Opinion
No. CV01-034 28 34 S
May 5, 2003
MEMORANDUM OF DECISION
FACTS
On May 31, 2001, the plaintiffs, Lynne Farah, individually, and as parent of her minor daughter Karissa Bergeron, filed a three-count complaint against the defendants, Wendall Hovey and Allstate Insurance, seeking damages arising out of a car accident that occurred on April 5, 2001 between Hovey and Bergeron. The plaintiff's complaint alleges that Bergeron was traveling westerly on Route 302 in Newtown, Connecticut at approximately 7:04 P.M. on April 5, 2001, when Hovey, attempting to enter Route 302 by taking a left from Sugar Lane, crossed Bergeron's lane of traffic and caused the automobiles to collide.
The complaint contains three counts. In count one, Farah alleges a claim against both defendants for the personal injuries Bergeron suffered as a result of the accident. Count two sets forth Farah's individual claim, against both defendants, for property damage to her car. Count three is Farah's claim against Allstate only for intentional infliction of emotional distress for its handling of the issues related to this accident.
Bergeron was driving Farah's car the time of the accident.
On December 12, 2002, the plaintiffs filed a motion for summary judgment as to the liability of Hovey only. In addition to their memorandum in support, the plaintiffs submit Bergeron's affidavit, the police report, the statement of a witness, Michelle Schettino, the complaint, Hovey's answers to the plaintiffs' complaint, and Hovey's responses to the plaintiffs' interrogatories.
On January 3, 2003, Hovey submitted his opposition to summary judgment. In support thereof, Hovey submits a memorandum of law, his own signed and sworn affidavit, a copy of a report on the property damage to Farah's car, a copy of his vehicle's damage estimate report and an investigative summary report prepared by Countermeasures Investigative/Surveillance, LLC.
DISCUSSION
"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.) Gaynor v. Payne, 261 Conn. 585, 590-91, 804 A.2d 170 (2002). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
The plaintiffs now move for summary judgment against Hovey as to liability only on the ground that there is no genuine issue as to any material fact and they are entitled to judgment as a matter of law. The plaintiffs argue that because the evidence shows that Bergeron was traveling within the speed limit, did not violate any traffic control signals, and Hovey crossed Bergeron's lane of traffic in an attempt to enter Route 302, there is no material issue as to Hovey's liability in this case. In addition, the plaintiffs argue that summary judgment should be granted in their favor because Hovey did not assert any special defenses or claim that Bergeron was responsible for the accident.
In opposition to the motion for summary judgment, Hovey argues that because he has denied the plaintiffs' allegation of negligence in his answer and material issues of proximate cause exist, summary judgment should be denied. In paragraph five of his affidavit, Hovey states that he came to a complete stop prior to entering Route 302, looked both ways and did not see any traffic before he entered the highway. Further, in paragraphs eight and eleven he states that he observed a long stretch of tire skid marks left by Bergeron's car and that she was speeding at the time she crashed into his vehicle.
"In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury." LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "The issue of proximate causation is ordinarily a question of fact for the trier . . . Conclusions of proximate cause are to be drawn by the jury and not by the court." (Citation omitted; Internal quotation marks omitted.) Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983). "Although the issue of causation generally is a question reserved for the trier of fact . . . the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted based on a failure to establish causation." (Internal quotation marks omitted.) Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997). That the plaintiffs' evidence indicates that Bergeron may not have been responsible for the accident does not inevitably lead to the conclusion that Hovey's conduct was the proximate cause thereof. Moreover, Hovey presents sufficient evidence to raise a genuine and material issue of fact as to the proximate cause of the accident.
Because summary judgment "is appropriate only if a fair and reasonable person could conclude only one way"; Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995); the plaintiffs' motion for summary judgment is denied.
White, J.