory. Nevertheless, in support of this
argument, plaintiff relies on Defendant’s Exhibit 23, which is
the surveillance video of her accident. The surveillance video,
however, does not show the presence of a rug. Additionally, the
weight of the evidence does not support plaintiff’s argument
that the presence of a wet rug contributed to her fall. See Def.
Ex. 21 (SF 95 alleging she fell due to “heavily waxed floors”);
Def. Ex. 13 at 13-03 (medical record dated February 2, 2012,
stating plaintiff: “suffered a fall at the VA Hospital in West
Haven last night. She notes that the floors were especially
waxed and this is what caused her to fall”). Additionally,
statements taken from plaintiff at the time of the incident make
no reference to a wet rug, but rather state that she “slipped on
a scuff-mark on the floor.” See Def. Ex. 24 at 24-02.
Photographs and surveillance footage reveal that the scuff mark
was caused by plaintiff’s high heel as she fell. See Def. Exs.
23, 23A, 23B. WHVA police who responded to plaintiff’s fall
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observed that the area on which plaintiff slipped was “dry.”
Def. Ex. 24 at 24-02. Accordingly, the Court finds that the
preponderance of the evidence does not support plaintiff’s
argument that she slipped as a result of stepping off of a wet
rug onto an allegedly highly waxed floor.
As to whether the presence of a highly waxed floor
constitutes a per se defective condition, an argument could be
made that the fact that plaintiff slipped supports an inference
of an inherently defective or dangerous condition. See, e.g.,
Gray v. Fitzgerald & Platt, Inc., 127 A.2d 76, 78 (Conn. 1956)
(“Upon the evidence that the floor was so slippery that the
plaintiff’s son could slide upon it, the jury were entitled to
infer that the defendant had failed to use reasonable care to
keep its premises reasonably safe for its business visitors.”).
However, under the circumstances now under consideration, it is
not clear whether the presence of a highly waxed floor alone
necessarily implies a defect. For example, the Connecticut
Supreme Court has held: “An owner in treating a floor may use
wax or oil or other substance in the customary manner without
incurring liablity to one who slips and falls thereon, unless
the owner is negligent in the materials he uses or in the manner
of applying them.” Smith v. Union & New Haven Trust Co., 185 A.
81, 82 (Conn. 1936) (sic) (collecting cases); see also Jordan v.
Realogy Franchise Grp., LLC, No. CV116008264, 2013 WL 2278755,
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at *4 (Conn. Super. Ct. Apr. 25, 2013) (same); Nussbaum v.
Metro-N. Commuter R.R., 603 F. App’x 10, 11–12 (2d Cir. 2015)
(“When a plaintiff seeks to establish a defendant’s slip-andfall liability by showing that the defendant created a dangerous
condition, the application of wax, polish, or paint to a floor
in a nonnegligent manner will not, standing alone, support a
negligence cause of action for making the floor slippery.”
(applying New York law) (citation and internal quotation marks
omitted)). Plaintiff has presented no evidence that defendant
was negligent in the materials used on the floor, or in the
manner in which they were applied. Nevertheless, the Court need
not reach the issue of whether the allegedly highly waxed floor
at the WHVA constituted a defective condition, in light of the
complete absence of any evidence that defendant had notice of
this alleged defect.
C. Notice
“[R]elevant case law in Connecticut places a heavy burden
on a ‘slip and fall’ plaintiff to demonstrate that a defendant
had actual or constructive notice of the specific defect that
led to the accident and ‘not merely of conditions naturally
productive of that defect even though subsequently in fact
producing it.’” Graham v. Kohl’s Dep’t Stores, Inc., No.
3:04CV949(MRK), 2005 WL 2256603, at *1 (D. Conn. Sept. 8, 2005)
(quoting LaFaive v. DiLoreto, 476 A.2d 626, 629 (Conn. App. Ct.
11

1984)); see also Kelly v. Stop & Shop, Inc., 918 A.2d 249, 255
(Conn. 2007) (“Typically, [f]or [a] plaintiff to recover for the
breach of a 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 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[.]” (quoting Baptiste v.
Better Val–U Supermarket, Inc., 811 A.2d 687 (Conn. 2002))).
“Thus, for [plaintiff] to recover for the breach of a duty owed
to her as a business invitee, she must prove that [defendant]
had either actual or constructive notice of the particular
defect that caused her injuries.” Navarro v. Kohl’s Dep’t
Stores, Inc., No. 3:05CV00843(DJS), 2007 WL 735787, at *3 (D.
Conn. Mar. 8, 2007) (alterations added).
i. Actual notice
“A plaintiff can demonstrate that a defendant had actual
notice of an unsafe condition by, for example, demonstrating
that the condition was created by the defendant’s employee[.]”
Hellamns, 82 A.3d at 682 (citing Zarembski v. Three Lakes Park,
Inc., 419 A.2d 339, 341 (Conn. 1979)). Even assuming there was a
defective condition, plaintiff presented absolutely no evidence
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at trial that defendant had actual notice of the alleged highly
waxed floor. Plaintiff provided no specifics of her accident
during her testimony. Plaintiff presented no testimony of any
WHVA employee, nor does the record contain any maintenance
reports or other evidence that could support a finding that one
of defendant’s employees created the allegedly defective
condition. There was also no evidence presented that another
visitor to, or patient of, the WHVA warned defendant about the
alleged condition on February 1, 2012. Surveillance video of the
area where plaintiff slipped also shows other persons walking in
that area without issue. See Def. Ex. 23.
Alternatively, a plaintiff can prove actual notice “by
presenting evidence that an employee, operating within the scope
of his authority, observed the dangerous condition and either
was charged with maintaining the area or was charged with a duty
to report the unsafe condition.” Hellamns, 82 A.3d at 682
(citing Derby v. Conn. Light & Power Co., 355 A.2d 244, 246-47
(Conn. 1974)). As detailed above, plaintiff presented no
evidence that would satisfy this theory of actual notice.
Therefore, the Court finds that plaintiff failed to sustain
her burden of proof that defendant had actual notice of the
alleged defect -- a highly waxed floor -- given the complete
absence of evidence “that [defendant’s] employees actually knew
of the [defect], or that [defendant’s] employees themselves
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[created the defect.]” Navarro, 2007 WL 735787, at *4
(alterations added); see also Gomes v. United States, No.
3:11CV01825(VLB), 2012 WL 5869801, at *6 (D. Conn. Nov. 19,
2012) (“Absent evidence that the Norwich Post Office had actual
notice of the wet leaves on the exterior steps, Plaintiff may
not establish actual notice.” (collecting cases) (footnote
omitted)).
Accordingly, the Court next turns to whether plaintiff has
shown, by a preponderance of the evidence, that defendant had
constructive notice of the alleged defective condition.
ii.

Constructive Notice

“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 exercise of reasonable care, have
discovered it in time to remedy it.” Considine, 905 A.2d at 9596 (quoting Cruz, 397 A.2d at 1335) (alterations added).
What constitutes a reasonable length of time within
which the defendant should have learned of the defect,
how that knowledge should have been acquired, and the
time within which, thereafter, the defect should have
been remedied are matters to be determined in light of
the particular circumstances of each case. The nature of
the business and the location of the defective condition
would be factors in this determination.
Pollack v. Gampel, 313 A.2d 73, 78 (Conn. 1972). “Constructive
notice is triggered by a general duty of inspection or, when the

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dangerous condition is not apparent to the human eye, some other
factor that would alert a reasonable person to the hazard.”
Olsen v. Norwalk Hosp. Ass’n, No. FSTCV136019793S, 2016 WL
3536524, at *3 (Conn. Super. Ct. June 3, 2016) (quoting DiPietro
v. Farmington Sports Arena, LLC, 49 A.3d 951, 957 (Conn. 2012)).
“To establish constructive notice, plaintiff must adduce
some evidence, either direct or circumstantial, that establishes
the length of time the defect was present. The finder of fact is
then left to determine whether the length of time is sufficient
enough so as to expect that the defendant should have
encountered it.” Navarro, 2007 WL 735787, at *4 (citing Gulycz
v. Stop and Shop Cos., Inc., 615 A.2d 1087, 1088 (Conn. App. Ct.
1992)).
There is no evidence that establishes the length of time
the alleged defect was present. The only evidence, if any, that
a defect existed prior to plaintiff’s fall, was that she in fact
slipped and fell. See Navarro, 2007 WL 735787, at *5. This,
however, is far too tenuous to support a finding of constructive
notice without any other evidence as to how long the alleged
defective condition existed prior to plaintiff’s fall. See id.
Indeed,
[a]lthough
circumstantial
evidence
can
establish
constructive notice; Sokolowski v. Medi Mart, Inc., 24
Conn. App. 276, 287, 587 A.2d 1056 (1991); no such
circumstantial evidence exists here. The plaintiff
offered no evidence, direct or circumstantial, to show
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that the defect had existed for any period of time so as
to enable the court to exercise its function as
factfinder. Nor was the court able to infer that the
defect had existed for any length of time, since there
was no evidence to establish a basis for such an
inference. “An inference must have some definite basis
in the facts”; Boehm v. Kish, 201 Conn. 385, 389, 517
A.2d 624 (1986); and the conclusion based on it must not
be the result of speculation and conjecture. Palmieri v.
Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959).
Gulycz, 615 A.2d at 1089. Therefore, the Court finds that
plaintiff failed to sustain her burden of proof that defendant
had constructive notice of the alleged defect -- a highly waxed
floor -- which resulted in her slip and fall on February 1,
2012.3
CONCLUSION
Accordingly, because plaintiff has failed to prove an
essential element of her FTCA claim, namely that defendant had
notice of the alleged defective condition resulting in her fall,
the Court finds in favor of defendant. Therefore, the Clerk of
the Court is directed to enter judgment in favor of defendant.

Following argument on defendant’s motion for judgment on partial
findings, the Court took a thirty minute recess to provide
plaintiff with an opportunity to review the evidence admitted
during trial to locate any exhibits which would satisfy the
elements of defect and notice. Following this break, plaintiff
proffered a document, which was not in evidence, as proof of
defendant’s constructive notice of the defect. The Court explained
to plaintiff that because this document was not in evidence, and
indeed had never been listed as an exhibit or otherwise disclosed
to defendant, it could not consider the document in ruling on the
defendant’s motion. Following this discussion, held on the record,
plaintiff proceeded with her response to the defendant’s argument,
and conceded that the evidence at trial did not establish the
element of notice.
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This is not a Recommended Ruling. The parties consented to
proceed before a United States Magistrate Judge on January 15,
2016 [Doc. #50], with any appeal to be made directly to the
Court of Appeals. See Fed. R. C. P. 73(b)-(c).
SO ORDERED at New Haven, Connecticut, this 9th day of
September, 2016.
/s/
_____________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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