Opinion
HHDCV186085200S
02-05-2019
Arthur KUTZ v. TOWN OF COVENTRY et al.
UNPUBLISHED OPINION
OPINION
Budzik, J.
Defendant Town of Coventry moves for summary judgment arguing that because the plaintiff cannot recall many of the facts immediately preceding his motorcycle accident, Mr. Kutz cannot meet his burden of showing that an alleged highway defect was the sole proximate cause of his accident. See General Statutes § 13a-149. For the reasons set forth below, the court denies Coventry’s motion.
Viewing the facts submitted by the parties in the light most favorable to Mr. Kutz, there is sufficient evidence in the record to find the following facts.
Mr. Kutz was injured in a motorcycle accident on June 7, 2016, at approximately 5:30 P.M. Mr. Kutz lost control of his motorcycle while in the travel lane of the road after unexpectedly encountering sand within the travel lane that was placed there by Coventry as part of a road maintenance project. No signs were posted by Coventry to warn Mr. Kutz of the hazardous conditions caused by the sand. Mr. Kutz testified at deposition that although he does not recall the accident itself due to his injuries, he does recall that, just prior to the accident, he was traveling within the speed limit. Mr. Kutz also testified that he had traveled the road in question some 15 times previously, was an experienced motorcycle rider, that he had never lost control of his motorcycle on sand previously, and that he was in no hurry and was just riding to relax.
An expert report prepared for the Coventry Police Department found that the weather conditions at the time of the accident were clear and 79 degrees. The court also takes judicial notice that a reasonable juror could find that because the accident occurred in June at 5:30 P.M., there was sufficient natural light such that darkness would not have been a factor in the accident. Mr. Kutz testified that he had consumed no alcohol and was not on any medication on the day of the accident. Mr. Kutz’s motorcycle was examined by the Coventry Police Department’s expert and that expert found no mechanical defects or other problems that could have contributed to the accident. The expert report concluded that "the primary factor in this accident was the lack of construction signs necessary to warn oncoming traffic of the hazardous road conditions" caused by the sand.
On the basis of the facts set forth above, the court holds that a reasonable juror could find that Mr. Kutz has met his burden of proving, by a preponderance of the evidence, that he was not negligent in any way and that the sand placed in the road by Coventry was the sole proximate cause of Mr. Kutz’s accident.
In support of its motion, Coventry cites to cases in which the court granted summary judgment in highway defect cases where the plaintiff could not produce sufficient facts about the driver’s conduct during the accident and therefore could not meet the plaintiff’s burden of showing lack of contributory negligence. See Mazzuca v. Sullivan, 2004 WL 2898169 (Conn.Super., November 8, 2004) (Adams, J.) ; Gallup v. Burns, 1994 WL 29931 (Conn.Super., January 26, 1994) (Corradino, J.). The court concludes these cases are distinguishable.
In Mazzuca, the plaintiff could not remember anything about the entire day of the accident, including getting up that day, traveling on I-84 prior to the accident, what speed he was traveling, or what lane he was in. Mazzuca, 2004 WL 2898169 at *2. Moreover, the court based its holding on the lack of any evidence as to the connection between the tree that plaintiff claimed to be the defective condition and the "cause for [plaintiff’s] automobile traveling more than twenty feet off the highway at a sufficient rate of speed to cause the resulting damage [by hitting the tree]." Id. at *3; see also Roy v. Michaud, 5 Conn.App. 695 (1985) (considering a similar fact set). The court also noted that at the time of the accident it was rainy and dark. Id. Similarly, in Gallup, the driver "drove his car off the highway and through the barriers into a truck traveling in the opposing lane of traffic." Gallup, 1994 WL 29931, *1. Citing to Roy v. Michaud, supra ., the court granted summary judgment because plaintiff could not provide any reason for why the plaintiff’s car had left the traveled portion of the road. See Gallup, 1994 WL 29931, *2.
In the present case, viewing the evidence in the light most favorable to the plaintiff, Mr. Kutz can offer a fact finder much more evidence upon which to base a non-speculative, plaintiff’s verdict. First, Mr. Kutz has a recollection of the events just prior to the accident and that testimony supports his claim of lack of contributory negligence. Second, different from Mazzuca and Gallup, there is an expert report that a fact finder can rely on to establish the cause of the accident and, again, that cause supports Mr. Kutz’s claim of lack of contributory negligence. Finally, there is other circumstantial evidence in the record (clear weather, no mechanical defects, appropriate speed) that a fact finder could rely on in concluding Mr. Kutz was not negligent. See Deutsch v. Town of Beacon Falls, 2013 WL 4056363, *8 (Conn.Super. July 23, 2013) (Markle, J.).
Coventry’s motion is denied.