Opinion
No. 4004360
November 30, 2007
MEMORANDUM OF DECISION
This is an action for money damages for personal injuries arising out of a multi-car accident. The plaintiff claims that after she was struck head-on by one vehicle, she was struck again by the defendant who was behind her. The defendant has moved for summary judgment.
The plaintiff's complaint tells a simple story. On August 7, 2003, she was operating her 1997 Jeep Cherokee on New Haven Avenue in Milford in a westerly direction when the defendant negligently rear-ended her, causing her injuries. The plaintiff alleges that the defendant was negligent in that (a) she operated her vehicle unreasonably close to the rear of the plaintiff's vehicle and/or followed plaintiff's vehicle too closely in light of prevailing circumstances and conditions upon the roadway; (b) she operated her vehicle unreasonably fast in light of prevailing circumstances and conditions upon the roadway; (c) she failed to turn her vehicle as to avoid colliding with the rear of plaintiff's vehicle; and (d) she failed to slow or stop her vehicle so as to avoid colliding with the rear of plaintiff's vehicle.
The defendant has moved for summary judgment, asserting that there are no genuine issue of material fact. The defendant argues that, as a matter of law, she was not negligent and nothing she did or omitted to do was a proximate cause of the accident.
At oral argument on the defendant's motion, the parties agreed with the court's recitation of a somewhat more complicated set of facts, gleaned from the record. The plaintiff was operating her vehicle in a westerly direction on New Haven Avenue in Milford behind a vehicle operated by Arthur Viola. Somewhere behind the plaintiff's vehicle was the defendant's vehicle. Karen Sepulveda was operating her vehicle in an easterly direction on New Haven Avenue when she veered across into the westbound lane, striking the Viola vehicle, then veered back into the eastbound lane, then back across into the westbound lane, striking the plaintiff's vehicle. What happened next is disputed by the parties to this action.
In support of her motion, the defendant has submitted her own affidavit with supporting exhibits and a certified copy of an excerpt of the plaintiff's deposition. In her affidavit, the defendant states that in the area where the accident occurred, New Haven Avenue is a two-lane roadway, with one lane in each direction. On August 7, 2003, the defendant was driving her 1999 pickup truck in the westbound lane on New Haven Avenue in Milford. The plaintiff's tan Jeep was also traveling westbound, several car lengths in front of her.
In her affidavit, the defendant further states that she observed a black SUV, later determined to be the Sepulveda vehicle, in the eastbound lane of New Haven Avenue cross the centerline and hit the tan Jeep head-on in the westbound lane. At the time of that impact, the defendant's pickup truck was several car lengths behind the Jeep, driving in the same direction. When she saw the SUV cross the center line, heading towards the Jeep, the defendant immediately turned right into a parking lot of a business called "Home Plate" in order to avoid the accident. Her truck was completely in the parking lot when the tan Jeep hit her pickup truck's left rear wheel area. The defendant has authenticated and submitted photographs of her damaged pickup truck with her affidavit. The photographs depict damage to the body of the vehicle over the left rear tire.
The defendant has also submitted certified excerpts of the plaintiff's deposition, in which the plaintiff stated that first, the oncoming vehicle, an SUV, came across into the westbound lane and hit the car in front of her. The car in front of her veered off to the right. Then the SUV started to move back into its own lane, then veered back into the westbound lane and "smashed" into the plaintiff. After the oncoming vehicle struck her, her air bags immediately deployed. When she came to a stop, they began to deflate. Her vehicle was pointed in the "same," presumably westerly, direction, but "not straight down the lane; facing a little bit off" toward the middle lane. Thus the SUV, she testified, caused her vehicle to move in a different direction. As for the defendant's vehicle, the plaintiff testified, "either I hit it or it hit me." The plaintiff did not see the defendant's vehicle before the accident.
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 756-57, 905 A.2d 623 (2006). "On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial . . . Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Citations omitted; internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 229-30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
Where a defendant moves for summary judgment, it is the defendant's burden to refute each of the plaintiff's specifications of negligence. The plaintiff's first such specification is that the defendant operated her vehicle unreasonably close to the rear of the plaintiff's vehicle and/or followed the plaintiff's vehicle too closely in light of prevailing circumstances and conditions upon the roadway. The duty of an operator not to follow too closely a vehicle in front of him is codified in General Statutes § 14-240(a); Wrinn v. State, 35 Conn.App. 464, 472, 646 A.2d 869 (1994), aff'd, 234 Conn. 401, 661 A.2d 1034 (1995); which provides: "No driver of a motor vehicle shall follow another vehicle more closely than is reasonable and prudent, having regard for the speed of such vehicles, the traffic upon and the condition of the highway and weather conditions." The statute "is applicable to situations in which one motor vehicle is behind another in the same lane of traffic, and there is evidence that the operator of the rear vehicle failed to maintain a reasonably safe distance between the vehicles, and that failure had a causal connection to a resulting collision." Wrinn v. State, supra, 35 Conn.App. 473.
In this case, even if the defendant, who had been operating her vehicle "several car lengths behind" the plaintiff's vehicle, was following it too closely, that negligence could not be a proximate cause of the accident and the plaintiff's injuries. The plaintiff's vehicle, presumably ricocheting back from being struck by the Sepulveda vehicle, in turn struck the defendant's vehicle which had turned completely into the Home Plate parking lot when it was struck by the plaintiff's vehicle.
"Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions. Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 605-06, 662 A.2d 753 (1995). The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct. Doe v. Manheimer, 212 Conn. 748, 758, 563 A.2d 699 (1989)." First Federal Savings Loan Ass'n. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 604, 724 A.2d 497 (1999). Alternatively stated, "the test for determining whether particular conduct is a proximate cause of an injury [is] whether it was `a substantial factor in producing' the result. Mahoney v. Beatman, 110 Conn. 184, 195, [ 147 A. 762 (1929)] . . ." Kinderavich v. Palmer, 127 Conn. 85, 92, 15 A.2d 83 (1940).
Hines v. Davis, 53 Conn.App. 836, 839, 731 A.2d 325 (1999).
The same must be said of the plaintiff's second specification of negligence, that the defendant operated her vehicle unreasonably fast in light of prevailing circumstances and conditions upon the roadway. "Even with the existence of evidence of unreasonable speed, the plaintiff nevertheless must demonstrate that the unreasonable speed was the proximate cause of the accident." Winn v. Posades, 281 Conn. 50, 63, 913 A.2d 407 (2007). In Mahoney v. Beatman, 110 Conn. 184, 147 A. 762 (1929), the court held that the conduct of the plaintiff in traveling at an excessive speed was not the proximate cause of the resulting damages when a vehicle operated by the defendant crossed over the center line of the highway causing an accident. Analogously, here the defendant's speed could not have been a proximate cause of the accident, where the defendant had pulled into a parking lot and the plaintiff's vehicle was propelled into the defendant's vehicle by the force of a third vehicle.
The plaintiff's third specification of negligence is that the defendant "failed to turn her vehicle as to avoid colliding with the rear of plaintiff's vehicle." In fact, the evidence submitted by the defendant establishes that she did turn her vehicle and avoided colliding with the rear of the plaintiff's vehicle. Therefore, this specification of negligence has been refuted.
The plaintiff's final specification of negligence is that the defendant "failed to slow or stop her vehicle so as to avoid colliding with the rear of plaintiff's vehicle." Again, this could not have been a proximate cause of the accident. The plaintiff's vehicle, apparently ricocheting back from being struck by the Sepulveda vehicle, in turn struck the defendant's vehicle, which had pulled off the road completely into Home Plate's parking lot when the plaintiff's vehicle struck it.
Where the moving party has sustained her initial burden on a motion for summary judgment, then "[t]o oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." State v. Goggin, 208 Conn. 606, 616-17, 546 A.2d 250 (1988). In support of her objection to the defendant's motion for summary judgment, the plaintiff submitted (1) a police report, (2) deposition transcript pages, and (3) a memo from John C. Swanson, Jr. to her attorney. During the hearing on the motion for summary judgment, the plaintiff also sought to introduce an unauthenticated recorded statement apparently given over the telephone to an investigator of some sort.
The defendant objects to all of these documents. First, she objects to the police report because it "is neither sworn to, certified nor authenticated." The court must sustain the objection.
Practice Book § 17-45 provides in relevant part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . . Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already a part of the file, shall be filed and served as are pleadings." Practice Book § 17-46 further states: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto."
"Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995). "In fact, [the Appellate Court has] held that Practice Book § [17-45], although containing the phrase `including but not limited to,' contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." United Services Automobile Ass'n. v. Marburg, 46 Conn.App. 99, 107-08, 698 A.2d 914 (1997).
"Therefore, before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005).
The police report is not authenticated in any of these ways. It is not certified nor under oath; it is not accompanied by an affidavit explaining that it is a business record. It certainly appears to be genuine but there simply is no authority for appearances to govern admissibility over an objection. The objection is sustained. The court may not consider the police report.
Next, the plaintiff submits what she represents to be, and what appears to be, pages from the transcript of her deposition. Indeed, at the base of each page are the words "Esquire Corporate Services" together with a telephone number. The court could consider this document absent objection. Barlow v. Palmer, 96 Conn.App. 88, 91-92, 91 n. 4, 898 A.2d 835 (2006). The defendant, however, again objects and observes that the transcript pages are not certified. The plaintiff answered at oral argument that these pages are from the same deposition transcript from which the defendant attached an excerpt in support of her motion for summary judgment. The plaintiff, however, has attached different pages, and while the excerpt attached by the defendant is certified, those pages attached by the plaintiff are not.
"The trial courts are divided on the issue of whether an uncertified copy of a deposition may be used in support of or in opposition to summary judgment." Id., 91 n. 4. In the view of this court, Practice Book § 17-45 clearly requires that deposition transcripts be certified. As observed supra, Practice Book § 17-45 provides: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath . . ." (Emphasis added.) This requirement attaches to the deposition transcript as a whole, however, not to the particular pages of the transcript that are submitted to the court in support or opposition to the summary judgment motion. That is, Practice Book § 17-45 does not require that counsel trek back to the court reporter who transcribed the deposition and prepared the transcript to get a separate certification for the particular pages used in support of or opposition to summary judgment, in the absence of a claim by opposing counsel that the pages used have been fabricated or altered.
The court observes, however, that given the unsettled state of the law, it is wise to obtain such a certification. The defendant here did so.
Practice Book § 17-45 is modeled after Federal Rule of Civil Procedure 56. The 9th Circuit Court of Appeals provides some guidelines on whether a court can consider uncertified pages under Federal Rule 56(e) when the opposing party has certified other pages. "[The 9th Circuit Court] previously held a district court's admission of unauthenticated evidence in a summary judgment motion is harmless error when the same item of evidence has been authenticated by an opposing party . . . We now hold that when a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties, subject to the right of any party to present evidence to the ultimate fact-finder disputing its authenticity . . . Thus, we recognize that an inquiry into authenticity concerns the genuineness of an item of evidence, not its admissibility. See 31 Wright Gold, Federal Practice Procedure: Evidence § 7104 at 30-31 (2000) (`Once evidence offered against one party is deemed authentic, its authenticity is established as against all other parties as well'). Exhibit 5, which contains four pages of [the plaintiff's] deposition testimony, was not properly authenticated by [the plaintiff]. However, because these pages were included in portions of [the plaintiff's] deposition authenticated by [the defendant], the district court manifestly erred in its decision to exclude Exhibit S for inadequate authentication." (Citations omitted.) Orr v. Bank of America, NT SA, 285 F.3d 764, 776 (9th Cir. 2002).
Rule 56(e) of the Federal Rules of Civil Procedure provides: "Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."
"However, when unauthenticated extracts of a document are submitted that do not readily indicate that they are parts of the same document authenticated by another party, the trial court is not required to deem them authentic. This qualification takes into account situations in which different pages of a document (such as a multi-volume deposition) are submitted by opposing parties, and only one party authenticates the pages it submits. In such instances, the trial court may not be able to determine if the unauthenticated extracts are part of the same document as the authenticated extracts. It can then exclude the unauthenticated extracts." Id., 776 n. 16.
Here, the defendant provided a separate certification by the court reporter of the particular pages she submitted in support of her summary judgment motion, and only those pages. The plaintiff has provided no certification for the pages she has submitted in opposition to the motion.
Though the rule is rarely followed, it remains the law that "[w]hen the defendant introduced parts of a deposition taken in [her] behalf, the plaintiff was properly entitled to introduce other parts of the deposition which were relevant and competent evidence. The course taken by the defendant in culling out and offering parts of a deposition taken by [her] was wholly irregular. The party offering in evidence a deposition taken in [her] behalf, must present the entire deposition competent and pertinent to the issues involved." Walter v. Sperry, 86 Conn. 474, 480, 85 A. 739 (1913). Given the "irregularity" in the manner in which the defendant has presented deposition testimony, some latitude is owing the plaintiff in remedying it.
Moreover, a deposition transcript is unlike an extrajudicial document. "Technically, a deposition is the written testimony of a witness given in the course of [the trial]." (Internal quotation marks omitted.) Bruneau v. Quick, 187 Conn. 617, 625, 447 A.2d 742 (1982). "The taking of the deposition is a part of the trial." Anderson v. Snyder, 91 Conn. 404, 408, 99 A. 1032 (1917); Rozbicki v. Huybrechts, 22 Conn.App. 131, 134, 576 A.2d 178 (1990), aff'd, 218 Conn. 386, 589 A.2d 363 (1991); Donaghue v. Nurses Registry, Inc., 40 Conn.Sup. 196, 197, 485 A.2d 945 (1984); Helfferich v. Farley, 36 Conn.Sup. 333, 334, 419 A.2d 913 (1980). Deposition procedure and use are governed by the Practice Book. See Practice §§ 13-26 through 13-32.
Section 13-31 of the Practice Book provides in relevant part: "(c) Effect and Errors and Irregularities in Depositions . . . (4) As to completion and return of deposition: Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained." (Emphasis added.)
The defendant does not suggest that the pages submitted by the plaintiff are not from the deposition transcript, but instead complains that the pages submitted by the plaintiff are not certified. The defendant, however, never filed a motion to suppress the deposition or any part of it, which from the deposition excerpt submitted by the defendant appears to have been taken in May 2007. The defendant, therefore, has waived the absence of a certification pursuant to Practice Book § 13-31(c)(4). The court therefore considers the testimony of the plaintiff in her deposition as submitted by the plaintiff. In doing so, the court is mindful that it must consider the deposition testimony "as a whole." See Allstate Ins. Co. v. Barron, 269 Conn. 394, 410-11, 848 A.2d 1165 (2004); Jackson v. Poland, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0472786 (February 4, 2004, Tanzer, J.); Dingle v. Fleet Bank, Superior Court, judicial district of New Haven, Docket No. CV 00 0443028 (May 20, 2002, Arnold, J.); Goodfield v. Plymouth, Superior Court, judicial district of New Britain, Docket No. CV 98 0486389 (January 22, 2001, Kocay, J.); Ferreira v. Neuhaus, Superior Court, judicial district of Tolland, Docket No. CV 94 55108 (April 10, 1997, Rittenband, J.).
Presumably, it was the defendant who noticed and took the plaintiff's deposition and arranged for the court reporter. The court also observes that the pages of the plaintiff's deposition submitted by the plaintiff are formatted in the same manner and contain the same words ("Esquire Corporate Services") and telephone number on the bottom of each page, as do the pages submitted by the defendant.
In her deposition, the plaintiff testified that just before her car was struck head-on by the Sepulveda vehicle, she applied her brake. The head-on collision was "hard." When she was struck by the Sepulveda vehicle, her car was on the road, and not in the parking lot. After that collision, the plaintiff's car was "not facing straight down the lane" but was "facing a little bit off" toward the middle lane. As the Sepulveda vehicle struck her, her air bag deployed and "almost simultaneously" the plaintiff felt another impact. She further testified: "I didn't see anything; but apparently the car that was behind me, either I hit it or it hit me." The second impact also was "hard." At the time of the second impact, the plaintiff believed that she had her foot on the brake. The plaintiff did not see the defendant's vehicle before the accident. Also, the plaintiff testified that she might have briefly lost consciousness, although whether this occurred before or after the impact with the defendant's vehicle is unclear.
An operator of a motor vehicle who is following another vehicle has a common-law duty "to maintain such a distance behind the preceding vehicle as will enable [the following vehicle] to stop and avoid a collision." (Internal quotation marks omitted.) Wrinn v. State, supra, 35 Conn.App. 472. The plaintiff has satisfied her burden of presenting evidence that there is a triable issue as to this claim of negligence.
The court will also address the unsworn memorandum from John C. Swanson, Jr. to the plaintiff's attorney, which the plaintiff also relies upon in her opposition to the motion for summary judgment. Swanson is an accident reconstructionist whose credentials are not challenged by the defendant. Nor does the defendant complain that this document is not sworn to by Swanson. Rather, the defendant objects to the court's consideration of the memorandum because, she argues, Swanson's opinions would be inadmissible because he admits that "the information currently available is insufficient . . . to attempt a definitive estimation of such factors as speed, time and distance relations, stopping distance and other aspects of the collision" and is insufficient "to attempt a complete reconstruction of this accident."
In his memorandum, Swanson states that he reviewed the following materials: the police report, the transcript of the plaintiff's deposition, the defendant's motion for summary judgment, the defendant's affidavit, black and white copies of photographs of the defendant's vehicle, color copies of the plaintiff's vehicle and published vehicle specifications for the 1997 Jeep Grand Cherokee and the 1999 Ford F-150 pickup truck. He also "made an initial examination of the accident site" on September 26, 2007. Swanson further states: "Although insufficient information exists, as of this time, to attempt a complete reconstruction of this accident, I can offer you the following . . ."
In her affidavit, Tracey Dudek claims that she was at a position "several car lengths" behind the Crowley Jeep when the impact occurred between Crowley and Sepulveda. Ms. Dudek further states that she immediately turned right and into the parking lot (at the right side of the road) in order to avoid a collision. She claims that she was at a position "completely in the parking lot" when the back of the Jeep hit the side of her pickup truck in the area of its left rear wheel well. She did not mention that she engaged her brakes during the accident.
The position of impact between the rear of the Jeep and the left rear wheel area of the Dudek truck are well documented in the photographs provided. Given the position of this damage and the longitudinal dimensions of the respective vehicles, the Dudek truck had to be at a position adjacent to the right side of the Crowley vehicle and with the majority of the truck's length (approximately 15 ft of its total 18.4 ft length) past the rear of the Crowley Jeep. It appears highly unlikely, if at all possible, that Ms. Dudek could have traveled from a position "several car lengths" behind the Jeep (at the time of the Sepulveda impact) to overtake the rear of the Jeep by an additional 15 feet (to where the second impact occurred) within the very brief time, between the two impacts, described by Ms. Crowley as "almost simultaneous."
It seems undisputed that, when faced with the (Sepulveda/Crowley) collision directly ahead of her, Ms. Dudek opted to swerve to her right rather than brake to a stop to avoid a further collision.
"Section 7-2 of the Connecticut Rules of Evidence requires that expert testimony be allowed if it will assist the trier of fact. In order to find that the evidence is of assistance to the trier of fact, the trial court must essentially find that the evidence is relevant and that it is necessary. Daley v. Wesleyan, 63 Conn.App. 119, 772 A.2d 725 (2001)." Shea v. Stratford, Superior Court, judicial district of Fairfield, Docket No. CV 00 0374534 (Sept. 20, 2004, Arnold, J.).
Section 7-4 of the Connecticut Code of Evidence provides in relevant part:
(a) Opinion testimony by experts. An expert may testify in the form of an opinion and give reasons therefor, provided sufficient facts are shown as the foundation for the expert's opinion.
(b) Bases of opinion testimony by experts. The facts in the particular case upon which an expert bases an opinion may be those perceived by or made known to the expert at or before the proceeding. The facts need not be admissible in evidence if of a type customarily relied on by experts in the particular field in forming opinions on the subject. The facts relied on pursuant to this subsection are not substantive evidence, unless otherwise admissible as such evidence.
"An expert's opinions are only of assistance if the opinions are based on probability." Shea v. Stratford, supra. "The law does not require that an expert's opinion be phrased with the `magic words' of reasonable probability as long as the entire substance of the expert's testimony leads to a conclusion that the opinion is expressed in probabilities. Struckman v. Burns, 205 Conn. 542, 555, 534 A.2d 888 (1987). `When reports are the substitute for testimony, the entire report should be examined, not only certain words or phrases.' Id." Brunean v. Seabrook, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 00 0069435 (June 19, 2003, Lager, J.), aff'd, 84 Conn.App. 667, 854 A.2d 818, cert. denied, 271 Conn. 930, 859 A.2d 583 (2004).
The court finds that the portion of Swanson's report quoted supra satisfies these requirements. "[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). "A material fact is one which will make a difference in the result of the case." State ex rel. Commissioner for Higher Education v. Wethersfield School of Law, Inc., 169 Conn. 171, 176, 362 A.2d 1371 (1975). There is no requirement that, in order for the plaintiff to withstand a motion for summary judgment, the plaintiff's expert must come forth with a global opinion as to how the entire accident occurred and resolve all issues related to it. Although the plaintiff's expert states that "insufficient information exists, as of this time, to attempt a complete reconstruction of this accident," he indicates that he can offer and does offer an opinion that the accident did not occur in the manner stated by the defendant in her affidavit. In this manner, Swanson's opinions show that there is a genuine issue of material fact as to how the accident occurred. In effect, under Connecticut law, a party opposing a motion for summary judgment may show that there is a genuine issue of material fact, and defeat the motion, by "punch[ing] holes in a [moving party's] witness' testimony . . ." Perry v. Leeke, 488 U.S. 272, 282, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989).
Another part of the Swanson memorandum, where Swanson states: "One inference that I believe can be drawn from this is that her perception was that she was at a position behind Crowley that was too close to afford her sufficient room to stop given her relative speed at the time" is inadmissible as expert opinion. While Swanson may testify as to what the Dudek vehicle did, he is not qualified as an expert to speculate on Dudek's motives or "perception," that is, her thought processes, nor is such an opinion helpful to the trier. Connecticut Code of Evidence § 7-2.
"Modern summary judgment procedure was adopted in Connecticut in 1963 and was modeled on the Federal Rules of [Civil] Procedure." (Internal quotation marks omitted.) Ocwen Federal Bank, FSB v. Charles, 95 Conn.App. 315, 330, 898 A.2d 197, cert. denied, 279 Conn. 909, 902 A.2d 1069 (2006). As recently as twenty years ago, the Connecticut Supreme Court repeatedly noted the substantial similarity between the federal and Connecticut summary judgment procedures and has often relied upon federal rules and case law for guidance." Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 260, 532 A.2d 1302 (1987). At about that time, however, Connecticut law and federal practice diverged on the issue of what burden a plaintiff opposing summary judgment had to bear. Since that time, because of a trilogy of decisions by the United States Supreme Court in 1986, it has become clear that a plaintiff seeking to defeat a motion for summary judgment in federal court has a greater burden than that party would have in Connecticut state court. Specifically, the United States Supreme Court has held that "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 77 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("We repeat, however, that the plaintiff, to survive the defendant's motion, need only present evidence from which a jury might return a verdict in his favor"); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 585-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Finally, toward the end of oral argument, the plaintiff offered an additional document in opposition to the motion for summary judgment. The defendant objected. The document, titled "Recorded Claims Statement," appears to be a transcription of a telephone conversation and is not under oath or self-authenticating. The document was not timely offered pursuant to Practice Book § 17-45; Barile v. LensCrafters, Inc., 74 Conn.App. 283, 286, 811 A.2d 743 (2002); and is not under oath or otherwise authenticated. The defendant's objection to the court's consideration of the document is sustained.
The court does not reach the defendant's argument that the document violates General Statutes § 52-147, which provides: "In any action to recover damages for personal injuries no written statement concerning the facts out of which the cause of action arose given by either party to the other, or to his agent, attorney or insurer, shall be admissible in evidence unless the name and address of the person taking such statement appears thereon and unless a copy thereof is retained by the party giving such statement or delivered to him at the time such statement was given or within thirty days thereafter."
Because there are genuine issues of material fact as to how the vehicles of the plaintiff and defendant came into contact with each other, and whether that contact was a result of negligence of the defendant, the defendant's motion for summary judgment is denied.