Opinion
No. CV 09-5032414 S
September 13, 2010
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT'
The defendants in this negligence action have moved for summary judgment. As will be discussed the plaintiff was injured when he fell under the school bus operated by the defendant bus driver. Her employer was also sued. Affidavits were submitted by the defendant driver, a witness and, in opposition to the motion by the defendant.
The standards to be applied in deciding a motion for summary judgment are well known. If there is a material issue of fact the court should not decide it, since a party has a right to a jury trial. If no material issue of material fact exists the court should decide the motion to avoid the burden and expense of litigation for the parties.
The plaintiff was a pedestrian, the defendant school bus driver was operating her vehicle on Edgewood Avenue in New Haven. The plaintiff was injured when he fell under the rear wheels of the bus which proceeded to drive over his legs. The claim lies in negligence. The two renditions of how the accident happened are completely diverse. The bus driver states she saw the plaintiff "running towards the street trying to get away from other men." This man suddenly ran into the street, hit against the rear of the bus and fell.
A witness said she also observed the plaintiff running through a parking lot and onto Edgewood Avenue and was being chased by several youths; this witness said the plaintiff "was looking behind him and not paying attention to the street in front of him." She said the plaintiff jumped off the curb and "realized he was in the street." He put up his hands and tried to stop but the street was wet and he slid under the bus."
The defendant cites § 14-300c(b) and § 14-300b(e) which state a pedestrian shall not suddenly leave a curb to enter the street and that pedestrians crossing a street at any point other than within a crosswalk shall yield the right away to vehicles.
The plaintiff in opposing the motion for summary judgment filed an affidavit. He states at the time in question he was in a parking lot behind a building located on the corner of Edgewood and Kensington. He states he started to move backward to get away from two men also in the parking lot. He says he reached the sidewalk, after turning to face Edgewood Avenue he began to step off the curb but a car passed honking its horn. He states he then stepped back on the curb. The plaintiff then says he dashed into the street to get away from the two men. When he was halfway across Edgewood Avenue he states that the school bus, which he saw to be proceeding up Edgewood when he left the curb, "was still coming toward him and was going so fast that (he) was not going to make it across in front of the school bus." He tried to stop but could not because the road was wet and slid under the bus. He was injured when the rear wheels of the bus ran over his legs.
The defendants take the position that because of the statutory violations and the case law the defendant bus driver "owed no duty to the plaintiff and therefore cannot be held liable for any injuries or damages sustained by him."
This does not appear to be the law. Section 14-300d explicitly says that "notwithstanding" the provisions of any statute including § 14-300 "each operator of a vehicle shall exercise due care to avoid colliding with any pedestrian . . ." If the plaintiff's affidavit is accepted, he can make such a lack of due care argument. As Schupp v. Grill, 27 Conn.App. 513 (1992), points out a pedestrian has a duty to exercise reasonable care and drivers "are not held to as high a degree of care to anticipate the presence of pedestrians in the roadway outside of crosswalks," id. pp. 518-19. But the very statement suggests that even where a pedestrian is not in the crosswalk the driver still has some duty of care to try to avoid colliding with jaywalkers, people dashing across streets, etc. In Miller v. Stamford Transit Co., 130 Conn. 63, 66-67 (1943), the court said that "both driver and pedestrian must exercise care commensurate with the danger involved." Since the aim of tort law is to avoid and reduce injury, the latter quotation must be held to apply even where the pedestrian creates or contributes to the danger.
The motion for summary judgment is denied.