Opinion
No. CV06-5002053-S
November 2, 2007
MEMORANDUM OF DECISION
Issue: Whether the court should grant the defendant's motion for summary judgment on the ground that there is no genuine issue as to any material fact and the defendant is entitled to judgment as a matter of law. The court finds that there are genuine issues of material facts in dispute and therefore, the defendant's motion for summary judgment is denied.
FACTS
On July 12, 2006, the plaintiff, Melkia Woodbury, filed a one-count complaint alleging negligence against the defendant, H.N.S. Management Co, d.b.a. Connecticut Transit. The plaintiff alleged the following facts. On July 19, 2004, she boarded the JF public transit bus, owned by the defendant and being operated by an employee of the defendant, at an established bus stop on East Main Street, Waterbury, Connecticut. Once she boarded the bus, she inserted her bus pass into the reader and proceeded down the aisle to find a seat, when the operator of the bus suddenly pulled the bus away from the bus stop, causing the plaintiff to lose her balance and fall forcefully to the floor, from which she suffered serious personal injuries and losses.
On August 2, 2007, the defendant filed a motion for summary judgment, along with a memorandum of law, a transcript of the deposition of the plaintiff and an affidavit from Anna Senberg, a senior claims officer from Connecticut Transit. On September 11, 2007, the plaintiff filed a memorandum of law in opposition to the defendant's motion for summary judgment, accompanied by her own affidavit and relevant portions of her deposition. The court heard argument on this matter on October 9, 2007. At the argument, the defendant submitted a videotape of the subject incident, which was viewed in court.
The portions of the plaintiff's deposition submitted by both parties are uncertified, and, therefore, are not in compliance with Practice Book § 17-45. "Practice Book § [17-45] contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). Nevertheless, "the Superior Court has been split as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment . ." (Emphasis added.) Schratwieser v. Hartford Casualty Ins. Co., 44 Conn.App. 754, 756 n. 1, CT Page 18468 692 A.2d 1283, cert denied, 241 Conn. 915, 696 A.2d 340 (1997). "The court [may] reach the merits of the parties' arguments . . . on the basis of a lack of objection and in an effort to prevent a ruling which raises form over substance." (Internal quotation marks omitted.) Langner v. Stop Shop Supermarket, Superior Court, judicial district of New Haven, Docket No. CV 95 0377385 (January 27, 2000, Licari, J.). This is especially true when both parties have submitted uncertified documents without objection from the opposing side. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Since neither party has objected to the others' deposition submissions, this court will consider them in reaching its decision.
DISCUSSION CT Page 18466
"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." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). "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). "`Issue of fact' encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969). "[T]he court, however, may consider not only the facts presented by the parties' affidavits and exhibits, but also the inferences which could be reasonably and logically drawn from them . . ." Id., 381. Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003)."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 . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "[T]he party opposing the motion 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 . . . Rather, the [nonmoving party] must recite specific facts . . . which contradict those stated in the [moving party's] affidavits and documents . . ." (Internal quotation marks omitted.) Farmington v. Dowling, 26 Conn.App. 545, 549, 602 A.2d 1047, cert. granted on other grounds, 221 Conn. 921, 608 A.2d 687 (1992).
The defendant moves for summary judgment on the ground that there are no genuine issues of material fact in dispute and it is entitled to judgment as a matter of law. The defendant argues that there are no genuine issues of material fact because it has set forth uncontroverted evidence that: (1) the plaintiff was delayed in getting to a seat because her bus pass did not immediately come out of the reader; (2) the plaintiff fell when the bus driver brought the bus to a stop at a red light; (3) the plaintiff was not holding on to any of the metal bars and straps inside the bus at the time of her fall; and (4) the bus driver was not operating the bus in an unusual or erratic manner. The defendant contends that based on these facts, it did not breach its duty to the plaintiff as a matter of law because it is not required to wait for passengers to be seated before starting or stopping the bus.
The plaintiff counters that the pleadings, allegations and evidence before the court clearly establish several issues of material fact for the trier of fact to decide upon in order to determine the duty of care owed by the defendant and whether that duty was breached at the time of her injury. The plaintiff asserts that her affidavit and the submitted portions of her deposition testimony show that there exists issues of material fact as to whether: (1) the driver started to go before she could retrieve her bus pass; (2) the driver stopped the bus before she could get to the area where she could hold on to something; (3) the driver knew the floor was wet and slippery, but failed to warn her; (4) the defendant failed to provide mechanisms to make the floor less slippery; and, (5) the defendant installed a faulty boarding pass reading machine which caused unreasonable delay in the plaintiff getting to a seat. The plaintiff contends that these issues of fact bear directly on the legal determination of whether the defendant is liable for her injuries.
Because the parties have both submitted reliable evidence that creates genuine issues of material fact as to whether the defendant is liable for the plaintiff's injuries, the court holds that the defendant's motion for summary judgment is denied.