Opinion
No. CV06-5000734S
July 13, 2007
MEMORADUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #132
FACTS
This case arises out of the allegedly wrongful death of Timothy Loftus, an employee of American Plastic Products, Inc. (American Plastic). On March 13, 2006, the plaintiff, Margaret Loftus, the executor of Timothy Loftus' estate, filed a revised two-count complaint against American Plastic, Swift Transportation Co., Inc. (Swift) and William Barber. In that complaint, the plaintiff alleges the following. On February 13, 2004, Loftus was killed as a result of an incident that occurred when he was working in the loading dock at American Plastic. Barber, a truck driver for Swift, who had never previously been to American Plastic, was attempting to back a tractor-trailer into the loading dock. As a result of a broken dock plate, Loftus fell into the path of the truck and became pinned between the broken dock plate and the truck. In the second count of the complaint, the plaintiff alleges that Barber's intentional, willful or serious misconduct caused Loftus' death, and that Swift is liable because Barber was an agent of Swift, acting within the scope of his employment.
Because the present motion was filed by Swift and Barber, all references to "defendants" refer to both of them, and not to American Plastic.
In the first count of the complaint, the plaintiff alleges a cause of action against American Plastic and individual employees of American Plastic. That count, however, is not at issue here.
The defendants filed a motion for summary judgment on the second count of the complaint on December 7, 2006. That motion was accompanied by four exhibits. Exhibit A is a notice of compliance filed by the plaintiff indicating that she answered the defendants' requests for disclosure and production, and a copy of those answers. Exhibit B is an uncertified copy of the police report of the incident. Exhibit C is an uncertified copy of the Occupational Health and Safety Administration (OSHA) report of the incident. Exhibit D is a certified copy of the affidavit of William Barber, taken on November 27, 2006. On January 25, 2007, the plaintiff filed a memorandum of law in opposition. On March 15, 2007, the defendants filed a reply memorandum in response to the plaintiff's memorandum in opposition. Oral argument was heard on May 7, 2007.
Although the police report and OSHA report are uncertified, the court has discretion to consider these documents in ruling on the motion for summary judgment because, not only did the plaintiff not object to the reports, it referenced the contents of each in its opposition memorandum. See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Also, police reports are normally admissible under the business records exception to the hearsay rule as set forth in General Statutes § 52-180. See Paquette v. Hadley, 45 Conn.App. 577, 581, 697 A.2d 691 (1997).
DISCUSSION
"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 deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Smith v. Greenwich, 278 Conn. 428, 463-64; 899 A.2d 563 (2006).
"It is well established that, [i]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . [T]he the 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[s] 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 § [17-45]." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
The defendants move for summary judgment on the ground that there is no genuine issue of material facts as to whether Barber acted intentionally. The plaintiff opposes the motion on the ground that there is an issue of fact as to whether Barber's actions were "intentional and/or wilful and/or serious misconduct." Therefore, the court must determine if there is a genuine issue of material fact as to whether the incident was intentional or wilful misconduct.
"While summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated. . . [t]he summary judgment rule would be rendered sterile. . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. . . Our Supreme Court has held that even with respect to motive, intent or good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of material fact." (Internal quotation marks omitted.) Jaser v. Fischer, 65 Conn.App. 349, 357, 783 A.2d 28 (2001).
"[I]ntentional conduct and negligent conduct, although differing only by a matter of degree. . . are separate and mutually exclusive. . . Although in a given case there may be doubt about whether one acted intentionally or negligently, the difference in meaning is clear." (Citation omitted; internal quotation marks omitted.) DaCruz v. State Farm Fire Casualty Co., 268 Conn. 675, 693, 846 A.2d 849 (2004). "[I]ntentional conduct extends not only to those consequences which are desired, but also to whose which the actor believes are substantially certain to follow from what the actor does. . . Furthermore, [i]t is not essential that the precise injury which was done be the one intended. . . Rather, it is an intent to bring about a result which will invade the interests of another in a way that the law forbids." (Citations omitted; internal quotation marks omitted.) American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 776, 607 A.2d 418 (1992). "In negligence, the actor does not desire to bring about the consequences which follow, nor does he know that they are substantially certain to occur, or believe that they will. There is merely the risk of such consequences, sufficiently great to lead a reasonable person in his position to anticipate them, and to guard against them. . . As the probability of injury to another, apparent from the facts within the acting party's knowledge, becomes greater, his conduct takes on more of the attributes of intent, until it approaches and finally becomes indistinguishable from that substantial certainty of harm that underlies intent. . . The distinguishing factor between the two is what the negligent actor does not have in mind: either the desire to bring about the consequences that follow or the substantial certainty that they will occur. If he acted without either that desire or that certainty, he was negligent; if he acted with either that desire or that certainty, he acted intentionally. Furthermore, if he acted with either that desire or certainty, a subsequent failure to warn his victim will not somehow transform his conduct from intentional to negligent conduct, because he is responsible for `the direct and natural consequence of the intended act.'" (Citations omitted; internal quotation marks omitted.) Id., 776-77.
Intentional conduct cannot be converted into negligent conduct merely by swearing that the specific injury was unintended, as long as the injury which occurred was the natural result of intended acts. American National Fire Ins. Co. v. Schuss, supra, 221 Conn. 779. However, in discerning whether or not conduct was intentional "[i]t is not necessary that the precise injury that occurred be the one intended, so long as the injury was the direct and natural consequence of the intended act." Id.
It is true, as the plaintiff contends, that backing up a tractor trailer is an inherently dangerous activity, and that Barber, as a professional truck driver, should be aware that it is substantially certain that injury would result from the truck hitting someone. However, just because an act involves a risk of danger to others does not mean the resulting injury was intended. As outlined above, where a person is not acting with the desire to bring about a result, or there is not certainty that such a result will occur, the person is not acting intentionally. See American National Fire Ins. Co. v. Schuss, supra, 221 Conn. 777.
In his affidavit, Barber testified that he did not intend to injure Loftus, that he was keeping a proper lookout and operating the truck safely under the circumstances, and that, upon not hearing or seeing Loftus, he came to Loftus' aid. Through this affidavit, the defendants establish that Barber did not intend to hit Loftus with the truck. Barber was attempting to back his truck into a loading dock. The result of hitting Loftus was not the direct and natural result of this intended act. Even assuming that Barber was not keeping a proper lookout while backing the truck up, the natural result of his intentional act was not to hit Loftus, but to back the truck into the dock. Therefore, the injury was not only unintended, but was not the natural result of intended acts, and therefore the act of hitting Loftus was not intentional. See American National Fire Ins. Co. v. Schuss, supra, 221 Conn. 779. Thus, the defendants have met their burden of showing that no genuine issue of material fact exists and the burden shifts to the plaintiff to show that there is some disputed factual issue.
The plaintiff argues that there is a genuine issue of material fact as to whether Barber acted intentionally because a jury could reasonably infer that Barber was aware of the potential for injury. The plaintiff, however, failed to produce an affidavit, or any evidence, countering Barber's affidavit, or showing that a genuine issue of material fact exists. Thus, the only "evidence" submitted by the plaintiff are the allegations contained in his complaint and memorandum in opposition. "[U]nadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as any material fact on a motion for summary judgment." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).
In an attempt to show that there is a genuine issue of material fact, the plaintiff references the uncertified copy of police report, and the uncertified copy of the OSHA report, both of which were attached to the defendants' motion. Except for references to statements by Barber, which do not conflict with the statements in his certified affidavit, these reports do not contain any statements by people who witnessed the incident. The reports also do not contain any reference to Barber's state of mind, or whether he knew it was certain that the truck would hit Loftus. Without something more, the plaintiff cannot transform the intentional act of backing a truck into a loading dock, into the intentional act of backing the truck into Loftus.
The plaintiff also argues that, even if there is no genuine issue of material fact regarding whether the act of hitting Loftus was intentional, summary judgment is still not appropriate because there is an issue of material fact regarding whether Barber's actions constitute wilful or serious misconduct. According to the plaintiff, wilful misconduct could be inferred from Barber's "reckless disregard" of the consequences, as well as the fact that Barber needed two attempts to back the truck into the loading dock. In support of this contention, the plaintiff cites to the police and OSHA reports, which state that Barber was partially responsible for the incident.
In the context of common-law tort actions, wanton, reckless, wilful, intentional and malicious conduct are governed by the same standard. Elliot v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998). Although the Supreme Court "attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . It is at least clear. . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003). "Wilful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse. . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. . . Not only the action producing the injury but the resulting injury also must be intentional. (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). The question of whether conduct is willful, wanton, and/or reckless is a question addressed to the court when "the mind of a fair and reasonable man could reach but one conclusion." Dubay v. Irish, supra, 207 Conn. 534 n. 10.
"In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts. . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Elliot v. Waterbury, supra, 245 Conn. 415.
Here, the defendants met their burden of establishing that there is no genuine issue of material fact regarding whether Barber acted wilfully. Barber's affidavit states that he did not want to hit Loftus, that he was keeping a proper lookout, and that he was operating the truck in a safe manner. Therefore, the "characteristic element" of wilful misconduct, the design to injure, either actual or implied from the conduct and circumstances, is lacking. See Dubay v. Irish, supra, 207 Conn. 533. Also, wilful misconduct cannot be inferred from the circumstances because according to his affidavit, Barber was not operating the truck in a dangerous or improper manner. At most, the affidavit supports only the conclusion that there is a genuine issue of material fact as to whether Barber failed to take reasonable precautions. This failure, however, is not sufficient to infer wilful misconduct. See Elliot v. Waterbury, supra, 245 Conn. 415. Furthermore, neither the police report or the OSHA report indicate that there was any intentional or reckless conduct associated with the incident. Therefore, the defendants have met their burden of showing that no genuine issue of material fact exists as to whether Barber acted wilfully, and the burden shifts to the plaintiff to show that there is some disputed factual issue. Again, the plaintiff failed to submit any evidence to counter Barber's affidavit, or to establish that there is an issue of material fact regarding whether Barber's actions were wilful.
CONCLUSION
For the forgoing reasons, the defendants' motion for summary judgment as to the second count of the revised complaint is granted.