Opinion
No. CV02-0464336-S
August 8, 2006
MEMORANDUM OF DECISION
On September 28, 2000, at approximately 1:00 p.m. the plaintiff entered the parking lot at Clinton Crossings Outlet Center in Clinton for the purpose of making a delivery to the Barney's store in that outlet center. After having parked his vehicle in the lot at a location not far from Barney's, he turned off the ignition, looked to his left and opened his driver's side door.
At approximately the same moment, the defendant, Jason Friedman, operating a motor vehicle owned by his employer, the co-defendant ENGO Co., and acting within the scope of his employment, had also entered the parking lot. Friedman was returning from a work assignment in Massachusetts and decided to stop at Clinton Crossings on the way back to ENGO's headquarters in New Jersey to get some lunch and take a break from his ride. He drove toward a parking space immediately to the left of the plaintiff's vehicle. As he entered the space, the plaintiff opened his door, striking the passenger side door of the defendant's van. The plaintiff claims to have sustained injuries to his left arm as a result of this encounter.
The defendant claimed the case for a trial by jury, but in open court, both parties agreed to waive a trial by jury on the issue of liability only and to try the liability issue before the undersigned. They also agreed that if liability is found in favor of the defendant, that will end the case (except of course, if the plaintiff wishes to appeal this court's decision) and that if the court finds in favor of the plaintiff on the issue of liability, the issues of causation and damages will be tried to a jury.
The description of the accident as recited in the first two paragraphs of this memorandum of decision are essentially undisputed. Beyond that, the parties disagree on many issues, some of substance, some not. The court is mindful of the fact that the incident took place nearly six years ago, consumed little more than a few seconds, was totally unanticipated by either party, and that there was a good deal of confusion in the immediate aftermath of the accident. Having heard testimony from both the plaintiff and the defendant, the court is persuaded that both are sincere in their efforts to recall the occurrence, but the court also finds that some of their recollections simply do not add up. These differences, however, do make it difficult to determine the key issue in this case: did, as alleged by the plaintiff, the defendant Friedman cause the accident by speeding through the parking lot and entering his parking space without keeping a proper lookout for persons exiting their parked vehicles, or did the plaintiff himself fail to keep a proper lookout before opening his door into the path of the defendant's on-coming vehicle?
Among the areas of disagreement are whether the parking lot was crowded or full. The plaintiff, who testified that he had been to Clinton Crossings on approximately fifteen occasions, was emphatic that the lot was far less full than normal and that parking spaces abounded. He was able to find one that he wanted close to the location toward which he was headed, one in which there was no car parked in front of him and with a car parked to his right but none to his left. Friedman, for whom this was his first visit to Clinton Crossings, claimed that the lot was quite full and that it was difficult to find a parking place, but he had little basis for comparison. The court has no way of determining which version is closer to the truth, but the court notes that the plaintiff's view of the status of the lot gives more credence to the defendant's contention that the plaintiff failed to take appropriate precautions before opening his car door, as a crowded lot would tend to encourage a heightened degree of vigilance on the plaintiff's part, while a more empty lot would tend to make one in the plaintiff's position less wary of incoming traffic.
The parties also disagree on the extent to which the plaintiff's driver's side door was pulled forward as a result of the collision. The plaintiff states that it was pulled all the way to the left front fender, or in other words, moving it to a nearly 180 degree angle from its closed position. Although there was some damage to the portion of the fender immediately adjacent to the door, there was none further along the fender that might suggest that the door actually struck it. Although the parties speculated as to the significance of the damage to the near portion of the fender and the lack of damage to the distal portion of the fender, there was no expert testimony as to the mechanics of the damage to the vehicle, nor were there any independent witnesses.
The parties also disagree on the position of the cars following the accident. The plaintiff alleges that the defendant drove straight through the spot at high speed, striking his door, injuring him, and continuing another twenty or thirty feet before stopping in an entirely different parking place. The defendant contends that he actually stopped his vehicle two or three feet short of his intended stopping point in that parking place because of the collision and because the plaintiff's door was essentially jammed into the side of his car. He contends that only after the accident, after the parties had spoken to each other, did he move his car away from the accident scene into a different parking spot.
Neither rendition appears totally consistent with the physical evidence. There has been no explanation of why a clearly visible scrape along the right side of the defendant's car, which both parties agree was caused by contact with the plaintiff's door, would have occurred if Friedman had stopped his vehicle where he says he did. That scrape ran from the front door of the van all the way to the rear side panel. Given that degree of damage, the defendant would have had to have come to rest a few feet forward of the plaintiff's vehicle, and neither twenty or thirty feet forward of it nor a couple of feet short of the end of the parking space.
The most important issue on which the parties disagree is the speed at which Friedman was driving as he entered the parking space adjacent to that of the plaintiff. The plaintiff, who acknowledged that he had been tested for severe hearing loss in his left ear at around the time of this accident and that his doctor had recommended a hearing aid for him, stated that before opening his door, he looked to his left, neither heard nor saw any traffic coming, and then opened his door. He contends that he would have seen and or heard a vehicle approaching the parking space at an appropriate rate of speed. Based on the fact that he did not see or hear the defendant coming, he infers, and asks this court to infer, that the defendant was driving at an inappropriately high rate of speed. The defendant contends that he was going at no more than five miles per hour when he entered the parking space. The degree of damage to his vehicle, a scrape which, from the evidence, appears to be a few feet in length, appears to be consistent with a fairly low rate of speed.
The precise date of the examination is not known, nor was there evidence as to the length of time that the plaintiff has experienced some hearing loss prior to his examination. Prom all the evidence, however, the court finds it more probable than not that the plaintiff was experiencing hearing loss prior to the accident. On the other hand, there was no evidence as to whether the plaintiff was aware that he was losing his hearing prior to the accident. The plaintiff also acknowledged that he suffers from sleep apnea and that, at the time of the accident, he was frequently fatigued during the course of the day. The court finds no convincing evidence that these conditions contributed to the accident.
The parties also disagree about what happened in the immediate aftermath of the accident. The plaintiff says that the defendant was very apologetic. The defendant says that he did not apologize. The court concludes that this disagreement is irrelevant.
The court finds significant the fact that the initial point of impact between the plaintiff's door and the defendant's van is along the passenger side door of the van. This means that the defendant was already some distance into the parking space at the time that the door made contact with the van. From the plaintiff's perspective, the significance of this evidence is that the defendant had to be driving at a high rate of speed because, since the plaintiff could not see him as he began to open his door, only a high rate of speed could explain how the door and the van made contact after the plaintiff had assured himself that no vehicles were approaching and after the front of the van was already past the plaintiff's driver's side door. From the defendant's perspective, this evidence shows that the plaintiff was being inattentive as he opened his door and was not aware of the fact the defendant was entering the parking place. Given the available evidence, the court concludes that the evidence tends to support the defendant's position. There was nothing to suggest that the defendant had slammed on his brakes and stopped suddenly, and the other evidence just recited points to the probability of the door having struck the van, operating at low speed, after it had already entered the parking place and was coming to a halt. This interpretation is buttressed by the fact that the damage to the van extends for only a few feet, suggesting that the van was able to stop fairly quickly after being struck, something it could not have done if it were traveling at high speed. The court also concludes that the defendant's version of what happened next is more probable than not, namely that after stopping the vehicle and recognizing that there had been an accident, the defendant then disengaged the van from the door and moved it to a safer place twenty or thirty feet ahead.
It is axiomatic that in civil cases, the burden of proof is upon the plaintiff to prove each element of this case by a fair preponderance of the evidence. The operator of a parked vehicle is obliged "to exercise a reasonable and ordinary degree of care by looking or listening for approaching traffic before opening his door." Keheley v. Uhl, 129 Conn. 30, 33, 26 A.2d 357 (citing Seiler v. Philadelphia Rapid Transit Co., 111 Pa.Super. 69, 72, 169 A. 422). See also, Lescoe et al. v. McNickle, 16 Conn.Sup. 374 (1949). In this case, the plaintiff has failed to establish by a fair preponderance of the evidence that the defendant was operating at an unreasonable rate of speed and/or failed to keep a proper lookout as he entered the parking place adjacent to that of the plaintiff. He has also failed to prove by a fair preponderance of the evidence that he himself took proper care before opening his door into the path of the oncoming van.
For all of the above reasons, judgment will therefore enter in favor of the defendants.