Opinion
No. CV 04-4000766
August 3, 2005
MEMORANDUM OF DECISION ON SUMMARY JUDGMENT OF DEFENDANT MARC MAZZELLA
The defendant, Marc T. Mazzella, has moved for summary judgment on the grounds that there is no genuine issue as to any material fact pertinent to the cause of action set forth in the Third Count of the Complaint.
Facts
The plaintiff, Rebecca Posner, commenced this action after a multiple vehicle rear-end chain collision which occurred on August 28, 2002 on East Pattagansett Road in East Lyme, Connecticut. According to paragraph 5 of the First Count of the plaintiff's Revised Complaint, dated October 13, 2004 (The "Complaint"):
At said time and place, the automobiles operated by the plaintiff, Rebecca Posner and the defendants, George H. Schiller and Mark T. Mazzella were all stopped in traffic for a red light, when then and there the defendant, Sandra Jones, carelessly and negligently operated her automobile causing it to crash into and collide with the rear-end of the automobile operated by the defendant, Mark T. Mazzella. The automobile operated by the defendant, Mark T. Mazzella, was then caused to crash into and collide with the rear-end of the automobile operated by the defendant, George A. Schiller. The automobile operated by the defendant, George A. Schiller, was then caused to crash into and collide with the rear end of the automobile operated by the plaintiff, Rebecca Posner, causing the injuries and losses hereinafter stated.
The First Count of the Complaint goes on to allege that the plaintiff's CT Page 11769-al injuries were caused by the negligence of the defendant, Sandra Jones, in that she failed to keep a proper and reasonable lookout, was inattentive, failed to keep her vehicle under reasonable control, failed to apply her brakes in time to avoid a collision, was operating at an excessive rate of speed and was following too close in violation of Connecticut General Statutes § 14-240.
The defendant, Mazzella, has presented a copy of the police incident report which indicates that Mazzella and another driver, defendant Schiller, were both stopped behind the plaintiff's stopped vehicle when the car driven by defendant Mazzella was struck by the car driven by the defendant Jones. The defendant Mazzella has also presented his affidavit in which he avers that at the time of the accident he was employed by Benvenuti Oil Company and operating one of their vehicles, a 2000 Ford pick-up truck, which was stopped in traffic behind the Toyota operated by defendant Schiller, which was also stopped. Schiller's vehicle was, in turn, stopped behind a 1985 Volvo driven by the plaintiff, which was stopped at a red traffic light. According to Mazzella's affidavit, while all three were stopped, his vehicle was hit from behind by the Jones vehicle. As a result of that impact, his vehicle was pushed into the rear of Schiller's vehicle and Schiller's vehicle pushed into the rear of the plaintiff's vehicle. He also states that while he was stopped he was paying attention to traffic up ahead of him and had his vehicle under control with his foot on the brake.
The plaintiff has presented no affidavit or any other evidence as to the conduct of the defendants.
Discussion of the Law and Ruling
Practice Book § 17-49 (formerly § 384) 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. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003); Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the CT Page 11769-am evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stam, 224 Conn. 524, 530, cert denied, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
In the context of multi-car accidents, judges of the superior court have consistently granted summary judgment where it is undisputed that the middle vehicle was stopped at the time of the accident and the plaintiff fails to submit any evidence that the driver of the middle vehicle operated his car negligently. See Sadegi v. Tomaino, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0198259 (October 22, 2004, Lewis, J.) ( 38 Conn. L. Rptr. 139); Johnbatiste v. Granskog, Superior Court, judicial district of Stamford-Norwalk at Stamford. Docket No. CV 01 0186063 (October 21, 2002, D'Andrea, J.T.R.) ( 33 Conn. L. Rptr. 285); Bogart v. Castlevetro, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 95 0049595 (September 25, 1995, Rush. J.) ( 15 Conn. L. Rptr. 268); Tume v. Yankovich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0196322 (July 14, 2004, Lewis, J.T.R.) ( 37 Conn. L. Rptr. 496); Cirelli v. Snape, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 02 0079158 (April 14, 2004, Scholl, J.); Rivera v. Flynn, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 95 0319280 (June 7, 1996, Moran, J.); Siciliano v. Lenoue, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93 013078 (January 12, 1994, Lewis, J.).
In Bogart v. Castlevetro, supra, ( 15 Conn. L. Rptr. 268) several cars were stopped in traffic behind the plaintiff's vehicle when the last car was struck by another vehicle. The plaintiff alleged that the driver of one of the stopped vehicles was negligent "in that he was following too closely; failed to keep a proper lookout; operating at an unreasonable speed; failed to keep proper control; failed to apply brakes in an CT Page 11769-an appropriate manner so as to avoid a collision." The plaintiff has made the same allegations here with respect to defendants Mazzella and Schiller. The court in Bogart, relying on Wrinn v. State, 234 Conn. 401, 661 A.26 1034 (1995), held that the fact that there was a rear-end collision did not establish that the vehicle of the defendant was following the vehicle of the plaintiff too closely. Wrinn held that the word "following" in Connecticut General Statutes § 14-240 implied movement. Therefore, a stopped vehicle could not be following too closely. As here, the plaintiff in Bogart did not submit any affidavit as to the conduct of the moving defendant. Therefore, the only evidence presented was that of the moving defendant, which indicated that his conduct was not negligent.
The plaintiff has presented no evidence that the defendant Mazzella was negligent. Instead, she has merely referred to the allegations of negligence in her complaint. The party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984).
For the foregoing reasons, summary judgment may enter on the Third Count in favor of the defendant Mark T. Mazzella.
By the court,
Aurigemma, J. CT Page 11769-ao