Opinion
No. NNH CV 10-6009198-S
November 4, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#131)
FACTS
The plaintiffs, Harry Dougherty and his wife Ann Dougherty, allege in their complaint that on July 31, 2009, they were traveling westbound on Route 1 in Westbrook when "[d]efendant Jean Carrano suddenly and without warning crossed the double yellow line into the westbound lane of Route 1 . . . and struck the Plaintiff's vehicle head on with great force and violence." The plaintiffs further allege that, relevant here, the accident was caused by the negligence of the defendant in that, inter alia; "a. She failed to maintain her automobile in the proper lane of travel in violation of Connecticut General Statutes § 14-230(a) . . ."
The defendant filed an answer on July 12, 2010, denying the above allegations. On June 28, 2011 the defendant filed a motion for summary judgment on the grounds that "the indisputable evidence shows that the defendant was not negligent in the operation of her motor vehicle on the date of loss since she blacked out and she didn't have any reason to anticipate or expect that she would black out, lose consciousness and faint prior to the subject motor vehicle accident." Supporting the motion was an affidavit of the defendant stating that she lost consciousness and had no reason to know she would have lost consciousness, deposition testimony of the defendant confirming the above facts, an affidavit of the defendant's doctor stating that there was "nothing in her medical history that would have made one anticipate that she would have blacked out or lost consciousness on the date of loss," and deposition testimony from Harry Dougherty stating that he had no warning of the collision.
The defendant's motion for summary judgment, #126, will not be discussed in the present memorandum except as necessary to provide background for the plaintiffs' motion, #131.
The plaintiffs filed the present motion for summary judgment on the issue of liability on July 13, 2011, attaching no evidence of their own, but referencing evidence the defendant submitted in support of her motion. The defendant filed a motion for extension of time to respond to the plaintiff's motion on July 26, 2011, which was granted on August 9, 2011. On October 28, 2011, the defendant opposed the plaintiffs' motion for summary judgment and filed an accompanying memorandum of law.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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 . . . The 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." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages." Practice Book § 17-50. "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).
In their memorandum of law, the plaintiffs argue that since the defendant admits to crossing onto the westbound side of the road and striking the plaintiffs' vehicle, by implication she must have violated three statutes: General Statutes § 14-230, which prohibits driving on the left side of the road, § 14-231, which requires vehicles proceeding in opposite directions to pass each other on the right, and § 14-236, which requires vehicles to be driven in a single lane. The plaintiffs state that "violations of statutes that cause injuries constitute negligence per se as a matter of law" and that the fact that the defendant lost consciousness is of no matter because the "plaintiffs do not have to show that the defendant voluntarily drove over the center line; they only need to show the defendant did, in fact, do so in violation of the statutes prohibiting such conduct." Under the plaintiffs' view, intent is irrelevant; all that need be shown is that the defendant violated the statute in order for liability to attach.
The statutes discussed in the plaintiffs' motion and supporting memorandum do not mirror the statutory violations alleged in the plaintiffs' complaint, in that in addition to § 14-230 and § 14-231, the complaint alleges that the defendant also violated § 14-235, which prohibits driving on the left side of the highway, and does not allege a violation of § 14-236. In any event, the precise statutes that were violated do not alter the analysis necessary to decide this motion, as the plaintiffs' motion depends solely on the alleged violation of § 14-230.
In their memorandum the plaintiffs state that "there is a factual dispute regarding whether or not the defendant was afflicted with a sudden emergency" and in effect invites the court to disbelieve the defendant's proffered evidence. The plaintiff does not submit any evidence of their own to show that the defendant was conscious during the crash, but instead relies on a perceived inconsistency. Specifically, the plaintiffs point to the fact that in a police report taken five months after the accident the defendant claimed not to have remembered the accident, and that beforehand doctors told her there was "no medical reason that could be found as to the cause of the accident and that there was no reason for her not to continue to drive." It does not follow from this that she was conscious during the accident, and the plaintiffs have offered no evidence of their own suggesting that she was. Thus, based on the evidence before the court, there is no genuine issue of material fact as to the defendant's consciousness. Even if there were a genuine issue of material fact regarding consciousness, viewing the evidence in the light most favorable to the plaintiff, the court would have to indulge the view that the defendant was unconscious.
"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." (Citation omitted; internal quotation marks omitted.) Gore v. People's Savings Bank, 235 Conn. 360, 376, 665 A.2d 1341 (1995). "Where a statute is designed to protect persons against injury, one who has, as a result of its violation, suffered such an injury as the statute was intended to guard against has a good ground of recovery." Knybel v. Cramer, 129 Conn. 439, 443, 29 A.2d 576 (1942).
Negligence per se is actionable only if two conditions are met: "(1) the plaintiff must be a member of the class protected by the statute; and (2) the injury must be of the type the statute was intended to prevent." Small v. South Norwalk Savings Bank, 205 Conn. 751, 760, 535 A.2d 1292 (1988), citing Wright v. Brown, 167 Conn. 464, 468-69, 356 A.2d 176 (1975). Furthermore, the violation of the statute or regulation must be a proximate cause of the plaintiff's injury. O'Donnell v. Feneque, 120 Conn.App. 167, 171, 991 A.2d 643, cert. denied, 297 Conn. 909, 995 A.2d 637 (2010).
The parties agree that the collision occurred when the defendant's vehicle struck the plaintiffs' on the opposite side of the road. Strictly speaking, this means that the defendant would have to have violated § 14-230 as the plaintiffs claim in order for her car to have gotten to the opposing side of the roadway.
Causation in fact is a component of proximate cause, but it does not necessarily follow that because an event could not have happened without the occurrence of some preceding event, then by extension it is a legal, proximate cause. In order to show proximate cause, "[a] plaintiff must establish that the defendant's conduct legally caused the injuries . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct . . . The second component of legal cause is proximate cause . . . [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than conjecture and surmise." O'Donnell v. Feneque, supra, 120 Conn.App. 172.
The defendant's vehicle would not have struck the plaintiff's had it remained on the correct side of the road. Further, neither the plaintiffs nor the defendant have alleged or submitted evidence to demonstrate that the plaintiffs' injuries were caused by anything other than the defendant's vehicle crossing into the plaintiffs' lane of travel. Thus, there is no genuine issue of material fact that defendant's alleged unlawful crossing of the roadway is a but-for cause of the plaintiffs' injuries, and therefore a substantial factor in bringing about those injuries.
Since the plaintiffs have met their burden of showing the absence of a genuine issue of material fact with regard to causation, the court must turn to the question of whether the evidence shows plaintiffs were in the class the statute is designed to protect, and whether their alleged injury is of the type the statute was designed to prevent. Motor vehicle statutes have been enacted in large part to protect the public. See Danzell v. Smith, 150 Conn. 35, 39, 184 A.2d 53 (1962) (referring to § 14-237, which prohibits driving over medians on divided highways, when stating "[t]he violation of a statute designed for the protection of the public is, in itself, negligence."). Law-abiding motorists are members of the public, and as such are within the class of persons that motor vehicle statutes are designed to protect. Additionally, if the plaintiffs were injured as they claim, their injury would be one that the statute was intended to prevent. This is because the legislature enacted motor vehicle safety statutes with the goal to protect motorists, and since there has been no evidence submitted that shows that the injuries the defendant suffered were of any special nature not ordinarily caused by vehicle collisions. Moreover, courts have often concluded that violations of motor vehicle statutes implicate the doctrine of negligence per se. See Shukis v. Board of Education, 122 Conn.App. 555, 580, 1 A.3d 137 (2010) ("The majority of cases concluding that a statutory provision implicates the doctrine of negligence per se have arisen in the context of motor vehicle regulation").
However, showing that the plaintiffs are in a class of individuals the statute is entitled to protect, and that the injury is one which the statute is intended to prevent does not by itself end the inquiry. O'Donnell v. Feneque, 120 Conn.App. 173 ("The defendant . . . argues that, in order to prove negligence per se, the plaintiff has to prove `an intent to do the act that the statute proscribes.' . . . This reasoning . . . has been specifically rejected by the Supreme Court . . ."). The plaintiffs rightly contend that they do not need to show that the defendant intended to violate the motor vehicle statutes in order for the negligence per se doctrine to apply. However, the apparent harshness of the negligence per se doctrine can be tempered in appropriate cases if the defendant has a justification for their violation. Gore v. People's Savings Bank, supra, 235 Conn. 376 ("In cases involving the doctrine of negligence per se, however, the defendant ordinarily may avoid liability upon proof of a valid excuse or justification").
In the present case, the defendant's justification is that her act was not volitional because she lost consciousness. The fact that she lost consciousness may be irrelevant if this action was based on strict liability, but negligence per se and strict liability are not the same. See Stravitsch v. Nestle USA, Inc., 49 Conn.Sup. 278, 284, 874 A.2d 340 [ 39 Conn. L. Rptr. 6] (2005) ("The moving parties' error is in arguing that the cases they cite — referring as they do to `negligence per se' — create a strict liability tort. Our Supreme Court laid that fallacy to rest in Gore v. People's Savings Bank"). The negligence per se doctrine leaves room for justification, strict liability does not. Gore v. People's Savings Bank, supra, 235 Conn. 376-78.
The second restatement of torts § 288A, cited in Gore, provides that "unless the statute is construed not to permit an excuse, the violation of such a statute `is excused when (a) the violation is reasonable because of the actor's incapacity; (b) he neither knows nor should know of the occasion for compliance . . ." 2 Restatement (Second) of Torts, § 288A (1965). The defendant's contention is that she was unconscious, and that she had no reason to believe she would become unconscious. In support of this argument, the defendant submitted an affidavit and a transcript of an excerpt of her deposition testimony in which she stated she lost consciousness while driving and never experienced a similar loss of consciousness, and an affidavit from her primary care physician in which the physician attested to the fact that there was nothing in her medical history that would suggest she would have had reason to anticipate blacking out or losing consciousness on the date of the accident. At the very least, this evidence creates a genuine issue of material fact as to whether the defendant lost consciousness or blacked out, and to whether she had reason to anticipate whether she would lose consciousness or black out. Accordingly, this evidence created a genuine issue of material fact with regard to whether the defendant's violation of § 14-230 constitutes "a reasonable violation [of the statute] because of [her] incapacity."
Our Supreme Court has echoed the line of reasoning that a violation of statute should be excused pursuant to § 288A when a driver is unconscious in Shea v. Tousignant, supra, 172 Conn. 54, 57-58. Although that case concerned ordinary common-law negligence, the court made clear that "[c]ertainly in all reason he who, stricken by paralysis or seized by an epileptic fit, still continues with his hands upon the wheel of the automobile he was driving, and, unconscious, so directs it as to cause its collision with another, cannot be held negligent for the way in which he controlled it; and no more can he who exercises a like direction after he has been overtaken by sleep. In such a case, the question must be, was the defendant negligent in permitting himself to fall asleep. See annot., 28 ALR 2d 144 § 22, and cases collected therein. Similar reasoning applies when a driver momentarily lapses into unconsciousness. Negligence is not to be imputed to the driver of an automobile merely because he suddenly blacks out, faints, or suffers a sudden attack, losing consciousness or control of the car, when he is without premonition or warning of his condition." (Internal quotation marks omitted.) Id.
This court would not be the first to hold that unconscious acts or omissions excuse violations of a statute in a negligence per se case. The facts of Finnegan v. Barre, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV05 5000260 (September 15, 2006, Hartmere, J.), are almost identical to the present case. In Finnegan, the defendant's vehicle collided with the plaintiffs' vehicle. The plaintiffs brought a motion for summary judgment as to liability claiming the violation of § 14-231 and § 14-236 constituted negligence per se. In rejecting this argument, the court succinctly laid out the relevant 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. 2 Restatement (Second), Torts § 288A (1965).' Gore v. People's Savings Bank, supra, 235 Conn. 376. Section 288A of the Restatement (Second) of Torts (1965) provides that, unless the statute is construed not to permit an excuse, the violation of such a statute `is excused when (a) violation is reasonable because of the actor's incapacity; (b) he neither knows nor should know of the occasion for compliance; (c) he is unable after reasonable diligence or care to comply; (d) he is confronted by an emergency not due to his own misconduct; [and] (e) compliance would involve a greater risk of harm to the actor or to others.' In the present case, General Statutes §§ 14-231 and § 14-236 do not expressly preclude excuses or justification for a violation of these statutes. Here . . . it appeared that the defendant was experiencing a medical problem and lost control of her vehicle striking the metal guardrail on the north side of the road then crossing the Boston Post Road striking the plaintiff's vehicle and the bridge. The defendant also submitted an affidavit wherein she avers that prior to the accident . . . she never had an incident where she blacked out nor had she been diagnosed with a condition that would prevent her from safely operating a motor vehicle. She further averred that on [the date of the accident] she did not have any symptoms to suggest that she might lose consciousness.
"`An accident which one could not have reasonably been expected to prevent or foresee or which under all the circumstances, using reasonable care, one could not avoid, may be called an inevitable one. Such an unavoidable or inevitable accident . . . occurs when the . . . [disaster] happens from natural causes, without negligence or fault on either side. 7 Am.Jur.2d 896, Automobiles and Highway Traffic, § 350, n. 7; 3 Am. Jur. Pl. Pr. Forms, No. 3:156:1 (Sup. 965).' . . . Caron v. Guiliano, 26 Conn.Sup. 44, 45, 211 A.2d 705 (1965). For instance, `[n]egligence is not to be imputed to the driver of an automobile merely because he suddenly blacks out, faints, or suffers a sudden attack, losing consciousness or control of the car, when he is without premonition or warning, of his condition. 8 Am.Jur.2d 245, Automobiles and Highway Traffic, § 693, n. 17; see Baker v. Hausman, 68 So.2d 572, 573.' Caron v. Guiliano, supra, 26 Conn.Sup. 45-46." Id.
Viewing the evidence in the light most favorable to the nonmovant, a genuine issue of material fact is created as to whether the defendant's unconsciousness excuses her from liability for her alleged violation of § 14-230. Accordingly, the motion is denied.
CONCLUSION
For the foregoing reasons, the plaintiffs' motion for summary judgment on the issue of liability is denied.