Opinion
No. CV 09 5031944 S
March 30, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #117
FACTS
The plaintiff, Paul Amento, commenced this action on September 17, 2009 by service of process on Benedict Frosceno, Sr., arising out of an alleged collision at the intersection of Coe Avenue and Soundview Avenue in East Haven, Connecticut. In his original complaint, dated August 20, 2009 and containing two counts, the plaintiff alleges the following facts. On or about June 21, 2008, the plaintiff was the owner and operator of a pickup truck traveling southbound on Coe Avenue near its intersection with Soundview Avenue in East Haven, Connecticut. At this time, a vehicle operated by Edmundo Vargas was traveling behind the plaintiff's vehicle. Also at this time, a vehicle owned and operated by the defendant, Benedict Frosceno, Sr., was traveling behind Vargas' vehicle. The plaintiff's vehicle was stopped and waiting to make a left turn when Frosceno's vehicle struck the rear of Vargas' vehicle, causing the latter to strike the rear of the plaintiff's vehicle. The plaintiff suffered severe and painful injuries as a result of the collision.
The original complaint was directed solely at Frosceno and contained two counts. In count one, the plaintiff set forth a negligence cause of action against Frosceno. In count two, the plaintiff brought a claim for unpaid repair and storage costs for his vehicle. On October 20, 2009, Frosceno filed an answer to the plaintiff's original complaint.
The plaintiff alleges that Frosceno acted negligently by: (1) failing to keep a reasonable and proper lookout and to pay attention to where he was going; (2) operating his vehicle at a greater rate of speed than the circumstances warranted; (3) failing to sound his horn or give the plaintiff any warning of the impending collision; (4) operating his vehicle with defective or inadequate brakes or failing to apply his brakes in time to avoid the collision; (5) failing to keep and operate his vehicle under proper control; (6) failing to turn his vehicle in time to avoid the collision; (7) operating his vehicle at a rate of speed greater than is reasonable in violation of General Statutes § 14-218a; (8) following another vehicle more closely than is reasonable and prudent in violation of General Statutes § 14-240(a); and (9) failing to operate his vehicle as a reasonably prudent person would do under the circumstances.
On November 12, 2009, Frosceno filed an apportionment complaint against Vargas and VIP Limo. Frosceno alleges that, at the time of the accident, Vargas was operating a motor vehicle as an employee of VIP Limo and was acting in the course of his employment and with the permission of VIP Limo. Frosceno further alleges that any injuries suffered by the plaintiff as a result of the accident were proximately caused by Vargas' negligence. On December 3, 2009, Vargas and VIP Limo filed an answer to Frosceno's apportionment complaint.
On September 15, 2010, the plaintiff filed an amended complaint, adding Vargas and VIP Limo as defendants. The first two counts of the amended complaint are substantively identical to the first two counts of the original complaint. Count three of the amended complaint, directed at Vargas and VIP Limo, is substantively identical to count one of the amended complaint, except that it alleges that the collision was due to Vargas' negligence and that he was operating a vehicle owned by VIP Limo. Count four, stating a claim for unpaid repair and storage costs for his vehicle and directed at Vargas and VIP Limo, is substantively identical to count two.
The plaintiff only refers to a singular "defendant" in count four of his amended complaint, and does not name either Vargas or VIP Limo. The court, however, acknowledges that count four is directed at both Vargas and VIP Limo.
On February 8, 2011, Vargas and VIP Limo filed a motion for summary judgment with regard to Frosceno's apportionment complaint on the ground that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. In support of their motion, they submitted as evidence an affidavit of Vargas, transcript excerpts from the plaintiff's deposition and transcript excerpts from Frosceno's deposition. On March 3, 2011, Frosceno filed an objection to the motion for summary judgment and submitted as evidence transcript excerpts from Frosceno's deposition and from the plaintiff's deposition. The matter was heard at short calendar on March 14, 2011.
The plaintiff, Paul Amento, is not a party to the motion for summary judgment.
Frosceno has also submitted as evidence an uncertified police report. The court, however, declines to take this document into consideration. See Fogarty v. Rashaw, 193 Conn. 442, 444, 476 A.2d 582 (1984) (declining to allow defendants moving for summary judgment to rely upon unsworn police report of investigating officer, except for officer's personal observations, due to absence of oath).
DISCUSSION
"Summary judgment is a method of resolving litigation when 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 . . . 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). "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 any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The 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." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, CT Page 8132 206 Conn. 495, 500, 538 A.2d 1031 (1988). "[S]ince litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
"A material fact is a fact that will make a difference in the outcome of the case . . . Once the moving party has presented evidence in support of [its] 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 [in support of a motion for summary judgment]. . ." Byrne v. Burke, 112 Conn.App. 262, 267-68, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009).
"Summary judgment procedure is especially ill-adapted to negligence cases, where . . . 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 . . . [T]he conclusion of negligence is necessarily one of fact . . . Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
In their motion for summary judgment, Vargas and VIP Limo argue that there is no genuine issue of material fact that Vargas' vehicle was at a complete stop when it was struck from behind by Frosceno's vehicle and pushed into the plaintiff's vehicle. Vargas and VIP Limo maintain that the operator of a "middle vehicle" which is completely stopped, struck behind and pushed into the plaintiff's vehicle is not negligent. They argue that the motion for summary judgment should be granted because "there is no evidence demonstrating that the accident happened in any other way" and "there is no evidence of any negligence on the part of the moving defendants." Frosceno counters in his objection to the motion that there exist genuine issues of fact as to negligence, as he has submitted evidence showing that Vargas had not brought his vehicle to a complete stop by the time Frosceno struck his vehicle.
Summary judgment may be granted as to a defendant operating the "middle vehicle" in a three-car accident where the middle vehicle is stopped, struck from behind and pushed into the plaintiff's vehicle, and where the nonmovant fails to submit evidence showing that the middle vehicle operator did not bring his car to a complete stop or was otherwise negligent. Corsi v. Pascal, Superior Court, judicial district of New Haven, Docket No. CV 04 4004535 (June 13, 2007, Holden, J.). In Corsi, for example, the plaintiff, who was injured when the middle vehicle operator struck his car, failed to present a certified copy of his deposition testimony and presented no other evidence supporting his contention that the middle vehicle operator was negligent. As a result, the court granted the defendant's motion for summary judgment. See Posner v. Jones, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 04 4000766 (August 3, 2005, Aurigemma, J.) (on similar facts, granting middle vehicle operator's motion for summary judgment where plaintiff failed to introduce any evidence showing that middle vehicle operator was negligent); Johnbatiste v. Granskog, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01 0186063 (October 21, 2002, D'Andrea, J.) [ 33 Conn. L. Rptr. 285] (same).
The court must deny summary judgment, however, where the nonmoving party has submitted evidence showing that the middle vehicle was not completely stopped when it was struck by the third party's vehicle, causing the middle vehicle to strike the plaintiff's car. The facts in Catania-Pizighelli v. Uzarski, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 04 4002935 (October 25, 2006, Arnold, J.) are similar to the present case. In Catania-Pizighelli, the plaintiff, opposing summary judgment, submitted transcript excerpts from the deposition of the middle vehicle operator ("the defendant"), a copy of the police report and a copy of the middle vehicle operator's statements to his insurer. All of these documents indicated that the defendant was not at a complete stop when she struck the plaintiff's vehicle. The court denied the defendant's motion for summary judgment on the ground that there were genuine issues of material fact as to whether the defendant was at a complete stop when she was struck from behind and whether she was otherwise negligent in the operation of her vehicle.
In the present case, Vargas and VIP Limo have submitted an affidavit of Vargas which states that he brought his vehicle to a complete stop behind the plaintiff's vehicle when he was struck from behind by Frosceno, pushing his vehicle into the rear of the plaintiff's vehicle. Vargas and VIP Limo also attach transcript excerpts from the plaintiff's deposition testimony, where the plaintiff stated that after he brought his vehicle to a complete stop, he saw Vargas stopped behind him in his rear view mirror. He then saw Frosceno's vehicle strike Vargas' vehicle from behind and push it into the rear of the plaintiff's vehicle. Lastly, Vargas and VIP Limo attach transcript excerpts from Frosceno's deposition testimony, where Frosceno stated that he struck Vargas' vehicle from behind and that he could not see what happened ahead of Vargas' vehicle.
Frosceno has submitted excerpts from the transcripts of the plaintiff's own deposition and of his own deposition. The plaintiff's deposition testimony states that the plaintiff was unsure whether the impact was caused by Vargas' vehicle directly hitting the plaintiff's vehicle or because the force of Frosceno's vehicle striking Vargas' vehicle caused the latter to strike the plaintiff's vehicle. In addition, Frosceno's deposition testimony states that Vargas' vehicle was not at a complete stop when Frosceno struck his vehicle. As a result, Frosceno has submitted evidence indicating there are genuine issues of material fact as to whether Vargas was at a complete stop when his vehicle struck the plaintiff's vehicle. Therefore, Vargas and VIP Limo have failed to meet their burden for their motion for summary judgment.
CONCLUSION
For the foregoing reasons, the court denies Vargas' and VIP Limo's motion for summary judgment.