Opinion
No. CV 05-4011073
April 13, 2006
MEMORANDUM OF DECISION ON DEFENDANT, TIMOTHY G. COLE'S MOTION FOR SUMMARY JUDGMENT
I. Facts
The plaintiff in the above-captioned case has alleged in her complaint that on or about April 30, 2004, the plaintiff was operating a vehicle on Interstate-91 South in Windsor, Connecticut when she was struck from behind because the defendant, Ernest A. Kirslis, struck a motor vehicle being operated by the defendant, Timothy G. Cole from behind, propelling it into the rear of the automobile being operated by the plaintiff. On January 17, 2006, the defendant, Timothy G. Cole, filed a motion for summary judgment along with an affidavit executed by him in which he states that the vehicle he was operating was at a complete stop a few feet behind the plaintiff's vehicle before he was rear ended by the defendant Kirslis' vehicle and pushed forward by said collision into the plaintiff's vehicle. On January 31, 2006, the co-defendant, Response Worldwide Direct Auto Insurance Company ("Response Worldwide"), filed a memorandum of law in opposition to that motion for summary judgment. The plaintiff filed nothing in opposition to the motion for summary judgment.
Response Worldwide is the plaintiff's underinsured motorist carrier, and was impleaded into the case by the plaintiff after the plaintiff settled with the defendant, Ernest Kirslis, for his entire policy limit. The plaintiff exhausted the underlying tortfeasors policy, thereby establishing her entitlement to make claim against her own underinsured motorist carrier, Response Worldwide.
II. Standard of Review
The standard of review of a trial court's decision to grant a motion for summary judgment is well established. 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." Practice Book § 384. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an 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 [in support of a motion for summary judgment]." (Citations omitted; internal quotation marks omitted.) Water Way Properties v. Colt's Mfg. Co., 230 Conn. 660, 664-65, 646 A.2d 1343 (1994). "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See Practice Book § 381." Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 203, 663 A.2d 1001 (1995).III. Discussion
The memorandum of law and documentation submitted by Response Worldwide with its objection set forth three bases to oppose defendant Cole's motion for summary judgment. The first basis refers to comments in the police report; the second cites an allegation of the plaintiff in Count Two of the plaintiff's amended complaint dated September 19, 2005; and the third refers to comments of the plaintiff contained within a report issued by the plaintiff's chiropractor. These documents were attached, respectively, as Exhibits A, B and C to Response Worldwide's objection.
As a threshold matter, it is clear that none of the bases set forth by the co-defendant, Response Worldwide, comply with the requirement that only evidence which is admissible at trial may be utilized to oppose a motion for summary judgment. Home Insurance Company v. Aetna Life Casualty Company, supra, 235 Conn. 202-03. See also Great Country Bank v. Pastore, 241 Conn. 423, 686 A.2d 1254 (1997).
Hearsay statements are insufficient to contradict facts submitted by the opposing party. Sheridan v. Board of Education, 20 Conn.App. 231, 240, 565 A.2d 882 (1989); McColl v. Pataky, 160 Conn. 457, 280 A.2d 146 (1971).
The first basis, the police report of the accident in issue is insufficient to oppose the motion for summary judgment. "Motor vehicle operators are not in the business of having accidents and have no business duty to give information to investigating officers." Hutchinson v. Plante, 175 Conn. 1, 7, 392 A.2d 488 (1978). Therefore, in the absence of an exception to the hearsay rule, the "statements contained in the police accident report may not be admitted for the truth of the matters . . ." Id., 7; see also State v. Palozie, 165 Conn. 288, 295, 334 A.2d 468. Moreover, a police report that is not sworn to, certified, nor in any other way authenticated by an individual with personal knowledge should not be considered in connection with a ruling on a motion for summary judgment. Butts v. Leone, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99-03651245 (March 14, 2000, Melville, J.), citing Perrotti v. Magliola, Superior Court, judicial district of New Haven at New Haven, Docket No. 379838 (November 10, 1997, Zoarski, J.).
Additionally, although a police accident report may be admitted as a business record, evidentiary and admissibility requirements must first be established. As noted in Annecharico v. Patterson, 44 Conn.App. 271, 688 A.2d 1341 (1997), "for an item contained in a [police accident] report to be admissible, it must be based on the entrant's own observation or on information of others whose business duty it was to transmit it to the entrant." Id., 277. There is no indication or proof of any kind with Response Worldwide's submission that the officer who filed the police report based it upon his own observations. Furthermore, the portion of the police accident report cited by Response Worldwide where the officer indicated that the defendant, Timothy G. Cole, "reduced his speed almost coming to a stop for traffic in front" does not in any way involve information of an individual who had a business duty to transmit it, as set forth in Hutchinson and Palozie, supra. Finally, even if the report were to be considered, it does not provide any facts that sufficiently contradict the affidavit of the defendant, Cole. It should be noted that while Response Worldwide's objection cites the language from the report that the defendant Cole "reduced his speed almost coming to a stop," Response Worldwide has omitted the word directly in front of "reduced;" the police report states that the defendant Cole " safely" (emphasis added) reduced his speed, and the police report indicates that the defendant Kirslis admitted that the Cole vehicle "came to a stop and he attempted to stop by applying his brakes, but was not able to avoid a collision."
Therefore, even if the police accident report submitted by Response Worldwide constitutes admissible evidence, the police accident report is devoid of any facts indicating any negligence on the part of the defendant, Cole, or any causation with respect to the collision. Instead, it affirmatively sets forth that the defendant Kirslis struck Cole's vehicle when it was stopped, thereby causing the collision.
The second claim of Response Worldwide, relies on the plaintiff's allegation in her complaint that the defendant Cole "steered, operated, or controlled the course and movement of the vehicle he was operating so as to cause or allow same to strike the rear of the vehicle operated by the plaintiff . . ." is insufficient and inadequate to counter the facts set forth in the affidavit filed by the defendant, Cole. A party seeking to oppose a motion for summary judgment "must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." Maffucci v. Royal Park Limited Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998). As also noted in that case, mere assertions "are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court in support of a motion for summary judgment." Id., 554-55, citing Home Insurance Company v. Aetna Life Casualty Company, supra, 235 Conn. 202; Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5-6, 698 A.2d 795 (1997). See also Scinto v. Stamm, 224 Conn. 524, 533, 620 A.2d 99 (1993), cert. denied, 510 U.S. 861, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); State v. Goggin, 208 Conn. 606, 616, 546 A.2d 250 (1988). Assertions in pleadings generally are inadmissible as hearsay unless "inconsistent with claims advanced at trial." Schenck v. Pelkey, 176 Conn. 245, 248, 405 A.2d 665 (1978). "[U]nadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to 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, 615 A.2d 609 (1995).
The third basis claimed by Response Worldwide in its objection is a notation in a chiropractor's report to the effect that the plaintiff "was reportedly driving on I-91 when she was rear-ended by another vehicle driven by Timothy G. Cole. Timothy Cole's vehicle in turn was rear-ended by a third vehicle driven by Ernest Kirslis."
The only entries in medical or hospital records that are admissible are those that are germane to the medical treatment of the patient. Maggi v. Mendillo, 147 Conn. 663, 667, 165 A.2d 603 (1960); D'Amato v. Johnston, 140 Conn. 54, 61, 97 A.2d 893 (1953). Therefore, for example, the identity of the driver of a car that struck the patient is not admissible. Kelly v. Sheehan, 158 Conn. 281, 285, 259 A.2d 605 (1969). Similarly, evidence or testimony from an attending physician is not admissible when it relates to the patient's statements concerning the cause of an injury. See, for example, Smith v. Hausdorf, 92 Conn. 579, 582, 103 A. 939 (1918); Maggi v. Mendillo, supra, 147 Conn. 667. With respect to the chiropractor's report submitted by Response Worldwide in the present matter, while the fact that a collision occurred might be admissible, the identity of the operators or the sequence of events leading up to the collision certainly are not germane to the treatment of the plaintiff, and therefore are inadmissable hearsay.
There are a number of decisions in factual situations similar to the instant action where courts have determined summary judgment is appropriate when one driver is struck from behind by another driver and pushed into the plaintiff's vehicle. See Posner v. Jones, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 04-4000766, (August 3, 2005, Aurigemma, J.), in which the court specifically noted that reference to allegations of negligence in a complaint are insufficient to oppose an affidavit properly submitted by the party seeking summary judgment, as well as cases cited in the Posner decision, including: Sadegi v. Tomaino, Superior Court, J.D. of Stamford-Norwalk at Stamford, Docket No. CV 03-0198259 (October 22, 2004, Lewis, J.) ( 38 Conn. L. Rptr. 139); CT Page 7140 Johnbatiste v. Granskog, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 01-0186063 (October 21, 2002, D'Andrea, J.T.R.) ( 33 Conn. L. Rptr. 285); Bogart v. Castlevetro, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 95-0049595 (September 25, 1995, Rush, J.) ( 15 Conn. L. Rptr. 268); Tume v. Yankovich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03-0196322 (July 14, 2004, Lewis, J.T.R.) ( 37 Conn. L. Rptr. 496); Cirelli v. Snape, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 02-0079158 (April 14, 2004, Scholl, J.); Rivera v. Flynn, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 95-0319280 (June 7, 1996, Moran, J.); Sicilaino v. Lenoue, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 93013078 (January 12, 1994, Lewis, J.). There can be no finding of negligence on the part of a driver whose vehicle is in the middle of two other cars and has stopped before being hit from behind absent evidence of improper conduct or negligence on the part of the middle driver. An individual's conduct must be a proximate cause of any injury rather than just a circumstance that is not a substantial factor in causing the plaintiff's claimed injuries. See Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 734 A.2d 85 (1999).
Conclusion
For the foregoing reasons, the defendant, Timothy G. Cole's Motion for Summary Judgment is hereby granted, and the objection of the co-defendant, Response Worldwide, is overruled.