DocketNumber: No. 116645
Citation Numbers: 2001 Conn. Super. Ct. 5309
Judges: CORRADINO, JUDGE.
Filed Date: 4/12/2001
Status: Non-Precedential
Modified Date: 4/17/2021
In both the complaint brought by the mother, Robin Tine, and the apportionment complaint, it is alleged that Dean Tine violated §
Dean Tine has now filed a motion for summary judgment directed against the claims of the plaintiff administratrix, Robin Tine, and the apportionment complaint. He argues that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law with regard to the counts directed against him.
The principles governing the standards to be used in deciding whether such a motion should be granted have been often repeated in the cases. The evidence presented must be viewed in the light most favorable to the nonmoving party and, of course, the party advancing the motion must show the absence of any genuine issue as to material facts which would entitle that party to judgment. All of this is so because parties have a constitutional right to a jury trial; therefore, if there is a genuine issue as to a material fact, the court entertaining such a motion cannot decide it, see cases cited by defendants Kent Baker, administrator of the Mallory estate and Richard Geiler, Rivera v. AA Transportation, Inc.,
What is the basis here for the motion for summary judgment?
The grounds for the motion for summary judgment are based on two affidavits submitted by Dean Tine. In those affidavits Tine makes a series of statements:
(1) There was sufficient room between the driver's seat and the car seat in which the child Seth was located so that Tine could operate his van without any interference, crowding or hampering. CT Page 5311
(2) Tine's ability to operate the van was never impeded in any way by Seth or Colton or the car seat or because there were three people in the van as opposed to two
(3) Tine was not crowded in any way in operating the van by the two children or the car seat or because there were three people in the car not two
(4) Tine was not hampered in the operation of his vehicle by the children or the car seat or because there were three people in the car not two.
(5) The positioning and/or the seating of the two children did not in any way interfere with Tine's ability to operate the van.
(6) Prior and at the time of the collision, Tine was able to operate all the van's controls, including the gas pedal, turn signals, horn, emergency brake, lights and steering wheel.
(7) At the times just mentioned, there was sufficient room between his driver's seat and Seth's car seat so that he was able to operate all these controls without any interference.
(8) At the times mentioned, Tine's view out of the car, including his view of the van's mirrors, was never restricted, blocked or affected by having Seth in the car seat.
(9) At the times mentioned neither the car seat or Seth distracted Tine from driving or caused his attention to be diverted from operating the car.
Based on the affidavits submitted in his behalf, Dean Tine argues that he has made "an unambiguous showing" that he was not hampered or crowded in his operation of the van by having three people in the vehicle so there can be no liability under §
The motion for summary judgment is opposed on two grounds. First, it is argued that "conclusory statements by Mr. Tine in the affidavit submitted along with his motion for summary judgment that he was not `crowded or hampered' are not admissible and cannot be used as a basis for the court granting summary judgment in favor of Mr. Tine."
Secondly, there is alleged to be other evidence which raises a material issue of fact as to whether Tine violated §
This evidence comes from Tine's own expert, the expert retained to testify against Tine's position, and Tine's deposition testimony.
The Tine affidavits do more than paraphrase the language of the statute, however. The November 20 affidavit states that Tine could "fully operate all the controls" which included the gas pedal, turn signals, horn, emergency brake and steering wheel. It states there was sufficient room between his seat and Seth's car seat so he "was able to operate all the controls without any interference." His view out of the car was not restricted or blocked by the location of the child's car seat and his "ability to operate" the van was never impeded by this car seat or because there were three people in the van. Neither Seth's car seat nor the child distracted him from operating his car. All of these predicate statements of opinion cover the universe of what a jury would have to consider on the way to deciding whether under the circumstances of this case Dean Tine was crowded or hampered in the operation of the vehicle because more people were in the van than was reasonable and for whom safe seating was provided (see statutory language of §
Unlike the Federal Rules of Evidence, see § 704 of those rules, our § 703 takes a harsher view on the admissibility of lay opinion on the ultimate issue — our rule seems to place an absolute bar on considering such lay opinions by the trier of fact and, therefore, by the judge considering a motion for summary judgment (see commentary to § 703). Thus, it can be argued that the court should not consider those paragraphs of the Tine affidavit that contain the not crowded or hampered
in the operation of the vehicle language which is the very language that §
From this perspective, then, the court must initially determine whether the statements in the Tine affidavits, apart from references to his not being crowded or hampered are proper subjects of lay opinion; those opinions being that he could fully operate all the car's controls, there was sufficient room so he was able to operate controls in the car, he was not distracted, he had the ability to operate his car in an unimpeded way despite the car seat and the presence of Colton. What are the tests to CT Page 5314 determine if lay opinion such as this may be received. The court could find no case in Wigmore, McCormick or generally in our state that addresses the problem in the factual context now before the court but general language from a leading Connecticut case and two other non Connecticut cases is helpful.
In Atwood v. Atwood,
A Missouri case offers a concise statement of the general common law rule. In Brawley v. Esterly,
"The answers of the witness were statements of his "cause and effect", "matter of fact" comprehension of things he had seen which were like those he had often personally observed in the ordinary experiences of everyday life. His answers were opinions or conclusions in a sense, but they were not all objectionable for that reason. In many cases where the thing a witness has seen is impossible or difficult of description to a jury precisely as it appeared to the witness at the time he saw it, the nonexpert witness may properly testify in a comprehensively descriptive manner which is in a sense an opinion, or a conclusion ordinarily within the province of the jury. It would seem it is of greater aid to the jury for him to say it that way, because the nature of a thing, difficult of description, may be more clearly conveyed to the jury that way than if the witness were obliged to use verbiage meticulously describing the minute physical aspects of the thing.
In State v. Cox,
"The practical test for receiving or rejecting the opinion of a lay witness is that when the jury can be put into a position of equal vantage with the witness to form an opinion, the witness may not ordinarily give opinion evidence.
Perhaps most illuminating is the discussion in Weinstein's FederalEvidence, 2d Ed, Vol. 4, pp. 701-5, et seq where he discusses Rule
1. "The first limitation placed on lay opinion testimony by Rule 101 is that the opinion must be based on the personal perception of the witness. The witness must be testifying from some combination of his or her own personal observation, knowledge and past experience . . .
. . . .
2. (such testimony also) must be `rationally' based on the perception (of the witness). . . . In general, courts use an objective "reasonable person' test to determine whether the rational basis requirement is satisfied. Whether a reasonable person would form the opinion reached by the witness on the basis of the perceived fact is determined on a case by case basis
. . . .
3. Lay testimony must be helpful to either a clear understanding of the witness's testimony or the determination of a fact in issue . . . to determine `helpfulness' the trial judge will consider a number of overlapping factors including the following
(1) Whether the lay witness is in a better position than the jury to form the opinion.
(2) Whether the witness has specialized knowledge that the jury does not have. CT Page 5316
(3) Whether a bald rendition of the facts is insufficient to convey the complete situation to the jury.
(4) Whether the witness is speaking in a way that is perfectly natural and comprehensible, for example, `Jones looked sick to me'."
(Emphasis and numbering added by court.)
Weinstein in effect summarizes the holding of Atwood and the two other common law cases cited previously. Applying these tests should the court consider the opinions offered by Tine in his affidavit about his ability to operate his van unimpeded by Seth's seat or Colton's and Seth's presence, view out of his car, and reach and use various controls in his car?
The answer seems fairly obviously yes. Tine's statements in this regard are only based on his personal perception of the situation he found himself in at the time of the accident. His statements seem to berationally based on his actual perceptions in that they do not involve speculation or guess work but perceptions he could gather while he was, in fact, actually operating his car — the operation of which, location of controls and mirrors enabling him to view outside would be known to him, i.e. it's his car. The testimony would be helpful — obviously Tine would be in a better position to reach conclusions as to these representations than any member of the jury — he was sitting in the driver's seat of a car he owned and could be presumed to be familiar with. No "bald rendition" of facts "such as distances from driver's seat to child car seat, from driver's foot to various peddles, driver's line of site to various mirrors could possibly be sufficient "to convey the complete situation to the jury." As noted in Atwood, the "constituent facts and conditions" to convey Tine's impressions are so numerous" and "incapable of separation," how else could his belief that he had the ability to drive unimpeded, make observations, and reach his controls be conveyed to him by the jury.
The court will accept Tine's representations and can rely on them to establish at least a prima facie case that his operation of the vehicle was not crowded or hampered by the location of Seth Tine's car seat, or the fact that Seth and Colton were in the car along with Mr. Tine although the vehicle only had two car seats. Is there any other evidence which raises a material issue of fact precluding the granting of this motion?
What substantive evidence has been offered in opposition to the motion CT Page 5317 in light of the Tine affidavit? The court has been presented with excerpts from the affidavits of Robert Mantho, an expert retained by Mr. Tine, Mr. Plante, an expert retained by the opponents of this motion and Dean Tine. What must be emphasized in this discussion is that the only allegation of negligence as to Dean Tine involves a claim under §
In opposition to the motion, the deposition testimony of Robert Mantho is relied upon. He is an expert retained by Mr. Tine. Mr. Mantho described the seats in the car; there were two and they had seat belts and safety restraints. Mantho said there was a car seat in the Tine vehicle described as a child restraint system. This was the seat Seth was in, it was unsecured according to Mantho's understanding. Mantho further testified that if the car seat's child restraint system could not be secured to the vehicle in his opinion as a forensic engineer, only two people could ride in the car with reasonable safety. He concluded that only two people could be in the vehicle and be reasonably safe when on the road.
Insofar as reference to Mantho's deposition testimony invites the court to consider the failure to use a child restraint system as a reason to deny the motion for summary judgment, this would seem to be impermissible under the explicit language of §
But perhaps even more fundamentally nothing Mantho is referenced as saying has any bearing on whether the provisions of §
The motion is also opposed by reference to Mr. Tine's deposition. Tine noted that Seth was located in an unattached car seat in his two passenger seat vehicle. He stated he could reach the driver's seat from CT Page 5318 where he was sitting and the space between his driver's seat and the car seat was four inches. Tine stated that when the accident happened he cannot remember whether he was looking straight ahead or what he was doing. Although conditions were clear he did not know where the other car came from and he only saw it a split second before impact and had no time to react. Counsel argues at page 12 of his brief that this testimony shows Tine "was not paying attention or he was distracted." It is further argued that a violation of §
The problem with this analysis is that §
The opposition to the motion is also based on the deposition testimony of Peter Plante, an accident reconstruction expert. Plante testified that Tine had several seconds to observe the Mallory vehicle and avoid it "if he had been paying attention"; he opined that Tine was probably not paying attention to road conditions. Mr. Plante said Mr. Tine only had two options, not transport Seth because there was no seat or secure the seat permanently to the floor of the vehicle. Plante also said that if Seth had been properly belted in a secured seat he would not even have received severe injuries. According to Plante, with headlights on and a painted center line, Tine should have seen Mallory's car and could have avoided it "if Dean Tine was using reasonable care" (p. 14 of 11/1/01 brief).
From all of this the brief goes on to argue that "the jury can conclude that the placement of the car seat with Seth Tine in it did "hamper' the operation of the vehicle by Dean Tine." The jury is "free to infer that the reason (Tine) was not paying attention was that he was concerned about his son in a loose car seat and this averted his attention away from the roadway."
The problem remains; although a jury is entitled to and a trial court hearing a motion such as this may rely on circumstantial evidence based on reasonable inferences, jury or judge cannot resort to guesswork or conjecture under the guise of relying on such evidence. There is nothing in Mr. Plante's deposition testimony which would allow the jury or this court to not just conclude Mr. Tine was inattentive but then to further conclude that the unattentiveness was brought about by a violation of §
The motion for summary judgment is granted.
Corradino, J. CT Page 5320