Opinion
No. FST CV 06 5000550 S
February 25, 2009
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #130
Background
On December 27, 2005 the plaintiff, Stephen Sherry, commenced by service of process a two-count action against the defendant, Michael Hone. The city of Greenwich was named defendant to the original action. On November 17, 2008, the court granted the city of Greenwich's motion for summary judgment. The complaint sounds in negligence and alleges the following facts. On or about October 5, 2004, the plaintiff was walking on a roadway in Greenwich. The defendant was operating a motor vehicle, struck the plaintiff, and caused the vehicle to rollover the plaintiff's right foot and ankle. The plaintiff attempted to free himself, however, the defendant then drove the vehicle over the plaintiff's left foot, leg and hip. The defendant then backed the vehicle over the plaintiff's upper body, crushing the plaintiff's shoulder, left elbow, left ulna and radius. In count two, the plaintiff further alleges that the defendant's conduct was willful.
On December 11, 2008, the defendant filed a motion for summary judgment on the ground that "the defendant's operation of a backhoe does not constitute operation of a motor vehicle and [the] plaintiff does not raise a genuine issue of material fact that the defendant's conduct was willful." The defendant filed a memorandum of law, as well as the certified depositions of the defendant, the plaintiff, and their supervisor, Eric Omdahl. On January 5, 2009, the plaintiff filed an objection to the motion for summary judgment and a copy of his sworn affidavit.
Law
"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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
"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 non-moving 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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
"[T]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005). Furthermore, "[t]o oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 841, 888 A.2d 104 (2006). "If he does not so respond, summary judgment shall be entered against him." (Internal quotation marks omitted.) Truglio v. Hayes Construction Co., 66 Conn.App. 681, 690, 785 A.2d 1153 (2001). "A conclusory assertion [in an affidavit] does not constitute evidence sufficient to establish the existence of a disputed material fact for purposes of a motion for summary judgment." Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793-94, 749 A.2d 1144 (2000).
"[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). Furthermore, "[i]ssues of credibility . . . are exclusively within the province of the trier of fact . . . and should not be resolved for purposes of summary judgment." (Citations omitted.) Sharp v. Wyatt, Inc., 31 Conn.App. 824, 837, 627 A.2d 1347 (1993), aff'd, 230 Conn. 12, 644 A.2d 871 (1994).
Discussion
In support of his motion, the defendant submits the certified depositions of the defendant, the plaintiff and Omdahl. In opposition, the plaintiff submits a copy of his sworn affidavit. The plaintiff's affidavit, which is signed and notarized, appears to be based on his personal knowledge. Neither party has objected to any of the other party's evidence. Therefore, it is submitted that the court, in its discretion, may consider the defendant's depositions and the plaintiff's affidavit.
The defendant argues that summary judgment should be granted because the operation of a backhoe does not constitute the operation of a motor vehicle under General Statutes § 31-293a of the Connecticut Workers' Compensation Act, § 31-275 et seq. The defendant further argues that no sufficient evidence exists "from which a jury could reasonably and logically find willful and malicious intent on behalf of Mr. Hone." The plaintiff argues in opposition "that the `backhoe' was being used [as] a motor vehicle at the time of the incident and/or that Mr. Hone intentionally caused the injuries to Mr. Sherry as alleged."
"Connecticut's Workers' Compensation Act . . . is the exclusive remedy for injuries sustained by an employee arising out of and in the course of his employment . . . Under the act's strict liability provisions, workers are compensated without regard to fault. In return for a relatively low burden of proof and expeditious recovery, employees relinquish their right to any common-law tort claim for their injuries . . . Generally, then, all rights and claims between employers and employees, or their representatives or dependents, arising out of personal injury or death sustained in the course of employment are abolished as a result of the act's exclusivity bar.
"Another provision of [the] act, [namely] . . . § 31-293a, creates an exception, however, to the otherwise applicable exclusivity bar. In relevant part, § 31-293a provides that [i]f an employee . . . has a right to benefits or compensation . . . on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle." (Citation omitted; internal quotation marks omitted.) Jaiguay v. Vasquez, 287 Conn. 323, 328-39, 948 A.2d 955 (2008).
The present matter is similar to Dias v. Adams, 189 Conn. 354, 456 A.2d 309 (1983), wherein our Supreme Court discussed this exception. "In Dias, the plaintiff, Virginia Dias, brought a wrongful death action on behalf of the estate of her husband, who was killed when he was struck by a shovel attached to a backhoe operated by the defendant, Joseph Adams, a coworker . . . By way of special defense, Adams alleged that the action was barred by the exclusivity provision of § 31-293a . . . In her reply to Adams' special defense, Dias acknowledged that the accident was covered under the act but claimed that the action could be maintained under the exception in § 31-293a for actions against a fellow employee for negligence in the operation of a motor vehicle . . . The jury returned a verdict for Dias . . . [O]n appeal, the defendant renewed his claim that his use of the backhoe did not constitute the operation of a motor vehicle for purposes of § 31-293a . . .
"In reversing the judgment of the trial court, [our Supreme Court] observed that, when the mishap took place, [Adams] was doing nothing related to driving or moving the vehicle itself . . . because, as the undisputed trial testimony revealed, the shovel of the backhoe could not be operated while the backhoe was in motion . . . [The court] concluded, therefore, that, because Adams was engaged only in the operation of the shovel and not the backhoe itself, Adams' negligence, which the jury found to have caused the accident, did not occur . . . in the operation of a motor vehicle, as § 31-293a requires for the exception allowing such a suit against a fellow employee . . .
"Shortly after the issuance of [the] opinion in Dias in 1983, the legislature amended § 31-293a by modifying the definition of the term `motor vehicle' for purposes of that statute. See Public Acts 1983, No. 83-297 ( P.A. 83-297). In particular, P.A. 83-297 provided in relevant part that contractor's mobile equipment such as bulldozers, powershovels, rollers, graders or scrapers, farm machinery, cranes, diggers, forklifts, pumps, generators, air compressors, drills or other similar equipment designed for use principally off public roads are not `motor vehicles' if the claimed injury involving such equipment occurred at the worksite." (Citations omitted; internal quotation marks omitted.) Colangelo v. Heckelman, 279 Conn. 177, 185-87, 900 A.2d 1266 (2006). "[A]s a result of the enactment of Public Acts 1983, No. 83-297, § 31-293a now excludes backhoes from the class of motor vehicles that may give rise to liability if the claimed injury involving such equipment occurred at the worksite . . ." (Internal quotation marks omitted.) Chamberland v. LaBonte, 99 Conn.App. 464, 474, 913 A.2d 1129 (2007).
In the present case, the plaintiff attests in his affidavit that "the so called `backhoe' was being used as a motor vehicle on the roadway at the time I sustained my injuries." Likewise, the defendant has submitted numerous attachments in support of his memoranda of law. The plaintiff's affidavit demonstrates that a genuine issue of material fact exists as to where the injury occurred, and therefore, whether the defendant was operating a motor vehicle.
Alternatively, the plaintiff seeks recovery for intentional injury. "In order to establish that the [defendant's] conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the [defendant], the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [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.) Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998).
In the present case, the plaintiff attests in his affidavit that "Mr. Hone did intentionally role over me . . ." The plaintiff's affidavit and the defendant's attachments display competing viewpoints regarding the intent of the defendant. As previously stated, summary judgment is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of intent. In order to render summary judgment in the defendant's favor, the court would have to place more credibility in his attachments than the plaintiff's affidavit, which is not an appropriate determination during a motion for summary judgment.
Conclusion CT Page 4229
The motion for summary judgment is denied.So Ordered.