Opinion
No. 5000337
June 26, 2007
MEMORANDUM OF DECISION
On February 5, 2007, the plaintiffs, Sean and Patricia Richardson, filed an eight-count amended complaint seeking to recover damages as a result of a two-vehicle accident that occurred on December 9, 2003 in Waterford, Connecticut. The defendants in this action are John Hoffenbacher, the operator of the refuse truck that collided with the plaintiff's vehicle, and the town of Waterford, owner of the refuse truck.
The operative complaint in this matter is the amended complaint dated February 1, 2007 and filed February 5, 2007.
On March 5, 2007, the defendants filed a motion for partial summary judgment as to counts five, six, seven and eight of the plaintiffs' second amended complaint. The motion for summary judgment was accompanied by a memorandum of law and a number of exhibits, including excerpts from deposition transcripts of both the defendant, John Hoffenbacher, and the plaintiff, Sean Richardson. On April 16, 2007, the plaintiffs filed a memorandum of law in opposition to the defendants' motion for partial summary judgment. The opposition memorandum included excerpts from the deposition transcript of the defendant, John Hoffenbacher. Thereafter, on April 23, 2007, the defendants filed a reply to the plaintiffs' memorandum in opposition. The court heard oral argument on the matter on June 4, 2007.
During oral argument on the motion for summary judgment, this court granted the defendants permission to file the motion for partial summary judgment. The trial on this matter is scheduled to commence on July 10, 2007.
At oral argument, the plaintiffs conceded that they do not oppose summary judgment on counts five and six alleging negligent supervision.
"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.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving 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." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "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).
"[A] claim of recklessness usually presents a question of fact, unsuitable for summary judgment, unless no reasonable mind can differ as to the conclusion." Limitone v. Reilly, Superior Court, judicial district of New Haven, Docket No. CV 02 0459818 (July 24, 2003, Gilardi, J.). In the present case, the defendants move for partial summary judgment on counts seven and eight of the amended complaint in which the plaintiffs allege statutory recklessness as against the operator of the refuse truck, John Hoffenbacher. The defendants argue that the recklessness claims fail as a matter of law, therefore they are entitled to summary judgment. In response, the plaintiffs argue that "whether or not the defendant, John Hoffenbacher, operated his refuse collection truck in a reckless manner in violation of [General Statutes] § 14-222 and/or was traveling too fast for the conditions of the roadway in violation of [General Statutes] § 14-218a, raise questions of fact that cannot be disposed of upon a motion for summary judgment."
General Statutes § 14-222 provides in relevant part that "[n]o person shall operate any motor vehicle upon any public highway of the state,. . . recklessly, having regard to the width, traffic and use of such highway, road, school property or parking area, the intersection of streets and the weather conditions."
General Statutes § 14-218a provides in relevant part that "[n]o person shall operate a motor vehicle upon any public highway of the state,. . . at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions."
Viewing the evidence in the light most favorable to the nonmoving party, as this court must do, this court finds that the defendants have failed to present evidence that demonstrates the nonexistence of a factual issue in this case. Whether the defendant, John Hoffenbacher, operated the town refuse truck in a reckless manner with "regard to the width, traffic and use of such highway" is a question of fact in this case. Specifically, the defendant states in his deposition testimony that "[o]ver the years I have had vehicles come around that curve rapidly but they usually have stopped or I have been through the intersection before. . . we have made contact." In response to the roadway conditions at the subject intersection, the defendant testified that he changed his collection route "to a different way to [his] own liking where [he is] not making a left turn out of [Rockwood Drive]." This alternative route gives the defendant "even more room to make the left-hand turn out of." Accordingly, this court finds that there is a genuine issue of material fact as to whether the defendant acted in a reckless manner when he failed to take the alternative collection route on the morning of the accident when he was admittedly aware of the roadway conditions at the intersection.
Based on the foregoing, the defendants' motion for partial summary judgment as to counts seven and eight is denied. The plaintiffs do not oppose summary judgment on counts five and six, therefore, the defendants' motion for partial summary judgment as to the fifth and sixth counts is granted.