Opinion
X06UWYCV126023218
11-10-2015
Luigi Osso et ux v. Marc Automotive, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #224
Terence A. Zemetis, J.
ISSUE SUBMITTED
Whether the movant, Marc Automotive, Inc., has established there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law on Counts One and Two?
RELEVANT FACTS
The plaintiffs allege: that on April 21, 2010, Brian Sabia, a minor, stole a car from and owned by the MARC Automotive, Inc., MARC, car dealership in Milford, CT and drove to Elmsford, NY. There Sabia attempted to evade a police stop and crashed into a car occupied by Luigi Osso causing Osso serious injury. MARC had negligently failed to secure the keys to the car Sabia stole. MARC knew that Sabia had stolen a car from its Milford car lot several months before the April 21, 2010 theft but failed to adequately secure the car keys to prevent similar theft. Count Two is a consortium count, alleging the same conduct by MARC, as the basis for recovery.
MARC moves for summary judgment asserting that MARC owed Osso no legal duty of care and/or that Sabia's theft of the MARC vehicle was a superseding cause shifting the legal responsibility of MARC, to Sabia, for the plaintiffs' damages.
MARC offers the deposition testimony of Marc Gloeckner, an owner of MARC, concerning the security measures undertaken by MARC at the dealership including the keybox used to hold the car keys, the limitation on access by customers of the repair/shop area of the garage, the security measures including bars on the windows and an alarm system on the building in which the keybox was stored, and the lighting and fencing of the dealership parking lot. Gloeckner described Sabia's January 2010 theft of keys and a car from MARC and the remedial actions taken by MARC following that event. Gloeckner testified that in January 2010 Sabia was allowed inside the garage to warm himself and while there Sabia surreptitiously stole a car key from the then open and accessible keybox. Later, after business hours, Sabia returned to the dealership and using the stolen car key, stole a car from the MARC parking lot. Gloeckner described Sabia's April 2010 conduct of breaking into the dealership garage building by using a baseball bat to break a window, entering, through steel bars on the windows, the garage building holding the keybox. Then using tools to break into the keybox and steal a car key, all while a burglar alarm was sounding. Exiting the garage, Sabia then drove the stolen car through a chain link fence and chained exit.
The plaintiffs object to the instant motion arguing that MARC owes a legal duty to the Ossos and that their expert's affidavit and the deposition testimony of Sabia raise a genuine issue of material fact requiring a jury's determination whether Sabia's theft of the MARC vehicle and subsequent operation was a superseding cause relieving MARC of legal responsibility for the Ossos' damages. Ossos' expert concerning MARC's security avers that MARC's efforts failed to meet the industry standard for reasonable security measures. Exerpts of Sabia's deposition contradict Gloeckner's affidavit regarding remedial security measures following Sabia's car theft of a MARC vehicle in January 2010: the keybox being in the same position in April as in January, the lack of an audible burglar alarm or an alarm connected to a remote monitoring service, the lack of a guard dog or other live or even photographic guarding or monitoring of the garage/shop area, and the ease of egress from the parking lot once the car key was secured due to inadequate blockade of the driveway exits.
LEGAL STANDARDS
The Connecticut Practice Book provides, in pertinent part, that a motion for summary judgment may be granted when there is no genuine issue of material fact in dispute and the movant is entitled to judgment as a matter of law.
Sec. 17-49.--Judgment
The judgment sought 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. (P.B. 1978-1997, Sec. 384.)
A moving party may seek summary judgment by assuming the truth of certain facts solely for purposes of the motion and on this basis argue that it is entitled to judgment as a matter of law. Alternatively, a movant may concede that certain facts are in dispute, but maintain that these facts are immaterial. " A material fact is a fact that will make a difference in the outcome of the case." (Citation omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 729, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996). A " genuine" issue has been described as a " triable, substantial or real" issue of fact or one that " can be maintained by substantial evidence." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). An issue of fact " encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." (Citations omitted.) Id., 379. The burden of showing the non-existence of a material fact cannot be met by mere assertion, but must be shown by " [e]videntiary facts or substantial evidence outside the pleadings." (Citations omitted; emphasis deleted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004). " Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. He 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." (Citation omitted; internal quotation marks omitted.) Id., 802. The burden of proving the non-existence (or existence) of a genuine issue of material fact cannot be satisfied by relying on: arguments or assertions by counsel, either orally or in memoranda; Martinez v. Southington Metal Fabricating Co., 101 Conn.App. 796, 799, 924 A.2d 150, cert. denied, 284 Conn. 930, 934 A.2d 246 (2007); unadmitted allegations of the pleadings; Dinnis v. Roberts, 35 Conn.App. 253, 260, 644 A.2d 971, cert. denied, 231 Conn. 924, 648 A.2d 162 (1994); or on unauthenticated documents, speculative or conjectural claims, or other information that would be inadmissible evidence. See Nolan v. Borkowski, 206 Conn. 495, 507, 538 A.2d 1031 (1988) (speculative evidence " cannot serve as a basis for opposition to a motion for summary judgment"); New Haven v. Pantani, supra, 89 Conn.App. 678 (summary judgment procedure " could be circumvented by filing unauthenticated documents in support of summary judgment"). Furthermore, a motion for summary judgment that does not squarely address or refute all the material facts or legal claims raised by the pleadings or the opposing documents should be denied. See Fogarty v. Rashaw, 193 Conn. 442, 444, 476 A.2d 582 (1984).
" 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 material facts, which under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law." Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006).
Additionally, " [t]he 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." Id. at 585-86.
Especially important in the consideration of this motion is the evidence produced to support it. " 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 the motion 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 issue." Socha, 586.
" Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Id. In response to a properly supported motion for summary judgment indicating the absence of any material disputed facts, the burden shifts to the non-movant to present a " factual predicate" demonstrating the existence of a genuine issue of material fact. Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992). Again, this factual predicate must be premised on " evidentiary facts" or " substantial evidence"; Martinez v. Southington Metal Fabricating Co., supra, 101 Conn.App. 799; and cannot be premised solely on mere assertions, unadmitted allegations of the pleadings, or speculative or inadmissible evidence. Id. at 799-800. " To oppose a motion for summary judgment successfully, the non-movant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Citations omitted; internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., supra, 40 Conn.App. 729.
" It must always be borne in mind that litigants have a constitutional right to have issues of fact decided by the jury and not by the court." Ardoline v. Keegan, 140 Conn. 552, 555, 102 A.2d 352 (1954); see also Mather v. Griffin Hospital, supra, 207 Conn. 138; Robinson v. Backes, 91 Conn. 457, 460, 99 A. 1057 (1917). " [T]he issue of causation in a negligence action is a question of fact for the trier . . ." D'Arcy v. Shugrue, 5 Conn.App. 12, 15, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985); see also Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 611, 662 A.2d 753 (1995) (" causation is essentially a factual issue"); Fox v. Mason, 189 Conn. 484, 489, 456 A.2d 1196 (1983) (" [c]onclusions of proximate cause are to be drawn by the jury and not by the court"); Marley v. New England Transportation Co., 133 Conn. 586, 591, 53 A.2d 296 (1947) (" if there is room for a reasonable disagreement the question [of negligence] is one to be determined by the trier as matter of fact"); 2 Restatement (Second), Torts § 434(2) (1965) (" [i]t is the function of the jury to determine, in any case in which it may reasonably differ on the issue, (a) whether the defendant's conduct has been a substantial factor in causing the harm to the plaintiff"). Burton v. City Of Stamford, 115 Conn.App. 47, 88, 971 A.2d 739 (2009).
ANALYSIS
The plaintiffs allege that MARC was negligent and such negligence proximately caused them harm. The essential elements of a negligence cause of action are: duty, breach of that duty, causation and actual injury, Pelletier v. Sordoni/Skanska Const. Co., 286 Conn. 563, 593, 945 A.2d 388 (2008).
First, MARC urges the court to conclude, as a matter of law, that it owed no legal duty of care to the plaintiffs. " Whether a duty exists is a question of law for the court, and only if the court finds that such a duty exists does the trier of fact consider whether that duty was breached." Mirjavadi v. Vakilzadeh, 310 Conn. 176, 191-92, 74 A.3d 1278 (2013).
Recently the Connecticut Supreme Court defined 'duty' in a negligence action. " Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury [that] resulted was foreseeable . . . [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." citing Mirjavadi v. Vakilzadeh, 310 Conn. 176, 191-92, 74 A.3d 1278 (2013).
" Foreseeability is determined in the context of causation, which has two components. With respect to the first component, causation in fact, we ask whether the injury would have occurred but for the actor's conduct. E.g., Winn v. Posades, 281 Conn. 50, 56, 913 A.2d 407 (2007). The second component of causation is proximate cause. Id. " Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions." First Federal Savings & Loan Assn. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 604, 724 A.2d 497 (1999). " The test for proximate cause is whether the defendant's conduct was a substantial factor in producing the plaintiff's injury . . . This substantial factor test reflects the inquiry fundamental to all proximate cause questions, namely, whether the harm [that] occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." (Citation omitted; internal quotation marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 321, 852 A.2d 703 (2004).
Finally, whether the injury is reasonably foreseeable ordinarily gives rise to a question of fact for the finder of fact, and this issue may be decided by the court only if no reasonable fact finder could conclude that the injury was within the foreseeable scope of the risk such that the defendant should have recognized the risk and taken precautions to prevent it. See, e.g., Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 331-32, 87 A.3d 546 and n.25 (2014). In other words, foreseeability " becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Internal quotation marks omitted.) Gutierrez v. Thorne, 13 Conn.App. 493, 501, 537 A.2d 527 (1988). Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328-30, 107 A.3d 381 (2015).
Whether MARC owed plaintiffs a legal duty hinges on the considerations described above: foreseeability and public policy. Whether MARC, the owner/operator of an automobile dealership from which one car had been stolen just three months before the theft/crash occurred, could reasonably foresee that a vehicle, if inadequately secured, could be stolen from its car lot and become involved in a crash injuring another motorist, such as plaintiff Luigi Osso, is a question of fact for the trier of fact.
" A simple conclusion that the harm to the plaintiff was foreseeable . . . cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself . . . but is only an expression of the sum total of those considerations of policy [that] lead the law to say that the plaintiff is entitled to protection . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 594, 945 A.2d 388 (2008). " [I]n considering whether public policy suggests the imposition of a duty, we . . . consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 118, 869 A.2d 179 (2005). " [This] totality of the circumstances rule . . . is most consistent with the public policy goals of our legal system, as well as the general tenor of our [tort] jurisprudence." Id., 121. Ruiz v. Victory Properties, LLC, supra, 337 (2015).
Examining these factors individually, the court concludes that public policy precludes a finding that no existence of a legal duty. " Connecticut recognizes an owner's duty to plaintiffs, injured by the negligent operation of a stolen vehicle, to use reasonable care to protect against the unauthorized use and operation of the motor vehicle." Castro v. K-Mart Corp., (Conn.Super.Ct. Jan. 12, 1995) (Flynn, J.), see also Smith v. Leuthner, 156 Conn. 422, 242 A.2d 728 (1968) (allowing trier of fact to decide whether defendant's leaving key in ignition constitutes negligence). Hence plaintiffs could reasonably expect owners of motor vehicles, such as MARC, would use reasonable care to protect against unauthorized use and operation of the motor vehicle as consequential harm to others is foreseeable. Mr. Gloeckner's efforts to secure the vehicle tacitly acknowledge such obligation. The public policy encouraging adequate securing of motor vehicles to prevent unauthorized use is also evident in the design and manufacture of motor vehicles with steering column locks and other anti-theft devices including a wide variety of 'after-market' devices securing the ignition system and/or the vehicle's steering mechanism. The avoidance of increased litigation is not the basis for negating the motor vehicle owners' obligation to secure its vehicles against theft or unauthorized use. The proliferation of motor vehicles in society is such that impetus to secure one's motor vehicle to prevent unauthorized use is essential to safety of all highway users. Last, other jurisdictions recognize vehicle owners' duty to secure their motor vehicles against theft, though the issues at hand are so fact intensive on make comparative analysis somewhat unhelpful, see Hill v. Yaskin, 75 N.J. 139, 380 A.2d 1107, 1110 (1977) and Keith v. Valdez, 934 P.2d 897 (Colo.App. 1997).
Movant's citation of three nearly 50-year-old Connecticut cases involving the duty analysis is helpful. Each case, Smith v. Leuthner, 156 Conn. 422, 242 A.2d 728 (1968); Consiglio v. Ahern, 5 Conn.Cir.Ct. 304, 307, 251 A.2d 92 (App.Div. 1968); and Suglia v. National Credit System, Inc., 4 Conn.Cir.Ct. 133, 227 A.2d 101 (Conn.Cir.Ct. 1966), describe the fact intensive nature of the duty analysis and the courts provided examples of 'special circumstances' which would impose a duty on vehicle owners to protect plaintiffs against injury arising out of the theft of a car. Suglia, Id. p 136, whether " there was a duty owed the plaintiffs, as alleged in the complaint, depends on the surrounding facts and is subject to a determination by the trier." Whether those 'special circumstances' exist in the instant case is a question of fact for the trier of fact but the prior theft, MARC's remedial actions following the theft, the claimed lack of meeting industry standards for car lot protection described by plaintiffs' expert, and Sabia's deposition testimony about the ease with which he was able to steal MARC's car in April 2010, raise issues of fact that are jury considerations.
I " conclude, therefore, that the plaintiffs are entitled to a jury determination of their claim, " Ruiz v. Victory Properties, LLC, supra, p. 347, that MARC owed a legal duty to Osso under the circumstances alleged. However, a trier may well conclude, as argued ably by MARC's counsel, that MARC's conduct was reasonable under the circumstances and that no breach of the legal duty occurred and no legal liability for the harm suffered and sustained by the plaintiffs should be borne by MARC.
SUPERSEDING CAUSE
MARC asserts that any negligence of MARC " is superseded by the criminal actions of Sabia, who stole the car, became the suspect car in a high speed chase and ultimately crashed into the plaintiffs' (sic) vehicle." MARC's Memorandum in Support of instant motion, page 18.
The function of the doctrine of superseding cause is to define the circumstances under which responsibility may be shifted entirely from the shoulders of one person, who is determined to be negligent, to the shoulders of another person, who may also be determined to be negligent, or to some other force, Barry v. Quality Steel Prods ., 263 Conn. 424, 434, 820 A.2d 258 (2003). " Even if a plaintiff's injuries are in fact caused by a defendant's negligence, a superseding cause may break that causal connection if it so entirely supersedes the operation of the defendant's negligence that it alone, without his negligence contributing thereto in any degree, produces the injury . . . If a defendant's negligence is a substantial factor in producing the plaintiff's injuries, the defendant would not be relieved from liability for those injuries even though another force concurred to produce them." Barry, supra, 435. The court largely abandoned the doctrine of superseding cause. " [T]hus, the doctrine of superseding cause no longer serves a useful purpose in our negligence jurisprudence., " Barry, supra 440. However, in footnote 16, the Barry court held " [O]ur conclusion does not necessarily affect those cases where the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortious conduct."
The doctrine is narrowly retained " where the defendant claims that an unforeseeable intentional tort . . ." supersedes its tortious conduct. Whether Sabia's conduct was unforeseeable is a question of fact, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995).
MARC argues that, as a matter of law, the court should enter judgment for MARC as Sabia's criminal conduct, theft of the MARC car from the Milford dealership and subsequent negligent operation of that vehicle to harm Osso, superseded any negligence of MARC and Sabia's conduct, exclusive of MARC's conduct, was solely responsible for Ossos' injuries and losses. MARC argues that Sabia's criminal conduct and subsequent negligent conduct sever the causal relationship between MARC's alleged negligence and Ossos' injuries and losses.
Proximate cause is " [a]n actual cause that is a substantial factor in the resulting harm . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct . . . Foreseeability is likewise considered when the defendant claims there has been no negligence because an unforeseeable intentional tort, force of nature, or criminal event superseded the tortious conduct." (Citation omitted; internal quotation marks omitted.) Mirjavadi v. Vakilzadeh, supra, 310 Conn. 192. " [T]o be within the scope of the risk, the harm actually suffered must be of the same general type as that which makes the defendant's conduct negligent in the first instance." McDermott v. State, 316 Conn. 601, 616, 113 A.3d 419 (2015).
" [T]ortious or criminal acts may in themselves be foreseeable, and so within the scope of the created risk, in which case the actor may still be liable for the harm, under the rules stated in § § 448 and 449." 2 Restatement, supra, § 442B, comment (c). Section 448 of the Restatement provides: " The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized . . . that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime." Stewart v. Federated, supra, fn 10.
In Stewart the plaintiff's decedent was murdered by a third party in the defendant's, Federated, parking garage. The jury concluded that the Federated negligently failed to adequately secure the parking garage. Superseding cause was submitted to the jury. The jury concluded that plaintiff proved Federated negligent and such negligence a substantial factor in the plaintiff's injuries and losses.
In McDermott the plaintiff's decedent was fatally injured when struck by a tree limb while observing the removal of a tree by defendant's employees. The defendant asserted that it exceeded the industry prescribed standard of care for creating a safety zone around their work site and the injury to the plaintiff was unforeseeable and its conduct not a proximate cause of the death. The Supreme Court disagreed finding that the legal duty of care and the proximate cause of the plaintiff's death were questions of fact for the trier of fact.
Whether Sabia's conduct, both the claimed criminal conduct that occurred in Milford CT and the claimed tortious and/or criminal conduct that occurred in Elmsford NY, superseded MARC's negligence and severed the proximate cause between MARC's conduct and Ossos' damages, is a question of fact for the trier of fact to determine. The test is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence, Perez v. Cumba, 138 Conn.App. 351, 371, 51 A.3d 1156 (2012) quoting Merhi v. Becker, 164 Conn. 516, 521-22, 325 A.2d 270 (1973).
Whether Sabia's conduct, both at the dealership and later on the roadway in N.Y., was such as to sever the causal relationship between MARC's negligence and Ossos' injuries and losses, is a question of fact for the trier of fact.
Raising superseding cause without the benefit of pleading a Special Defense is another concern, see P.B. 10-50 and commentary by Horton and Knox, Connecticut Superior Court Civil Rules, 10-50 annotations, listing Superseding Intervening Cause as a defense requiring pleading as a Special Defense. However, as the court concludes that Superseding Cause is a question for the trier, Amendola v. Geremia, 21 Conn.App. 35, 39, 571 A.2d 131 (1990), that conclusion defeats the instant motion without addressing the propriety of asserting this basis for summary judgment absent an appropriately pled Special Defense.
The doctrine of superseding cause may be raised as a special defense by a defendant claiming " that an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortious conduct." Barry v. Quality Steel Products, Inc., 263 Conn. 424, 439 n.16, 820 A.2d 258 (2003); see also Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 167, 971 A.2d 676 (2009) (defendant properly asserted as special defense " theory that the criminal acts of a third party superseded any possible negligence on its part" [internal quotation marks omitted]). Perez v. Cumba, 138 Conn.App. 351, fn 5, 51 A.3d 1156 (2012).
Absent a Special Defense, this issue may resurface at trial and jury charge.
" It is also well established that " [s]ummary judgment procedure is especially ill-adapted to negligence cases, where, as here, 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." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975); see also Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984); DiUlio v. Goulet, 2 Conn.App. 701, 703, 483 A.2d 1099 (1984). A determination of negligence is necessarily one of fact. Michaud v. Gurney, supra, 434; Cappiello v. Haselman, 154 Conn. 490, 495, 227 A.2d 79 (1967); Balboni v. Stonick, 2 Conn.App. 523, 527, 481 A.2d 82 (1984). " [i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 199, 319 A.2d 403 (1972); see also Amendola v. Geremia, 21 Conn.App. 35, 37, 571 A.2d 131, cert. denied, 215 Conn. 803, 574 A.2d 217 (1990)." Maffucci v. Royal Pk. Ltd. Partner., 42 Conn.App. 563, 569, 680 A.2d 333 (1996).
Wherefore, the motion for summary judgment is denied as the court will submit the issues of negligence and causation to the jury for determination.