Opinion
No. CV 09 5027075 S
October 15, 2010
MEMORANDUM OF DECISION
On February 26, 2009, the plaintiff, Jason Naarden, filed a one-count complaint based on negligence against the defendant, Ralph Amendola, Jr., seeking damages for injuries arising out of a motor vehicle accident. The plaintiff asserts that on February 14, 2007, the defendant caused a rear-end collision with the plaintiff's motor vehicle. According to the complaint, at the time of the collision, traffic on the highway was slowed because of rubber necking caused by a multi-car accident. The defendant was distracted by the accident and when he redirected his attention back to the road, he was too close the plaintiff's vehicle to come to a safe and complete stop, causing the defendant to strike the rear of the plaintiff's vehicle. The plaintiff alleges common-law negligence in that the defendant was inattentive and failed to keep a proper lookout, failed to keep and maintain his vehicle under proper and/or reasonable control, and failed to take evasive action to avoid the collision. The plaintiff also alleges that the defendant breached common-law and statutory duties to refrain from operating his vehicle too closely to the plaintiff's vehicle in violation of General Statutes § 14-240 and to maintain the braking system in his vehicle in good working order in violation of General Statutes § 14-80h.
On August 5, 2010, the plaintiff filed a motion for summary judgment and a supporting memorandum of law arguing that there is no genuine issue of material fact on the issue of the defendant's liability. In support of his motion, the plaintiff submits portions of the uncertified transcript of the defendant's deposition and an affidavit of the plaintiff. On September 21, 2010, the defendant filed a memorandum in opposition to the motion for summary judgment arguing that the plaintiff has not met his burden of establishing that there is no genuine issue of material fact because the issue of whether the defendant breached a standard of care is a factual issue that should be resolved by the jury. In support of his motion, the defendant submits his own affidavit.
"[B]efore a document may be considered by the court [in connection with] 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.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 466-67, 976 A.2d 23 (2009); accord New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). "While [a party's] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n. 2, 671 A.2d 1329 (1996). Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). In the present case, there has been no objection to the submission of the uncertified transcript of the defendant's deposition.
The matter was heard on the short calendar on September 27, 2010.
"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.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010). "[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When 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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., CT Page 19892 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
"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 procedure is especially 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). "An issue of proximate cause is ordinarily a question of fact for the trier . . . It becomes a conclusion of law only when the minds of a fair and reasonable [person] could reach only one conclusion . . ." (Citation omitted; internal quotation marks omitted.) B D Associates, Inc. v. Russell, 73 Conn.App. 66, 77, 807 A.2d 1001 (2002).
In general, "a motorist has a duty to have his vehicle under control and to stop it before striking other vehicles ahead of him on a public highway." Klawitter v. Ciesla, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 90 032186 (December 18, 1990, Fuller, J.) [ 3 Conn. L. Rptr. 37]. Summary judgment, however, may be inappropriate where there are facts that "indicate [another] cause for the accident other than facts amounting to negligence on the part of the defendant . . ." Id. "Common experience shows that motor vehicle accidents are not all due to driver negligence . . . [In a negligence action,] [a] plaintiff cannot merely prove that a collision occurred and then call upon the defendant operator to come forward with evidence that the collision was not a proximate consequence of negligence on his part. Nor is it sufficient for a plaintiff to prove that a defendant operator might have been negligent in a manner which would, or might have been, a proximate cause of the collision. A plaintiff must remove the issues of negligence and proximate cause from the field of conjecture and speculation." (Citations omitted; internal quotation marks omitted.) O'Brien v. Cordova, 171 Conn. 303, 306, 370 A.2d 933 (1976).
In the present case, the plaintiff argues that there is no genuine issue that the defendant breached the standard of care owed to the plaintiff because a reasonable and prudent person would have maintained eye contact on the road ahead of him and not been distracted by an off-road accident, particularly when he was aware of the icy road conditions. According to the plaintiff's affidavit, while driving on interstate 95, the plaintiff began to slow down in accordance with the other traffic on the highway. In his rear view mirror the plaintiff observed that the defendant's vehicle was following his vehicle too closely and approaching at an unsafe speed, at which time the defendant collided with the plaintiff. The plaintiff attests that he did not observe or hear the defendant apply his brakes, slow down, or sound his horn. The plaintiff also submits a portion of the defendant's deposition transcript in which the defendant testifies that the roads were icy, the weather conditions included hail and possibly snow, and he looked at the accident on the side of the highway. To support his argument, the plaintiff relies on Colby v. Parrillo, Superior Court, judicial district of New Haven, Docket No. CV 98 0412978 (March 30, 2000, Devlin, J.) [ 27 Conn. L. Rptr. 29], where the court granted summary judgment as to liability because the defendant looked down at her lap to brush away a spider and "when she tried to get the spider off she hit the gas pedal with her foot causing her vehicle to speed up hitting [the plaintiff's] vehicle in the rear." The court explained that "[o]perating a motor vehicle in traffic while at the same time diverting one's attention from the road to brush a spider from one's lap is below the standard of care that a reasonable person would observe." Id. The defendant in Colby, however, failed to submit any other facts to indicate another cause for the accident other than facts amounting to negligence. Id. In the present case, the plaintiff also relies on two other cases where summary judgment issue of liability was granted. In each of those cases, the nonmoving party failed to file a memorandum of law or offer evidence to controvert a finding of negligence.
The plaintiff submits Lohr v. Tolman, Superior Court, judicial district of New Haven, Docket No. CV 94 0365833 (June 5, 1995, Silbert, J.) [ 14 Conn. L. Rptr. 470], and Lamb v. Louisgene, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 93 0133343 (December 14, 1994, D'Andrea, J.) [ 13 Conn. L. Rptr. 192].
The present case, however, is distinguishable because there is evidence that indicates another cause for the accident other than negligence. Specifically, the record contains facts from which a reasonable person could conclude that the defendant was operating his vehicle as a reasonably prudent person but the presence of ice on the road resulted in an unavoidable accident. In his affidavit, the defendant attests that on the day of the accident the road conditions were icy and precipitation was falling, he was traveling at approximately thirty to thirty-five miles per hour due to the conditions of the roadway, he was three car lengths behind the plaintiff, and he applied his brakes when he noticed that the plaintiff's car had slowed but the vehicle slid on the slippery road surface and the front end of his vehicle collided with the rear-end of the plaintiff's vehicle. The defendant further attests that he did notice the accident as he was driving past it but he did not look away from the roadway ahead. Additionally, the defendant testifies in his deposition that on the day of the accident the road conditions were terrible, he was not in a rush to get anywhere, he slowed down with the pace of traffic to about twenty miles per hour, and he slowed down when he noticed the accident and the brake lights ahead of him, as well as because of the road conditions.
The evidence, when viewed in the light most favorable to the defendant, the nonmoving party, indicates another possible cause for the accident rather than negligence on the part of the defendant. As such, the plaintiff has not demonstrated the absence of a genuine issue of material fact concerning the defendant's liability.
The plaintiff argues that he is entitled to summary judgment as a matter of law because, in Connecticut, a violation of a motor vehicle statute is negligence per se. "[U]nder general principles of tort law, a requirement imposed by statute may establish the applicable standard of care to be applied in a particular action. It is well established that in order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute . . . Second, the injury must be the type which the statute was intended to prevent." (Citations omitted; internal quotation marks omitted.) Gore v. People's Savings Bank, 235 Conn. 360, 375-76, 665 A.2d 1341 (1995).
"Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law . . . In cases involving the doctrine of negligence per se, however, the defendant ordinarily may avoid liability upon proof of a valid excuse or justification." (Citation omitted; internal quotation marks omitted.) Id., 376.
In the present case, the plaintiff argues that the defendant violated General Statutes § 14-240 by operating his vehicle too closely to the plaintiff's vehicle. General Statutes § 14-240(a) 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." "Our statutes and case law do not define the phrase `follow another vehicle more closely than is reasonable and prudent;' therefore the term must be construed according to the commonly approved usage of the language." Wrinn v. State, 35 Conn.App. 464, 469, 646 A.2d 869 (1994), aff'd, 234 Conn. 401, 661 A.2d 1034 (1995). "Our legislature . . . did not intend General Statutes § 14-240 to apply in all situations . . . [T]he purpose of the statute is very specific: to codify a duty of a driver of a following vehicle to maintain such a distance behind the preceding vehicle as will enable [the following vehicle] to stop and avoid a collision . . . The purpose of holding a trailing driver to a proper distance is to keep [the trailing driver] in a position to stop or so control [the vehicle] as to prevent [the trailing driver] from doing injury because of the action of the car ahead . . . Our statute . . . merely incorporates the common law standard [for negligence] into the motor vehicle law . . . Since a cause of action for negligence requires a breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff . . . it follows that the application of [General Statutes] § 14-240 requires evidence that (1) a motor vehicle, while behind another in the same lane of travel, failed to maintain a reasonably safe distance between the vehicles, and (2) the failure to maintain a reasonably safe distance had a causal connection to a resulting collision." (Citations omitted; internal quotation marks omitted.) Id., 472-73.
The lower court's decision in Wrinn is instructive. Wrinn v. State, supra, 35 Conn.App. 464. In that case, the court found that there was no evidence to support the conclusion that the defendant violated General Statutes § 14-240 where the defendant's vehicle skidded on a freeway exit and struck a stopped vehicle. Id., 467, 473. The court was presented with evidence that the highway surface was wet, the weather was rainy and misty, the motorist had driven no faster than forty-five miles per hour before exiting the turnpike, and the driver slowed the vehicle in an attempt to stop but the vehicle began to skid. Id., 467. The court explained that "[e]vidence of skidding is not, in and of itself, evidence of negligence." Id., 467 n. 3, quoting Lowell v. Daley, 148 Conn. 266, 273, 169 A.2d 888 (1961). In affirming the lower court's decision, the Connecticut Supreme Court explained that "[a]lthough a rear end collision is not a per se violation of [General Statutes] § 14-240, such a collision may be the result of a violation of the statute . . . In order to reach the issue of causation, however, the plaintiff must first present evidence to show that prior to the collision, the defendant was following to closely." Wrinn v. State, supra, 234 Conn. 407 n. 6.
In the present case, the plaintiff attests in his affidavit that he observed the defendant following too closely and approaching at an unsafe speed. The defendant, on the other hand, attests in his affidavit and testifies in his deposition that he was traveling three car lengths behind the plaintiff when he noticed traffic slowing but when he applied the brakes his vehicle began to slide on the slippery road surface. Based on this evidence, the plaintiff has not met his burden of showing the absence of a genuine issue concerning whether the defendant was following too closely in violation of General Statutes § 14-240.
In addition, the plaintiff argues that the defendant violated General Statutes § 14-80h by failing to maintain the braking system in his vehicle in good working order. General Statutes § 14-80h(a) provides: "Each motor vehicle, other than a motorcycle, shall be equipped, when operated on a highway, with at least two braking systems one of which shall be a service brake system and the other a parking brake system. Each braking system shall have a separate means of application by the operator. Each braking system, including any power assist devices used to reduce operator braking effort, shall be maintained in good working order at all times." The plaintiff has not brought forth any evidence from which it can be inferred that the defendant's brakes were not maintained in good working condition. As such, the plaintiff has not met his burden of showing the absence of a genuine issue of material fact.
In viewing the evidence in the light most favorable to the defendant, the nonmoving party, genuine issues of material fact exist concerning the defendant's liability.
For the foregoing reasons the plaintiff's motion for summary judgment is denied as to liability on both the common-law negligence and the negligence per se claims.