Diaz v. Guarco, No. Cv94 0538895 (Feb. 6, 1996)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION Plaintiff Julio Diaz has brought this action against defendant Carl D. Guarco for injuries he sustained at defendant's premises on September 16, 1993. He claims he was standing on the back porch of defendant's property located at 227 High Street in Hartford, that he was holding onto a railing which gave way, that as a result of the railing giving way, he fell off the porch several feet to the ground, and that he sustained serious physical injuries.

Plaintiff further claims that defendant was negligent in that he failed to maintain the railing, failed to properly inspect the railing, and failed to warn of the dangerous condition of the railing. He alleges that as a result of defendant's negligence he suffered certain enumerated injuries and was forced to expend large sums of money for medical bills.

Defendant has denied that he was negligent, and by way of special defense has alleged that plaintiff himself was negligent. He claims that plaintiff failed to keep a reasonable lookout, that he was involved in an altercation with a third party, and CT Page 1431-XX that he was under the influence of alcohol at the time of the accident.

A trial to the court was held on January 30, 1996. The court finds the following:

At the time of the accident the plaintiff was living with his girlfriend in an apartment located near the porch where the railing was located. (Plaintiff's Exhibits 8 and 9). The plaintiff and his girlfriend had been drinking for a considerable period of time. They both were intoxicated and had been fighting verbally and physically in the apartment for several hours. At some point the plaintiff left the apartment and went out to the porch followed by his girlfriend. At the railing they continued to wrestle, and the physical altercation continued until the railing gave way. The girlfriend weighed 210 pounds (according to the plaintiff) or about 300 pounds (according to the defendant). After the fall off the porch, plaintiff told Delita Farmer (a witness at trial) that his girlfriend had pushed him off the porch.

The day after the accident the defendant re-nailed the railing back together. He testified that it was returned to the same condition it was in prior to the accident. At trial defendant presented a structural engineer who examined the railing. Although the examination took place almost two years after the accident, no evidence was presented to indicate that the condition of the railing had changed significantly from the date of the accident. The court noted that several of defendant's photographic exhibits appeared to show that parts of the railing and poles contained some rot. However, the expert testified that the railing was structurally sound and reasonably safe for its intended use. The plaintiff presented no evidence to contradict the testimony of defendant's expert witness.

The court finds that the plaintiff has failed to prove that the defendant was negligent by a fair preponderance of the evidence. Rather, the court finds that the altercation at the railing between the plaintiff and his girlfriend was the proximate cause of the plaintiff's accident.

Accordingly, judgment may enter for the defendant.

Frances Allen State Judge Referee CT Page 1431-YY