Opinion
No. CV02 0079158
April 14, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#132)
Background
This action is brought by Robert Cirelli and Donna Cirelli against Wayne L. Snape and Joseph Kovacik. The Plaintiffs allege that they suffered injuries when the car in which the Plaintiff Robert Cirelli was driving and his wife, Donna Cirelli, was a passenger, which was stopped behind a school bus, was struck from behind by the Defendant's Snape's vehicle. The Plaintiffs allege that Snape's vehicle was forced into the rear of their car by the Defendant Kovacik's vehicle slamming into the rear of Snape's vehicle while it was stopped behind the Plaintiffs. From the force of the collision, the Plaintiffs' vehicle was pushed forward and hit the school bus.
By motion dated December 4, 2003 the Defendant Snape has moved for summary judgment. The Defendant claims that there is no issue of material fact that he did anything wrong or negligent to cause the accident since the evidence demonstrates that Snape's stopped vehicle was struck by Kovacik's vehicle causing it to strike the Plaintiffs' vehicle. Therefore he claims he is entitled to judgment as a matter of law.
The Plaintiffs, by objection dated January 15, 2004, claim that the Defendant's motion should be denied because it remains undetermined whether or not the vehicle Snape was operating had been stopped behind the Plaintiffs.
Oral argument on the motion for summary judgment was held on January 20, 2004.
Discussion
"`Pursuant to Practice Book § 17-49, 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. Such questions of law are subject to plenary appellate review.' (Internal quotation marks omitted.) Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002). In deciding whether the trial court properly determined tat there was no genuine issue of material fact, we review the evidence in the light most favorable to the nonmoving party. BD Associates, Inc. v. Russell, 73 Conn. App. 66, 69, 807 A.2d 1001 (2002); Yancey v. Connecticut Life Casualty Ins. Co., 68 Conn. App. 556, 558, 791 A.2d 719 (2002)." Faigel v. Fairfield University, 75 Conn. App. 37, 39-40 (2003). "`A trial court may appropriately render summary judgment when 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. Practice Book 384; Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377-78, 260 A.2d 596 (1969).' Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11, 459 A.2d 115 (1983). See Herman v. Endriss, 187 Conn. 374, 446 A.2d 9 (1982). 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. Bartha v. Waterbury House Wrecking Co., supra, 11-12; Farrell v. Farrell, 182 Conn. 34, 38, 438 A.2d 415 (1980); Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5, 357 A.2d 484 (1975). 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.' Bartha v. Waterbury House Wrecking Co., supra, 12. `The movant has the burden of showing the non-existence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist.' Kasowitz v. Mutual Construction Co., 154 Conn. 607, 613, 228 A.2d 149 (1967), quoting Boyce v. Merchants Fire Ins. Co., 204 F. Sup. 311, 314 (D.Conn. 1962); see Farrell v. Farrell, supra, 39; Plouffe v. New York, N.H. H.R. Co., 160 Conn. 482, 490, 280 A.2d 359 (1971); Hartmann v. Smith, 158 Conn. 613, 614, 259 A.2d 645 (1969)." Burns v. Hartford Hospital, 192 Conn. 451, 455 (1984).
When determining a motion for summary judgment, the facts at issue are those appropriately alleged in the pleadings. Gould v. Mellick and Sexton, 66 Conn. App. 542, 544 (2001). Here the Plaintiffs allege that they stopped behind a school bus which had stopped for a red light. The Plaintiffs allege that the Defendant Snape "who was traveling behind the Plaintiffs, came to a stop behind the Plaintiffs' vehicle." (First Revised Complaint, Count Five, Paragraph 7.)
The burden is on the Defendant, as the moving party, to establish that there is no issue of material fact. While, in assessing whether such a issue of fact exists, the court must view the evidence in the light most favorable to the Plaintiffs. Here the Plaintiffs allege that Snape was stopped at the time he was struck by Kovacik. The Defendant claims this judicial admission by the Plaintiffs and the other evidence establishes that Snape was stopped and not responsible for the accident. It is well settled that "`[f]actual allegations contained in pleadings upon which the case is tried are considered judicial admissions and hence irrefutable as long as they remain in the case . . . West Haven Sound Development Corp. v. West Haven, 201 Conn. 305, 312, 514 A.2d 734 (1986); see State v. Rodriguez, 180 Conn. 382, 396, 429 A.2d 919 (1980) (noting that [t]he vital feature of a judicial admission is universally conceded to be its conclusiveness upon the party making it, i.e. the prohibition of any further dispute of the fact by him, and any use of evidence to disprove or contradict it) . . .' (Citations omitted; internal quotation marks omitted.) Ferreira v. Pringle, 255 Conn. 330, 345, 766 A.2d 400 (2001)." Flanagan v. Blumenthal, 265 Conn. 350, 373-4 (2003). "`An admission in pleading dispenses with proof, and is equivalent to proof.' (Internal quotation marks omitted.) Kronberg v. New Hampshire Ins. Co., 69 Conn. App. 330, 333, 794 A.2d 561, cert. denied, 260 Conn. 934, 802 A.2d 88 (2002). `A party is bound by a judicial admission unless the court, in the exercise of a reasonable discretion, allows the admission to be withdrawn, explained or modified.' Hirsch v. Thrall, 148 Conn. 202, 206-07, 169 A.2d 271 (1961)." Mamudovski v. BIC Corp., 78 Conn. App. 715, 727 (2003). The Plaintiffs, despite submitting a revised complaint, have not sought to withdraw or change their allegation that the Defendant Snape was stopped at the time of the accident. Since they are bound by that allegation of fact they cannot attempt now, or would they be allowed at trial, to submit evidence to dispute it. "`Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See Practice Book § 381.' (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995)." Great Country Bank v. Pastore, 241 Conn. 423, 436 (1997). Although the Plaintiffs have submitted a copy of Snape's statement to police in which he states he "slowed for a red light" the Plaintiffs, having admitted in their complaint that the Defendant Snape was stopped, cannot now claim that the evidence is to the contrary. The Plaintiffs also claim that the Defendant Snape has not provided any statement from any parties that corroborate his claim that his vehicle was stationary at the time of the collision. However the Defendant does not need do so since the Plaintiffs have admitted so much in their complaint.
"In ruling on a motion for summary judgment, the court must make two determinations: first, that there are no genuine issues of material fact; and second, that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49; Miller v. United Technologies Corp., 233 Conn. 732, 745, 660 A.2d 810 (1995)." Gould v. Mellick and Sexton, 66 Conn. App. 542, 553 (2001). "A `genuine' issue has been variously described as a `triable,' `substantial' or `real' issue of fact; see note, 48 Colum.L.Rev. 780; and has been defined as one which can be maintained by substantial evidence. Firemen's Mutual Ins. Co. v. Aponaug Mfg. Co., 149 F.2d 359, 362 (5th Cir.); Riss Co., Inc. v. Assn. of American Railroads, 190 F. Sup. 10, 17 (D.D.C.); note, 48 Iowa L.Rev. 453, 454. 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. Note, 48 Colum.L.Rev. 780, 781; see Dewey v. Clark, 180 F.2d 766, 772 (D.C. Cir.); Whitaker v. Coleman, 115 F.2d 305, 306, 307 (5th Cir.). A `material' fact has been defined adequately and simply as a fact which will make a difference in the result of the case. Curtis v. United States, 168 F. Sup. 213, 216 (Ct.Cl.), cert. denied, 361 U.S. 843, 80 S.Ct. 94, 4 L.Ed.2d 81." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-79 (1969). Here there is no dispute as to the material fact that Snape was stopped when he was hit and pushed into the plaintiffs' car.
Even though the court has determined that there is no genuine issue of material fact in dispute, the court must go on and decide whether the moving party is entitled to judgment as a matter of law. "The test of the requirement for the granting of a summary judgment that the moving party be entitled to judgment as a matter of law is resolved by applying to the established facts the same criteria as used in determining whether a party would be entitled to a directed verdict on the same facts. 6 Moore, Federal Practice (2d Ed.) 56.02 [10], 56.15 [3], and cases cited. `[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.' Sartor v. Arkansas Natural Gas Corporation, 321 U.S. 620, 624, 64 S.Ct. 724, 88 L.Ed. 967. In Connecticut, a directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed. Vuono v. Eldred, 155 Conn. 704, 705, 236 A.2d 470; Engengro v. New Haven Gas Co., 152 Conn. 513, 516, 209 A.2d 174." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380 (1969).
Here the court is satisfied that the Defendant Snape would be entitled to a directed verdict on the evidence before it. Even assuming that there is an issue as to whether Snape was stopped, the Plaintiffs have submitted no evidence that he was negligent in any of the ways claimed. This case is similar to Rivera v. Flynn, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV 950319280 (Moran, J., June 7, 1996), where the court stated: "The court agrees with Flynn that summary judgment should be granted as to the counts against defendant Flynn. The plaintiffs and Flynn agree that Flynn's motor vehicle came to a complete stop behind Rivera's motor vehicle. Moreover, Flynn stated in his affidavit that `I had my foot on the brake waiting for the light to turn, when I was rear-ended by a vehicle being operated by Donald Rubenstein.' Thus, the evidence fails to support the plaintiffs' claims of negligence against Flynn. Cf. Tolmazin v. Kautter, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 396863 (Oct. 29, 1993, Sheldon, J.) (where the court reviewed similar claims of negligence under facts nearly identical to the facts of this case). The court notes, and it is significant to the decision reached herein, that the plaintiffs have failed to present any evidence that Flynn engaged in any conduct that could be deemed negligent under the law. Id. Instead, the plaintiffs merely assert that there exists a genuine issue of material fact and the plaintiffs have a constitutional right to have the issue determined by a jury. Assertions, however, are insufficient to raise a genuine issue of material fact: More is required of the plaintiffs. Indeed, the Connecticut Supreme Court has stated that `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 an 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].' (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). The plaintiffs have failed to present any evidence to this court in opposition to Flynn's motion for summary judgment that demonstrates that the defendant Flynn engaged or failed to engage in any conduct that could be deemed a breach of the standard of care required of a motor vehicle operator. See Tolmazin v. Kautter, supra. Therefore, the court grants Flynn's motion for summary judgment." See also, Johnbatiste v. Granskog, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. CV01 0186063 S (D'Andrea, J.T.R., October 21, 2002) ( 33 Conn.L.Rptr. 285). Similarly here the plaintiffs have failed to present any evidence which supports their claims of negligence against Snape.
Conclusion
The Defendant Snape's Motion for Summary Judgment is granted.
Jane S. Scholl, J.