Opinion
NNHCV176072328
02-05-2019
Wieslaw LOKAJ v. Peter MOTZER et al.
UNPUBLISHED OPINION
OZALIS, J.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The parties in this action are the plaintiff, Wieslaw Lokaj, and the defendants, Peter Motzer ("Motzer") and 9 North, LLC. On July 25, 2017, the plaintiff filed a complaint against the defendants and subsequently amended such complaint on August 16, 2017. The Third Count of the Amended Complaint alleges statutory claims of recklessness pursuant to General Statutes § 14-295 against the defendants.
The undisputed facts in this case are that on January 20, 2016, the defendant was operating a truck on I-95 southbound in Westport, CT. The plaintiff was operating a motor vehicle ahead of defendant and had stopped for traffic. The defendant Motzer collided with the rear of the plaintiff’s vehicle. The plaintiff claims that the defendant Motzer operated his truck at an unreasonable speed in violation of General Statutes § 14-218a and that defendant Motzer drove recklessly in violation of General Statutes § 14-222.
During his deposition the plaintiff testified that he was traveling at approximately 20 mph after slowing down. (11/8/17 Tr. pp. 32-33). Defendant Motzer testified that he was traveling no more than 5 mph due to traffic and that plaintiff was traveling at a higher rate of speed than him and cut in front of his vehicle due to a lane closure. (Motzer 7/23/18 Dep. Tr. 38-39.)
The police officer that investigated the accident testified that he did not witness the accident, but that at the time of the accident he observed traffic was heavy and stop-and-go. (Pearston Dep. Tr. 26-30.) After the accident, a verbal warning was issued to defendant Motzer for failing to maintain a proper distance pursuant to General Statutes § 14-240.
On December 6, 2018, the defendants filed the present motion for summary judgment as to Count Three of the Amended Complaint, which asserts a claim for statutory recklessness. The defendant has moved for summary judgment on Count Three, on the ground that there is no genuine issue of material fact that defendant did not consciously engage in statutory recklessness as alleged by the plaintiff. In his statutory recklessness claim, the plaintiff alleges, in relevant part, that the defendant "drove at an unreasonable speed in violation of General Statutes § 14-218a." Complaint Count Three ¶ 3a. The plaintiff further alleged that "notwithstanding that he knew that he was driving a truck carrying extremely heavy concrete slabs, such that to stop said truck would take a great deal of distance, he traveled too fast and too close to the vehicles ahead of him." Complaint Count Three ¶ 3b. The plaintiff also alleged that defendant Motzer operated his vehicle in a reckless manner pursuant to § 14-222. Complaint Count Three ¶ 3c.
In support of his motion for summary judgment, the defendants filed a memorandum of law and exhibits, including deposition transcripts and the police report relating to the incident. On December 17, 2018, the plaintiff filed an objection to the motion for summary judgment, along with a supporting memorandum of law and exhibits. The defendants thereafter filed a reply brief on January 24, 2019 and the plaintiff filed a sur-reply brief on January 25, 2019. The matter was heard at short calendar on January 28, 2019.
II.
DISCUSSION
"Summary judgment is a method of resolving litigation when 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 ... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ... However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ... the moving party for summary judgment is held to a strict standard ... of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis added; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ... 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 ... 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 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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
"[S]ummary judgment is ordinarily inappropriate where an individual’s intent and state of mind are implicated ... The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed the salutary purposes of summary judgment— avoiding protracted, expensive and harassing trials— apply no less to [employment termination] cases than to commercial or other areas of litigation ... Our Supreme Court has held that even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 731-31, 673 A.2d 573, cert. denied, 237 Conn. 913, 675 A.2d 885 (1996).
In their motion for summary judgment, the defendants assert that summary judgment should be granted as to Count Three of the plaintiff’s Amended Complaint, on the ground that no genuine issue of material fact exists that defendant consciously engaged in statutory recklessness as alleged by the plaintiff. In his statutory recklessness claim, the plaintiff alleges, in relevant part, that the defendant: (1) "drove at an unreasonable speed in violation of Sec. 14-218a of the Connecticut General Statutes (Complaint Count Three ¶ 3a); (2) that "notwithstanding that he knew that he was driving a truck carrying extremely heavy concrete slabs, such that to stop said truck would take a great deal of distance, he traveled too fast and too close to the vehicles ahead of him (Complaint Count Three ¶ 3b); and (3) that "defendant drove recklessly in violation of Sec. 14-222 of the Connecticut General Statutes" (Complaint Count Three ¶ 3c).
General Statutes § 14-218a provides in relevant part: "(a) No person shall operate a motor vehicle upon any public highway of the state ... at a rate of speed greater than is reasonable, having regard to the width, traffic and use of the highway, road or parking areas, the intersection of the streets and weather conditions ... The traffic authority of any town, city or borough may establish speed limits on streets, highways and bridges ... Any speed in excess of such limits, other than speeding as provided for in section 14-219, shall be prima facie evidence that such speed is not reasonable ..." General Statutes § 14-222 provides in relevant part: "(a) No person shall operate any motor vehicle upon any public highway of the state ... 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 ... The operation of a motor vehicle upon any such highway ... at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle ... with the clutch or gears disengaged, or the operation knowingly of a motor vehicle with a defective mechanism shall constitute a violation of the provisions of this section."
General Statutes § 14-295 provides in relevant part: "In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, ... 14-222 ... and that such violation was a substantial factor in causing injury, death or damage to property." (Emphasis added.)
"Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of the facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ... than that which is necessary to make his conduct negligent ... More recently, we have described recklessness as a state of consciousness with reference to the consequences of one’s acts ... It is more than negligence, more than gross negligence ... The state of mind amounting to recklessness may be inferred from conduct. But, in 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 ... Wanton misconduct is reckless misconduct ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ... The result is that [wilful], 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 ..." (Citations omitted; internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 382-83, 119 A.3d 462 (2015).
In support of his motion for summary judgment, defendants have attached defendant Motzer’s deposition transcript which sets forth that at the time of the accident he was traveling no faster than five miles per hour. (Motzer Dep. 7/23/18 Tr. 39.) The posted speed limit in the area of the accident on I-95 is fifty-five miles per hour. The defendants also attached the police report of the incident which reflected that the parties were in heavy stop-and-go traffic. (Ex. C.) In the plaintiff’s opposition to this motion for summary judgment, while he attached portions of defendant Motzer’s deposition transcript, such transcript citations offer no evidence of any speed the defendant Motzer was traveling, let alone that defendant Motzer was traveling at a rate of speed to endanger the life of any person or that he could not stop his truck safely.
In a case similar to this action, in Acampora v. Asselin, 179 Conn. 425, 426 A.2d 797 (1980), the Supreme Court upheld the trial court’s granting of summary judgment in a motor vehicle accident case where the plaintiff’s car failed to negotiate a curve, crossed the center line and struck the defendant’s car which was approaching from the opposite direction. With the possible exception of an allegation as to speeding, there was no evidence that the defendant’s car was being driven improperly. Id., 426. The posted speed limit was forty-five miles per hour and a Mr. Hall, a passenger in defendant’s car, testified in his deposition that he could not tell exactly how fast the defendant’s car was going, but that it was "comparable to the speed limit and testified that the defendant’s speed "might have been 47, 50, 51, he didn’t know." (Internal quotation marks omitted.) Id., 427. The plaintiff maintained in that action that "the deposition testimony contained in the plaintiff’s affidavit establishes an issue of material fact concerning negligence by the driver of the car." Id., 426. The trial court granted summary judgment on plaintiff’s negligence claim. Id., 425-26.
In considering whether the trial court’s decision granting summary judgment was appropriate, the Supreme Court held that the defendant’s passenger’s testimony "far from establishing that [defendant] was speeding, indicates only that the witnesses could not say what the car’s speed might have been. None of the other witnesses deposed by the plaintiff was any more specific. While lay witnesses are competent to offer opinions on such matters as the speed of an automobile ... they may only testify on the basis of observed facts ... Viewed as a whole and in context, the Hall testimony is too speculative, too conjectural, to be evidence of speeding." (Citations omitted.) Acampora v. Asselin, supra, 179 Conn. 427.
This case is quite similar to the Acampora case as the plaintiff was southbound on I-95 when he was rear-ended by defendant Motzer. The plaintiff has not only asserted a claim of negligence based on defendant’s alleged speed, but has also asserted a claim for statutory recklessness based on that same speed. In the deposition testimony offered by the defendants in support of their motion for summary judgment, defendant Motzer testified that he thought his speed was around five miles per hour, or fifty miles per hour below the posted speed limit of the road. In addition, the police report attached as Exhibit C to the motion for summary judgment did not set forth that the defendant was traveling too fast and stated that the parties were in heavy stop-and-go traffic. Plaintiff submitted no affidavit in opposition to this motion for summary judgment regarding defendant Motzer’s speed and the deposition transcript evidence attached to his opposition makes no mention of any speed at which the defendant Motzer was traveling.
Even when the plaintiff’s evidence is viewed in the light most favorable to him, as a whole and in context, his evidence is too speculative, too conjectural, to be evidence of speeding, let alone deliberately speeding far in excess of the bounds of normal decency with reckless disregard for the rights and safety of others. There is also no evidence that notwithstanding that he knew that he was driving a truck carrying extremely heavy concrete slabs, such that to stop defendant’s truck would take a great deal of distance, he traveled too fast and too close to the vehicles ahead of him. This court further finds that the plaintiff’s evidence does not provide a basis upon which a trier of fact could reasonably find that defendant’s speed traveling in stop-and-go traffic on I-95 southbound bears the necessary aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger was present.
Accordingly, defendants’ Motion for Summary Judgment as to the Count Three of the plaintiff’s Amended Complaint dated August 16, 2017 is granted.
III.
CONCLUSION
Based on the foregoing, defendants’ Motion for Summary Judgment as to Count Three of the Amended Complaint dated August 16, 2017 is granted.