Opinion
No. HHB CV03-0523175-S
April 19, 2006
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT ( #132)
By motion for summary judgment, filed on February 22, 2006, the defendant Pembroke Pumping Services, Inc. (Pembroke) contends that the plaintiff's claim against it is barred by the statute of limitations, General Statute § 52-584. Oral argument was heard by the court on April 17, 2006. For the reasons stated below, the court denies the motion.
I. BACKGROUND
In the second count of his revised complaint in this matter (# 108), the plaintiff, Roland J. Green, alleges that, on August 27, 2003, he was injured when he fell into an open and unprotected sewer trench at a construction site in Danbury, Connecticut. He alleges that Pembroke excavated the trench into which he fell. He claims that he suffered personal injuries and losses, which were caused by Pembroke's negligence.
In support of its motion, Pembroke submitted excerpts from the transcript of the plaintiff's deposition, pages 21 and 184, which occurred on February 23, 2005, and a copy of a marshal's return of service. Pembroke contends that the plaintiff testified at his deposition that the alleged incident occurred on August 17, 2001. According to the marshal's return, service on Pembroke occurred on August 27, 2003. Pembroke argues that, since it was not served within two years of the date of the plaintiff's fall, this action against it is time barred.
The court may and does take judicial notice of the contents of the court's file. See Karp v. Urban Redevelopment Co., 162 Conn. 525, 527, 294 A.2d 633 (1972). The original return of service is present in the court's file. Also present in the court's file is the marshal's affidavit, dated September 3, 2003, which states that, on August 26, 2003, he received for service the original writ, summons, and complaint, and that the same was duly served, pursuant to General Statute § 52-593a, "on August 27, 2003 — September 2, 2003."
Section 52-593a provides, "(a) Except in the case of an appeal from an administrative agency governed by section 4-183, a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery. (b) In any such case, the state marshal making service shall endorse under oath on such state marshal's return the date of delivery of the process to such state marshal for service in accordance with this section."
In opposition to the motion, the plaintiff claims that the date when he first sustained injury is in genuine dispute. The plaintiff submitted additional portions of the transcript of his deposition, pages 185-88, as well as his affidavit, and other exhibits. Additional references to the facts are set forth below. CT Page 7481
II. STANDARD OF REVIEW
Practice Book § 17-49 provides that summary judgment shall be granted "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." (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995)."[T]he 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, `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 [now § 17-45].' . . . Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984)." (Citations omitted; footnote omitted; internal quotation marks omitted.) Allstate Insurance Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
The court notes that each party has presented uncertified excerpts from the transcript of the plaintiff's deposition testimony, in support of and in opposition to the motion. See Practice Book § 17-45; New Haven v. Pantani, 89 Conn.App. 675, 678-79, 874 A.2d 849 (2005) ("[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment"; preliminary showing of genuineness required, citing Conn. Code of Evidence § 9-1). However, our Supreme Court has stated that parties may "knowingly waive compliance with the procedural provisions of the Practice Book relating to motions for summary judgment." (Footnote omitted.) Krevis v. Bridgeport, 262 Conn. 813, 824, 817 A.2d 628 (2003). Also, our Supreme Court has stated, "[w]e previously have afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency." Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003). Here, where each party has asked the court to consider uncertified deposition testimony, and no objection was raised on that basis to such consideration, the court, in the exercise of its discretion, has reviewed the excerpts of the plaintiff's testimony submitted by each side.
Practice Book § 17-45 provides, in pertinent part, "[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like . . . Any adverse party shall at least five days before the date the motion is to be considered on the short calendar file opposing affidavits and other available documentary evidence."
III. DISCUSSION
In support of its argument, Pembroke relies on Burns v. Hartford Hospital, supra, 192 Conn. 451. There, our Supreme Court affirmed the granting of summary judgment where the plaintiff stated in her deposition that she had discovered her minor son's injury on November 10, 1975, which triggered the commencement of the applicable limitations period. See id., 456-57. In Burns, the plaintiff's testimony was unequivocal as to the date when she learned of the injury. For example, she stated that she had spoken to her son's physician on the day that he had lanced her son's leg. See id., 456. The following questions and answers are reflected in the decision:
Q. So, what did he say to you?
A. That he found infection in the leg and that there was muscle infection and possible bone infection.
Q. And this was November 10?
A. Yes.
Id., 192 Conn. 457. At a subsequent part of the testimony, the November 10, 1975 date was reiterated by the plaintiff:
Q. And what did Dr. Cooke tell you?
A. He told us it was a streptococcus infection and that it probably became infected from the intravenous tubes.
Q. And when did he tell you that?
A. The day he lanced it.
Q. That was November 10, 1975?
A. Yes.
Id., 192 Conn. 457. "At a later point in the deposition [the plaintiff] testified that it was not until a year and a half later that she was first informed `that there was, in fact, muscle or tendon damage in that leg.'" Id. In response to the defendant's motion for summary judgment, the plaintiff filed a counter-affidavit claiming that she had not discovered the injury until August 1, 1977. See id., 456.
The court found the counter-affidavit to be insufficient to raise a genuine issue of material fact. "In the face of her own overwhelming testimonial evidence to the contrary, however, [the plaintiff's] unsupported averments that she did not know of the injury in November 1975 cannot be construed as placing the issue in doubt." Id., 457.
The plaintiff's deposition testimony here contrasts with that in Burns. As stated above, in adjudicating a motion for summary judgment, the court must view the evidence in the light most favorable to the opponent. Rather than presenting "overwhelming testimonial evidence" that he claims that he fell in the trench on August 17, 2001, the plaintiff's deposition testimony as to the date of his fall was tentative and equivocal. See State v. Saucier, 90 Conn.App. 132, 135-36, 137-38, 876 A.2d 572, cert. granted on other grounds. 275 Conn. 928, 883 A.2d 1251 (2005).
In his deposition testimony, the plaintiff was asked whether he recalled the exact date of his injury. The following questions and answers are set forth in the transcript:
Q. Do you recall the [sic] what the exact date of your injury was?
A. I think it was August 17th. I'm pretty sure. CT Page 7484
Q. Of what year?
A. 2001.
Q. August 17, 2001 to the best of your recollection?
A. Yes.
Transcript of plaintiff's deposition, p. 21. Later in the deposition, the subject was brought up again:
Q. Now, let me take you back to the time of this accident and ask you first, just to be clear on this, do you recall, as you sit here, what day of the week this happened on?
A. No. I just know the date.
Q. What was the date?
A. The 17th of August I'm pretty sure.
Transcript of plaintiff's deposition, p. 184. As stated above, pages 21 and 184 were submitted by Pembroke. In opposition, the plaintiff submitted pages 185-88, which include additional testimony by the plaintiff concerning the date of the alleged incident, in response to questioning by Pembroke's attorney. At oral argument, Pembroke stated that it had no objection to the court's consideration of this additional testimony. That testimony included the following immediately after the previously quoted excerpt:
Practice Book § 13-31(a) permits the use of depositions in support of a motion. Practice Book § 13-31(a)(5) provides, "[i]f only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts."
Q. What makes you pretty sure that this accident happened on August 17, 2001?
A. Because I read the reports.
Q. What reports?
A. I mean the doctor's report and all that. I know I went to the doctor the 18th or 19th, Dr. Beebe.
Q. When is the last time you looked at these records?
A. Probably six months ago.
Transcript of plaintiff's deposition, p. 185. Further on, he was asked the following:
Q. Have you looked at any of those medical records in preparation for today's deposition more recently than six months ago?
A. No.
Q. Okay. Forget about the calendar date. Focusing in on the day of the week, do you have a recollection of the day of the week or not?
A. No.
Q. You said something about — earlier you thought it was at the beginning of the week; is that right?
A. It might have been a Monday or Tuesday. I don't think it would have been — it could have been a Tuesday. I'm not positive.
Q. Okay. Your best recollection is that it may have been a Monday or a Tuesday?
A. Yes.
Q. What makes you recall that?
A. Because they usually put the orders out on a Monday that they need this done and that done. The guy wasn't going to come in, so they needed an operator down there. It probably was a Tuesday morning. I don't know. I'm not positive.
Transcript of plaintiff's deposition, pp. 185-86.
The plaintiff's testimony that he "think[s]" the date he fell was August 17, and was "pretty sure" about it, is not definitive. From his testimony, it is evident that the plaintiff was not testifying from an independent recollection that the date of the alleged incident was August 17. Rather, he was testifying about what he thought he recalled from reading a medical record six months before the deposition, which occurred in February 2005, about three and one-half years after the alleged incident occurred. Pembroke presented no medical records in support of its motion.
In this context, the adverb "pretty," is defined in Webster's Third New International Dictionary (Webster's) as meaning "in some degree: moderately, considerably, tolerably, rather." To ascertain common meaning, "it is appropriate to look to the dictionary definition of the term." In re Darlene C., 247 Conn. 1, 11 n. 29, 717 A.2d 1242 (1998). Webster's has been cited by the Supreme Court as a source for such definitions. Id., 11.
The plaintiff's uncertain testimony about the day of the week on which the incident occurred also undermines Pembroke's contention that the alleged incident occurred on August 17, 2001. The court takes judicial notice of the calendar for August 2001. See State v. Gosselin, 169 Conn. 377, 379, 363 A.2d 100 (1975). Contrary to what the plaintiff testified, as to the day of the week when the accident "may" or "might have" occurred, August 17, 2001 was neither a Monday nor a Tuesday. Rather, August 17, 2001 was a Friday. In contrast, August 27, 2001 was a Monday.
Under these circumstances, Pembroke has not met its burden to "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." Allstate Insurance Co. v. Barron, supra, 269 Conn. 405.
Accordingly, the court need not address the other exhibits and the affidavit presented by the plaintiff in opposition to the motion.
IV. CONCLUSION
For the foregoing reasons, the motion for summary judgment is denied.
It is so ordered.