Opinion
No. CV07 501 20 82 S
October 31, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
This action arises out of an accident which occurred on December 22, 2006. The plaintiff, Avery Sutton, is a minor and the complaint is being brought by her father, Charles Sutton. She was a passenger in a vehicle being operated by the defendant, Brittany Brackett, with the permission of her mother, the defendant, Lisa Brackett. The vehicle was being operated in a northerly direction on Main Street (Route 25) in Monroe.
At that time, the co-defendant, Lee Kondratovich, was driving his pickup truck in southerly direction on Main Street when he made a left hand turn in front of the oncoming Brackett vehicle and an accident ensued.
The plaintiff, Avery Sutton, who claims to have suffered personal injuries, has filed the following allegations of negligence against Brittany Brackett:
A) She operated a motor vehicle in a crowded condition with more passengers than reasonable safe seating space provides, hampering her ability to keep a proper lookout in violation of C.G.S. § 14-257;
B) She failed to apply her brakes when the exercise of due care should have known that a collision was imminent;
C) She otherwise failed to maintain a proper lookout for other vehicles on Main Street.
There are no further allegations of negligence.
The defendants, Brittany Brackett and Lisa Brackett, have filed a motion for summary judgment.
"Summary judgment is appropriate when all the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law . . . The test is whether a party would be entitled to a directed verdict on the same facts." Connelly v. Housing Authority, 213 Conn. 354 (1990).
In support of their motion the defendants submitted the police report, an affidavit signed by the defendant Brittany Brackett and various portions of deposition testimony from the passengers in the Brackett vehicle.
The police report indicates that the defendant Kondratovich stated that he was proceeding south on Main Street and attempted to turn left in front of the oncoming Brackett vehicle in order to enter the parking lot of a restaurant. When he realized he was not going to beat the oncoming traffic, he slowed down. The Brackett vehicle collided with the passenger side of the Kondratovich vehicle. The defendant stated to the policeman "it was totally my fault."
The defendant Brackett told the investigating police officer that she was traveling north on Main Street when the operator of a south bound vehicle suddenly turned in front of her. She was unable to avoid contact and struck the passenger side of the Kondratovich vehicle.
The affidavit executed by Brittany Brackett states the following:
5. As I was traveling north on Main Street, a vehicle operated by the co-defendant, Lee Kondratovich, which was traveling south on Main Street, made a sudden left hand turn in front of my vehicle, causing the vehicles to collide.
6. I applied my brakes, but had insufficient time to avoid the accident.
8. At the time of the accident, my ability to operate the vehicle was not impeded in any way by the number of occupants in the vehicle, or by their positions inside the vehicle
9. At the time of the accident, I was not crowded in any way in operating the vehicle because of the number or location of the occupants in the vehicle.
10. At the time of the accident, I was not hampered in the operation of the vehicle by any of the occupants of the vehicle or by the number or location of the occupants inside the vehicle.
11. The positioning and/or the seating of the occupants of the vehicle did not, in any way, interfere with my ability to operate the vehicle.
12. Prior to and at the time of the accident, I was able to operate all of the vehicle's controls, including the gas pedal, turn signals, horn, brake, emergency brake, lights and steering wheel.
13. At the time of the accident, my view out the front window of my vehicle was not obstructed by any of the occupants of the vehicle.
14. At the time of the accident, I was not distracted from driving by any of the occupants of the vehicle, or by their location inside the vehicle.
The plaintiff, Avery Sutton, (age 15) testified in her deposition that Brittany Brackett was driving the vehicle and she and Kayla Brackett were in the front passenger seat. That there were two separate seats in the front of the car which were separated by a console. She was closest to the window. She gave no testimony as to the operation of the vehicle.
Jeffrey Wright (16) testified that Avery and Kayla were seated together in the front passenger seat. None of the kids were acting up in the vehicle. The defendant Brittany Brackett was not crowded by the passengers in the vehicle, nor was anything happening inside the car which was interfering with her ability to drive.
Anthony Bennedetto, also a passenger in the vehicle, testified that the plaintiff and Kayla Brackett were both in the passenger seat. He observed that Brittany was not hampered or crowded in any way by the passengers in the car and that nothing was happening in the car to affect her ability to drive.
Mike Szabo (16) testified that Avery Sutton was sitting on Kayla's lap in the passenger seat the entire trip and Brittany was not hampered in her ability to drive the car because of where they were seated in the car.
"Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under practice book § 380 . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book §§ 380 and 381, which contradict those stated in the movant's affidavits and documents." State v. Goggin, 208 Conn. 606, 616-17, 546 A.2d 250 (1988).
"A `genuine issue' has been variously described as a `triable,' `substantial' or `real' issue of fact . . . and has been defined as one which can be maintained by substantial evidence. Hence, the `genuine issue' aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." United Oil Co. v. Redevelopment Commission, 158 Conn. 364, 378-79, 260 A.2d 596 (1969).
"Although a party seeking summary judgment has the burden of showing the nonexistence of a material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with evidence disclosing the existence of such a fact." Scinto v. Stamm, 224 Conn. 524, 530 (1999).
In opposition to the motion for summary judgment the defendant quoted portions of the deposition of the defendant, Lee Kondratovich, where he indicated that he saw the vehicle for the first time 30 yards ahead of him "it seemed like they were going a little fast . . . approximately, I don't know, 35" he went on to testify that he told the police officer it was totally his fault because he turned in front of them. When asked if he stated totally his fault, did he mean it was nobody else's fault, he answered "no I didn't, I don't know what they were doing to try to slow down or anything, I don't know . . . so you don't know anything about the other person's operation of the vehicle, but you do know that you were at fault, answer: yes" at this point it should be noted that there is no allegation in the complaint that the plaintiff was traveling at an unreasonable rate of speed and during argument counsel for the plaintiff advised the court that they did not claim the Brackett was operating her vehicle at an unreasonable rate of speed as they had no basis to do so.
In addition to the testimony of the co-defendant, Lee Kondratovich, the plaintiff in a supplemental memorandum quoted the testimony of a passenger in the Kondratovich vehicle as follows:
Q. Did you at any point before the accident, see the other car that was involved in the collision?
A. I glanced out the window and saw the car.
Q. Okay. And what was the distance between your car and that car when you first saw it?
A. Good — it looked a good distance away.
Q. Can you estimate the distance?
A. No.
Q. Okay.
A. I'm not good with that. Sorry.
Q. When you first saw that vehicle, how fast was that vehicle going, if you know?
A. That I can't tell you.
Q. Okay. Did you say anything inside the car when Lee began his turn?
A. Honestly, I don't know. But if I saw it coming, I would have. I might have, if I saw it coming, you know.
Q. Did you know that there was going to be a collision?
A. No, I didn't think so.
Q. Did you hear any screeching of brakes or a horn?
A. No, not that I recall . . .
Q. Now, as a passenger in Leo's vehicle, as he was making that left turn into Senor Pancho's, you would have been the one who would have been on the side of the vehicle that would have been struck by the —
A. Yeah, it was my side.
Q. As you sat there, did you think there was enough time and opportunity for Leo to have made that left-hand turn into —
A. I don't recall telling him not to. So if I had known, I guess I would have. And I mean, it's all — I don't really remember. I didn't scream, "Oh, my God." I know that, so —
In opposition to the motion for summary judgment the plaintiff argues that the defendants are relying on transcript testimony of minors in support of their conclusion that the driver was not hampered in any way.
"The lay opinions of some of the fourteen and fifteen year old children that they were not hampering the driver is misplaced. These opinions would be incompetent evidence at trial. In the venerable anchor cases on the topic of lay opinion testimony questions such as, `Did you use your best judgment?' `Was there anything you could have done to avoid the accident?' and `Was what you did the only thing that you could safely do?' Witnesses cannot testify that a person was negligent or careful are inadmissible. Further that the testimony of minor children should not be considered. Even if the court would allow such testimony its probative value in light of the age of the witness is dubious at best." This court disagrees.
The children's ages range from fifteen to sixteen. There is no case law cited by the plaintiff and none could be that the testimony of fifteen and sixteen year olds should not be considered as probative.
With respect to the testimony that this was opinion testimony, the plaintiff is apparently referring to § 7.1 of the Connecticut Code of Evidence "Opinion Testimony by Lay Witnesses" or § 7.3 "Opinion on Ultimate Issue."
§ 7.1 provides that a witness not testifying as an expert may not testify in the form of an opinion "unless the opinion is rationally based on the perception of the witness and is helpful to a clear understanding of the testimony of the witness for a determination of the fact and issue." The testimony submitted was indeed rationally based on perception which would be helpful to a clear understanding of their testimony to determine the facts and issues.
With respect to § 7.3 which provides that testimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact. In "Connecticut Trial Evidence Notebook, Second Edition," published by LexisNexis, Authored by Dale Faulkner and Shelley L. Graves, this section is summarized as follows:
Where an opinion is based on the witness's perception and is helpful in understanding that testimony, it is admissible. Thus, lay opinion on the ultimate factual issue of a testator's testamentary capacity is admissible on a showing that the witness based the opinion on personal knowledge. Nichols v. Wentz, 78 Conn. 429, 439, 62 A.620 (1905). Lay opinion also is admissible on other ultimate issues of fact, including sanity, Hine, Appeal from Probate, 68 Conn. 551, 558, 37A. 384 (1897); authenticity of a signature on a promissory note, Shakro v. Haddad, 149 Conn. 160, 162-63, 177 A.2d 221 (1961); intoxication, State v. Jones, 124 Conn. 664, 668, 2 A.2d 374 (1938); and conditions of safety, Petrizzo v. Commercial Contractors Corp., 152 Conn. 491, 497, 208 A.2d (1965). These examples are more correctly identified as facts based on the witness' perception and observation. See also State v. Morocho, 93 Conn.App. 205, 221-25, 888 A.2d 164 (2006).
While there may be an argument as to the few references to the singular claim that the codefendant was not "hampered" as being a paraphrase of the statute, the statements of the passengers in the vehicle and in particular the affidavit of the co-defendant are descriptions of their various personal observations at the time of the incident and are a proper vehicle to inform the jury as to the circumstances surrounding the accident.
The passengers uniformly testified that her ability to operate the vehicle was not impeded by the occupants in the car as they were both seated in the passenger seat separated from the driver by a console, that the passengers of the car were not acting up at the time of the accident and that the plaintiff was sitting on the lap of the passenger next to the window and did so from the time they got into the car up to the time of impact.
Britney Brackett stated in her affidavit that she was able to operate all the vehicle controls including the gas pedal, turn signals, the brakes, emergency brake, lights and steering wheel. She testified at no time did her view out the front window of the vehicle was obstructed by any of the occupants of the vehicle and at no time was she distracted by any of the occupants of the vehicle. It should be noted that the claim of the plaintiff against the defendant is in three parts. First, that she violated § 14-257 in that the number of passengers "hampered her ability to maintain a proper lookout" another allegation is that "she failed to maintain a proper lookout for other vehicles on Main Street." There was no testimony from anyone that her view was at any time obstructed and she testified herself that she had a clear view out the front window. This would be consistent with the plaintiff sitting on the lap of a co-passenger next to the window in the passenger seat at the time of the incident separated by a console between the two seats. The only view which could have been obstructed would be through the passenger window. The other allegation of the complaint was that Brackett failed to apply her brakes but she testified both to the police officer and in her affidavit that as soon as the car made a turn in front of her she attempted to apply her brakes but she could not do so because of the operation of the co-defendant's vehicle.
The plaintiff further argues that the testimony of the co-defendant and the passenger in his vehicle create an issue of fact for the jury to determine. In fact, the testimony of the co-defendant aside from the fact that he admitted that he was the total cause of the accident was that he did not know anything about the other person's operation of the vehicle but he did know that he was at fault. The only factual claim was that he saw the vehicle approximately 30 yards ahead and a vague reference that it appeared to be going "pretty fast." However, there is no allegation that the co-defendant was operating at an unreasonable rate of speed and, as was indicated, the plaintiff's counsel indicated they had no basis for such a claim.
With respect to the passenger, the only fact in her testimony was that at some unknown time and unknown location before the accident the accident she saw the other vehicle. There was nothing admissible in the rest of her testimony, which became somewhat incoherent.
As was indicated, the party seeking summary judgment has the burden of showing the non-existence of a material fact. The party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with evidence disclosing the evidence of some fact.
"A party opposing a motion, must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . mere assertion of facts are insufficient to establish the existence of a material fact." Tine v. Baker, No. 116645 (2001) Connecticut Superior Court, judicial district of New London, Corradino, J. [ 29 Conn. L. Rptr. 667].
Summarily, the plaintiff did not offer any direct or indirect reference to the defendant Bracket's ability to maintain a proper lookout or failure to properly apply her brakes.
"Although the elements of a cause of action may be established on the basis of interest drawn from circumstantial evidence such inference "must be based on logical and the conclusions based on them must not be the result of the speculation and conjecture . . . an inference must have some definite basis in fact . . . when an element necessary for a cause of action cannot be established without conjecture the evidence presented cannot withstand a motion for a directed verdict . . ." Boehm v. Kish, 201 Conn. 385 (1986).
Had this been a trial based on the facts submitted, this court would have entered a directed verdict for the defendant.
The motion for summary judgment is granted.