Opinion
No. CV 08 5024679S
May 20, 2011
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#128) (#140)
I
FACTS
The following facts are alleged in the three-count complaint that was filed on November 24, 2008, by the plaintiffs, Donald B. Grant and Suzanne Grant, and was served on the defendant town of Branford on November 14, 2008, and the defendant Gary N. Verni on November 18, 2008. Grant, a resident of Branford, was operating a 2000 GMC van on December 7, 2006, in Branford. Also on December 7, 2006, Verni, also a Branford resident, was operating a 2006 Ford police cruiser, which was owned by Branford. At all relevant times, Branford was a municipal corporation organized pursuant to the laws of Connecticut. At all relevant times, "Cedar Street, in Branford, Connecticut, [was] a public roadway running in a generally north/south direction having one lane of travel in each direction at its intersection with North Main Street."
As Suzanne Grant's claims are derivative of the claims of her husband, Donald B. Grant, for purposes of this memorandum, when this memorandum refers to Grant in the singular, it is referring to Donald B. Grant unless otherwise specified.
The following facts are also alleged in the complaint. On December 7, 2006, at approximately 1:04 p.m., Grant "was lawfully traveling west on North Main Street, and had entered the intersection of Cedar Street and North Main Street with a green light displayed on the traffic control signal in his direction when, suddenly and without warning," the vehicle being operated by Verni struck the vehicle that Grant was operating. Verni entered the intersection of Cedar Street and North Main Street and drove through a red traffic light at a high rate of speed, striking the vehicle being operated by Grant. Grant sustained injuries as a result of the collision.
In count one, the plaintiffs allege that the collision and resulting injuries were "due to the negligence and carelessness of . . . [Verni] in one or more of the following respects:" (a) "he was inattentive and failed to keep a proper lookout"; (b) "he failed to sound his horn or give the [p]laintiff a timely warning or any warning whatsoever of his approach"; (c) "he failed to give the [p]laintiff a reasonable opportunity to proceed to a place of safety"; (d) "he drove his vehicle at a greater rate of speed than circumstances warranted in . . . General Statutes § 14-218 and § 14-219"; (e) "he failed to slow or stop his vehicle at the red signal in violation of . . . General Statutes § 14-283(b)(2)"; (f) "he exceeded the speed limit with disregard to the safety of person or property in violation of . . . General Statutes § 14-283(b)(3)"; (g) "he drove his motor vehicle with defective or inadequate brakes, in violation of . . . General Statutes § 14-80, or failed to apply his brake in time to avoid running into or colliding with the [p]laintiff"; (h) "he failed to keep and operate his motor vehicle under proper control"; [and] (i) "he violated the motor vehicle laws of the [s]tate of Connecticut in failing to grant the right of way to the [p]laintiff."
As § 14-218 is entitled "Negligent homicide" and has been repealed, the court finds that the plaintiffs intend to refer to General Statutes § 14-218a, which is entitled "Traveling unreasonably fast. Establishment of speed limits," General Statutes § 14-218a provides in relevant part: "(a) No person shall operate a motor vehicle upon any public highway of the state, or road of any specially chartered municipal association . . . at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions . . . Any speed in excess of [speed limits determined by the state traffic commission or local traffic authority], other than speeding as provided for in section 14-219, shall be prima facie evidence that such speed is not reasonable, but the fact that the speed of a vehicle is lower than such limits shall not relieve the operator from the duty to decrease speed when a special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions . . ."
"(c) Any person who operates a motor vehicle at a greater rate of speed than is reasonable, other than speeding, as provided for in section 14-219, shall commit the infraction of traveling unreasonably fast."
General Statutes § 14-219(c) was amended by Public Acts 2010, No 10-110. General Statutes § 14-219 provides in relevant part: "(a) No person shall operate any motor vehicle (1) upon any highway, road or any parking area for ten cars or more, at such a rate of speed as to endanger the life of any occupant of such motor vehicle, but not the life of any other person than such an occupant; (2) at a rate of speed greater than fifty-five miles per hour upon any highway other than a highway specified in subsection (b) of section 14-218a for which a speed limit has been established in accordance with the provisions of said subsection; (3) at a rate of speed greater than sixty-five miles per hour upon any highway specified in subsection (b) of section 14-218a for which a speed limit has been established in accordance with the provisions of said subsection; or (4) if such person is under eighteen years of age, upon any highway or road for which a speed limit of less than sixty-five miles per hour has been established in accordance with subsection (a) of section 14-218a, at a rate of speed more than twenty miles per hour above such speed limit."
"(b) Any person who operates a motor vehicle (1) on a multiple lane, limited access highway other than a highway specified in subsection (b) of section 14-218a for which a speed limit has been established in accordance with the provisions of said subsection at a rate of speed greater than fifty-five miles per hour but not greater than seventy miles per hour, (2) on a multiple lane, limited access highway specified in subsection (b) of section 14-218a for which a speed limit has been established in accordance with the provisions of said subsection at a rate of speed greater than sixty-five miles per hour but not greater than seventy miles per hour, (3) on any other highway at a rate of speed greater than fifty-five miles per hour but not greater than sixty miles per hour, or (4) if such person is under eighteen years of age, upon any highway or road for which a speed limit of less than sixty-five miles per hour has been established in accordance with subsection (a) of section 14-218a, at a rate of speed more than twenty miles per hour above such speed limit, shall commit an infraction, provided any such person operating a truck, as defined in section 14-260n, shall have committed a violation and shall be fined not less than one hundred dollars nor more than one hundred fifty dollars."
"(c) Any person who violates any provision of subdivision (1) of subsection (a) of this section or who operates a motor vehicle (1) on a multiple lane, limited access highway at a rate of speed greater than seventy miles per hour but not greater than eighty-five miles per hour, or (2) on any other highway at a rate of speed greater than sixty miles per hour but not greater than eighty-five miles per hour, shall be fined not less than one hundred dollars nor more than one hundred fifty dollars, provided any such person operating a motor vehicle described in subsection (a) of section 14-163c, as amended by this act, shall be fined not less than one hundred fifty dollars nor more than two hundred dollars."
General Statutes § 14-283 provides in relevant part: "(a) `Emergency vehicle', as used in this section, means . . . any . . . local police vehicle operated by a police officer . . . answering an emergency call or in the pursuit of fleeing law violators . . . while in the course of such officer's employment and while responding to an emergency call."
"(b) The operator of any emergency vehicle may . . . (2) proceed past any red light . . . but only after slowing down or stopping to the extent necessary for the safe operation of such vehicle, (3) exceed the posted speed limits or other speed limits imposed by or pursuant to section 14-218a or 14-219 as long as such operator does not endanger life or property by so doing . . ."
"(c) The exemptions herein granted shall apply only when an emergency vehicle is making use of an audible warning signal device, including but not limited to a siren, whistle or bell which meets the requirements of subsection (f) of section 14-80, and visible flashing or revolving lights which meet the requirements of sections 14-96p and 14-96q, and to any . . . local police vehicle properly and lawfully making use of an audible warning signal device only."
"(d) The provisions of this section shall not relieve the operator of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property."
"(e) Upon the immediate approach of an emergency vehicle making use of such an audible warning signal device and such visible flashing or revolving lights or of any . . . local police vehicle properly and lawfully making use of an audible warning signal device only, the operator of every other vehicle in the immediate vicinity shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the emergency vehicle has passed, except when otherwise directed by a . . . local police officer . . ."
"(g) Any person who wilfully or negligently obstructs or retards . . . any vehicle used by any local police department . . . or any local police department while on the way to an emergency call or in the pursuit of fleeing law violators, shall be fined not more than two hundred dollars or imprisoned not more than seven days, or both."
See footnote 4.
The court finds that the defendants intend to refer to General Statutes § 14-80h, not § 14-80 as § 14-80 pertains to noise. General Statutes § 14-80h provides in relevant part: "(a) Each motor vehicle, other than a motorcycle, shall be equipped, when operated on a highway, with at least two braking systems one of which will be a service brake system and the other a parking brake system. Each braking system shall have a separate means of application by the operator. Each braking system, including any power assist devices used to reduce operator braking effort, shall be maintained in good working order at all times."
"(b) The service brake system, upon actuation by the operator, shall be effective in directly applying braking action on all wheels except as provided in the Code of Federal Regulations Title 49, Section 393.42, as amended. The service brake system employed on vehicles manufactured after January 1, 1968, shall be so designed and constructed that the wheel brakes on at least one axle operate separately from the wheel brakes on at least one other axle in a manner that will provide braking effort on at least two wheels in the event of a failure in any singular part or component of the service brake system, excluding the common actuation pedal or lever and excluding a structural failure of the brake distribution mechanism housing, effectiveness indicator body or other housing common to the divided brake actuation system. The service brakes, upon application by the operator, shall be capable of bringing the motor vehicle to a controlled stop within such distance and under such conditions as prescribed by the commissioner."
The plaintiffs allege that Grant's employer, Miracle Mist Corporation (Miracle Mist), through its workers' compensation coverage, paid $11,331.93 in indemnity benefits and $4,704.24 in medical benefits, leaving a total lien in the amount of $16,036.71 pursuant to General Statutes § 31-293 as of March 26, 2008.
While the plaintiffs allege that the total lien is in the amount of $16,036.71, $11,331.93 and $4,704.24 add up to $16,036.17.
General Statutes § 31-293 provides in relevant part: "(a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury . . . If the employer and the employee join as parties plaintiff in the action and any damages are recovered, the damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of the recovery, after the deduction of reasonable and necessary expenditures, including attorneys fees, incurred by the employee in effecting the recovery . . . If the damages, after deducting the employee's expenses as provided in this subsection, are more than sufficient to reimburse the employer, damages shall be assessed in his favor in a sum sufficient to reimburse him for his claim, and the excess shall be assessed in favor of the injured employee . . . For the purposes of this section, the claim of the employer shall consist of (1) the amount of any compensation which he has paid on account of the injury which is the subject of the suit and (2) an amount equal to the present worth of any probable future payments which he has by award become obligated to pay on account of the injury . . . Each employee who brings an action against a party in accordance with the provisions of this subsection shall include in his complaint (A) the amount of any compensation paid by the employer . . . on account of the injury which is the subject of the suit and (B) the amount equal to the present worth of any probable future payments which the employer . . . has, by award, become obligated to pay on account of the injury. Notwithstanding the provisions of this subsection, when any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury and the injured employee has received compensation for the injury from such employer, its workers' compensation insurance carrier or the Second Injury Fund pursuant to the provisions of this chapter, the employer, insurance carrier or Second Injury Fund shall have a lien upon any judgment received by the employee against the party or any settlement received by the employee from the party, provided the employer, insurance carrier or Second Injury Fund shall give written notice of the lien to the party prior to such judgment or settlement."
Count two of the complaint incorporates all of the allegations of count one and further alleges that pursuant to General Statutes § 52-183 Verni was "presumed to be an authorized agent, servant or employee" of Branford and was "operating said vehicle within the scope of his authority."
General Statutes § 52-183 provides: "In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption."
Count three of the complaint incorporates the allegations of count one and alleges that as a result of Verni's negligence, Suzanne Grant, Grant's wife, "has been deprived of her conjugal marital rights, in that she lost the society and companionship of her husband during the period of his recuperation as they were not able to conduct their lives after the accident as they had prior to the accident."
On December 12, 2008, Miracle Mist filed a motion to intervene in the action on the ground that at the time Grant suffered injuries, he was in Miracle Mist's employ within the scope of the Workers' Compensation Act and that his injuries arose during the course of his employment. Miracle Mist moved to intervene pursuant to § 31-293 and attached its three-count proposed intervening complaint. The court granted the motion to intervene on January 5, 2009. Count one of the intervening complaint incorporates paragraphs one through twelve of count one of the original complaint; count two of the intervening complaint incorporates count one of the intervening complaint and paragraph thirteen of count two of the original complaint; and count three of the intervening complaint incorporates count one of the intervening complaint and paragraph thirteen of count three of the original complaint. In the intervening complaint, Miracle Mist claims "that any damages recovered in said action shall be so paid and apportioned that the intervening plaintiff will be reimbursed for the amount paid and will become obligated to pay under the Workers' Compensation Act, including medical loss, loss of earnings, temporary total compensation, payments of permanent partial disability and any other benefits under the terms of the Workers' Compensation Act."
On January 16, 2009, the defendants filed an answer and a special defense to the original complaint. In their special defense, they allege that Grant's injuries and damages were proximately caused by his own negligence in that he (a) "operated his vehicle at an unreasonable rate of speed for the time, place, and conditions then and there prevailing in violation of . . . General Statutes § 14-218(a)"; (b) "operated his vehicle at an unreasonable rate of speed having regard to the width, traffic and use of the highway, the intersection of street, the weather conditions, and all of the circumstances prevailing at said time"; (c) "failed to keep his motor vehicle under proper and reasonable control"; (d) "saw or reasonably should have seen the vehicle operated by the defendant, he failed to turn, slow, or stop his vehicle in time to avoid colliding with the defendant's vehicle, although by a proper and reasonable exercise of his faculties he could and should have done so"; (e) "failed to sound a warning of his approach"; (f) "failed to exercise reasonable care for his own safety at said time and place"; (g) "failed to apply his brakes in a timely fashion and/or failed to have his car equipped with brakes capable of bringing it to a controlled stop in violation of . . . General Statutes § 14-80"; (h) "operated his vehicle recklessly, in violation of . . . General Statutes § 14-222"; [and] (i) "obstructed an emergency vehicle, in violation of . . . General Statutes § 14-283(g)."
It is submitted that the defendants mean to refer to § 14-218a, not § 14-218(a). See footnote 2.
It is submitted that the defendants intend to refer to General Statutes § 14-80h, not § 14-80. See footnote 6.
General Statutes § 14-222 provides in relevant part: "(a) No person shall operate any motor vehicle upon any public highway of the state, or any road of any specially chartered municipal association or of any district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or . . . upon any private road on which a speed limit has been established in accordance with the provisions of section 14-218a . . . recklessly, having regard to the width, traffic and use of such highway, road, school property or parking area, the intersection of streets and the weather conditions. The operation of a motor vehicle upon any such highway, road or parking area for ten cars or more at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle, or the operation, downgrade, upon any highway, of any motor vehicle with a commercial registration with the clutch or gears disengaged, or the operation knowingly of a motor vehicle with defective mechanism, shall constitute a violation of the provisions of this section. The operation of a motor vehicle upon any such highway, road or parking area for ten cars or more at a rate of speed greater than eighty-five miles per hour shall constitute a violation of the provisions of this section."
On January 21, 2009, the Grants filed a reply to the special defense, denying "each and every essential allegation" therein.
On September 1, 2010, the defendants filed a motion for summary judgment as to all three counts of the complaint accompanied by a memorandum of law in support thereof. Attached to the defendants' September 1, 2010 memorandum of law is an uncertified copy of the police accident report prepared by the Branford police department, copies of sworn statements from eyewitnesses to the accident taken by the investigating police officer, copies of affidavits provided by eyewitnesses, and an excerpt of the certified deposition testimony of Donald B. Grant, which was taken on March 17, 2010.
"Practice Book § 17-44 . . . provides that a party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial." Tarzia v. Great Atlantic Pacific Tea Co., 52 Conn.App. 136, 140 n. 3, 727 A.2d 219 (1999), cert. dismissed, 254 Conn. 786, 759 A.2d 502 (2000). In the present case, the defendants filed their original motion for summary judgment after the case had been assigned for trial but without specifically seeking permission to file the motion. The plaintiffs have not raised the issue of a lack of a motion for permission in objection to this motion.
The defendants state in the motion that they "move for summary judgment on the ground that there is no genuine issue of material fact regarding liability and they are accordingly entitled to judgment in their favor as a matter of law." The defendants further assert that the only conclusion that reasonable minds could reach is that Grant's negligence caused the motor vehicle collision. On October 1, 2010, the plaintiffs filed an objection to the motion for summary judgment accompanied by a memorandum of law in support of the objection, which itself is accompanied by an uncertified excerpt of Grant's deposition testimony. On October 14, 2010, the defendants filed a reply to the plaintiffs' objection to the motion for summary judgment. On October 18, 2010, oral arguments were heard on the short calendar for the September 1, 2010 motion for summary judgment.
The defendants do not object to the court's consideration of the uncertified deposition testimony accompanying the plaintiffs' memorandum of law in opposition to the original motion for summary judgment. It is submitted that the court may consider such testimony. See Barlow v. Palmer, 96 Conn. 88, 91-92, 898 A.2d 835 (2006).
On October 19, 2010, the defendants filed an answer and special defense to the intervening complaint. The special defense to the intervening complaint appears to be identical to the special defense to the original complaint. On October 22, 2010, Miracle Mist filed a reply to the special defense, denying all the allegations in the special defense.
On October 20, 2010, the defendants filed a motion for summary judgment/supplement to motion for summary judgment as to the intervening complaint as per permission granted by the court, Burke, J., at the October 18, 2010 short calendar. The ground for this motion is "that there exists no genuine issue of material fact that [the] defendant, Sergeant Verni, was not negligent in the operation of his police cruiser in response to a dispatch and was not the proximate cause of the accident and . . . Donald B. Grant and Suzanne Grant's . . . injuries and damages." The defendants further state that "[a]t a minimum, there is an absence of evidence that any negligent act or omission by the defendant, Sergeant Verni, caused the subject collision." The motion was accompanied by a memorandum of law in support thereof and a certified copy of the police accident report prepared by the Branford police department On October 25, 2010, the plaintiffs filed a reply to the defendants' October 20, 2010 motion, and on October 26, 2010, Miracle Mist filed an objection to the October 20, 2010 motion.
II
DISCUSSION
Practice Book § 17-44 provides in relevant part: "In any action . . . any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial." "Practice Book § 17-49 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 . . ."
"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 material facts, which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . Because the burden of proof is on the movant, the trial court must view the evidence in the light most favorable to the nonmoving party . . ."
"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 . . . Because [l]itigants have a constitutional right to have factual issues resolved by the jury . . . motion[s] for summary judgment [are] designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . 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 . . ."
"Of course, [o]nce the moving party has met its burden [of production] . . . the opposing party [to survive summary judgment] must present evidence that demonstrates the existence of some disputed factual issue . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, [however] the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Citations omitted; internal quotation marks omitted.) Maltas v. Maltas, 298 Conn. 354, 365-66, 2 A.3d 902 (2010).
A
GENUINE ISSUE OF MATERIAL FACT
In their September 1, 2010 memorandum of law, the defendants assert that they are entitled to summary judgment as to all counts of the complaint. The defendants maintain that based on all the witness statements and Grant's testimony, "there exists no genuine issue of material fact as to causation and that any loss suffered by the plaintiffs is not attributable to the conduct of Sergeant Verni."
The defendants argue that the evidence demonstrates that Verni was operating the police cruiser with its emergency lights and sirens activated and either stopped or came to a near stop as he entered the intersection of North Main Street and Cedar Street. The defendants further assert that Grant, who was traveling westbound on North Main Street in the right lane, passed a school bus stopped in the left lane and accelerated to beat the yellow light at the intersection of North Main Street and Cedar Street, and collided with the vehicle being operated by Verni. The defendants further maintain that Grant's view of the intersection was obstructed by the school bus and that Grant eventually pleaded guilty to failure to grant right-of-way to an emergency vehicle, a violation of § 14-283(g). The defendants contend that Connecticut courts have found a driver to be negligent when he or she admits to a violation of a statute. The defendants concede that although negligence cases are not typically amenable to resolution on motions for summary judgment, the present action is an exception to the rule.
In the plaintiffs' October 1, 2010 memorandum of law, they argue that as there is a genuine issue of material fact as to negligence, count one of the original complaint should stand. The plaintiffs argue that the evidence demonstrates that there are issues of fact as to the speed of the vehicle Verni was operating, the speed of the vehicle that Grant was operating, the color of the traffic light through which Grant drove, and whether Verni's speed was appropriate given the surrounding circumstances. The plaintiffs further assert that Grant did not plead guilty to the charge of obstruction of an emergency vehicle as the defendants assert, but merely pleaded nolo contendere.
In their memorandum of law, the plaintiffs do not always specify to which plaintiff or defendant they are referring, but given the context surrounding the use of the words "plaintiff" or "defendant" it is often clear to which party is being referred, and the court will proceed accordingly when referring to the parties by name in those situations.
In the defendants' October 14, 2010 reply brief, they argue that the plaintiffs have failed to provide evidence to establish that a genuine issue of material fact exists. According to the defendants, while the plaintiffs have accused Verni of operating the police cruiser in a negligent manner, the plaintiffs have not offered any evidence to support this position. The defendants maintain that the evidence establishes that Verni was operating the police cruiser in a reasonable fashion and that it was Grant's negligence that caused the accident.
In the defendants' memorandum of law in support of the October 20, 2010 motion for summary judgment/supplement to motion for summary judgment, they elucidate arguments from their earlier memorandum of law in support of their original motion for summary judgment and from their oral argument on October 18, 2010. The defendants once again argue that there is no genuine issue of material fact that Grant's negligence caused the collision and that the collision was not attributable to Verni's conduct, though the court need only find that no genuine issue of material fact exists as to the latter in order to grant summary judgment.
In the plaintiffs' reply to this motion for summary judgment, they refer the court to their original objection to the first motion for summary judgment and once again assert that there is a genuine issue of material fact as to whether Verni is at fault for the collision.
In Miracle's Mist's objection to the motion for summary judgment, it states that it objects to both motions for summary judgment and that it adopts the plaintiffs' arguments set forth in the plaintiffs' objections to the defendants' motions for summary judgment. Miracle Mist asserts that "[t]o the extent that the [eyewitnesses] could not agree on certain facts relating to the accident, [the defendants] cannot argue that these statements are proof that there is no genuine issue of fact regarding liability." Miracle Mist also contends that the credibility of the witnesses is an issue for the fact finder to decide.
First, this court must examine whether a genuine issue of material fact exists as to whether Verni's conduct was negligent. "The essential elements of a cause of action in negligence are well established: duty, breach of that duty; causation; and actual injury . . . [T]he existence of a duty of care is an essential element of negligence . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 139-40, 2 A.3d 859 (2010).
"To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred if it were not for the actor's conduct . . . The second component of legal cause is proximate cause . . . [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant's conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than conjecture and surmise . . . An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm . . . The finding of actual cause is thus a requisite for any finding of proximate cause." (Citation omitted; internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50, 56-57, 913 A.2d 407 (2007). "The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue." (Internal quotation marks omitted.) Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 33, 946 A.2d 839 (2008).
"With respect to statutes, "under general principles of tort law, a requirement imposed by statute may establish the applicable standard of care to be applied in a particular action. It is well established that [i]n order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute . . . Second, the injury must be of the type which the statute was intended to prevent." (Citations omitted; internal quotation marks omitted.) Gore v. People's Savings Bank, 235 Conn. 360, 375-76, 665 A.2d 1341 (1995).
"Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 860-61 n. 16, 905 A.2d 70 (2006).
"Generally, in order to maintain a claim of negligence per se based on the defendant's violation of a statute, the plaintiff must show that he is among the class of individuals that the statute is designed to protect: In an action for neglect of duty it is not enough for the plaintiff to show that the defendant neglected a duty imposed by statute, and that he would not have been injured if the duty had been performed, but to entitle him to recover, he must further show that such duty was imposed for his benefit, or was one which the defendant owed to him for his protection and security, from the particular loss or injury of which he complains . . ." (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 550-51, 839 A.2d 1259 (2004).
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "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 . . ." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
Notwithstanding the defendants' assertions to the contrary, genuine issues of material fact do exist pertaining to allegations of negligence as to whether Verni breached a duty that he owed to Grant and whether any such breach caused the collision and resulting injuries and damages to the plaintiffs. It is further submitted that genuine issues of material fact exist pertaining to allegations of statutory violations, thus, negligence per se, as to whether Verni violated the pertinent statutes.
For example, the plaintiffs allege that Verni operated the police cruiser in violation of §§ 14-218a and 14-219, which relate to the appropriate speed of motor vehicles. The defendants argue that all the witnesses to the collision are in agreement that the police cruiser either came to a complete or near stop as it started to enter the intersection of Cedar Street and North Main Street. Meanwhile, Grant testified that he was driving about twenty-five miles per hour as he entered the intersection and that Verni was traveling at least at twice Grant's speed. In addition, the plaintiffs assert that several witnesses have stated that Grant's view of the intersection may have been obstructed by the school bus. Further, Grant himself testified at his deposition that he could not see the police cruiser primarily because the school bus was obstructing his view. Therefore, it is submitted that an issue of material fact exists as to the speed at which Verni was operating the police cruiser and whether this speed was reasonable pursuant to § 14-218a given that Grant's view of the intersection of Cedar Street and North Main Street may have been obstructed by the school bus.
See footnote 2.
Although § 14-283(b) permits a police officer responding to an emergency call or pursuing fleeing law violators to exceed speed limits imposed pursuant to § 14-218a, it is only "as long as such operator does not endanger life or property by so doing . . ."
Also, the plaintiffs allege that Verni violated § 14-283(b)(2) by failing to stop or slow down at the red traffic light. There is a dispute as to the color of the traffic light through which Verni drove. The defendants cite to the statement of Gene Bontatino, the driver of the vehicle behind the school bus, who stated that he saw the traffic light turn yellow and that it looked to him as though Grant was accelerating to beat a yellow traffic light. The defendants also cite to the statement of Shauna Hindman, the school bus driver, who said that right after the collision, she looked up and noticed that her traffic light, which was also the traffic light for Grant, was red. Meanwhile, Grant testified that he drove through a green traffic light. Further, as stated previously in this memorandum, there is dispute as to how fast Verni was driving when he approached the intersection of North Main Street and Cedar Street. Therefore, it is submitted that a genuine issue of material fact exists as to whether Verni drove through a red light and, if he did, whether he violated § 14-283(b)(2) by not "slowing down or stopping to the extent necessary for the safe operation of [his] vehicle . . ."
In addition, the plaintiffs allege that Verni drove with defective or inadequate brakes in violation of § 14-80h or that he failed to break in time to avoid colliding with Grant. The defendants do not proffer any evidence to disprove these allegations. Therefore, it is submitted that a genuine issue of material fact exists as to whether there was a violation of § 14-80h.
See footnote 6.
Next the court will turn to the effect of a nolo contendere plea to violating § 14-283(g) and the plea's effect on the court's adjudication of the motions for summary judgment. In Lawrence v. Kozlowski, 171 Conn. 705, 372 A.2d 110 (1976), the Supreme Court stated: "A plea of nolo contendere is distinct from a plea of guilty inasmuch as the latter may be regarded as a verbal admission by the accused, and, as such, may be admissible in subsequent civil proceedings. It does not, however, conclusively establish negligence, and the accused is not precluded from explaining his plea . . ."
"By contrast, a plea of nolo contendere is merely a declaration by the accused that he will not contest the charge, and even though followed by a finding of guilty and the imposition of a fine or other penalty, is not admissible, either as a verbal admission or an admission by conduct . . . Nor is it admissible to affect a party's credibility, as evidence of an arrest, or as res judicata establishing that the plaintiff was engaged in a criminal act. Krowka v. Colt Patent Fire Arm Mfg. Co., 125 Conn. 705, 713, 8 A.2d 5; see also Holden Daly, Connecticut Evidence, § 103f. Pleas of nolo contendere may be entered `for reasons of convenience and without much regard to guilt and collateral consequences.' McCormick, Evidence (2d Ed.) § 265, p. 636. Even though the plea may be regarded as a tacit admission, its inconclusive and ambiguous nature dictates that it should be given no currency beyond the particular case in which it was entered." (Citations omitted; internal quotation marks omitted.) Lawrence v. Kozlowski, supra, 171 Conn. 711-12, n. 4.
In the present case, there is a genuine issue of material fact as to whether Grant pleaded guilty or nolo contendere to the charge of violating § 14-283(g). When Grant was initially questioned about pleading guilty on pages 18 and 19 of the deposition transcript, he did not correct the attorney questioning him as to the actual plea at that point; later in the deposition on page 99 in the transcript, Grant clarified that he pleaded nolo contendere because he ran out of money and as a result of the plea, he had to pay a $100 fine. If Grant did indeed plead nolo contendere, it is submitted that as per Lawrence, his plea, for purposes of the motions for summary judgment, should not be treated as evidence that the collision was not attributable to negligence by Verni.
Therefore, summary judgment should not be granted on the basis of the nonexistence of genuine issues of material fact. Next, this court will turn to the defendants' assertion that summary judgment should be granted as to count two of the original complaint and count two of the intervening complaint because of municipal immunity.
While the defendants reference counts two and three of the original complaint in their September 1, 2010 memorandum of law, count two is the only count against Branford.
B
MUNICIPAL IMMUNITY
The defendants argue in their September 1, 2010 memorandum of law that Branford is entitled to summary judgment in its favor because Connecticut law does not recognize common-law actions against a municipality and the plaintiffs do not plead reliance on any statute to abrogate Branford's governmental immunity. The defendants further contend that without a count against a municipal employee pursuant to General Statutes § 7-465 or a count based on a statute abrogating governmental immunity, municipalities are immune from claims grounded in common-law negligence.
General Statutes § 7-465 provides in relevant part: "(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . . Such municipality may arrange for and maintain appropriate insurance or may elect to act as a self-insurer to maintain such protection. No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose and written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. Governmental immunity shall not be a defense in any action brought under this section."
With regard to counts two and three, the plaintiffs assert that Practice Book § 10-3 is directory, not mandatory. It is their position that they can seek permission from the court to amend their complaint up to, during or after the trial. They maintain that they can raise a statutory ground in their memorandum of law in opposition to the motion for summary judgment, which they are doing, and that the defendants neither raise the plaintiffs' failure to cite to a statute in the complaint in their answer or special defense nor plead governmental immunity as a special defense. The plaintiffs contend that General Statutes § 52-557n allows the action against Branford to proceed as it abrogates governmental immunity.
See footnote 19.
Practice Book § 10-3 provides in relevant part: "(a) When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number."
General Statutes § 52-557n provides in relevant part: "(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
In their reply brief, the defendants argue that in the plaintiffs' memorandum in law in opposition to the motion for summary judgment, the plaintiffs continue to fail to cite any statute abrogating Branford's governmental immunity.
"A suit against a municipality is not a suit against a sovereign. Towns have no sovereign immunity, and are capable of suing and being sued . . . in any action . . . Municipalities do, in certain circumstances, have a governmental immunity from liability . . . But that is entirely different from the state's sovereign immunity from suit . . ." (Emphasis in original; internal quotation marks omitted.) Vejseli v. Pasha, 282 Conn. 561, 573, 923 A.2d 688 (2007). "[U]nlike the state, municipalities have no sovereign immunity from suit . . . Rather, municipal governments have a limited immunity from liability." (Internal quotation marks omitted.) Id., 572. "The state legislature, however, possesses the authority to abrogate any governmental immunity by statute that the common law gives to the state and municipalities." White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990).
In the present case, the plaintiffs argue that they rely on § 52-557n to abrogate Branford's immunity and that citing to it in their memorandum of law in opposition to the original motion for summary judgment is sufficient. By contrast, the defendants assert that the statute must be cited to in the complaint.
First this court will examine whether it is sufficient for the plaintiffs to rely on § 52-557n in their memorandum of law when it is not cited to in the complaint. In Spears v. Garcia, 66 Conn.App. 669, 785 A.2d 1181, aff'd, 263 Conn. 22, 818 A.2d 37 (2003), the court stated: "[A]lthough a plaintiff should plead a statute in a complaint that abrogates governmental immunity, failing to do so will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings." (Emphasis in original.) Id., 676. In Spears v. Garcia, supra, 66 Conn.App. 672, the plaintiffs mentioned § 52-557n as the statute they were relying on to abrogate governmental immunity for the first time in their memorandum in opposition to the defendants' motion for summary judgment.
While the defendants in the present case rely on Williams v. New Haven, 243 Conn. 763, 707 A.2d 1251 (1998) to support their argument that summary judgment should be granted, as the Appellate Court in Spears v. Garcia, supra, 66 Conn.App. 669 noted, Williams is distinguishable from Spears v. Garcia, supra, 66 Conn.App. 669 because in Williams, the plaintiffs did not rely on any statute to abrogate governmental immunity throughout the proceedings. Spears v. Garcia, supra, 66 Conn.App. 672-76.
Therefore, pursuant to Spears v. Garcia, supra, 66 Conn.App. 669, CT Page 11776 it is sufficient for the plaintiffs to cite to § 52-557n as the statute upon which they rely to abrogate Branford's immunity in their memorandum of law in opposition to the original motion for summary judgment.
While the Supreme Court in Spears v. Garcia, supra, 263 Conn. 24-25, 27 affirmed the Appellate Court judgment, it affirmed the judgment on other grounds and did not examine the issue of failure to cite the statute relied upon to abrogate governmental immunity in the complaint.
Next this court will examine whether a plaintiff must plead reliance on § 7-465 in conjunction with § 52-557n. With regard to a potential conflict between § 7-465 and § 52-557n, the Supreme Court in Spears v. Garcia, supra, 263 Conn. 22, stated: "In construing two seemingly conflicting statutes, we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law . . . Accordingly, [i]f two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both.
"The causes of action under the statutes are independent and are not mutually exclusive. Indeed, our statutes are replete with instances in which actions are authorized against the same defendant based upon the same course of conduct, subject to the plaintiff satisfying different procedural requirements, such as statutes of limitations. Had the legislature intended § 52-557n to incorporate the procedural requirements of § 7-465 or [General Statutes] § 7-308, it could have referenced them . . . In the absence of any indication of the legislature's intent to require plaintiffs to comply with the procedural requirements under § 7-308 or § 7-465 before invoking § 52-557n, we decline to engraft such language onto the statute . . . Similarly, had the legislature intended to retain § 7-465 or § 7-308 as the exclusive remedy, it could have done so in the text of § 52-557n as it did with regard to defective highway claims by its explicit reference to General Statutes § 13a-149.
"We further note that subsection (b) of § 52-557n, which references subsection (a), sets forth many exceptions under which an injured party may not pursue a direct action in negligence against a municipality. It is noteworthy that circumstances under which a plaintiff may bring an action under either § 7-308 or § 7-465 against the municipality is not one of the enumerated exceptions. We have stated that [u]nless there is evidence to the contrary, statutory itemization indicates that the legislature intended [a] list to be exclusive . . . In the absence of any such reference to § 7-308 or § 7-465, we conclude that the statutes can coexist and that a party may choose to rely on either statute." (Citations omitted; emphasis added; internal quotation marks omitted.) Spears v. Garcia, supra, 263 Conn. 32-34.
Accordingly, a claim pursuant to § 52-557n does not fail merely because there is no claim made against a municipal employee pursuant to § 7-465. Therefore, summary judgment as to count two of the original complaint and count two of the intervening complaint should not be granted on the basis of the plaintiffs' failure to plead reliance on § 7-465.
III
CONCLUSION
For the foregoing reasons, the court denies the defendants' motion for summary judgment and motion for summary judgment/supplement to motion for summary judgment in their entirety.
The plaintiffs further assert in their original memorandum of law in opposition to the defendants' motion for summary judgment that there was no indication as to whether the witnesses were interviewed separately or within earshot of one another and that the investigation into the collision was done by the Branford police department rather than a disinterested agency, and these circumstances support the plaintiffs' position that a genuine issue of material fact exists as to negligence. In response, the defendants assert that while the plaintiffs state that they do not know whether the witnesses were interviewed within earshot of one another, the dates of the various witness statements differ from one another. The defendants also contend that while the plaintiffs take issue with the Branford police department performing the accident investigation as opposed to a disinterested entity, there is no evidence to demonstrate that the investigation was neither thorough nor impartial.
In addition, in the plaintiffs' original memorandum of law in opposition to the defendants' motion for summary judgment, the plaintiffs raise, as an alternate reason for the court to deny the motion for summary judgment, difficulties they have encountered with the defendants in completing discovery. The defendants address the discovery issues in their October 20, 2010 memorandum of law, and in turn, the plaintiffs, in their reply to the October 20, 2010 motion for summary judgment, and the intervening plaintiff, in its objection to both motions for summary judgment, do so as well. It is submitted that for purposes of this memorandum, the court need not delve into the impartiality or thoroughness of the accident investigation or discovery issues as the motions for summary judgment should be denied for alternate reasons.