Opinion
No. CV05 500 02 60
September 15, 2006
MEMORANDUM OF DECISION
The plaintiffs, Christopher Finnegan and Gail Finnegan, commenced this action on October 24, 2005, by serving on the defendant, Joan M. Barre, a copy of the plaintiffs' writ, summons and complaint, with a return date of November 15, 2005. In the two-count complaint, the plaintiffs allege common-law negligence and negligence in violation of General Statutes § 14-231, 14-230, 14-219 and 14-218a. This action arises out of a motor vehicle accident that occurred on November 7, 2003, when the vehicle owned and operated by the defendant collided with the front of the vehicle operated by the plaintiff, Gail Finnegan, causing serious injuries and damages to the plaintiffs.
Before the court is the plaintiffs' motion for partial summary judgment filed pursuant to Practice Book §§ 17-49 and 17-51 on the issue of liability. In support of their motion, the plaintiffs filed a memorandum of law, together with the following documents: (1) an affidavit of Gail Finnegan; (2) an affidavit of Christopher Finnegan; and (3) a copy of the police accident report. On July 17, 2006, the defendant filed a memorandum of law in opposition to the motion for summary judgment, together with a copy of the police accident report and the affidavit of Joan M. Barre. Oral argument was held on the motion for summary judgment on July 10, 2006.
"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). "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 . . . The party moving for summary judgment has the burden of showing . . . that the party is . . . entitled to judgment as a matter of law." (Internal quotation marks omitted.) Middlesex Mutual Assurance Co. v. Vaszil, 279 Conn. 28, 33-34, 900 A.2d 513 (2006).
The plaintiffs argue that there are no genuine issues of material fact as to the cause of the motor vehicle collision. Specifically, the plaintiffs contend that the pleadings, affidavits and other proof submitted to this court show that the defendant violated General Statutes §§ 14-231 and 14-236. Violations of these statutes, the plaintiffs argue, constitute negligence per se. The plaintiffs further contend that they satisfy the two conditions required in order to establish liability as a result of a statutory violation as set forth in Gore v. People's Savings Bank, 235 Conn. 360, 665 A.2d 1341 (1995). The plaintiffs analogize the facts of the present case to the facts of Colby v. Parrillo, Superior Court, judicial district of New Haven, CV 98 0412978 (March 30, 2000, Devlin, J.) ( 27 Conn. L. Rptr. 29), wherein the court concluded that the plaintiff was entitled to summary judgment as to liability when the defendant's car rear-ended the plaintiff's car after the defendant took her eyes off the road to brush a spider off her lap.
In response, the defendant argues that the plaintiffs have not demonstrated that there are no genuine issues of material fact as to whether the defendant was negligent. Moreover, the defendant contends that negligence is a question of fact. Furthermore, the defendant contends that "negligence is not to be imputed to the operator of an automobile merely because he suddenly blacks out, faints or suffers a sudden attack, losing consciousness or control of his car, when he is without premonition or warning of his condition." According to the defendant, it is possible that a reasonable person, viewing the evidence in the light most favorable to the nonmoving party, could determine that the collision was the result of something other than the defendant's negligence.
At issue here are the alleged violations of the following two motor vehicle statutes: General Statutes §§ 14-231 and 14-236. General Statutes § 14-231, entitled "Vehicles in opposite directions to pass on right," provides in relevant part: "Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon highways having width for not more than one line of traffic in each direction each driver shall give to the other at least one-half of the main-traveled portion of the highway as nearly as possible." General Statutes § 14-236, entitled "Multiple-lane highways," provides in relevant part: "When any highway has been divided into two or more clearly marked lanes for traffic, (1) a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has ascertained that such movement can be made with safety . . ."
As discussed earlier, the plaintiffs claim that violations of these statutes constitute negligence per se. The Supreme Court in Gore v. People's Savings Bank, 235 Conn. 360, 665 A.2d 1341 (1995), set forth important principles underlying the negligence per se doctrine. "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." (Internal quotation marks omitted.) Gore v. People's Savings Bank, supra, 235 Conn. 376; Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 178, 439 A.2d 954 (1981).
"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) the 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, the defendant submitted a copy of the Milford police report. According to the police report, 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 on November 7, 2003, 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 November 7, 2003, 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)." (Internal quotation marks omitted.) 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.
Based on the foregoing, there is a genuine issue of material fact as to the defendant's negligence that cannot be resolved on a summary judgment motion. "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). Viewing the evidence in the light most favorable to the nonmoving party, the court denies the plaintiffs' motion for partial summary judgment as to liability.
So ordered.