Opinion
KNLCV176031855S
10-23-2019
Gary TRAHAN v. April COCHRAN
UNPUBLISHED OPINION
OPINION
Knox, J.
The defendant April Cochran filed a motion for summary judgment on counts two and three of the plaintiff Gary Trahan’s substituted complaint. The defendant claims the court should grant the motion for summary judgment as to count two, on the ground that the plaintiff’s alleged injuries were not foreseeable, and count three, on the ground that the plaintiff fails to set forth a factual predicate for his claim of recklessness. For the reasons set forth, the court grants the motion for summary judgment on count two and denies the motion as to count three.
The plaintiff first filed his complaint on October 30, 2017. On February 25, 2019, the plaintiff filed a substituted complaint, which is the operative complaint for purposes of this motion. The first count alleges property damage and is not before the court in the present motion.
FACTS
In his three-count substituted complaint, the plaintiff Gary Trahan alleges the following pertinent facts. At all relevant times, the plaintiff was the owner and possessor of the property and premises located at 881 Shennecossett Road in Groton, Connecticut (Property). On or about October 29, 2015, at approximately 10:15 in the morning, the defendant April Cochran lost control of her vehicle at the Y-shaped intersection located squarely in front of the Property, and drove directly over an embankment and onto the Property, violently colliding with the plaintiff’s home at a high rate of speed. The collision occurred with enough force that the defendant’s vehicle came to rest inside the home, causing the structure to move off of its foundation and the City of Groton’s Building and Zoning Official to declare the home structurally unsafe.
The plaintiff alleges in counts two and three that the defendant’s negligent and reckless driving, respectively, caused the plaintiff to suffer injuries including atrial fibrillation, hypertension, cognitive difficulties, and memory loss. In count two, the plaintiff alleges that the defendant was negligent in that she failed to divert her vehicle in violation of General Statutes § 14-242(a), was speeding in violation of § 14-218a, failed to keep her vehicle under control although she had the faculties to do so, moved upon a public highway in an unsafe manner, was inattentive and failed to keep a proper lookout, failed to apply her brakes or ensure that her brakes were in proper working order in violation of § 14-80h, and that she operated her vehicle while using a handheld telephone in violation of § 14-296aa(b). The plaintiff further alleges in count three that the defendant operated her vehicle in an unreasonably dangerous manner and with an extreme or outrageous indifference to the rights or safety of others, in violation of § 14-295.
General Statutes § 14-242(a) provides in relevant part: "No person shall turn a vehicle at an intersection unless the vehicle is in a proper position on the highway ... or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a highway unless such movement can be made with reasonable safety."
Section 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 ..."
Section 14-80h provides in relevant part: "(a) Each motor vehicle ... shall be equipped, when operated on a highway, with at least two braking systems one of which shall be a service brake system and the other a parking brake system. Each braking system shall have a separate means of application by the operator. Each braking system, including any power assist devices used to reduce operator braking effort, shall be maintained in good working order at all times."
Section 14-296aa(b) provides in relevant part: "(1) Except as otherwise provided in this subsection ... no person shall operate a motor vehicle upon a highway ... while using a hand-held mobile telephone to engage in a call or while using a mobile electronic device."
Section 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 ... or 14-296aa, and that such violation was a substantial factor in causing injury, death or damage to property."
The defendant filed the present motion for summary judgment on June 26, 2019, accompanied by a memorandum of law. The plaintiff properly filed a brief in opposition to the motion on August 12, 2019. The motion was heard at short calendar on August 26, 2019.
DISCUSSION
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law. 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 nonmoving 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 § 380 [now § 17-45]." (Internal quotation marks omitted.) Fiano v. Old Saybrook Fire Co. No. 1, Inc., 332 Conn. 93, 101, 209 A.3d 629 (2019).
COUNT TWO: NEGLIGENCE
The defendant argues that she did not owe a duty to the plaintiff because the plaintiff was not within the range of ordinary physical danger from the negligence alleged, and that even if the defendant did owe the plaintiff a duty, which she denies, the plaintiff has failed to proffer expert testimony to prove causation. In support of her argument, the defendant submits testimony from the plaintiff’s deposition. In opposition, the plaintiff argues that he is entitled to recover for injuries that he experienced as a result of the ensuing stress from the accident because the defendant owed him a duty as a foreseeable plaintiff. In support of his argument, the plaintiff submits excerpts from his deposition and a police report detailing the accident.
The defendant and the plaintiff both submit uncertified deposition transcripts in support of their arguments, without objection. "Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them." Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
It is well settled that a negligence action consists of four elements: duty, breach, causation, and damages. Snell v. Norwalk Yellow Cab, Inc., 332 Conn. 720, 742, 212 A.3d 646 (2019). "Although foreseeability conventionally has been intertwined with causation as well as with duty ... our Supreme Court has expressly stated that an issue of foreseeability is more appropriately resolved as a question of duty." (Citation omitted.) Kumah v. Brown, 130 Conn.App., 343, 349, 23 A.3d 758 (2011). "[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "[O]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012). "[T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007).
"In defining the limits of duty, we have recognized that what is relevant ... is the ... attenuation between [the defendant’s] conduct, on the one hand, and the consequences to and the identity of the plaintiff, on the other hand ... [D]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable ... The law has rejected a literal foreseeability test as the fulcrum of duty ... Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ... Every injury has ramifying consequences, like the rippling of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree." (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 574-76, 717 A.2d 215 (1998). "Even where harm was foreseeable, [our Supreme Court] has found no duty when the nexus between a defendant’s negligence and the particular consequences to the plaintiff was too attenuated ..." (Citations omitted; internal quotation marks omitted.) Malloy v. Colchester, 85 Conn.App. 627, 633-34, 858 A.2d 813 (2004); see also Weigold v. Patel, 81 Conn.App., 347, 354-55, 840 A.2d 19, cert. denied, 268 Conn. 918, 847 A.2d 314 (2004). "[W]hether the injury is reasonably foreseeable ordinarily gives rise to a question of fact, and ... this issue may be decided by the court only if no reasonable fact finder could conclude that the injury was within the foreseeable scope of the risk such that the defendant should have recognized the risk and taken precautions to prevent it." Ruiz v. Victory Properties, LLC, 315 Conn. 320, 330, 107 A.3d 381 (2015).
"In negligence cases such as the present one, in which a tortfeasor’s conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor’s duty to the plaintiff." First Federal Savings & Loan Ass’n. of Rochester v. Charter Appraisal Co., Inc., 247 Conn. 597, 604, 724 A.2d 497 (1999). "To be entitled to damages a plaintiff must establish a causal relation between the injury and the physical condition which he claims resulted from it ... A trier is not concerned with possibilities but with reasonable probabilities ..." (Citations omitted; internal quotation marks omitted.) Aspiazu v. Orgera, 205 Conn. 623, 630, 535 A.2d 338 (1987). "The first component of legal cause is causation in fact ... [which] is the purest legal application of ... legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct." (Citations omitted; internal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 757, 563 A.2d 699 (1989), overruled on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995). Secondly, the plaintiff must prove proximate cause. "[T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries ... Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant’s conduct] ... The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection ... This causal connection must be based upon more than conjecture and surmise." (Internal quotation marks omitted.) Winn v. Posades, 281 Conn. 50, 56-57, 913 A.2d 407 (2007).
Based on the evidence submitted by the parties, no reasonable jury could find that the plaintiff’s alleged injuries were a foreseeable consequence of, or proximately caused by, the defendant’s alleged negligence. A reasonable person in the defendant’s position could not have expected that an absent homeowner would suffer atrial fibrillation, memory problems, sleepless nights, and hypertension as a result of the defendant’s alleged negligence in driving into the plaintiff’s unoccupied home. Foreseeable risks of the defendant’s alleged negligence may have included injuring anyone inside the home or in the path of the vehicle at the time of impact, inflicting emotional distress on the homeowner who witnessed the destruction, or injuring a homeowner who arrived at the scene minutes later, who, upon seeing their home destroyed, began to display symptoms of shock and fright. See Orlo v. Connecticut Co., 128 Conn. 231, 239, 21 A.2d 402 (1941) ("[o]ur conclusion is that where it is proven that negligence proximately caused fright or shock in one who is within the range of ordinary physical danger from that negligence, and this in turn produced injuries such as would be elements of damage had a bodily injury been suffered, the injured party is entitled to recover").
The plaintiff’s present claims are not of this nature. They are for injuries resulting from the stress of dealing with the aftereffects of the accident, not from witnessing the accident, or being himself hurt in the accident. The plaintiff testified that he was not home at the time of the accident, and that he did not hear about the incident until about thirty minutes after it occurred. (Trahan Dep. 77:1-6, 78:22-25, 79:3-10.) Furthermore, the plaintiff stated that he did not seek medical attention at the scene, upon arriving later, and was actually asymptomatic with regard to his heart condition until he visited the doctor in July of 2017. (Trahan Dep. 89:13-15, 90:1-10.) The plaintiff also testified that he had issues with his sleeping prior to the incident in question. (Trahan Dep. 75:1-11.) The plaintiff provides no explanation, aside from a string of legal conclusions, as to how the defendant’s allegedly negligent driving proximately caused his other physical injuries. Instead, the plaintiff testified repeatedly that it was his dealings with the insurance company after the accident and being temporarily homeless that contributed to his stress, which eventually triggered physical symptoms. (Trahan Dep. 50:20-25, 51:1-5, 67:9-16.)
In his testimony, the plaintiff baldly asserts that, but for the defendant having crashed into his home, he would not have been diagnosed with atrial fibrillation, memory problems, sleeplessness, or hypertension. (Trahan Dep. 127:11-17, 159:18-25, 160:1.) When questioned whether he was claiming that his memory problems were because of the defendant’s alleged negligence, the plaintiff stated: "Yes. That was clear to me because the Monday ... right after the accident I’m dealing with no place to live and going to work and all of a sudden I couldn’t remember anything." (Trahan Dep. 68: 12-15.) Contrary to the plaintiff’s assertion, the causal link between the accident and the plaintiff experiencing physical injuries months later is anything but clear, and no doctor has linked the plaintiff’s injuries to the incident. (Trahan Dep. 70:16-22, 73:1-6.)
The defendant also argues that the plaintiff is required to produce expert testimony to support his personal injury claims. It is well settled that "the medical effect upon the human system of the infliction of injuries ... is not within the sphere of the common knowledge of a lay witness." Collette v. Collette, 177 Conn. 465, 471, 418 A.2d 891 (1979). "The requirement of expert testimony ... serves to assist lay people, such as members of the jury and the presiding judge, to understand [the issues] ... when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors." (Citation omitted; internal quotation marks omitted.) LePage v. Horne, 262 Conn. 116, 125, 809 A.2d 505 (2002). "Expert testimony is often used to establish the existence, extent or cause of an injury or disease. See e.g. Healy v. White, 173 Conn. 438, 445, 378 A.2d 540 (1977) (epilepsy and brain damage); State v. Hanna, 150 Conn. 457, 460, 191 A.2d 124 (1963) (wounds inflicted by human); Boland v. Vanderbilt, 140 Conn. 520, 525 102 A.2d 362 (1953) (cerebral thrombosis); Sickmund v. Connecticut Co., 122 Conn. 375, 379-80, 189 A. 876 (1937) (fall caused by diabetic upset)." Aspiazu v. Orgera, supra, 205 Conn. 630.
Similar to the complex causal inferences that must be made by a jury in medical and professional malpractice cases, the case at bar involves an intricate causal analysis that must be informed by specialized medical knowledge. In his complaint, the plaintiff alleges that the stress of the subject accident led to hypertension, atrial fibrillation, sleeplessness, and memory problems. He also testified in his deposition about medications that he took to alleviate these symptoms. These medical conditions are not "obvious in everyday life"; State v. Orsini, 155 Conn. 367, 372, 232 A.2d 907 (1967); and their cause does not involve "professional negligence ... so gross as to be clear to even a lay person ..." (Citation omitted.) Shegog v. Zabrecky, 36 Conn.App. 737, 747, 654, A.2d 771 (1995). Unlike the evidence at issue in Gannon v. Kresge, a case relied on heavily by the plaintiff, the evidence here does not raise only one plausible inference as to the cause of the plaintiff’s injuries. See Gannon v. Kresge, 114 Conn. 36, 38, 157 A. 541 (1931) (where there was no other suggested cause of the plaintiff’s miscarriage, a jury could properly determine without expert testimony that the plaintiff’s consumption of a glass-laden sandwich caused the injury). The plaintiff’s own testimony regarding his physical condition before and after the accident is insufficient to provide a foundation upon which a jury could reasonably determine that the defendant’s conduct caused the plaintiff’s injuries. Therefore, whether the defendant’s negligence was a substantial factor in causing the plaintiff’s injuries is "a medical question requiring the testimony of men skilled in that profession." O’Meara v. Columbian National Life Ins. Co., 119 Conn. 641, 645, 178 A. 357 (1935).
Aside from the plaintiff’s own deductions, he provides no objective evidence linking his injuries to the defendant’s alleged negligence. The plaintiff’s evidence of causation amounts to nothing more than "conjecture and surmise"; Winn v. Posades, supra, 281 Conn. 50; and therefore does not provide a satisfactory foundation to prove causation. "Mere statements of legal conclusions ... and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment." (Internal quotation marks omitted.) Citimortgage, Inc. v. Coolbeth, 147 Conn.App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014). Because duty and causation are essential elements in any negligence action, the plaintiff’s failure to produce sufficient evidence supporting these elements is fatal to his claim. In light of the facts as established by the defendant’s evidence, the defendant is entitled to judgment as a matter of law with regard to count two.
COUNT THREE: RECKLESSNESS
The first issue the court must consider is that to the extent the plaintiff’s claim of recklessness is predicated on count two, it must fail. For the reasons described with regard to count two, the plaintiff has failed to provide sufficient evidence from which a reasonable jury could conclude that his personal injuries were caused by the defendant’s striking of the plaintiff’s home, whether negligently or recklessly. Therefore, the remaining issue before the court is whether the defendant’s alleged recklessness, as alleged in count three, was a substantial factor in causing the plaintiff’s property damage.
The defendant argues that the plaintiff does not provide a sufficient factual predicate to support a claim for statutory recklessness. In opposition, the plaintiff first argues that the defendant does not sustain its burden. This court notes that, even assuming that the defendant has not met her burden: "Even where the nonmoving party has no obligation to submit documents in opposition to a motion for summary judgment because the moving party’s own evidence is insufficient to establish that there is no genuine issue of material fact, the court nevertheless may consider whether the evidence the nonmoving party chooses to submit supports the moving party’s claim." Allstate Ins. Co. v. Barron, 269 Conn. 394, 408-09, 848 A.2d 1165 (2004). Second, the plaintiff argues that there is sufficient evidence in the police report and the plaintiff’s testimony from which a reasonable jury could infer that the defendant drove recklessly.
To the extent that the defendant argues that the plaintiff’s claim of recklessness is legally insufficient, this court, Knox, J., has already addressed these arguments in its order dated January 16, 2019. There, this court denied the defendant’s motion to strike count three, stating that "the minimal factual allegation[s] in support of the Plaintiff’s claim, if proven, sufficiently allege a cause of action pursuant to § 14-295."
"A violation of General Statutes 14-295 requires the same level of culpability as is necessary to state a cause of action for recklessness at common law." Limitone v. Reilly, Superior Court, judicial district of New Haven, Docket No. CV-02-0459818 (July 24, 2003, Gilardi, J.); see also Bishop v. Kelly, 206 Conn. 608, 614, 539 A.2d 108 (1998). "Recklessness is 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 ... reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care ... 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." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 277-78, 823 A.2d 1172 (2003). The court may only grant a motion for summary judgment where, based on the evidence, "a fair and reasonable trier could not possibly determine that the defendant’s conduct was ... reckless." Dubay v. Irish, 207 Conn. 518, 534-35, 542 A.2d 711 (1998).
In Acampora v. Asselin, our Supreme Court considered whether a witness’ testimony regarding the speed of a car raised a genuine issue of material fact with regard to recklessness. Acampora v. Asselin, 179 Conn. 425, 426 A.2d 797 (1980). There, the witness could not pinpoint exactly how fast the car was going at the time of the accident. The Court reasoned: "This testimony, far from establishing that [the defendant] was speeding, indicates only that the witness could not say what the car’s speed might have been. None of the other witnesses deposed by the plaintiff was any more specific ... Viewed as a whole and in context, the ... testimony is too speculative, too conjectural, to be evidence of speeding." (Citations omitted.) Id., 427. In support of her motion, the defendant relies on the plaintiff’s testimony that he was not aware of the precise speed at which the defendant was traveling on the day of the accident, or whether she was deliberately driving at an unreasonable speed. (Trahan Dep. 96:4-16.) Unlike in Acampora and contrary to the defendant’s assertions, the plaintiff here has additional evidence of recklessness beyond his own testimony.
The plaintiff proffers a police report from the accident, asserting that there exists a genuine issue of material fact as to whether the defendant drove recklessly on the day of the collision. It is submitted that the report supplies ample facts from which a jury could infer recklessness. The officer stated that "Cochran’s dog may have distracted her as it was believed to be in the front seat with her. Her lack of sleep is also a possible cause of this incident." (Pl. Ex. B, 3.) The officer personally observed the dog "sitting beside Cochran in the middle row" after the accident. (Pl. Ex. B, 2.) The officer also stated that the space from the intersection to the resting place of Cochran’s vehicle was eighty-four feet and six inches, and that the tire marks observed on the lawn of the Property were thirty-nine feet and four inches long. Id. The police officer further observed that "[t]here was severe damage to the front end of Cochran’s vehicle and both front air bags were deployed. Cochran’s vehicle hit the house with so much force the back windows of [the home] were broken." Id. In her crash report, the officer also indicated that the accident was "speed related," and specifically that the defendant "exceeded [the] speed limit." (Pl. Ex. B, 7.)
The police report is not accompanied by an oath or other authenticating material. "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Practice Book § 17-45. "A police report generally is admissible as a business record under General Statutes § 52-180 ... To qualify under this statute the report must be based entirely upon the police officer’s own observations or upon information provided by an observer with a business duty to transmit such information." Housing Authority of the City of Hartford v. Deleon, 79 Conn.App. 300, 308, 830 A.2d 298 (2003). "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." Sejdic v. Kirslis, Superior Court, judicial district of Hartford, Docket No. CV-05-4011073 *2 (April 13, 2006, Keller, J.). Although this report is unsworn, the defendant did not object to its admission despite having the opportunity to do so. Failure to object to evidence on hearsay grounds constitutes a waiver of the objection. See Robichaud v. Hewlett-Packard Co., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X01-CV-01-0165706-S *2 (October 25, 2002, Hodgson, J.) (33 Conn.L.Rptr. 360) ("the lack of objection constitute[s] a tacit waiver of the possible hearsay objection to its use"). Therefore, the court will consider this statement as part of the record. See also Buskey v. Old Navy, LLC, Superior Court, judicial district of New Haven, Docket No. CV-12-6029530-S *5 (April 29, 2014, Wilson, J.).
The plaintiff has raised a genuine issue of material fact with regard to whether the defendant drove recklessly on the day of the collision. Accordingly, the defendant’s motion for summary judgment on count three should be denied.
CONCLUSION
For the foregoing reasons, the motion for summary judgment as to count two of the plaintiff’s complaint is granted. To the extent the plaintiff’s claim of recklessness in count three is predicated on count two, it must fail. However, the motion for summary judgment on count three with respect to the remaining claim of property damage is denied.