Opinion
KNLCV166025707S
06-01-2017
Claire Buckeridge v. Claudia Schkeeper et al
UNPUBLISHED OPINION
OPINION
Robert F. Vacchelli, Judge.
RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This case is an action by the plaintiff, Claire Buckeridge, seeking money damages for injuries sustained in a motor vehicle accident on April 28, 2015 on Route 1 in East Lyme, CT. She alleges that the car which she was driving was hit, head-on, by the defendants' vehicle. The defendants are Claudia Schkeeper, the driver of the other vehicle, and Daniel G. Schkeeper, the owner of that other vehicle. Pending before the court is a motion for summary judgment by the defendants seeking judgment in their favor as to claims made in subparagraphs 5(d), (e) and (l) of the First Count and as to the entire Second and Third Counts of the operative Amended Complaint. The court finds that the material facts are not in dispute and that the defendants are entitled to judgment as a matter of law on all of those claims. Therefore, the motion for summary judgment is granted and judgment shall enter in favor of the defendants as to claims made in subparagraphs 5(d), (e) and (l) of the First Count and as to the entire Second and Third Counts of the operative Amended Complaint. The case shall remain pending as to the rest and remainder of the claims in the case.
I
The law governing summary judgment is well-settled. As our Appellate Court has summarized:
Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings. (Citation omitted; internal quotation marks omitted.) Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 809, 768 A.2d 950 (2001).
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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 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. (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).
It is frequently stated in Connecticut's case law that, pursuant to Practice Book § § 17-45 and 17-46, a party opposing a summary judgment motion " must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1, 4, 724 A.2d 1143 (1999). As noted by the trial court in this case, typically " [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred." (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). Moreover, " [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Citations omitted; internal quotation marks omitted.) Id., 244-45.Rockwell v. Quintner, 96 Conn.App. 221, 227-29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
The Practice Book further mandates that " [a]ny adverse party shall at least five days before the date the motion is to be considered on short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already part of the file, shall be filed and served as are pleadings." Practice Book § 17-45. " Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46.
II
In support of their motion, the defendants filed excerpts from the transcripts of depositions of the plaintiff, Claire Buckeridge, and of the defendant, Claudia Schkeeper. The plaintiff files excerpts from the same transcripts, and files a copy of the police report from the accident.
Based on the materials supplied, and viewing the evidence in the light most favorable to the opponent as required, the court finds that the following pertinent, material facts are not in dispute: The plaintiff, Claire Buckeridge, was driving home from work shortly after 5 p.m. on April 28, 2015. She was driving westbound on Route 1 in East Lyme taking a slight curve to the left when she observed a car driving in the opposite lane fail to make the curve and drift onto her side of the road. She testified, " It wasn't a sharp movement; it was more of a veering." The cars collided, head-on. She was knocked unconscious and has no other recollection of the pertinent events.
The driver of the other car was the defendant, Claudia Schkeeper. She was driving home with her two young daughters in the car, having picked one of them up from ballet class. She was driving the speed limit, and not using a cell phone or the radio controls. Approaching the curve on Route 1, she saw an insect on the inside of the windshield in front of her to the left. She does not like insects. In response to questions posed at her deposition, she answered as follows:
A. . . . I was driving. And I saw an insect in my window. So I wanted the insect out. So I pressed the button to roll down my window. And then I opened my eyes, and we were in the accident.
Q. Okay.
A. Yeah.
Q. You don't actually remember seeing a vehicle coming at you?
A. No.
Q. No? The last thing you remember is rolling down the window?
A. Yes. And seeing the insect.
Q. What kind of an insect was it?
A. Long with wings.
Transcript of Deposition of Claudia Schkeeper, June 14, 2016, p. 22.
III
The defendants seek summary judgment arguing that judgment should enter in their favor as a matter of law as to claims made in subparagraphs 5(d), (e) and (l) of the First Count and as to the entire Second and Third Counts of the operative Amended Complaint. The issues are discussed, seriatim.
A
With respect the First Count, which alleges negligence as to both defendants, the amended complaint reads, in pertinent part, as follows:
5. The collision and resulting injuries to the Plaintiff were caused by the negligence, carelessness and statutory violations of the Defendant, Claudia Schkeeper, in one or more of the following ways, in that she:
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d. violated Section 14-296aa of the Connecticut General Statutes by operating an electronic device while operating her motor vehicle;
e. violated Section 14-296aa(b)(1) of the Connecticut General Statutes by operating her motor vehicle while typing, sending, and/or reading text messages from her cellular telephone;
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l. operated her motor vehicle while operating an electronic device. Amended Complaint, First Count.
At oral argument on the motion for summary judgment, counsel for the plaintiff expressed no objection to the granting of summary judgment in favor of the defendants on this point. Accordingly, summary judgment may enter in favor of the defendants as to the claims made in subparagraph 5(d), (e) and (l) of the First Count of the Amended Complaint.
B
The Second and Third counts allege statutory and common-law recklessness, respectively, as to the defendant Claudia Schkeeper. The Second Count alleges statutory recklessness, in pertinent part, as follows:
3. Said collision and the resulting injuries and the damages of the Plaintiff were caused by the reckless conduct and statutory violations of the Defendant in one or more of the following ways, in that she:
a. Violated § 14-218a of the Connecticut General Statutes by operating her motor vehicle with conscious disregard for the safety of others by accelerating her motor vehicle at a high rate of speed while taking her hand off of the wheel and attempting to remove an insect from her motor vehicle and crossing over the center line in the roadway directly into the front of the Plaintiff's vehicle, when she knew or should have known of the risk and danger that such conduct created, yet ignored said risk and danger, and
b. Violated § 14-222 of the Connecticut General Statutes by operating her motor vehicle in a reckless and dangerous manner without having due regard to the width, traffic, and use of the roadway by operating her motor vehicle at a high rate of speed while taking her hand off of the wheel and attempting to remove an insect from her motor vehicle, yet chose to proceed anyway crossing over the center line in the roadway directly into the front of the Plaintiff's vehicle, yet chose to proceed anyway placing the Plaintiff in extreme danger.
4. Said reckless conduct and statutory violations were in violation of Connecticut General Statutes § 14-295 and were a substantial factor in causing the collision and the Plaintiff's injuries and damages which resulted therefrom.
Amended Complaint, Second Count.
Similarly, the Third Count alleges common-law recklessness, in pertinent part, as follows:
3. Said collision and the resulting injuries and the damages of the Plaintiff were caused by the reckless conduct of the Defendant in one or more of the following ways, in that she:
a. Operated her motor vehicle with conscious disregard for the safety of others by accelerating her motor vehicle at a high rate of speed while taking her hand off of the wheel and attempting to remove an insect from her motor vehicle and crossing over the center line in the roadway directly into the front of the Plaintiff's vehicle, when she knew or should have known of the risk and danger that such conduct created, yet ignored said risk and danger; and
b. Operated her motor vehicle in a reckless and dangerous manner without having due regard to the width, traffic, and use of the roadway by operating her motor vehicle at a high rate of speed while taking her hand off of the wheel and attempting to remove an insect from her motor vehicle, yet chose to proceed anyway crossing over the center line in the roadway directly into the front of the Plaintiff's vehicle, yet chose to proceed anyway, placing the Plaintiff and others in extreme danger.
4. Said reckless conduct was a substantial factor in causing the collision and the Plaintiff's injuries and damages which resulted therefrom.
Amended Complaint, Third Count.
Both statutory and common-law recklessness contemplate the same standards. " Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent." (Citations omitted; internal quotation marks omitted.) Bishop v. Kelly, 206 Conn, 608, 614-15, 539 A.2d 108 (1988). Thus, " Recklessness is a state of consciousness . . . It is more than negligence, more than gross negligence . . ." (Citations omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003). " [S]uch aggravated negligence must be more than mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . ." (Citation omitted; internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corporation, 317 Conn. 357, 383, 119 A.3d 462 (2015).
In the instant case, in both counts, the plaintiff relies on the same facts supporting her claims for recklessness, i.e., that the defendant was paying attention to the insect instead of the road when the accident occurred. While that might be negligent, see, e.g., Marciano v. Marciano, 15 Conn.Supp. 492, 493 (1948) (driver distracted by wasp negligent); but see, Lussan v. Grain Dealers Mut. Ins. Co., 280 F.2d 491 (5th Cir. 1960) (driver distracted by wasp not negligent), it has long been held that it is not reckless. In an action under the former guest statute, where the plaintiff passenger was injured when the defendant driver lost control of her car and hit a fence while trying to opening a window to remove a bee from the cabin of the car, our Supreme Court held that, " The whole evidence shows beyond doubt that the accident was due to the fact that the attention of the defendant was momentarily distracted from the operation of the car because of a not unnatural reaction to the presence of the bee near or on her person . . . the situation could not reasonably be held to disclose a reckless and heedless disregard by the defendant of the right of the plaintiff, within the terms of the statute . . ." Rindge v. Holbrook, 111 Conn. 72, 74, 149 A.231 (1930).
The guest statute of that time provided: " No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others." Public Acts 1927, ch. 308, § 1.
Plaintiff argues that summary judgment should be denied in this case, notwithstanding the Rindge case precedent, because there remains genuine issues of material fact in the instant case as to whether the defendant operator's conduct exhibited a reckless disregard for the just rights or safety of others or of the consequence of her actions. She argues that " the Defendant Operator chose to take her eyes off the road and hand off the wheel to get a harmless insect out of her car, despite her awareness of a variety of conditions and factors that made it highly dangerous for her to do; she knew that she was driving around a curve in the road while traffic was oncoming in the opposite direction on a heavily traveled main roadway. The Defendant did not have an 'excited and startled distraction; ' indeed, the plaintiff testified that the Defendant Operator did not make a sharp movement into the Plaintiff's lane, but it was more of a 'veering.' . . . The Defendant Operator made a conscious choice to look at the insect, made a decision to take her eyes off the road, and made a decision to take her hand off of the wheel. As such, a jury could reasonably conclude that the Defendant Operator operated recklessly, knowing that her actions were wrong, thereby endangering the lives of others, including the Plaintiff." Plaintiff Brief, pp. 18-19 (emphasis in original).
The court is not persuaded. Ordinarily, the summary judgment procedure is particularly inappropriate where the inferences which the party seeks to have drawn deal with questions of motive, intent and subjective feelings and reactions. See Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). However, in this case, the defendant has testified that her motivation was to get a large insect out of her car, a " not unnatural reaction" according to longstanding Supreme Court precedent. Rindge v. Holbrook, supra, 111 Conn. 74. The plaintiff has offered no affidavit from any witness with personal knowledge of the events, and she supplies no plausible evidence in the record that disputes the statements of the defendant driver in regard to her intent. Under these circumstances, summary judgment in favor of the defendant is appropriate. Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 108 citing Mingachos v. CBS, Inc., 196 Conn. 91, 114, 491 A.2d 368 (1985).
IV
For all of the foregoing reasons, the court finds that the material facts are not in dispute and that the defendants are entitled to a judgment as a matter of law as to claims made in subparagraphs 5(d), (e) and (l) of the First Count and as to the entire Second and Third Counts of the operative Amended Complaint. Therefore, the motion for summary judgment is granted and judgment shall enter in favor of the defendants on those claims. The case shall remain pending as to the rest and remainder of the claims in the case.