Opinion
No. CV 04-0490927
June 25, 2007
MEMORANDUM OF DECISION
The named plaintiff and her husband, Jeffrey Achorn, have brought this action in connection with injuries the named plaintiff alleges she sustained as a result of a December 5, 2002 collision between the Peter Pan Bus in which she was a passenger and a motor vehicle operated by Robert Bell. The accident occurred on Interstate 91 in North Haven on a snowy day as the plaintiff was returning from her mother's funeral in Brooklyn to Boston, from which she had planned to take another bus to her home in Maine. The Bell vehicle suddenly spun out of control into the path of the bus, operated by the defendant, Richard Fernandez. When Fernandez could not stop the bus in time, it collided with the Bell vehicle. Slater-Achorn claims to have suffered several serious injuries, and her husband is claiming loss of consortium.
Bell has already settled the plaintiffs' claim against him, and the complaint against him has been withdrawn. The remaining parties agreed to waive their jury claim with respect to liability only and to have the undersigned determine whether Fernandez (and vicariously, Peter Pan) was negligent in his operation of the bus and whether such negligence, if any, was a proximate cause of the Slater-Achorn's injuries. If the court finds in favor of the plaintiffs on these two issues, the court is to apportion liability between Fernandez and Peter Pan, on the one hand, and Bell on the other. The parties further reserved their right to proceed to a hearing in damages in front of a jury if the undersigned were to conclude that Fernandez and Peter Pan are in any degree liable for this accident.
At trial on June 18, 2007, the defendant heard testimony from Slater-Achorn and Fernandez. Many of the facts are not in significant dispute. Although Slater-Achorn had originally planned to have her husband drive to Brooklyn to pick her up and take her home to Maine, she decided instead to take the bus because of an impending snow storm. As the snow began to fall, driving conditions became more difficult, and in the time that it would normally take the bus to travel from the Port Authority Terminal in Manhattan to Boston, the bus had only gotten as far as North Haven.
Although Slater-Achorn claims that Fernandez, in response to her inquiry, said that he thought that the bus had a good chance of getting to Boston in time for her 5:00 P.M. connection to Maine, this appears unlikely. The bus was scheduled to depart at 2:00 PM, and the ride to Boston normally takes close to four and one-half hours in good weather.
Slater-Achorn thought that conditions were so bad that Fernandez should have found the nearest bus terminal and stopped for the night. Fernandez acknowledged that snow was accumulating on the highway, but he believed that conditions were improving somewhat when he turned north from Interstate 95 onto Interstate 91 in New Haven and that, with appropriate caution, the conditions were manageable despite the fact that the highway had not been plowed. A weather report for that day, offered as evidence by the plaintiff, shows that as much as five to eight inches of snow had fallen throughout southern Connecticut by the time of the accident. It also shows, however, that starting at around 5:00 PM, the snow had begun to taper off from southwest to southeast and that at the time of the accident, approximately 6:45 P.M., the snowfall was reported as "light."
Fernandez testified that he had been following the Bell vehicle for several miles on Interstate 91 at a distance variously described as between 120 and 200 feet. Bell was in the right lane throughout, and the bus was in the center lane of the three-lane highway. At a point near exit 10 in North Haven, Fernandez saw that the Bell vehicle had suddenly gone out of control and was spinning across the highway in front of him. The plaintiff, seated on the left side of the bus, could not see the Bell vehicle at this time. Both Slater-Achorn and Fernandez agree that at one point Fernandez called out to the passengers to hold on tight because it was clear that he was not going to be able to avoid making contact. Shortly thereafter, the bus struck the right (passenger) side of the Bell vehicle as it spun across the highway. The plaintiff did not see the Bell vehicle until it went sliding past her on the left side of the bus after the collision.
The plaintiffs point out that Fernandez and Peter Pan are to be held to a higher duty of care because of Peter Pan's status as a common carrier. This is certainly true, but it does not mean that the common carrier is automatically responsible for any and all mishaps that may befall its passengers. "A common carrier, such as an operator of a motor bus, has a `duty to use the utmost care consistent with the nature of its business to guard its passengers against all dangers which might reasonably and naturally be expected to occur, in view of all the circumstances.' (Internal quotation marks omitted.) Josephson v. Meyers, 180 Conn. 302, 305, 429 A.2d 877; see also Belledeau v. Connecticut Co., 110 Conn. 625, 627-28, 149 A. 127 (1930) (common carrier has duty to exercise highest degree of care and skill that reasonably may be expected of intelligent, prudent persons engaged in business of carrying passengers for hire in view of instrumentalities employed and dangers reasonably to be apprehended). The high standard of care to which a common carrier is held, however, does not make it an insurer of the plaintiff's safety. Bowes v. New England Transportation Co., 126 Conn. 200, 205, 10 A.2d 589 (1940). `[A] common carrier is not required to guard a passenger against all hazards. . ." D. Wright, J. Fitzgerald W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 85, p. 249." Green v. H.N.S. Management, 91 Conn.App. 751, 758-59, 881 A.2d 1072 (2005).
The plaintiffs argue that these defendants breached that higher standard of care in several ways, as contained in the complaint's several specifications of negligence on the part of Fernandez that they claim caused Slater-Achorn's injuries. The first claim is that "he was traveling too fast for the snow covered highway and the conditions then and there existing." Slater-Achorn, however, testified that the bus was "crawling" just before the accident and estimated its speed at between only 15 and 20 miles per hour. Fernandez variously estimated his speed at between 20 and 25 miles per hour, and between 35 and 40 miles per hour, the latter estimate being contained in the accident report he completed on the day after the accident. There is no indication that Fernandez had any way increased his speed in the period of time leading up to the accident, and it is also clear that he had negotiated the drive up until that time without incident.
The accident report which Fernandez completed included several questions to which Fernandez was to check a box indicating "yes" or "no." One of those questions, relating to "actions of drivers" required Fernandez to check "yes" or "no" regarding whether his vehicle and the other vehicle "exceeded safe speed." Fernandez checked "yes" for both vehicles, but during his trial testimony, he stated that he must have misunderstood the question as he certainly did not mean to indicate that he thought that he had been traveling at an unsafe speed. The plaintiffs suggest that this "admission" may be taken as conclusive evidence that Fernandez had been driving too fast for conditions and that his claim of misunderstanding the nature of the question is not credible.
It is true that Fernandez offered no explanation of how he had managed to misunderstand the question, but in light of his otherwise consistent position that he was not driving unreasonably fast, combined with Slater-Achorn's testimony that the bus had been "crawling" along at 15 to 20 miles per hour, and in light of other evidence that both the bus and the Bell vehicle were both proceeding at the same pace for several miles without incident before Bell spun out, the court does not view the accident report as conclusive on this issue of whether Fernandez was traveling too fast. Nor has there been any independent expert testimony about the road conditions and whether a speed even as high as 35-40 miles per hour would be unreasonable under those conditions.
Fernandez testified to the existence of a "five second rule," well established among professional drivers, that a bus should remain at least five seconds behind the vehicle in front of it. Using an estimated speed of forty miles (or 211,200 feet) per hour, the rule would have required Fernandez to be driving 293 feet behind Bell, using the formulae of 211,200/3600 seconds per hour = 58.6 feet X 5 seconds = 293 feet.) The rule, however, clearly applies to vehicles operating in the same lane of traffic; otherwise, a bus could never pass a slower moving vehicle in another lane. Thus, the court concludes that the "five second rule" is not applicable to this case, even assuming that Fernandez was traveling at his highest estimated speed of 40 miles per hour.
In summary, while the court has no basis for determining Fernandez's speed with certainty, it finds that the plaintiffs have not established by a fair preponderance of the evidence that he was traveling too fast for the conditions.
The plaintiffs also allege that Fernandez "failed to keep a proper and reasonable lookout for other motor vehicles upon the highway." On this point, there is no dispute as to Fernandez's statement that he had seen the Bell vehicle for several miles on I-91. Throughout the time period material to the resolution of this case, the Bell vehicle was in the right-hand lane of travel. Fernandez testified consistently that he was in the center lane and that he had been observing the Bell vehicle for several miles as he continued to follow it and maintain the distance between the bus and the car. As all the credible evidence is to the effect that Fernandez was watching the Bell vehicle throughout the period of time that he was on Interstate 91, the plaintiff has not established that the accident occurred because Fernandez had failed to maintain a proper lookout.
The plaintiff also alleges that Fernandez "failed to keep his vehicle under proper and reasonable control." Again, there is no dispute that Fernandez had the vehicle under his control throughout the trip at least up until the time of the accident. He testified that when he saw the Bell vehicle suddenly begin to spin, he took his foot off the accelerator and tapped the brakes a couple of times in an effort to slow the bus. He also tried to steer the bus around the Bell vehicle, and this claim tends to be corroborated by the plaintiff's testimony that he warned passengers that he was not going to be able to avoid hitting the car.
At oral argument, the defendants claimed that Fernandez was faced with an "sudden emergency" situation. The plaintiffs objected to this claim, arguing that if "unavoidable accident" or "sudden emergency" was the claim, it should have been pleaded as a special defense. The majority rule in Connecticut, however, is that unavoidable accident and sudden emergency should be pleaded as a general denial and not as a special defense. See Abramova v. Huang, Superior Court, judicial district of New Haven at Meriden, Docket No. CV04-4001197 (September 12, 2005, Tanzer, J.) (39 Conn. L. Rptr. 918).
"The emergency doctrine modifies the standard of reasonable conduct ordinarily expected of reasonable men and women by allowing the occurrence of a sudden or unexpected event to be taken into account as one of the circumstances determining what conduct is reasonable. Prosser, Torts (4th Ed. 1971) § 33, pp. 168-69. Restatement (Second), 1 Torts § 296 (1966). In an emergency not due to his own negligence, one is not relieved of all obligations to exercise care but is required to exercise the care of an ordinarily prudent person acting in such an emergency. . . Mel v. Alterman Transport Lines, Inc., 159 Conn. 307, 312, 268 A.2d 639 (1970). A person faced by such an emergency has some leeway when deciding rapidly between alternative courses of action." (Citations omitted; internal quotation marks omitted.) Oberempt v. Egri, 176 Conn. 652, 656, 410 A.2d. 482 (1979).
The court finds that Fernandez testified credibly when he stated that the Bell vehicle had veered into the center lane without any warning and had spun around at least twice in the middle of the highway, leaving him no way to avoid the accident without going off the highway. Under all the circumstances, which include the sudden emergency with which he was faced, the court cannot conclude that he failed to keep his vehicle under proper and reasonable control. His heightened duty of care, of course, extended to all passengers on the bus, and he was obliged to use on their behalf the "highest degree of care and skill that reasonably may be expected of an intelligent and prudent person engaged in the business of carrying passengers for hire in view of the instrumentalities employed and the dangers reasonably to be apprehended." Belledeau v. Connecticut Co., supra. Those dangers included not only the possibility that the bus might strike the Bell vehicle, but also that the bus might be forced off the highway or overturned in an effort to avoid the collision. The plaintiffs have not established that Fernandez failed to meet that standard of care in the manner in which he controlled the bus in the seconds leading up to the collision.
The plaintiff also alleges that Fernandez "failed to apply his brakes in time to avoid a collision although by a reasonable and proper of exercise of his faculties he could and should have done so." The court finds that Fernandez did apply his brakes in time, but that a combination of the snowy conditions and, more important, the fact that Bell had spun from the right lane into the center lane, rendered unavailing even the most reasonable effort to apply the brakes. This accident did not occur because Fernandez failed to apply his brakes in time.
The plaintiff further alleges that Fernandez "failed to maneuver his vehicle to avoid a collision although by a reasonable and proper exercise of his faculties he could and should have done so." The only evidence, of course, on Fernandez's ability to maneuver the vehicle so as to avoid a collision came from Fernandez himself, as the plaintiff was in no position to see what was happening on the highway ahead. The court finds Fernandez's explanation credible; his efforts to avoid the accident by braking lightly and steering the bus were reasonable, and his inability avoid the accident was due to the fact that the Bell vehicle was spinning around in front of the bus in the middle of the highway, thus rendering his evasive techniques ineffective through no fault of his own.
The plaintiff also alleges that Fernandez was inattentive to his driving. Again, other than the fact that an accident occurred, from which she wishes the court to infer that Fernandez was inattentive, the plaintiff presented no evidence tending to establish that Fernandez was inattentive. The court finds the allegation not proved.
The plaintiff further alleges that Fernandez was "traveling unreasonably fast in violation of C.G.S. § 14-218a" and/or that he was "operating a motor vehicle at an unreasonable rate of speed having due regard for the traffic, route, and use of the highway." The same analysis that the court applied to the first specification of negligence applies to these specifications as well. It is clear that the plaintiff and Fernandez have different views of just how bad the conditions on the highway were. The plaintiff described the conditions as a "whiteout" and a "nor' easter," but Fernandez, an experienced bus driver, felt that he had good visibility and that, that by driving at a reasonable rate of speed, he could control his vehicle. Indeed, he testified, without contradiction, that conditions had been worse on the I-95 portion of the trip and had improved on I-91, a claim borne out by the weather report placed in evidence by the plaintiffs. Slater-Achorn reported no other incidence of excessive speed or any difficulty in controlling the bus up until the time of impact. Even taking the higher estimate of the bus's speed at 35 to 40 miles per hour (but also recalling that the plaintiff testified that the bus was "crawling" at a speed of only 15 to 20 miles per hour), the court cannot conclude that the plaintiff has established by a fair preponderance of the evidence that the speed of the bus was unreasonably fast.
Finally, the plaintiff alleges that Fernandez "failed to leave a reasonable distance between his vehicle and other vehicles upon the highway having regard for the conditions then and there existing, all in violation of C.G.S. § 14-240." Our Appellate Court has held that § 14-240 "is applicable to situations in which one motor vehicle is behind another in the same lane of traffic and there is evidence that the operator of the rear vehicle failed to maintain a reasonably safe distance between the vehicles, and that failure had a causal connection to a resulting collision." Wrinn v. State, 35 Conn.App. 464, 473 (1994). (Emphasis added). The court, citing construction of similar statutes by the courts of other states, also opined that the statute was directed against the practice known as "tailgating." All the evidence in this case was to the effect that the bus was in the center lane and the Bell vehicle was proceeding in the right hand lane until Bell lost control of his vehicle. The distance between the two vehicles prior to Bell's loss of control was never estimated at anything less than 120 feet (and as much as 200 feet), and there was certainly no evidence of "tailgating" presented at the trial. The plaintiffs have thus failed to establish Fernandez was operating the bus in violation of General Statutes § 14-240.
Based on the foregoing, the court concludes the sole proximate cause of the plaintiffs' injuries was the loss of control of the Bell vehicle such that it swerved into the path of the Peter Pan Bus operated by Richard Fernandez, who could not avoid contact and who was not at fault. Because the plaintiffs have failed to establish by a fair preponderance of the evidence that Fernandez, and, by implication, Peter Pan, were negligent in any of the ways specified in the complaint, judgment will enter in favor of the defendants Peter Pan Bus Lines, Inc. and Richard Fernandez.
The plaintiffs argued that no evidence of negligence on Bell's part was produced at the trial, and the defendants countered that the court could find negligence based on the doctrine of res ipsa loquitur. The court need not address either argument, however, because the loss of control of the Bell vehicle was due to his negligence or some other factor, it was the Bell vehicle's spinning out of the right lane and into the center of the highway that was the sole proximate cause of Slater-Achorn's injuries.