Teodoro v. City of Bristol ( 2018 )

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DAWN TEODORO v. CITY OF BRISTOL ET AL.
(AC 39185)
DiPentima, C. J., and Sheldon and Norcott, Js.
Syllabus
The plaintiff, as parent and next friend of her daughter, B, who had sustained
injuries during a high school cheerleading practice, sought to recover
damages for negligence from the defendants, the city of Bristol, the
city’s board of education and the coach who had supervised the practice
at the time of B’s injuries. The defendants filed a motion for summary
judgment on the ground of governmental immunity, and the plaintiff
filed an opposition to the defendants’ motion with attached exhibits
that included, inter alia, excerpts from the original certified transcripts
of the depositions of B and the coach. The defendants thereafter filed
an additional excerpt from the transcript of B’s deposition. The plaintiff,
without permission of the court, then filed a surreply brief, and the
defendant, with the permission of the court, filed a surreply brief. The
trial court stated during oral argument on the motion for summary
judgment that it would not consider the deposition excerpts because
it considered them to be unauthenticated and, thus, inadmissible as
evidence. The court stated that the excerpts were not separately certified
as true and accurate excerpts from the original certified deposition
transcripts, and were not accompanied by affidavits from persons with
personal knowledge of the contents of the original certified transcripts
averring that the excerpts were true and accurate excerpts of the original
certified transcripts. The trial court granted the motion for summary
judgment, concluding, inter alia, that the defendants were entitled to
governmental immunity. The court thereafter rendered judgment for the
defendants, from which the plaintiff appealed to this court. Held:
1. The trial court, in deciding the motion for summary judgment, improperly
failed to consider the excerpts that the plaintiff submitted from the
certified deposition transcripts of B and the coach, both of whom were
fully available, and did not object to them until prompted to do so by
the court; because the applicable rule of practice (§ 17-46) expressly
allows for the use of such excerpts, which were submitted with pages
from the original deposition transcripts that established that the original
transcripts were accurate transcriptions of the testimony under oath by
B and the coach, the excerpts were properly authenticated under the
applicable rule of practice (§ 17-45) that governs admissible evidence
as to issues raised in summary judgment motions, and, thus, the trial
court erred by refusing to consider them in deciding the motion.
2. The trial court did not abuse its discretion in not considering the parties’
surreply memoranda of law; the applicable rule of practice ([2016] § 11-
10) provided that no surreply memoranda can be filed without the
permission of the judicial authority, and the court, thus, had the discre-
tion not to consider that additional briefing.
Argued October 16, 2017—officially released August 28, 2018
Procedural History
Action to recover damages for the defendants’ alleged
negligence, and for other relief, brought to the Superior
Court in judicial district of New Britain, where the court,
Young, J., granted the defendants’ motion for summary
judgment and rendered judgment thereon, from which
the plaintiff appealed to this court. Reversed; further
proceedings.
Daniel P. Scholfield, with whom, on the brief, was
Steven J. Errante, for the appellant (plaintiff).
Thomas R. Gerarde, with whom was Ondi A. Smith,
for the appellees (defendants).
Opinion
SHELDON, J. The plaintiff, Dawn Teodoro, as parent
and next friend of her minor daughter, Brianna Teodoro,
appeals from the summary judgment rendered by the
trial court in favor of the defendants, the city of Bristol
(city), the Bristol Board of Education (board) and board
employee Sophia Bayne, in this action to recover dam-
ages for injuries suffered by Brianna due to the alleged
negligence of the defendants in conducting and super-
vising a high school cheerleading practice. On appeal,
the plaintiff challenges the court’s decision to grant
the defendants’ motion for summary judgment without
considering either (1) excerpts from the certified tran-
scripts of two depositions taken in this case, one of
Brianna and the other of Bayne, which the plaintiff had
filed in opposition to the motion, or (2) the surreply
brief with attached exhibits which she later filed, with-
out the court’s permission, in further opposition to
the motion.
The amended complaint and record demonstrated
the following. The plaintiff alleged that the defendants
negligently caused Brianna’s injuries and resulting dam-
ages as follows. On the evening of January 7, 2013,
while Brianna was practicing as a member of the junior
varsity cheerleading squad of Bristol Eastern High
School under the supervision of Bayne, her coach, she
attempted, for the first time ever, to perform a cheer-
leading stunt known as the ‘‘ladder stunt.’’ To perform
that stunt, two cheerleaders acting as ‘‘bases,’’ flanked
by front and back spotters to protect the participants’
safety, lift a third cheerleader acting as the ‘‘flyer’’ into
the air, where they hold her as she transitions from half
to full extension. Practicing as the ‘‘flyer’’ with her stunt
group on that evening, Brianna had difficulty per-
forming the ladder stunt, twice attempting but failing
to complete it. Although Bayne was aware of Brianna’s
difficulty in performing the stunt and of her resulting
apprehensiveness about trying to perform it again, she
instructed Brianna to ‘‘try it one more time,’’ but then
walked away to assist other cheerleaders without
assisting Brianna to perform the stunt a third time or
giving her further instruction as to how to do so cor-
rectly. When Brianna thereafter complied with Bayne’s
instructions by trying to perform the stunt again, she
fell to the floor after being lifted into the air and transi-
tioning from half to full extension, causing her to break
several bones in her arm. The plaintiff alleged that
Bayne’s conduct in supervising Brianna was negligent
because, inter alia, she encouraged Brianna to perform
the stunt again despite Brianna’s uncertainty and appre-
hensiveness, when she knew or should have known
that it was unsafe and unreasonable to do so; failed to
give Brianna hands-on assistance in performing the
stunt again or proper instruction as to how to perform
it correctly when it should have been apparent that
her failure to do so would likely subject Brianna to
imminent harm; and failed to provide sufficient spotters
to catch Brianna if she fell. The defendants answered
the plaintiff’s amended complaint by denying all allega-
tions of negligence against them and interposing the
special defense of qualified governmental immunity.
On October 9, 2015, the defendants filed a motion
for summary judgment on the ground of qualified gov-
ernmental immunity, together with a supporting memo-
randum of law and several exhibits, including an
affidavit from Christopher Cassin, the board’s supervi-
sor of athletics, physical education and health; an affida-
vit from Bayne; and a memorandum of decision granting
a defense motion for summary judgment on the ground
of qualified governmental immunity in another Superior
Court action in which the plaintiff, an injured cheer-
leader, sought to recover damages from municipal
defendants for injuries she claimed to have suffered
due to their negligence in conducting a high school
cheerleading practice. On the basis of those submis-
sions, the defendants argued that there was no genuine
issue of material fact that they were entitled to prevail
on their special defense of qualified governmental
immunity, and thus to the entry of judgment in their
favor on the plaintiff’s claims of negligence, because
the conduct and supervision of cheerleading practices
is a governmental activity that requires the exercise
of discretion. They further argued that there was no
evidence that their alleged negligence in exercising such
discretion in this case came within an exception to
qualified governmental immunity by subjecting Bri-
anna, as an identifiable member of a narrowly defined
class of foreseeable victims, to a risk of imminent harm.
On December 11, 2015, the plaintiff filed a memoran-
dum of law in opposition to the defendants’ motion
along with several attached exhibits, including her sec-
ond amended complaint; excerpts from the original cer-
tified transcripts of Brianna’s and Bayne’s depositions
in this case; the plaintiff’s disclosure of Dr. Gerald S.
George as an expert witness on the subjects of biomech-
anics and cheerleading safety; an excerpt from the
National Federation of State High School Associations
2012–13 Spirit Rules Book; and an excerpt from the
Bristol Public Schools Coaching Handbook.1 On the
basis of those materials, the plaintiff claimed that the
defendants’ motion should be denied because the evi-
dence she had submitted raised two genuine issues of
material fact as to the viability of the defendants’ special
defense of qualified governmental immunity: first,
whether the conduct and supervision of cheerleading
practices involves the performance of ministerial,
rather than discretionary, duties, as to which the special
defense of qualified governmental immunity is unavail-
able as a matter of law; and second, even if the conduct
and supervision of cheerleading practices involves the
performance of discretionary duties, whether Bayne’s
alleged negligence in performing such duties in this
case, as evidenced by Brianna’s and Bayne’s deposition
testimony, fell within an exception to qualified govern-
mental immunity because Brianna was subjected to a
risk of imminent harm.
Thereafter, on March 2, 2016, the defendants filed a
reply memorandum in further support of their motion.
Attached to the reply memorandum were two additional
exhibits: a supplemental affidavit from Cassin, and an
additional excerpt from the original certified transcript
of Brianna’s deposition. On the basis of Brianna’s depo-
sition testimony, so supplemented, the defendants
argued, inter alia, that before Brianna fell, she did not
object to performing the ladder stunt again or tell Bayne
of her fear of so doing, and thus Bayne had no notice
that by instructing Brianna to try the stunt one more
time, she was subjecting her to a risk of imminent harm.
Both the plaintiff and the defendants included, as parts
of each deposition excerpt they filed in connection with
the defendants’ motion, the cover page of the original
deposition transcript from which the excerpt in ques-
tion was taken, the page of the transcript on which the
court reporter certified the truth and accuracy of the
entire deposition, as he transcribed it, and the page of
the transcript on which the deponent swore before the
court reporter, who took her oath in his capacity as a
notary public, that she had read the entire transcript
of the deposition and certified to its truth and accuracy,
as transcribed or as later corrected on the attached
errata sheet.2 Neither party objected in writing to the
other party’s submission of or reliance upon any such
deposition excerpt, so authenticated, as evidence in
support of or in opposition to the motion, or suggested
that any corrections had ever been made to the tran-
script on an errata sheet.
On March 4, 2017, after the previously described
memoranda and materials were filed, the plaintiff, with-
out the permission of the trial court, filed a surreply
brief in further opposition to the motion. Attached to
that brief were several additional exhibits, including an
affidavit from her expert, Dr. George; a document listing
the ‘‘highlights’’ of Dr. George’s professional resume;
and a copy of the bylaws of the Connecticut Student
Activities Conference. These additional exhibits bore
only upon the plaintiff’s claim that the defendants were
not entitled to governmental immunity because their
duties in conducting and supervising cheerleading prac-
tices were ministerial, rather than discretionary, in
nature.
The court heard oral argument on the defendants’
motion on March 7, 2016. During the argument, when
the defendants’ counsel began to present argument in
support of the motion based upon Brianna’s certified
deposition testimony, the court advised the parties that
it considered the deposition excerpts they had submit-
ted to be unauthenticated, and thus to be inadmissible
as evidence on the motion unless all parties consented,
because such excerpts were neither separately certified
as true and accurate excerpts from the original certified
deposition transcripts, nor accompanied by affidavits
from persons with personal knowledge of the contents
of such original certified transcripts, averring that the
excerpts were true and accurate excerpts from those
transcripts. When the defendants’ counsel was
informed by the court that she could, but need not,
consent to the use of the deposition excerpts as evi-
dence in support of or in opposition to the motion,
she promptly reversed course, declining to offer her
consent, although the deposition excerpt she had sub-
mitted and relied upon was presented and authenticated
in the same manner as the excerpts submitted by the
plaintiff. It would be ‘‘fair,’’ she suggested, if no such
deposition excerpt from either party was considered in
deciding the motion. Accordingly, the court announced
that, in the absence of an agreement among the parties,
none of the deposition excerpts they had filed would
be considered in deciding the motion.
When counsel for the plaintiff was so informed of the
court’s decision not to consider the deposition excerpts
she had filed in opposition to the defendants’ motion,
she promptly asked the court for permission to supply
it with a sworn affidavit averring that the excerpts she
had submitted were true and accurate excerpts from
Brianna’s and Bayne’s original certified deposition tran-
scripts. The court twice refused this request despite
observing that no party had suggested that any such
excerpt was inaccurate in any way.
The court also advised the parties during the argu-
ment that the plaintiff’s surreply brief and attached
exhibits had been filed improperly, without the court’s
permission, in violation of Practice Book § 11-10 (c).
Even so, it granted the defendants permission to file
their own surreply brief in response to the plaintiff’s
surreply brief in case it should ultimately decide to
consider such briefs and exhibits in deciding the
motion. One week later, on March 14, 2016, the defen-
dants filed their own surreply brief without addi-
tional exhibits.
By an order dated April 18, 2016, the court granted the
defendants’ motion for summary judgment. The court
ruled, on the basis of the evidence it found to be admissi-
ble, that the defendants were entitled to governmental
immunity because there was no genuine issue of mate-
rial fact that (1) cheerleading is a student athletic activ-
ity authorized by the board, and thus Bayne’s conduct
in supervising that activity was public in nature;3 (2)
Bayne’s duties while engaging in such supervisory activ-
ity were discretionary, rather than ministerial, in nature;
and (3) Bayne’s alleged negligence in performing such
discretionary duties on the evening of Brianna’s fall did
not come within an exception to qualified governmental
immunity by subjecting Brianna, as an identifiable mem-
ber of a narrowly defined class of foreseeable victims,
to a risk of imminent harm.4 In rendering summary
judgment in favor of the defendants as aforesaid, the
court did not consider any of the deposition excerpts
that the parties had filed in connection with the defen-
dants’ motion on the previously stated ground that they
were not authenticated properly. Nor did the court con-
sider either party’s surreply brief or the exhibits
attached to the plaintiff’s surreply brief because, as it
had noted during the argument, the plaintiff’s surreply
brief and exhibits had been filed without the court’s per-
mission.
On appeal, the plaintiff claims that the trial court
erred in granting the defendants’ motion for summary
judgment (1) without considering the deposition tran-
script excerpts she had filed in opposition to the motion,
and (2) without considering her surreply brief and
attached exhibits. We agree with the plaintiff that the
trial court erred in not considering the deposition
excerpts she offered in opposition to the motion on the
ground that they were not authenticated properly. We
disagree, however, that the trial court abused its discre-
tion in not considering the plaintiff’s surreply brief and
attached exhibits. We therefore reverse the summary
judgment rendered by the trial court in favor of the
defendants, and remand this case for further consider-
ation of the defendants’ motion in accordance with
this opinion, and for such other proceedings as may
thereafter be appropriate, according to law.
‘‘Before addressing the plaintiff’s claims in greater
detail, we note that . . . [b]ecause the present case
was disposed of by way of summary judgment, we first
address the appropriate framework for appellate review
of a summary judgment determination.’’ (Internal quota-
tion marks omitted.) Grady v. Somers, 294 Conn. 324,
331, 984 A.2d 684 (2009). The purpose of summary judg-
ment procedure is to provide a vehicle for ending litiga-
tion short of trial where the admissible evidence
available to the parties, as presented to the court, estab-
lishes that the moving party is entitled to judgment as
a matter of law because there is no genuine issue as
to one or more material facts upon which his right to
judgment depends. See Practice Book § 17-49 (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’’).
The ultimate facts upon which a party’s right to a
judgment in his favor depends are determined by the
pleadings, which not only identify the claims and
defenses upon which the parties have joined issue, but
the factual theories upon which they have committed
themselves to proving those claims and defenses.
Although the sufficiency of such pleaded allegations to
state viable claims and defenses can be determined
by comparing the pleaded claims and defenses to the
pleaded allegations, the availability to the pleader of
evidence to prove such allegations cannot be inferred
from the mere fact that they have been pleaded. Accord-
ingly, our rules of court require any party moving for
summary judgment to prove to the court that admissible
evidence available to him not only tends to prove the
material facts upon which his right to judgment
depends, but eliminates any genuine issue as to the
existence of such material facts, thereby establishing
his right to prevail on his claim or defense as a matter of
law. A party opposing summary judgment, by contrast,
need only demonstrate that the admissible evidence
available to the moving party is insufficient to eliminate
any genuine issue as to the material facts upon which
the movant’s right to judgment depends, or that admissi-
ble evidence available to her is sufficient to raise a
genuine issue as to the existence of one or more such
material facts. ‘‘In deciding a motion for summary judg-
ment, 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 show-
ing 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.)
Grady v. Somers, supra, 294 Conn. 331.
Because a motion for summary judgment must be
adjudicated without conducting trial, our rules of prac-
tice have established an alternative procedure for estab-
lishing the availability of admissible evidence in support
of or in opposition to a motion for summary judgment.
Under that procedure, the party seeking summary judg-
ment must first support his motion by filing certain
designated types of materials with the court that consti-
tute, contain or demonstrate the availability to the party
of admissible evidence. Such materials, pursuant to
Practice Book § 17-45, include sworn affidavits, certi-
fied transcripts of testimony given under oath, disclo-
sures and pleadings. If such materials establish the
availability of admissible evidence tending to prove the
material facts upon which the movant’s right to judg-
ment depends, the burden shifts to the nonmovant to
file similar materials tending to raise a genuine issue
as to any such material fact. The court’s task in
reviewing the parties’ submissions is not to decide any
factual issues they raise, but only to decide if, in fact,
they raise any such factual issues, as by demonstrating
a potential inconsistency or conflict in the admissible
evidence concerning one or more facts upon which the
movant’s right to judgment depends. In the event the
court determines that there is such a genuine issue of
material fact, it must deny the motion for summary
judgment and leave resolution of the issue to the trier
of fact at trial, who will hear and evaluate the evidence
on both sides of that issue firsthand before deciding
it. ‘‘On appeal, we must determine whether the legal
conclusions reached by the trial court are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision of the
trial court. . . . Our review of the trial court’s decision
to grant the [defendants’] motion for summary judgment
is plenary.’’ (Internal quotation marks omitted.) Id.
I
The first issue raised in this appeal concerns the
process by which one form of evidence routinely sub-
mitted in connection with motions for summary judg-
ment must be authenticated before the court can
consider it in deciding such a motion. The evidence in
question consists of excerpts from certified transcripts
of testimony given under oath. Because the purpose of
authentication, as established in our case law, is to
make a preliminary showing that the proffered evidence
is what the party offering it claims it to be, it is important
at the outset to understand the reason why such tran-
scripts, if authenticated, are admissible on a motion for
summary judgment. Importantly, certified transcripts
of testimony given under oath are not admitted in con-
nection with such motions because they constitute
admissible evidence at trial. This is because, under our
rules of evidence, the admissibility of prior sworn testi-
mony depends upon both the unavailability of the wit-
ness to testify at trial and the prior availability to all
other parties of an opportunity to cross-examine the
witness when he gave his prior sworn testimony. Conn.
Code Evid. § 8-6 (1). Instead, the reason why such certi-
fied transcripts are admissible in connection with sum-
mary judgment motions is to demonstrate the
availability to the party submitting them of live testi-
mony from the witnesses, consistent with their prior
sworn testimony, as it appears in the certified tran-
scripts. The purpose of authentication of such certified
transcripts is thus to make a preliminary showing that
they accurately record testimony that the witnesses in
question gave under oath.
In this case, the trial court sua sponte refused to
consider two deposition excerpts filed by the plaintiff
and one deposition excerpt filed by the defendants in
connection with the defendants’ motion for summary
judgment because they failed to submit either full certi-
fied transcripts of the witnesses’ depositions or to file
affidavits from knowledgeable witnesses separately
establishing that the excerpts in question were true and
accurate excerpts from such full certified transcripts.
The plaintiff complains that the trial court’s ruling to
this effect constituted an overly strict application of
the authentication requirement and deprived her
improperly of actual, reliable proof as to the availability
of admissible evidence in opposition to the defendants’
motion. For the following reasons, we agree with the
plaintiff and reverse the trial court’s ruling rendering
summary judgment in favor of the defendants in this
case.
The plaintiff asserts that our standard of review over
her first claim is plenary. The defendants argue, to the
contrary, that we must review the plaintiff’s claim under
the abuse of discretion standard. Because, however,
the claim involves the interpretation of a rule of prac-
tice, we agree with the plaintiff.5 See Wiseman v. Arm-
strong, 295 Conn. 94, 99, 989 A.2d 1027 (2010) (‘‘[t]he
interpretation and application of a statute, and thus a
Practice Book provision, involves a question of law over
which our review is plenary’’).
‘‘Practice Book § 17-45 provides in relevant part that
[a] motion for summary judgment shall be supported
by such documents as may be appropriate, including
but not limited to affidavits, certified transcripts of
testimony under oath, disclosures, written admissions
and the like. . . . That section does not mandate that
those documents be attached in all cases, but we note
that [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], although con-
taining the phrase including but not limited to, contem-
plates that supporting documents to a motion for
summary judgment be made under oath or otherwise
reliable. . . . [The] rules would be meaningless if they
could be circumvented by filing [unauthenticated docu-
ments] in support of or in opposition to summary judg-
ment. . . .
‘‘Therefore, before a document may be considered
by the court [in connection with] a motion for summary
judgment, there must be a preliminary showing of [the
document’s] genuineness, i.e., that the proffered item
of evidence is what its proponent claims it to be. The
requirement of authentication applies to all types of
evidence, including writings . . . . Conn. Code Evid.
§ 9-1 (a), commentary. Documents in support of or in
opposition to a motion for summary judgment may be
authenticated in a variety of ways, including, but not
limited to, a certified copy of a document or the addition
of an affidavit by a person with personal knowledge
that the offered evidence is a true and accurate repre-
sentation of what its proponent claims it to be.’’
(Emphasis altered; internal quotation marks omitted.)
Gianetti v. Anthem Blue Cross & Blue Shield of Con-
necticut, 111 Conn. App. 68, 72–73, 957 A.2d 541 (2008),
cert. denied, 290 Conn. 915, 965 A.2d 553 (2009).
This court has never directly addressed the issue of
whether an excerpt from a certified deposition tran-
script must be separately certified as such, apart from
the certification of the original transcript from which
it was excerpted, in order to make it admissible in
support of or in opposition to a motion for summary
judgment under Practice Book § 17-45. Our Superior
Courts are divided as to what type of certification is
required for that purpose.6 Because our review is ple-
nary, we consider, but are not bound by, these
decisions.
Where no party objects, a court may, but is not
required to, review uncertified deposition transcripts.
Barlow v. Palmer, 96 Conn. App. 88, 92, 898 A.2d 835
(2006). There is no indication in the record that the
present defendants objected to the deposition excerpts
until the court, sua sponte, invited them to do so at oral
argument.7 In their reply memorandum, by contrast, the
defendants did object to the plaintiff’s exhibit D, an
uncertified disclosure of the plaintiff’s expert witness.
At oral argument, moreover, the defendants also
objected to the uncertified coaching handbook as
improperly before the court because it was not authenti-
cated. However, far from objecting to the plaintiff’s
submission of the subject excerpts from the certified
deposition transcripts of Brianna and Bayne, the defen-
dants themselves submitted, as an attachment to their
reply memorandum, an overlapping excerpt from Brian-
na’s certified deposition transcript, which was authenti-
cated in precisely the same manner as the plaintiff had
authenticated the excerpt from that same deposition
that she had submitted.8 By so doing, without correcting
the plaintiff’s submission in any way, then expressly
relying upon such excerpts in their own summary judg-
ment argument, the defendants effectively stipulated to
the authenticity of both excerpts from Brianna’s deposi-
tion, which the parties had submitted as true and accu-
rate excerpts from the original certified transcript of
that deposition. ‘‘Stipulations or admissions prior to or
during a trial provide two other means of authentica-
tion.’’ Conn. Code Evid. § 9-1 (a), commentary.
The plaintiff claims that the trial court’s reading of
Practice Book § 17-45 was overly narrow, and that that
section allows a court to consider more than merely
entire certified deposition transcripts or excerpts from
deposition transcripts that have been separately certi-
fied for their truth and accuracy as such by an affidavit
from the court reporter or the submitting party’s attor-
ney. She contends that because the phrase ‘‘certified
transcripts of testimony under oath’’ is not defined in
Practice Book § 17-45 or elsewhere, and the deposition
transcript excerpts she submitted along with her oppo-
sition memorandum of law included the deposition
cover page, the page on which the court reporter certi-
fied the accuracy of the entire deposition transcript as
he transcribed it, and the page on which the deponent
swore that she had read the entire deposition transcript
and certified to its truth and accuracy, so transcribed,
it fully satisfied the requirements of the rules of practice.
At oral argument, the trial court disagreed with the
plaintiff’s contention.9 We, however, agree with the
plaintiff.
Because all that is required for a court to consider
a document in support of or in opposition to a motion
for summary judgment is ‘‘a preliminary showing of [the
document’s] genuineness’’; (internal quotation marks
omitted) New Haven v. Pantani, 89 Conn. App. 675,
679, 874 A.2d 849 (2005); we hold that the certification
page from the original certified deposition transcript
from which an excerpt was taken is sufficient to authen-
ticate the excerpt as an accurate transcription of testi-
mony given under oath, and thus to establish its
admissibility for summary judgment purposes, at least
where, as here, it is accompanied by other portions of
the original deposition transcript tending to establish
that the testimony set forth in it was given under oath
and that it was accurately transcribed. Such proof of
genuineness is fully consistent with the purpose for
which certified transcripts of depositions are admitted
in support of or in opposition to summary judgment
motions, which is to prove that the submitting party
has available to her, for presentation at trial, admissible
evidence consistent with the witness’ prior recorded
testimony under oath. If the court reporter has duly
certified that the entire deposition was given under oath
and that it was accurately transcribed, he has thereby,
necessarily, certified that the excerpt in question was
accurately transcribed as part of that sworn testimony,
a fact that was confirmed in this case by the defendants’
own submission of and reliance upon excerpts from
the same original deposition transcript in support of
their motion, and by the deponent’s certification under
oath that she had read her entire testimony, so tran-
scribed, and found it to be truthful and accurate.
Our rules of practice, in fact, expressly allow for the
use of such excerpts. See Practice Book § 17-46, which
provides in relevant part: ‘‘Sworn or certified copies of
all papers or parts thereof referred to in an affidavit
shall be attached thereto.’’ (Emphasis added.) There is
therefore no requirement that the entire document be
attached to make an excerpt therefrom admissible in
support of a summary judgment motion.
We acknowledge concerns that a trial court may have
in considering an excerpt from a deposition transcript;
see footnote 9 of this opinion; however, we find that
those concerns are easily addressed. In cases such as
this one, where both parties have access to full copies
of the original deposition transcripts from which the
excerpts in question were taken, if a party includes the
cover page of the transcript, the page on which the court
reporter certifies the accuracy of his transcription, and
the page on which the deponent certifies under oath
that, upon reading the entire deposition, the testimony
in it is truthful and accurate, nothing more can be
required of the submitting party to make her ‘‘prelimi-
nary showing of [the document’s] genuineness . . . .’’
(Internal quotation marks omitted.) New Haven v. Pan-
tani, supra, 89 Conn. App. 679. A party must, of course,
include enough of the full deposition transcript in the
submitted excerpt to put the testimony upon which she
wishes to rely in its proper context, so that its meaning
can be understood and its true significance can be prop-
erly evaluated by the court, but she has no need—
indeed, no right—to file other portions of the deposition
that contain testimony that is irrelevant to the issues
raised on summary judgment, or that contain answers
that are beyond the personal knowledge or competency
of the deponent or are otherwise inadmissible in evi-
dence. If, however, an opposing party wishes to object
to a proffered deposition excerpt, in whole or in part,
on any basis, he has ample means at his disposal to
protect his rights. If he feels that the chosen excerpt
is inadmissible in evidence on the issues raised on the
pending motion, he can move to strike the entire
excerpt or object to particular portions of it. If the court
agrees with his position, it can grant him relief after both
parties have been heard on the issue. If, by contrast,
he feels that the excerpt, though admissible as submit-
ted, is nonetheless misleading because it does not
include portions of the original deposition transcript
that shed important light on issues which the excerpt
concerns, he can seek the court’s permission, under
§ 1-5 (b) of the Connecticut Code of Evidence, to intro-
duce any other part of the deposition that ‘‘ought in
fairness to be considered contemporaneously with’’ it.
That, in fact, is what the defendants in this case did by
attaching additional excerpts from Brianna’s deposition
to their reply memorandum. Where, moreover, a party
proffers excerpts from a certified deposition transcript
that has not already been made available to all counsel,
Practice Book § 17-47 entitles his opponent to request
a postponement of all summary judgment proceedings
to enable him to conduct further investigation, pursue
additional discovery or obtain additional affidavits in
order to respond effectively to the motion.10
Here, the plaintiff submitted excerpts from the certi-
fied depositions of Brianna and Bayne, both of which
were fully available to the defendants, who did not
object to them until prompted to do so by the court.
Because such excerpts were submitted along with
pages from the original deposition transcripts establish-
ing that such original transcripts were accurate tran-
scriptions of the deponents’ truthful testimony under
oath, such excerpts were properly authenticated for the
purpose of Practice Book § 17-45, which is to establish
the availability of admissible evidence bearing upon the
issues raised on the defendants’ summary judgment
motion. For that reason we conclude that the court
erred by refusing to consider such deposition excerpts
in deciding the motion. Thus, we reverse the court’s
granting of summary judgment in favor of the defen-
dants and remand this case for further proceedings on
that motion.
II
The plaintiff also claims that the trial court erred
in not considering the parties’ reply memoranda. We
review this claim under the abuse the discretion stan-
dard. ‘‘An abuse of discretion standard would be consis-
tent with the general rule that [t]he trial court has wide
discretion in granting or denying amendments [to plead-
ings] before, during, or after trial.’’ (Internal quotation
marks omitted.) Dimmock v. Lawrence & Memorial
Hospital, Inc., 286 Conn. 789, 799, 945 A.2d 955 (2008).
The plaintiff claims that the court agreed at oral argu-
ment to consider the parties’ reply memoranda. It is
undisputed that the court granted the defendants one
week from oral argument to file a surreply memoran-
dum in response to the plaintiff’s surreply. It is further
undisputed that the court did not consider either party’s
surreply briefs in deciding the motion for summary
judgment.
Practice Book § 11-10 was amended on June 12, 2015,
with an effective date of January 1, 2016, to add current
subsections (b) and (c) to the rule. According to com-
mentary accompanying the amendment, ‘‘[t]his change
. . . [clarified that] [n]o surreply memoranda can be
filed without the permission of the judicial authority.’’
Practice Book (2016) § 11-10, commentary. The court
therefore had discretion under the rules of practice not
to consider this additional briefing. We conclude that
the court did not abuse its discretion in not considering
the parties’ surreply memoranda.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
1
Of all of the exhibits attached to the plaintiff’s memorandum of law,
only the excerpts from the certified deposition transcripts are at issue in
this appeal.
2
Neither party included such errata sheets.
3
See Jahn v. Board of Education, 152 Conn. App. 652, 658–59, 99 A.3d
1230 (2014); Sevigny v. Daviau, Superior Court, judicial district of Windham,
Docket No. CV-XX-XXXXXXX, 2013 WL 4504831 (July 31, 2013).
4
On the basis of the information it did consider, the court concluded that
this was not a case in which a specific plaintiff was an identifiable victim
because such cases, primarily Sestito v. Groton, 178 Conn. 520, 423 A.2d
165 (1979), are limited to their facts. See, e.g., Edgerton v. Clinton, 311
Conn. 217, 240, 86 A.3d 437 (2014). Instead, the court determined that only
the identifiable class of victims exception to governmental immunity could
potentially apply, and pursuant to Grady v. Somers, 294 Conn. 324, 984
A.2d 684 (2009), the identifiable class of foreseeable victims is limited to
schoolchildren attending public school during school hours.
5
Even if we assume arguendo that the trial court’s decision to accept or
reject the deposition transcript excerpts should be reviewed under the abuse
of discretion standard; see Barlow v. Palmer, 96 Conn. App. 88, 91, 898 A.2d
835 (2006); the court’s denial of the plaintiff’s request to cure the defect would
constitute an abuse of discretion. See, e.g., New Hartford v. Connecticut
Resources Recovery Authority, 291 Conn. 433, 484–85, 970 A.2d 592 (2009)
(court should allow requested supplementation ‘‘if it will promote the eco-
nomic and speedy disposition of the controversy between the parties, will
not cause undue delay or trial inconvenience, and will not prejudice the
rights of any other party’’ [internal quotation marks omitted]).
6
There is no consensus among Superior Court judges as to whether and
under what circumstances excerpts from deposition transcripts are suffi-
ciently authenticated such that they can be considered in support of or in
opposition to motions for summary judgment. One court held that deposition
transcript excerpts, with cover pages and court reporter certifications, may
properly be considered under Practice Book § 17-45. See Clark v. Norwalk,
Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-93-
0146667, 1998 WL 886599, *3 (December 10, 1998). Other courts have consid-
ered excerpts from deposition transcripts when a copy of the court reporter’s
certification of the entire original transcript is submitted with it. See Mangels
v. Yale, Superior Court, judicial district of Fairfield, Docket No. XX-XXXXXXX-
S, 2006 WL 438593, *3 (February 15, 2006); Jensen v. DePaolo, Superior
Court, judicial district of New Haven, Docket No. CV-XX-XXXXXXX-S, 2004 WL
166486, *1 n.4 (June 30, 2004). Other courts have held that providing the
title page but not the certification page with an excerpt from a deposition;
see Marsala v. Yale-New Haven Hospital, Inc., Superior Court, judicial
district of Ansonia-Milford, Docket No. XX-XXXXXXX (March 19, 2015) (60
Conn. L. Rptr. 196, 197 nn.4–8), aff’d, 166 Conn. App. 432, 142 A.3d 316
(2016); or a certification page from a full deposition with an excerpt from
that deposition; see Colon v. New Haven, Superior Court, judicial district
of New Haven, Docket No. CV-XX-XXXXXXX-S, 2011 WL 4953436, *2 n.1 (Sep-
tember 28, 2011); will not adequately authenticate such deposition excerpts
for consideration in support of or in opposition to a motion for summary
judgment.
7
The following colloquy occurred:
‘‘The Court: . . . [M]y general practice for as long as I’ve been doing this
has been that I follow the rules of practice unless there is consent by both
sides to look away from the requirements of the Practice Book, and I
don’t have that here, mainly because [the defendants’] exhibits mostly are
authenticated, with the exception of one, which is exhibit E. [The defendants
do not] have that problem. Although, if I were to allow you to submit an
affidavit that, what is there—and I don’t think there’s any claim that the
excerpts are inaccurate, but to authenticate that that is the testimony, that
there is no errata that changes any of the substantive testimony, then I
would consider [the defendants’] exhibit E as well because there would be
some sort of agreement of counsel on that. [The defendants’ counsel], back
to you, briefly. Is there an agreement on that as to the deposition excerpts?
‘‘[The Defendants’ Counsel]: Uh—
‘‘The Court: It’s up to you. You don’t have to.
‘‘[The Defendants’ Counsel]: Your Honor, I don’t want to concede that
the entirety of the plaintiff’s submissions are appropriate for a motion for
summary judgment at this point. I mean, exhibit E was attached to point out
portions of the transcript that weren’t included in the plaintiff’s submission
because there were only certain pages here and there. So, if Your Honor is
not considering transcripts on both sides, I think that would be fair.
‘‘The Court: Okay. So, we don’t have an agreement. So, I’m just letting
you know that, and it can’t come as any surprise that I won’t consider things
that are not properly authenticated unless there’s agreement of counsel,
and, here, we don’t have.’’ (Emphasis added.)
8
The defendants’ exhibit E was an excerpt from the transcript of Brianna’s
deposition that included the first page, a portion of the deponent’s testimony,
the page on which the court reporter certified the entire deposition, and
the page with the certificate of the deponent.
9
The following colloquy occurred:
‘‘[The Plaintiff’s Counsel]: With respect to the deposition excerpts, it was
my understanding under the rule that a certification page would certify
those excerpt transcripts were accurate and authenticate them.
‘‘The Court: If the entire transcript was there, I wouldn’t have a problem
with it. But when you’re taking page 3 and then page 5 and then page 8 and
then page 27, the normal practice would be to, either you, yourself, saying
that or whoever took the deposition, that this is what transpired and these
are from the original—I don’t even think you have to be there, but somebody
needs to authenticate it, even if it’s counsel. If it’s not counsel, it should
properly be the court reporter that does that, and I can tell you from my
own practice way back when, I would go to the court reporter with copies
of the transcript and say, give me a certification page, and they would do
that; then you don’t have problems with it. But you open yourself up to
having them excluded by the manner that you’ve chosen to do these things.
‘‘[The Plaintiff’s Counsel]: I will state in full disclosure, Your Honor, that
I—we actually, when we had these depositions, initially, did not even have
the certification page from the court reporter, and so I went so far as to
get that, thinking that it would be enough. Now, seeing that—
‘‘The Court: How could you not have the certification page if you’re getting
a sealed transcript?
‘‘[The Plaintiff’s Counsel]: We didn’t have the signed certification page.
‘‘The Court: Okay. And it may be a question of a missing errata page. I
don’t know if your client changed any of her answers substantively because
I don’t know whether there was an errata page, and I don’t know whether
any of the testimony changed because those excerpts haven’t been certified.
That’s the problem I have.’’
The plaintiff’s counsel then twice requested judicial permission to provide
an affidavit authenticating and certifying the deposition transcript excerpts,
which the court denied.
10
Practice Book § 17-47 provides in relevant part: ‘‘Should it appear from
the affidavits of a party opposing the motion that such party cannot, for
reasons stated, present facts essential to justify opposition, the judicial
authority . . . may order a continuance to permit affidavits to be obtained
or discovery to be had or may make such other order as is just.’’