DocketNumber: No. CV 00-0439030
Citation Numbers: 2001 Conn. Super. Ct. 17418, 31 Conn. L. Rptr. 104
Judges: SILBERT, JUDGE. CT Page 17419
Filed Date: 12/3/2001
Status: Non-Precedential
Modified Date: 7/5/2016
Count one states a claim of negligence based on violations of certain motor vehicle statutes. Specifically, count one alleges that Panaroni's negligence and carelessness caused Shafer's injuries and death in the following ways: (1) he violated General Statutes §
Count one seeks damages relating to the loss of Shafer's life, his pain and suffering, and the expenses incurred by the plaintiff for her decedent's hospitalization, emergency medical care, funeral and burial. Count two seeks double or treble damages pursuant to General Statutes §
The plaintiff has now filed the present motion for summary judgment. The submitted documentary evidence includes the following items: (1) the CT Page 17420 affidavit of Michael Carsone, a police officer employed by the police department of the town of Branford, regarding the speed limit for the streets relevant to the accident (exhibit A); (2) a copy of the certificate regarding the appointment of the plaintiff as the administrator of Shafer's estate (exhibit B); (3) a copy of the transcript of Superior Court proceedings before Honorable Taggart Adams on May 21, 1999, in which Panaroni pleaded guilty to several statutory violations in a criminal action entitled State v. Panaroni, Docket No. MV8-234634 (exhibit C); (4) a copy of Panaroni's statement to the police regarding the accident, made shortly after the accident on the morning of July 26, 1998 at the police department (exhibit D). The defendants have objected to the motion for summary judgment and have filed a supporting memorandum of law and the affidavit of Jason Panaroni.
"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. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Rivera v.Double A Transportation, Inc.,
"[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party. . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Millerv. United Technologies Corp.,
The plaintiff contends that there is no genuine issue of material fact as to the defendants' liability and that she is entitled to judgment as a CT Page 17421 matter of law. Her memorandum of law boils down to four arguments: (1) Panaroni has admitted his negligence, as evidenced by his guilty pleas in the criminal proceedings on May 21, 1999 and his statement to the police on July 26, 1998. His pleas and statement establish his negligence as a matter of law in this case; (2) the defendants' special defense fails as a matter of law because it has not specifically pleaded comparative negligence, pursuant to General Statutes §
As a threshold matter, the defendants question the admissibility of the plaintiff's documentary evidence. First, with regard to the transcript of the criminal proceedings on May 21, 1999 (Exhibit C), the defendants request the court to make an initial determination as to the adequacy of the certification. They suggest that the certification of the transcript may be similar to that of a deposition transcript and, therefore, pose similar problems regarding its acceptability. Second, with regard to Panaroni's statement to the police on July 26, 1998 (Exhibit D), they argue that it is hearsay that does not meet any established exception to its admissibility. Specifically, they argue that the document, on its face, does not meet the business document exception to the hearsay rule.
With regard to the merits of the motion for summary judgment, defendants make the following arguments in opposition: (1) the plaintiff is not entitled to use Panaroni's guilty pleas in the criminal action to establish his negligence in this civil action under the doctrine of issue preclusion (collateral estoppel) because the issues regarding the alleged statutory violations were not actually litigated in the criminal action; (2) contrary to the plaintiff's assertion, they have specifically and affirmatively pleaded a legally sufficient special defense of contributory negligence in compliance with both Practice Book §
Second, the transcript of the criminal action proceedings contains a photocopy of the certification page by the court reporter, not the original. The defendants, however, have not disputed the truthfulness or accuracy of the contents of the transcript, nor have they challenged the plaintiff's submission of the photocopy of the certification in lieu of the original. The court will, therefore, consider the transcript as it is.
The defendants are also misguided in their challenge to the Panaroni's written statement to the police (Exhibit D). Though the statement, made outside the court but offered in evidence here to establish the truth of the matter stated, is hearsay; Code of Evidence §
These two documents are, therefore, admissible evidence for purposes of the present motion for summary judgment. CT Page 17423
In the criminal proceedings on May 21, 1999, pursuant to an agreement reached by his attorney with both the state and the attorney representing Shafer's interests, Panaroni pleaded guilty to negligent homicide with a motor vehicle in violation of General Statutes §
Panaroni's July 26, 1998 written statement to the police, made shortly after the accident, states that he and Shafer attended a party around ten o'clock on the evening of July 25 and that he drank two or three beers there. Around half past one in the morning, they went to another party. While on the way, Shafer kept opening the passenger side door of the vehicle. He eventually climbed out of the moving vehicle and situated himself on its roof. Panaroni did not drink at this second party, where they stayed only for a few minutes. On the way back, Shafer kept opening the door, climbed out of the moving vehicle and placed himself on the roof again. Shafer was yelling at Panaroni to go faster. Panaroni was yelling back at him to get off the roof and looking behind when he noticed that he was approaching the turn for the street into which he had planned to turn. He "slammed on the brakes," and even though he was driving only at twenty-five or thirty miles per hour, the vehicle flipped and rested on its side.
Panaroni's statement to the police admits only that he had drunk two or three beers several hours before the accident and that he had slammed on the brakes of the moving vehicle while turning into a side street. CT Page 17424 Contrary to the plaintiff's argument, these factual admissions by themselves do not amount to a legal admission of negligence. Nor can these admissions establish negligence on the part of Panaroni as a matter of law.
Even Panaroni's guilty pleas in the criminal action cannot be used, under the doctrine of issue preclusion, to establish the legal conclusions sought by the plaintiff, that Panaroni was negligent and his negligence was the sole proximate cause of the injuries and death of Shafer. "With respect to issues determined in a criminal prosecution . . . [a] judgment in favor of the prosecuting authority is preclusive in favor of a third person in a civil action . . . against the defendant in the criminal prosecution. . . ." 1 Restatement (Second), Judgments § 85(2)(a) (1982). "The preclusive effect of a criminal judgment in a subsequent civil action `presupposes that the issue in question was actually litigated in the criminal prosecution.' 1 Restatement (Second), Judgments § 85, comment b (1982)." Rawling v. New Haven,
Panaroni's guilty pleas to negligent homicide, operating while impaired, and driving with Shafer riding on the top of the vehicle have no preclusive effect in this action because the issues of negligence and sole proximate causation were not actually litigated in that action. Panaroni may be estopped in this action to contest the facts that he has admitted in his statement and guilty pleas, that he had drunk two or three beers several hours before the accident, that he operated the vehicle with Shafer on the top, and that he slammed on the brakes when approaching the intersection. See Rawling v. New Haven, supra,
Because the guilty pleas and the statement have no preclusive effect in this action, the plaintiff has failed to show that there is no genuine issue of material fact as to her prima face case of negligence. For this reason alone, the court must deny her motion for summary judgment on count one of the complaint.
The special defense contends that Shafer's own negligence was the proximate cause of the accident and damages, that Shafer was contributorily negligent, and that his negligence was greater than the negligence of Panaroni. Specifically, the special defense alleges that (1) Shafer exited the defendant's moving vehicle through his own negligence, placing himself thereby in a dangerous situation, and (2) he knew or should have known that his action could have ended in a serious, if not deadly, result.
The defendants have thus specifically pleaded that Shafer voluntarily exited the moving vehicle and knowingly placed himself in a dangerous situation of riding on the top of the moving vehicle, and that Shafer's negligence in doing so was greater than Panaroni's negligence. In view of the specific allegations of the special defense, there is no merit to the plaintiff's argument that the defendants have not fairly pleaded comparative negligence.
There is no merit to this argument either. First, it is not disputed, at least for purposes of this proceeding, that Shafer voluntarily exited the moving vehicle and knowingly placed himself in a dangerous situation. Shafer, being an adult, knew or should have known that riding on the top of a moving vehicle was inherently dangerous. See Hinch v.Elliot,
Second, "as a matter of law, the alleged contributory negligence of a passenger riding in a vehicle is relevant in considering whether to bar his recovery. . . . The standard of care owed by the passenger of a motor vehicle is that of a reasonable and ordinarily prudent person under similar circumstances. . . . The passenger's alleged contributory negligence is therefore the proper subject of a special defense." (Citations omitted.) Caciopoli v. Acampora,
Finally, the plaintiff's reliance on the condition-cause distinction is misplaced. The distinction was first formulated in Smithwick v. Hall Upson Co.,
The plaintiff's reliance on the cause-condition distinction is misplaced because such an argument "oversimplifies our law of negligence and proximate causation and ignores the myriad of factual circumstances under which these legal principles may be established." Trzcinski v.Richey,
"`Proximate cause establishes a reasonable connection between an act or omission of a defendant and the harm suffered by a plaintiff.' W. Prosser W. Keeton, [Torts (5th Ed. 1984) § 41, p. 263]. The Connecticut Supreme Court has defined proximate cause as [am actual cause that is a substantial factor in the resulting harm. . . . The substantial factor test reflects the inquiry fundamental to all proximate cause questions, that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." (Internal quotation marks omitted.) Medcalf v. Washington Heights CondominiumAssn., Inc.,
There is ample room for reasonable disagreement as to whether Shafer's exiting from the moving vehicle and placing himself on its roof was a contributing cause of the accident. The affidavit of Panaroni, submitted in opposition to the motion for summary judgment, lends further support to the special defense that Shafer was contributorily negligent. The affidavit states that Shafer "abruptly, and without warning, exited the vehicle while it was in motion . . . proceeded to climb on top the roof of [the] vehicle. . . . [Shafer's] conduct both startled and distracted me. . . . I yelled to [Shafer], through the open sun roof, to get back in the vehicle. . . . The accident occurred, at least in part, because [Shafer's] conduct distracted me. . . ." There is ample room for reasonable disagreement as to whether that the dangers of distracting the driver and upsetting the equilibrium of the moving vehicle by Shafer's conduct were reasonably foreseeable. The same is true as to whether Shafer's conduct was a "substantial factor" in the cause of the accident or whether Panaroni's conduct was the sole proximate cause of the accident.
"[I]n light of the totality of circumstances in evidence, the plaintiffs requested [summary judgment] would effectively usurp the function of the [trier of fact] by precluding from [its] consideration evidence" relating to Shafer's alleged contributory negligence. Trzcinskiv. Richey, supra,
General Statutes
Because the defendants have asserted a legally valid special defense of contributory negligence, the comparison of negligence must be left to a jury to determine. The genuine issues of material facts as to contributory negligence created by the special defense also preclude summary judgment on count one of the complaint. See, also, Gould et alv. Mellick and Sexton,
"Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law." (Internal quotation marks omitted.) Gore v. People'sCT Page 17430Savings Bank,
"Violation of a statute often forms the legal basis of an action sounding in negligence per se. See Gore v. People's Savings Bank,
The plaintiff cites no legislative history or legal authorities, and the court is aware of none, that holds that a violation of §
The plaintiff relies on Restatement (Second), Torts § 483 (1965),17 in particular, comments b,18 c19 and d,20
to support her argument that the court should construe the legislative intent of §
Comment c to the Restatement rule clearly does not help the plaintiff because Shafer is obviously not within a class of minors deemed to be unable to protect themselves because of their own inexperience, lack of judgment or tendency toward negligence. As mentioned earlier, Shafer, as an adult, knew or should have known the risk of exiting a moving vehicle and riding on its top, placing himself in a dangerous situation. Contrary to the plaintiff's argument, Shafer was not a helpless victim, unable to protect himself. There is no allegation, let alone evidence, that he had ever pleaded with Panaroni to stop the vehicle and allow him to come off the roof of the vehicle prior to the accident. On the contrary, not only did he allegedly ignore Panaroni's pleas to come off the roof prior to the accident, he was also allegedly inciting Panaroni to drive faster prior to the accident. CT Page 17431
The plaintiff has not identified any legal authorities, and the court is aware of none, that support her argument that §
As for comment b to the Restatement rule, the court notes that the plaintiff has not briefed its applicability to her case. Comment b states that if the tortfeasor intentionally disregards a high degree of risk of harm to the victim, and so amounts, at common law, to reckless conduct, the victim's contributory negligence will not bar his recovery. "Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly." (Internal quotation marks omitted.) Ferrara v. Hospital of St. Raphael,
"A cause of action claiming wanton and reckless misconduct is `separate and distinct' from a cause of action alleging negligence. Kostiuk v.Queally,
The plaintiff, however, has failed to brief this count, and her motion for summary judgment on this count should, therefore, be deemed to be abandoned.22 See Ferrara v. Hospital of St. Raphael, supra,
Reasonable people may differ as to whether Panaroni's conduct was reckless in view of the knowing and voluntary assumption of risk by Shafer and Shafer's alleged incitement of Panaroni to drive faster. Relevant allegations made in Panaroni's statement to the police also provide room for reasonable disagreement as to whether Panaroni's conduct was reckless. The statement alleges that Shafer climbed out of the moving vehicle and onto its roof on an earlier trip to the second party on the night of accident. The accident happened on the return trip from that party when Shafer climbed out of the moving vehicle and onto its roof again. The statement alleges that the return trip was short in distance and it was during the wee hours of the morning when, presumably, there was little traffic in a small town. Panaroni alleges that he had repeatedly pleaded with Shafer, to no avail, to come off the roof. Reasonable people may differ as to whether Panaroni's conduct under these circumstances indicated a state of mind amounting to a reckless disregard of Shafer's safety. See Dubay v. Irish,
Finally, even if assuming, arguendo, that Panaroni's conduct should be deemed reckless as a matter of law, there are genuine issues of material fact as to whether Shafer's own conduct bars or at least reduces the plaintiff's recovery. It is not disputed that Shafer knowingly and voluntarily assumed a risk by exiting the moving vehicle and riding on its roof. At common law, "[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover from such harm." 2 Restatement (Second), Torts § 496A (1965).23 There are genuine issues of material fact as to whether Shafer's assumption of risk amounted to a reckless disregard of his own safety as well as the safety of the other people riding in the car. At common law, "[a] plaintiff whose conduct is in reckless disregard of his CT Page 17433 own safety is barred from recovery to the plaintiff against a defendant whose reckless disregard of the plaintiff's safety is a legal cause of the plaintiff's harm." Id., § 503(3) (1965) and comment c.24
The court is aware of no authorities that hold that a defendant is strictly and completely liable for his reckless conduct even if the plaintiff is reckless in assuming or creating an unreasonable risk to himself. The genuine issues of material facts created by the special defense and evidence submitted by the defendants preclude summary judgment on the issue of recklessness asserted in count two. Count two, like count one, must be left to the jury's determination.25
Because the plaintiff has failed to show the absence of genuine issues of material facts as to the claims asserted in both counts of the complaint, in view of the legally valid special defense and the evidence submitted by the defendants, the court denies the motion for summary judgment as to both counts of the complaint.
Jonathan E. Silbert, Judge
Wendland v. Ridgefield Construction Services, Inc. , 190 Conn. 791 ( 1983 )
Trzcinski v. Richey , 190 Conn. 285 ( 1983 )
Brock v. Waldron , 127 Conn. 79 ( 1940 )
Hinch v. Elliott , 119 Conn. 207 ( 1934 )
Decker v. Roberts , 125 Conn. 150 ( 1939 )