CRONAN, J.
The plaintiff brought this action against the defendant as a result of a fall which occurred at a restaurant operated by the defendant which was doing business as Contrassegno Restaurant and was located at 4137 Whitney Avenue, Hamden, Connecticut. The date of the incident was January 27, 2005 at approximately 7:30 p.m. In her complaint, the plaintiff alleged that she fell while leaving the dance floor and due to the negligence of the defendant suffered serious and permanent injuries to her left ankle. The matter was tried to the court on May 28, 2009.
I.
The court heard testimony that the plaintiff and her then husband, Peter Varunes, went to the defendant's establishment on January 27, 2005 to meet another couple and to have dinner and listen to a popular band. The establishment, then called Contrassegno Restaurant, was operated and controlled by JML Associates, LLC. The restaurant subsequently closed in July 2005. The issue of control was not challenged. Testimony was presented that sometime after 7:00 p.m., once the band had set up and started playing, the plaintiff and Peter Varunes went to the dance floor to dance. As the couple was leaving the dancing area to join another couple who had just arrived and who were sharing their table, the plaintiff fell and injured her left ankle. It is not in dispute that the plaintiff was helped off the floor and was taken to the hospital for treatment. Approximately, six years earlier, the plaintiff had suffered a fall at home and had broken the same ankle, but testified that she had fully recovered from that injury by 2005. The plaintiff underwent a number of complications with this injury, including an infection which developed from the metal pins which had been inserted in her ankle, and, consequently, needs assistance by means of a brace and must use a cane to walk. The plaintiff also feels that the trauma of the injury also led to an onset of her lupus condition which had been benign for a number of years.
CT Page 9310 The plaintiff called Janet Battey, a member of JML Associates, LLC as a witness. In general, her testimony involved matters concerning management of Contrassegno's at the time of the incident and the location and construction of areas which were used as the dance floor. The plaintiff next called Anthony Oliva, a friend of the plaintiff and her former husband, who went to the establishment to accompany the Varunes for dinner and the show. Oliva testified that he assisted the plaintiff after she had fallen, but he did not observe the actual fall. The plaintiff also called the plaintiff's former husband Peter Varunes to testify. He testified that the plaintiff was walking off the dance floor behind him and was holding his hand when she fell. He testified that he did not see the actual fall.
In her testimony, the plaintiff reiterated the events of the evening. She was of the impression that her shoe caught the edge of the dance floor which she described as having a "beveled" edge. In her opinion, this contact was the direct cause of her fall. The plaintiff denied ever taking her shoes off while dancing.
The defendant called one witness, the daughter of Janet Battey, also named Janet Battey. For purposes of clarity, the court will refer to her as Janet Battey II. Janet Battey II on January 27, 2005 was employed as a general manager, bartender and waitress at Contrassengo's. Janet Battey II's recollection differed from the plaintiff's second, third and fourth witnesses in that she recalled serving drinks to the plaintiff and her then husband earlier in the evening and seeing the plaintiff remove her shoes while on the dance floor.
II.
It is clear to the court that the plaintiff met the required standard of an invitee. There is no factual dispute that the defendant had control over the premises then known as Contrassengo Restaurant on January 27, 2005. In order to meet her burden of proof, the plaintiff must satisfy the court that her claims are more probable than not. In other words, did the better evidence establish that the plaintiff's assertions are true. The plaintiff claimed that the specific defect that caused her injury was the uneven or "beveled" portion of the dance floor. However, the court finds that there was insufficient evidence presented to sustain this claim. Witnesses presented inconsistent versions of just where the fall took place. The witness for the defendant testified that the plaintiff had taken her shoes off when she was dancing which the plaintiff vehemently denied doing. However, plaintiff's exhibit #2, the emergency room report from the Hospital of Saint Raphael states under the section entitled chief complaint: "Pt states that she was dancing this evening CT Page 9311 triped (sic) on shoes and fell landing on and twisting 1 ankle . . ."
The court does not discount the reality that the events of January 27, 2005 altered the life of the plaintiff and is sympathetic to the day to day obstacles that she must cope with. However, as the trier of fact, the court must apply the facts to the law.
The court finds that the plaintiff did not meet her burden of proving the elements of the cause of action upon which she relies. With such a determination, the court will not reach the issues of the defendant's duties or that of damages.
Judgment will enter on behalf of the defendant.
CT Page 9312