Opinion
No. CV 07-5009244 S
July 21, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (MOTION #111.00)
The case presently before the court arises out of a motor vehicle accident of November 10, 2005. The complaint, which is comprised of two counts, is based in negligence; the first count is brought against Jeffrey R. Civardi, the operator of a 2001 Kenworth commercial dump truck and the second count is brought against W.L. Bond Trucking, Inc., the vehicle owner. The complaint alleges that the plaintiff, Joseph N. Edo, sustained serious injuries as a result of the negligence of Civardi, in one or more of the following ways:
a. he failed to keep his vehicle under proper and reasonable control;
c. he failed to apply his brakes in time to avoid a collision although by a reasonable and proper exercise of his faculties he could and should have done so;
The complaint, dated June 12, 2007, omits a paragraph b.
d. he failed to maneuver his vehicle to avoid a collision although by a reasonable and proper exercise of his faculties he could and should have done so;
e. he was inattentive to his driving;
f. he failed to drive a reasonable distance apart in violation of Connecticut General Statute 14-240;
g. he failed to sound his horn or give any appropriate warning prior to the accident;
h. he failed to remain in the correct driving lane; and
i. he failed to drive in the right hand lane in violation of Connecticut General Statute 14-230 and 14-237.
On March 16, 2009, the plaintiff filed a motion for summary judgment as to liability, on the basis that there is no genuine issue as to any material fact with respect to liability. The defendants filed their opposition on May 7, 2009. The matter was heard at short calendar on May 11, 2009.
DISCUSSION
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Summary judgment procedure is an attempt to dispose of cases involving sham or frivolous issues in a manner which is speedier and less expensive for all concerned than a full-dress trial." Mac's Car City, Inc. v. American National Bank, 205 Conn. 255, 261, 532 A.2d 1302 (1987).
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). Summary judgment is particularly "ill adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ."(Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
The party moving for summary judgment is required to support its motion with supporting documentation, including affidavits. Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).
"The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Pion v. Southern New England Telephone, 44 Conn.App. 657, 663, 691 A.2d 1107 (1997). A party's conclusory statements, "in the affidavit and elsewhere," may not "constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995) "[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Internal quotation marks omitted.) Id., 752. "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Emphasis in original.) Id.
"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.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
In support of his motion for summary judgment, the plaintiff submitted his affidavit, a certified copy of the police report, and excerpts from Civardi's March 7, 2008 deposition. The defendants, in their opposition, submitted excerpts from Civardi's deposition and a copy of the police report, uncertified.
Both sides have submitted uncertified excerpts from a deposition, and neither has objected to the documentation submitted by their opponent. With respect to documents that are submitted in support of or opposition to a motion for summary judgment, the court is limited to considering documents that would be admissible at trial. City of New Haven v. Pantani, 89 Conn.App. 675, (2005). The Pantani court reversed the decision of the trial court which had granted the plaintiff's motion for summary judgment, having considered uncertified, unauthenticated documents, stating:
Practice Book § 17-45 provides in relevant part that "[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 . . ." That section does not mandate that those documents be attached in all cases, but we note that "[o]nly 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, we have 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. In this case, the plaintiff submitted numerous exhibits in support of its motion for summary judgment. The plaintiff failed, however, either to attach an affidavit attesting to the truth and accuracy of the various submissions or to provide certified copies of any of the documents. Id. at 678-79. (Emphasis added.)
However, where the opposing party does not object, a court may, but is not required to, review uncertified deposition transcripts. Barlow v. Palmer, 96 Conn.App. 88, 92 (2006) (holding that trial court did not abuse its discretion in not considering the uncertified deposition testimony submitted by both parties). This court, in the past, has taken into consideration uncertified deposition transcripts and documents, in the absence of any objection from the opposing party. See Pellegrino v. Jack, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 06 5006035 (December 2, 2008, Bellis, J.); Capella v. Daddio, Superior Court, judicial district of New Haven at New Haven, Docket No. 06 5007123 (June 12, 2008, Bellis, J.); Carey v. Geico, Superior Court, judicial district of New Haven at New Haven, Docket No. 065003504 (May 23, 2008, Bellis, J.).
In light of the absence of any objection, the court will consider the excerpts from Civardi's uncertified deposition testimony submitted by the parties.
Here, the affidavit of the plaintiff essentially states that while he was operating his father's 2002 Volkswagen, traveling southbound on Route 7, "in the proper direction for the southbound side," the commercial dump truck operated by Civardi was traveling northbound on Route 7, when he collided with the rear end of a vehicle on the northbound side, crossed the center line, and struck the plaintiff's vehicle on the southbound side. According to the plaintiff, the accident was sudden and unexpected, and he was unable to fully turn his vehicle to avoid the defendant's vehicle. The excerpts of Civardi's deposition testimony submitted by the plaintiff indicate that he was heading north on Route 7, "in the left lane going to turn left." Civardi testified that he started off in the left lane when the car swerved in front of him, "and then went back this way, I looked up, and I turned my wheels to the left to miss the guy in front of me. And then I side swiped the guy coming south, and then once that happened, the truck just — it blew a left front tire, I believe — and had come to a stop."
The additional excerpts of the deposition transcripts submitted by the defendant indicate that Civardi also testified that he told the police officer that he had been cut off by a car that swerved in front of him from the right lane to the left lane. When the officer told him that he was going to give him a ticket for improper lane change, he told the officer that he was in his own lane. He testified that at some point before the accident, Civardi was traveling 35 to 40 miles per hour.
The police report, submitted by both parties, states, inter alia, that Civardi explained to the officer that he was distracted by a vehicle which was attempting to move into his lane from the right lane. According to the report, he indicated that when he looked up again, he observed a vehicle operated by one David Peterson stopped in front of him, and hit his brakes and began to move to his left. According to the police report, Civardi said he then struck the rear of "MV1," and then crossed into the southbound lane, sideswiping the plaintiff. Peterson, according to the police report, stated that he was stopped to make a left turn in the northbound left lane, where he was struck from behind by Civardi. The police report further indicates that the plaintiff stated that he was southbound when Civardi's vehicle entered his lane, and that he was unable to react prior to the accident. Finally, according to the officer, Civardi was northbound on Route 7 in the left hand lane, and struck the rear of the Peterson vehicle, which had been stopped in the left hand lane to make a left turn. The Civardi vehicle then partially crossed the double yellow line and sideswiped the plaintiff's vehicle, which had been traveling southbound in the left lane. According to the report, the Civardi vehicle blew out a front left tire and stopped north of the intersection over the double yellow line. The report also contains a detailed diagram.
According to the police report, "MV1" would be his own vehicle; this of course is a physical impossibility.
Basically, the plaintiff takes the position that Civardi was distracted, and that his negligence, in failing to keep a proper lookout and following too closely to the Peterson vehicle, caused the accident. While the affidavit of the plaintiff contains the conclusory, self-serving statement to the effect that the plaintiff did not have sufficient time to avoid Civardi's vehicle, Civardi raised no special defenses, nor were Peterson or the driver who, according to Civardi, cut him off, brought into the case as apportionment defendants. As such, the jury will only be called upon to determine the negligence, if any, of Civardi. However, the defendants have submitted evidence which raises a genuine issue of material fact, by virtue of Civardi's deposition testimony and statement to the police that he had been cut off by another vehicle, which had swerved in front of him, causing him to be distracted. Genuine issues of fact remain as to whether Civardi was negligent, and the negligence of Civardi, if any, should be resolved at trial by a jury, which is in the position to assess the credibility, or lack of credibility, of Civardi and other witnesses and evidence.
The defendants have raised a genuine issue of material fact as to the negligence of Civardi. As such, the plaintiff's motion for summary judgment is denied.