Opinion
No. 392642
April 28, 1999
MEMORANDUM OF DECISION ON REARGUMENT
On September 24, 1994, Luisa Centeno (Centeno) was a passenger in an automobile that was involved in an accident on Interstate 95. The defendant Ronald C. Spear (Spear), the operator of the vehicle in which Centeno was a passenger, swerved his automobile from the center travel lane into the right travel lane in order to avoid a piece of tire tread on the highway. Spear struck the left rear of a van which the plaintiffs allege was parked on the right shoulder of the highway, between the right travel lane and the guardrail. Semac Electric Co., Inc. (Semac) was the owner of the van, and Craig Clinton (Clinton), a Semac employee, had parked the van on the shoulder of the highway. After colliding with the van, Spear's vehicle spun to its left and came to rest in the right travel lane where it was struck in the right rear by a vehicle operated by William T. Teichgraeber (Teichgraeber) and leased to him by Enterprise Rent-A-Car, Inc. (Enterprise). As a result of the accident, Centeno sustained serious personal injuries and her mother, the plaintiff Maria Rivera (Rivera), incurred medical expenses.
Rivera has filed a three count revised complaint on behalf of herself and Centeno as Centeno's "parent, natural guardian and next friend." In count one, Rivera and Centeno allege that Clinton and Semac, acting through its employee Clinton, were negligent and careless. Rivera and Centeno allege in count two that Teichgraeber was negligent and careless, and that Enterprise is liable to Centeno for any damage caused by Teichgraeber's operation of the rental car to the extent dictated by General Statutes § 14-154a. Finally, in count three, Rivera and Centeno allege negligence and carelessness by Spear.
Clinton and Semac have filed a motion for summary judgment as to the first count of the revised complaint. They allege that the van which Clinton parked was where it was entitled to be and that, as a matter of law, they were not negligent.
In support of the motion, Clinton has submitted an affidavit which establishes the following facts. Clinton was employed by Semac as a member of its inspection and repair crew. Semac had been hired by the Department of Transportation of the State of Connecticut to inspect manholes that Semac had installed. On the date of the accident, Clinton was conducting an inspection of manholes that Semac had installed approximately five feet to the right of the guardrails located at the edge of the right shoulder of Interstate 95 in West Haven, Connecticut. In order for Clinton to properly inspect the manholes, it was necessary for him to park the van on the right shoulder, also referred to as the breakdown lane, then exit the truck and walk to the area where the manholes were located.
"[T]he weather was clear, visibility was excellent and the roads were dry. The area where [Clinton] stopped the van was a straight stretch of highway with no obstructions to visibility." Clinton further states in his affidavit:
7. I parked the Van approximately two feet to the right of the white line separating the right northbound lane from the breakdown lane. My Van was parked perfectly straight and not on an angle.
8. My Van had a yellow flashing beacon on the roof and a set of red blinking hazard lights on the rear, both of which were operating properly at the time and which I had turned on prior to my exiting the vehicle.
9. After I had completed my inspection of the manhole and while the Semac Van was so parked in the breakdown lane, and as I was returning to my vehicle, it was struck by the car in which the plaintiff was riding. Prior to it striking my Van I heard a screech of brakes and observed the plaintiff's automobile to be out of control as it veered from the center lane, across the right lane and into the rear of the Semac Van that was stopped in the breakdown lane.
10. The plaintiff's car crashed into the left rear of the Van while the Van was so stopped in the breakdown lane. The force of the impact pushed the Van a few feet forward and up against the guard rail.
These facts are uncontradicted.
"The plaintiff Luisa Centeno, who was sixteen years of age and a minor at the time of the accident, has filed an affidavit in which she states that prior to the collision, "I did not notice the Semac Van which was parked on the shoulder of I-95. I do not recall seeing the `4-way flashers,' any warning signs, reflective devices or flares on the highway, west of the Semac vehicle's location, warning us that a truck was stopped in the breakdown lane up ahead, making the breakdown lane unavailable to Ronald Spear in his efforts to avoid the tire tread. . . ." (Emphasis added.) "[T]o oppose a motion for summary judgment successfully, the defendant must recite specific facts in accordance with Practice Book, 1978, §§ 380 and 381 [now Practice Book, 1998, §§ 10-45, 10-46] which contradict those stated in the plaintiff's affidavits and documents. Dougherty v. Graham, 161 Conn. 248, 250, 287 A.2d 382 (1971); Dorazio v. M. B. Foster Electric Co., 157 Conn. 226, 229, 253 A.2d 22 (1968)." Farrell v. Farrell, 182 Conn. 34, 39-40, 438 A.2d 415 (1980). The Centeno affidavit does not rise to this level. An affidavit in which the affiant, a minor and a passenger in a motor vehicle, avers that she "did not notice" another vehicle and "does not recall" something about it, does not contradict an affidavit that avers that the other vehicle was where it is claimed to be and that it had certain characteristics.
I
Although the plaintiffs have alleged a bevy of specifications of negligence against Clinton and Semac, at the hearing on the motion for summary judgment, the plaintiffs narrowed their argument to a claim that, even assuming the truth of Clinton's affidavit, a jury could still conclude that his actions violated §§ 14-275b-129 and 14-298-241 of the Regulations of Connecticut State Agencies. 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." Practice Book § 17-49.
A.
Section 14-275b-129 of the Regulations of Connecticut State Agencies, entitled "Warning devices for disabled vehicles," provides: "At least three warning devices which conform to FMVSS-125 for use in warning traffic in event of prolonged stops on the highway shall be provided." This regulation is contained in that portion of the regulations promulgated by the commissioner of motor vehicles the purpose of which is to "specif[y] minimum standards for the construction and equipment of type I school buses. . . ." Regs., Conn. State Agencies § 14-275b-1 ("Scope"). There is no claim, nor does it appear, that Clinton was operating a type I school bus. See Regulations of Connecticut State Agencies § 14-275b-2(a) (defining a "type I" school bus). This regulation is inapplicable.
B.
Section 14-298-241 of the Regulations of Connecticut State Agencies, entitled "Parking in highway right of way," provides: "No person shall allow his vehicle to remain standing or parked within the highway right-of-way except in areas provided for this purpose and in obedience to signs, signals or the directions of officers." (Emphasis added.) "`[H]ighway right-of-way' means the entire area, including highways, bridges, buildings, structures and lands encompassed by the lateral property lines purchased and owned by the state for the construction and maintenance of highways, bridges and access to service facilities." Regs., Conn. State Agencies § 14-298-236(f).
The evidence is that Clinton parked his van on the shoulder, between the right travel lane and the guard rail. General Statutes § 14-212(1) provides, in part, that "shoulder" shall be construed as defined in General Statutes § 14-1. "`Shoulder' means that portion of a highway immediately adjacent and contiguous to the travel lanes or main traveled portion of the roadway." General Statutes § 14-1(a)(74). This definition identifies the location of the shoulder but does not purport to explain its permissible use. It is the purpose of the area in which a vehicle is parked that determines whether § 14-298-241 of the Regulations of Connecticut State Agencies has been violated.
In its original memorandum of decision granting summary judgment, this court quoted case law which stated: "The shoulders of a highway, while not designed for ordinary vehicular traffic, are intended for use when need arises"; Griffith v. Berlin, 130 Conn. 84, 87, 32 A.2d 56 (1943); "such as for allowing distressed automobiles to move out of the flow of traffic (see Webster's Third New International Dictionary [1963 ed], p. 2104)." Bottalico v. New York, 59 N.Y.2d 302, 305-06, 464 N.Y.S.2d 707, CT Page 4408 451 N.E.2d 454 (1983); see also Thurston v. Ballou, 23 Mass. App. 737, 505 N.E.2d 888, 890 n. 3 (1987). Since the shoulder is designed for standing or parked vehicles, and since there is no evidence of "signs, signals or . . . directions of officers," the court held that Clinton and Semac did not violate § 14-298-241 by parking on the shoulder.
This holding overlooked § 14-298-236(p) of the Regulations of Connecticut State Agencies. Because § 14-298-236(p) specifically defines the word "shoulder", "this court is bound to accept and apply that literal definition." Cagiva North America v. Schenk, 239 Conn. 1, 18, 680 A.2d 964 (1996). Although the parties have not cited § 14-298-236(p), it would be plain error for the court to disregard it. Diamond v. Marcinek, 27 Conn. App. 353, 359-60, 606 A.2d 1001 (1992), rev'd on other grounds, 226 Conn. 737, 629 A.2d 350 (1993), on remand, 32 Conn. App. 828, 632 A.2d 46 (1993); see Republic Ins. Co. v. Pat DiNardo Auto Sales, Inc., 44 Conn. Sup. 207, 211, 678 A.2d 516 (1995) (trial court may take cognizance of statutory law where not to do so would be plain error), affirmed, 41 Conn. App. 686, 677 A.2d 21, cert. denied, 239 Conn. 906, 682 A.2d 1005 (1996). Because § 14-298-236(p) "is applicable law, we will address it." Smith v. Zoning Board of Appeals, 227 Conn. 71, 86 n. 9, 629 A.2d 1089 (1993).
Section 14-298-236(p) of the Regulations of Connecticut State Agencies provides that "`shoulder' means that portion of a highway for emergency use immediately adjacent and contiguous to the travel lanes." (Emphasis added.) Neither the regulation nor any relevant statute defines "emergency." If a regulation does not define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary. Vitti v. Allstate Ins. Co., 245 Conn. 169, 178, 713 A.2d 1269 (1998); State v. Dyson, 238 Conn. 784, 798, 680 A.2d 1306 (1996). "Emergency" is defined as "an unforeseen combination of circumstances or the resulting state that calls for immediate action . . . a pressing need: exigency . . . a usu[ally] distressing event or condition that can often be anticipated or prepared for but seldom exactly foreseen." Webster's Third New International Dictionary (1971). The Semac vehicle was parked on the shoulder to facilitate Clinton's inspection of manholes Semac had recently installed. It cannot be said as a matter of law that this was "emergency use" of the shoulder. See Fennessey v. Pacific Gas Electric Co., 20 Cal.2d 141, 124 P.2d 51, 53 (1942); see also Zimmer v. Miller Trucking Co., Inc., 743 F.2d 601, 605 (8th Cir. 1984).
Requiring that a privately owned and operated vehicle may only remain stationary on the shoulder of a highway for emergency use is consistent with General Statutes § 14-251 and the definitions of authorized emergency vehicles and maintenance vehicles in § 14-1. Although not directly applicable here, General Statutes § 14-251 prohibits vehicles from remaining stationary on highways under various circumstances. That statute provides, however: "Nothing in this section shall be construed to apply to emergency vehicles and to maintenance vehicles displaying flashing lights. . . ." As observed supra, there is no suggestion that the Semac vehicle was an "emergency vehicle." See General Statutes § 14-1(a)(4), 14-283(a).
General Statutes § 14-251 provides: "No vehicle shall be permitted to remain stationary within ten feet of any fire hydrant, or upon the traveled portion of any highway except upon the right-hand side of such highway in the direction in which such vehicle is headed; and, if such highway is curbed, such vehicle shall be so placed that its right-hand wheels, when stationary, shall, when safety will permit, be within a distance of twelve inches from the curb. No vehicle shall be permitted to remain parked within twenty-five feet of an intersection or a marked crosswalk thereat, or within twenty-five feet of a stop sign caused to be erected by the traffic authority in accordance with the provisions of section 14-301. No vehicle shall be permitted to remain stationary upon the traveled portion of any highway at any curve or turn or at the top of any grade where a clear view of such vehicle may not be had from a distance of at least one hundred and fifty feet in either direction. The Commissioner of Transportation may post signs upon any highway at any place where the keeping of a vehicle stationary is dangerous to traffic, and the keeping of any vehicle stationary contrary to the directions of such signs shall be a violation of this section. No vehicle shall be permitted to remain stationary upon the traveled portion of any highway within fifty feet of the point where another vehicle, which had previously stopped, continues to remain stationary on the opposite side of the traveled portion of the same highway. No vehicle shall be permitted to remain stationary within the limits of a public highway in such a manner as to constitute a traffic hazard or obstruct the free movement of traffic thereon, provided a vehicle which has become disabled to such an extent that it is impossible or impracticable to remove it may be permitted to so remain for a reasonable time for the purpose of making repairs thereto or of obtaining sufficient assistance to remove it. Nothing in this section shall be construed to apply to emergency vehicles and to maintenance vehicles displaying flashing lights or to prohibit a vehicle from stopping, or being held stationary by any officer, in an emergency to avoid accident or to give a right-of-way to any vehicle or pedestrian as provided in this chapter, or from stopping on any highway within the limits of an incorporated city, town or borough where the parking of vehicles is regulated by local ordinances. Violation of any provision of this section shall be an infraction."
General Statutes § 14-1(a)(4) provides: "`Authorized emergency vehicle' means (A) a fire department vehicle, (B) a police vehicle or (C) a public service company or municipal department ambulance or emergency vehicle designated or authorized for use as an authorized emergency vehicle by the commissioner." General Statutes § 14-283(a) provides: "`Emergency vehicle,' as used in this section, means any ambulance or emergency medical service organization vehicle responding to an emergency call, any vehicle used by a fire department or by any officer of a fire department while on the way to a fire or while responding to an emergency call but not while returning from a fire or emergency call, or any state or local police vehicle operated by a police officer answering an emergency call or in the pursuit of fleeing law violators." See also General Statutes § 14-212. It is unnecessary to determine whether § 14-1 or § 14-283 governs the definition of "emergency vehicle" in § 14-251.
Nor is there evidence that the Semac vehicle was a "maintenance vehicle." General Statutes § 14-1(a)(39), defines "maintenance vehicle," as "any vehicle in use by the state or by any town, city, borough or district, any state bridge or parkway authority or any public service company, as defined in section 16-1, in the maintenance of public highways or bridges and facilities located within the limits of public highways or bridges." There is no evidence that Semac is a public service company as defined in General Statutes § 16-1. Moreover, the provision for public service companies in the § 14-1(a)(39) definition of "maintenance vehicle" indicates that simply because a privately owned vehicle is being used by a company contracted to do work on a state road does not render it a "maintenance vehicle." This conclusion is buttressed by the legislative history of General Statutes § 14-1(a)(39). See Conn. Joint Standing Committee Hearings, Transportation, 1959 Sess., pp. 78-82.
General Statutes § 16-1(4) provides: "`Public service company' includes electric, gas, telephone, telegraph, pipeline, sewage, water and community antenna television companies, owning, leasing, maintaining, operating, managing or controlling plants or parts of plants or equipment, and all express companies having special privileges on railroads within this state, but shall not include telegraph company functions concerning intrastate money order service, towns, cities, boroughs, any municipal corporation or department thereof, whether separately incorporated or not, or a private power producer, as defined in section 16-243b." (Emphasis added.)
This court has considered whether this construction of § 14-298-241 of the Regulations of Connecticut State Agencies would work an unreasonable result. The rules of statutory construction apply to administrative regulations; Vitti v. Allstate Ins. Co., supra, 245 Conn. 178; and it is assumed that the authority promulgating an administrative regulation intended to accomplish a reasonable and rational result. Rizzo Pool Co. v. Del Grosso, 240 Conn. 58, 76 n. 18, 689 A.2d 1097 (1997). "Furthermore, even if a statute is considered clear on its face, if a literal interpretation of that statute would lead to unworkable results, resort to other aids to determine legislative intent is appropriate." State v. Cain, 223 Conn. 731, 744, 613 A.2d 804 (1992); see also Conway v. Wilton, 238 Conn. 653, 664-65, CT Page 4410 680 A.2d 242 (1996), on remand, 45 Conn. App. 17, 692 A.2d 1303 (1997).
The construction of § 14-298-241 which this court adopts would not work an unreasonable result with respect to "emergency vehicles" — police, fire and ambulance vehicles — since these will usually be found on the shoulder of bona fide emergency purposes. The same may also be said of privately owned wreckers. The use of wreckers to remove disabled vehicles from the highway is contemplated by § 14-298-240 of the Regulations of Connecticut State Agencies.
Section 14-298-240 of the Regulations of Connecticut State Agencies, entitled "Disabled vehicles," provides: "Disabled vehicles shall be immediately removed from the travel lanes and shall be removed from the highway as promptly as possible by the owner or his agent, or by a law enforcement agency at the owner's expense. Such vehicles shall be towed by duly authorized and properly equipped wrecker vehicles, using a rigid tow bar and shall use the extreme right hand travel lane."
The application of § 14-298-241 of the Regulations of Connecticut State Agencies may well present a hardship to the Commissioner of Transportation, who is charged with the maintenance of state highways, and to state contractors who perform maintenance work. The legislature, by statute, or the commissioner, by regulation, could have authorized the vehicles of such contractors to use highway shoulders. Neither have done so. While this omission "may work hardship, it is not the function of this court to pass upon the merit of legislation." Kirwan v. State, 168 Conn. 498, 501, 363 A.2d 56 (1975).
II
Clinton and Semac argue that the plaintiffs have failed to show that Clinton and Semac owed them a legal duty, or that a breach of a legal duty was the proximate cause of the plaintiffs' injuries.
A.
It is axiomatic that "`[t]here can be no actionable negligence . . . unless there exists a cognizable duty of care. . . . Whether a duty of care exists is a question of law to be decided by the court.' (Citations omitted.) Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996)." Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 660, 691 A.2d 1107 (1997). Traffic regulations exist to promote automobile safety. See State v. Anonymous, 36 Conn. Sup. 551, 557, 422. A.2d 867 (1980); General Statutes § 14-298. The act of stopping in the shoulder in violation of § 14-298-241 of the Regulations of Connecticut State Agencies constitutes a breach of a duty of care to fellow motorists.
The court does not determine whether a request or direction of the Commissioner of Transportation to do work on a state highway may ever excuse a person from compliance with regulations promulgated by the state traffic commission pursuant to General Statutes § 14-298. Cf. Gore v. People's Savings Bank, 235 Conn. 360, 376-77, 665 A.2d 1341 (1995). The issue has not been raised or briefed.
B.
For the defendant to be held liable, the defendant's negligence must have been both the cause in fact and the proximate cause of the plaintiff's injuries. See Fleming v. Garnett, 231 Conn. 77, 85 n. 6, 646 A.2d 1308 (1994). "The test for cause in fact is`"[w]ould the injury have occurred were it not for [the defendant's] negligent . . . conduct . . . ?`" Stewart v. Federated Dept. Stores, 234 Conn. 597, 605, 662 A.2d 753 (1995)." Purzycki v. Fairfield, 244 Conn. 101, 113, 708 A.2d 937 (1998). The accident and the plaintiff's injuries would not have arisen were it not for the presence of the truck in the shoulder. Hence, the test for cause in fact is met.
"Proximate cause establishes a reasonable connection between an act or omission of a defendant and the harm suffered by a plaintiff." Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 606. "The issue of proximate cause is ordinarily a question of fact for the trier." Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983). "[I]t becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion. . . ." (Internal quotation marks omitted.) Id., 295.
According to the ordinary proximate causation standard, "`[w]hen there is an intervening force between the defendant's action and the plaintiff's injuries . . . proximate cause [exists when] the defendant's negligence was a substantial factor in causing the plaintiff's injuries and . . . the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence.' (Internal quotation marks omitted.) Fleming v. Garnett, 231 Conn. 77, 86, 646 A.2d 1308 (1994). . . ." Elliott v. City of Waterbury, 245 Conn. 385, 402, 715 A.2d 27 (1998). A superseding cause may discharge a defendant's liability where 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. . . ." Corey v. Phillips, [ 126 Conn. 246, 255, 10 A.2d 370 (1939)]." Wagner v. Clark Equipment Co., 243 Conn. 168, 180, 700 A.2d 38 (1997).
Other states have addressed the specific issue of whether the illegal presence of a vehicle in the shoulder can be the proximate cause of injuries to a person in a vehicle that collided with the illegally parked vehicle. In Mayer v. Rockett, 362 Mass. 22, 283 N.E.2d 836 (1972), the Massachusetts Supreme Court held that "[the defendants'] violation of the statute and regulations cited was not only evidence of negligence, but also could properly have been found to be a proximate cause of the accident which occurred." Similarly, in Storer Communications, Inc. v. Burns, 195 Ga. 230, 393 S.E.2d 92, 93 (1990), Georgia's Court of Appeals held that "[e]ven assuming that it may not have been foreseeable that, under the circumstances a collision with the negligently parked car would occur as the result of hydroplaning, it cannot be said that, as a matter of law, it was not foreseeable that a collision would somehow occur." New York's Appellate Division has held, where a vehicle collided with a bus that parked on the shoulder in violation of a traffic regulation, that there is "little room for doubt that a factual issue as to proximate cause is presented." Dowling v. Consolidated Carriers Corp. , 103 N.Y. App. Div.2d 675, 677, 478 N.Y.S.2d 883 (1984), aff'd, 65 N.Y.2d 799, 482 N.E.2d 912, 493 N.Y.S.2d 116 (1985).
Although, as the defendants have emphasized, there were other factors that caused this collision, such as the presence of the tire tread in the road and the defendant Spear's loss of control of his vehicle, it cannot be said as a matter of law that any of the other contributing causes of the accident superseded Clinton's and Semac's negligence so completely that those factors alone would have led to the plaintiffs' injuries. See Wagner v. Clark Equipment Co., supra, 243 Conn. 180. Because a genuine issue of material fact remains as to whether the negligence of the defendants Semac and Clinton proximately caused the injuries suffered by Rivera and Centeno, the prior decision of the court granting the defendants' motion for summary judgment is vacated and the motion for summary judgment is denied.
BY THE COURT
Bruce L. Levin Judge of the Superior Court