Opinion
FSTCV146023719S
07-07-2016
Veronica Johnson, Administrator of the Estate of Frank Johnson, Deceased v. Bernard James Esposito, II et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
Donna Nelson Heller, J.
The plaintiff Veronica Johnson, administrator of the estate of Frank Johnson, deceased, commenced this wrongful death action, returnable November 4, 2014, against the defendants Bernard James Esposito, II (Mr. Esposito) and M. Lato Construction, LLC (M. Lato Construction) for monetary damages arising from an August 11, 2011 motor vehicle collision in which the plaintiff's decedent Frank Johnson (Mr. Johnson) was fatally injured. In her revised complaint (#109.00), filed January 23, 2015, the plaintiff asserts claims against Mr. Esposito for negligence (first count), recklessness (second count), and double or treble damages under General Statutes § 14-295 (third count), and a claim against M. Lato Construction for negligent entrustment (fourth count). To date, Mr. Esposito has not answered the revised complaint.
The return date on the summons is written as November 4, 2013. As the summons is dated October 14, 2014, this appears to be a scrivener's error. The court file reflects a return date of November 4, 2014.
Mr. Esposito is identified as " Bernard James Esposito II" on the summons and as " Bernard James Esposito III" on the original complaint. His attorney appeared on behalf of " Bernard James Esposito II."
On December 3, 2014, Mr. Esposito filed a request to revise (#106.00). The plaintiff filed a revised complaint (#109.00) on January 23, 2015 and thereafter, on January 28, 2015, filed an objection to the request to revise (#110.00). The court overruled the objection (#110.01) on June 16, 2015. The plaintiff has not submitted a second amended complaint. The court will consider the first amended complaint, revised as requested, as the operative complaint.
M. Lato Construction moved for summary judgment on July 2, 2015 (#126.00). The plaintiff did not oppose M. Lato Construction's motion. The court (Heller, J.) granted summary judgment in favor of M. Lato Construction on August 17, 2015 (#126.01).
On January 29, 2016, Mr. Esposito filed a motion for summary judgment with a supporting memorandum of law and affidavits from two eyewitnesses to the collision (#131.00). The plaintiff filed an objection to the motion for summary judgment with a memorandum of law and an affidavit from another witness on March 7, 2016 (#132.00). Mr. Esposito filed a reply memorandum on March 11, 2016 (#133.00).
The plaintiff's witness did not see the actual collision. The affiant observed Mr. Esposito's driving prior to the collision and came upon the accident.
Mr. Esposito's motion for summary judgment was before the court on the March 14, 2016 short calendar. The court heard argument from counsel for the parties and reserved decision at that time. For the reasons set forth below, the motion for summary judgment is denied.
I
" 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." (Citations omitted; internal quotation marks omitted.) Connecticut Medical Insurance Co. v. Kulikowski, 286 Conn. 1, 4-5, 942 A.2d 334 (2008). " When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by [§ 17-49], must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant." (Citation omitted.) Bartha v. Waterbury House Wrecking Co., Inc., 190 Conn. 8, 11-12, 459 A.2d 115 (1983).
" Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Citations omitted.) Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 198, 319 A.2d 403 (1972). " [T]rial courts should be very cautious in granting motions for summary judgment in negligence cases." Moldavsky v. Kennedy, Superior Court, judicial district of Hartford-New Britain, Docket No. CV-94-0533433-S (Jan. 30, 1995; Corradino, J.) (13 Conn.L.Rptr. 313, ). " But all this doesn't remove from the trial courts the obligation to decide motions for summary judgment in negligence cases. And where the standard of care and reasonableness of activity or lack thereof is not in dispute granting a motion for summary judgment can be appropriate." Id.
II
The following material facts are not in dispute. On August 11, 2011, Mr. Johnson was driving a Volkswagen Jetta northbound on Route 7, also known as Danbury Road, in Wilton, Connecticut. Mr. Esposito was driving a Mack dump truck southbound on the same road. The two motor vehicles collided at approximately 9:15 p.m. Mr. Johnson suffered catastrophic injuries in the accident, which resulted in his death soon thereafter.
Mr. Esposito offers additional evidence concerning the collision in the affidavits of two eyewitnesses, Steven Cooke (Mr. Cooke) and Kimberly Fumega (Ms. Fumega), submitted in support of his motion for summary judgment. According to Mr. Cooke, Mr. Esposito's truck was proceeding in the southbound lane, several feet from the center line, when Mr. Johnson's car suddenly swerved from the northbound lane into the southbound lane and hit the truck head on in the southbound lane. Ms. Fumega stated that Mr. Esposito's truck was traveling directly in front of her vehicle, at a speed of approximately 35 miles per hour, in the southbound lane. She suddenly saw headlights coming from the northbound direction and, within seconds, drifted right into the truck. Both Mr. Cooke and Ms. Fumega asserted that the collision happened so quickly and suddenly that there was nothing that the driver of the truck could have done to avoid the accident.
While not directly refuting the affidavits of Mr. Cooke and Ms. Fumega, the plaintiff offers the counteraffidavit of Michael Lento (Mr. Lento). Mr. Lento did not witness the collision but he was traveling behind Mr. Esposito's truck on Route 7 in the minutes prior to the accident and he came upon the scene after it occurred. Mr. Lento stated that Mr. Esposito's truck was traveling at a high rate of speed, above the speed limit, and was riding the yellow line and occasionally crossing over it. Mr. Lento said that he pulled over in Ridgefield to put distance between his vehicle and the truck because of how it was being driven. Mr. Esposito has not offered any evidence in response to the affidavit of Mr. Lento.
At oral argument, counsel for the plaintiff explained that Mr. Lento never lost sight of the truck's taillights although he did not witness the accident; however, this information is not in Mr. Lento's affidavit.
Mr. Esposito contends that he has established through the two uncontroverted eyewitness affidavits of Mr. Cooke and Ms. Fumega that he was acting as a reasonably prudent motorist at the time of the collision, that he did not breach any duty of care owed to Mr. Johnson, and that none of his actions were the proximate cause of Mr. Johnson's injuries and subsequent death. Thus, according to Mr. Esposito, summary judgment should enter in his favor on all counts of the revised complaint.
The plaintiff argues that there are disputed issues of material fact, all which address the comparative assignment of negligence. The plaintiff contends that the evidence, including the affidavit of Mr. Lento, who witnessed Mr. Esposito's driving prior to the accident, shows that both Mr. Esposito and Mr. Johnson were negligent; therefore, a jury must determine the extent to which each party was at fault.
The plaintiff also suggests that there may be other witnesses to the accident who believe that the defendant was at fault.
III
In the first count of the revised complaint, the plaintiff alleges that the August 11, 2011 collision was caused by Mr. Esposito's negligence in that he drove the Mack truck at an unreasonably high rate of speed; he rode on the double yellow line and occasionally crossed over it; he failed to apply the brakes and stop the vehicle in time to avoid the collision; he failed to keep the truck under proper control; he failed to operate the truck in his lane of traffic; he failed to turn the truck to avoid the collision; he failed to keep a proper lookout for other vehicles on the highway; and he failed to yield the right of way (#109.00). The plaintiff also alleges that Mr. Esposito was negligent and violated state and federal motor vehicle laws and regulations in that he failed to keep a log book; he did not timely report to his work location; he operated the truck longer than permitted by federal law; he drove the truck with defective or inadequate brakes; he drove the truck with unsafe tires, including an inner flat tire; he drove the truck with multiple violations, including a missing right mud flap, an inoperable center rear light, and an inoperable speedometer so that he was unable to ascertain how fast he was traveling.
Mr. Esposito contends in his memorandum in support of his motion for summary judgment that none of these allegations support a legally recognizable cause of action for negligence as any such breaches as alleged were not the proximate cause of the collision and resulting injuries."
" Negligence involves the violation of a legal duty [that] one owes to another, in respect to care for the safety of the person or property of that other . . . The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Citations omitted; internal quotation marks omitted.) O'Donnell v. Feneque, 120 Conn.App. 167, 171, 991 A.2d 643, cert. denied, 297 Conn. 909, 995 A.2d 637 (2010). Whether a defendant owes a duty of care is a question of law. Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). Whether a defendant has violated a duty in a specific case is a question of fact. See Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012). The issue of causation is also " essentially a factual issue . . . It becomes a conclusion of law . . . when the mind of a fair and reasonable [person] could reach only one conclusion . . ." (Internal quotation marks omitted.) McDermott v. State, 316 Conn. 601, 616, 113 A.3d 419 (2015). Overall, " [s]ummary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
Our Supreme Court's decision in Fogarty v. Rashaw, 193 Conn. 442, 476 A.2d 582 (1984), is instructive. Fogarty arose from a two-car collision. The defendants moved for summary judgment and submitted the affidavit of a witness who was driving behind the defendant operator at the time of the accident in support of their motion. The witness said that the operator of the vehicle in which the plaintiff was a passenger was driving erratically and crossed the center line of the road three or four times into the lane of oncoming traffic just before the collision. The witness also stated that the defendant operator was traveling at a reasonable speed and had applied his brakes when the other vehicle crossed the center line, and that the other driver was responsible for the accident. Id. at 443. The plaintiff filed an affidavit in response but said nothing concerning the cause of the collision. Id. at 444. The trial court granted summary judgment in favor of the defendants.
In reversing the decision of the trial court, the Supreme Court explained that " [t]he failure of the plaintiff to controvert . . . any of the facts set forth in the [defendants'] affidavit entitled the court in deciding the summary judgment motion to rely upon those facts as stated . . . The affidavit relied upon [by the defendants], however, addressed only [some of] the plaintiff's allegations . . . The affidavit contains no facts to refute the plaintiff's [other] allegations [of negligence]. It did not even purport to show the nonexistence of all the issues of fact raised by the pleadings relating to common-law negligence . . . Since these factual issues, contested in the pleadings and not even referred to in the defendants' affidavits, remained unresolved, the court was clearly in error in granting the motion for summary judgment." (Citations omitted; internal quotation marks omitted.) Id. at 444-45. The court is faced with a similar situation here.
In this case, there is undisputed evidence that Mr. Johnson crossed into the southbound lane of Route 7, that the collision happened suddenly, and that Mr. Esposito had no time to react. As in Fogarty, the court may rely upon these facts and infer from them that Mr. Esposito could not have applied the brakes, or stopped the truck, or turned to avoid the collision. There is conflicting evidence, however, as to whether Mr. Esposito drove his truck at an unreasonably high rate of speed and rode close to or occasionally crossed over the yellow line. Finally, there is no evidence regarding whether Mr. Esposito failed to keep a proper lookout for other vehicles on the highway or failed to yield the right of way. As Fogarty points out, it was Mr. Esposito's burden, as the moving party, to show the nonexistence of all issues of fact raised by the pleadings. Mr. Esposito has not met that burden here.
There is also no evidence as to the plaintiff's other allegations of negligence, which concern Mr. Esposito's alleged violation of state and federal motor vehicle laws and regulations.
Viewing the evidence in the light most favorable to the plaintiff, the court cannot conclude, as a matter of law, that Mr. Esposito was not negligent. Therefore, Mr. Esposito's motion for summary judgment is denied as to the first count of the revised complaint.
IV
In the second count of the revised complaint, the plaintiff alleges that the collision was caused by the recklessness of Mr. Esposito in that he deliberately, and with reckless disregard, operated the truck unreasonably fast in violation of General Statutes § 14-218a.
The issue of whether a defendant's alleged conduct rose to the level necessary to support a legally cognizable claim for recklessness is an appropriate matter for summary judgment. See Angiolillo v. Buckmiller, 102 Conn.App. 697, 705, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007). " Reckless misconduct refers to highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . 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 . . . Recklessness, therefore, is more than negligence and also is more than gross negligence." (Citations omitted; internal quotation marks omitted.) Rubel v. Wainwright, 86 Conn.App. 728, 740-41, 862 A.2d 863, cert. denied, 273 Conn. 919, 871 A.2d 1028 (2005).
In support of his motion for summary judgment, Mr. Esposito argues that there is no evidence that he was traveling at an unreasonable rate of speed. He also claims that his non-negligent behavior cannot be reckless. The plaintiff does not respond to these arguments.
Mr. Esposito's arguments are flawed. First, as discussed above, there is conflicting evidence regarding the speed at which he operated the truck. Second, although it may be true that non-negligent behavior cannot be reckless; Rubel v. Wainwright, supra, 86 Conn.App. at 741; there has been no finding that Mr. Esposito's behavior was not negligent. Accordingly, Mr. Esposito's motion for summary judgment is denied as to the second count of the revised complaint.
V
In the third count of the revised complaint, the plaintiff alleges that the " injuries, losses and the death of [Mr. Johnson] were caused by [Mr. Esposito's] willful, wanton or reckless misconduct in violation of [General Statutes § § 14-218a and 14-230] and such violation(s) were a substantial factor in causing injury and ultimate death to the plaintiff's decedent, Frank Johnson." The plaintiff alleges that Mr. Esposito deliberately operated the truck at a rate of speed that was likely to cause imminent harm to and endanger the life of Mr. Johnson, in violation of General Statutes § 14-218a, and failed to operate his vehicle on the right side of the road, in violation of General Statutes § 14-230. The plaintiff seeks double or treble damages pursuant to General Statutes § 14-295.
General Statutes § 14-295 provides in pertinent part that " [i]n any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property."
In moving for summary judgment with respect to the third count of the revised complaint, Mr. Esposito contends that the court cannot find that he was driving recklessly because the material facts, as established by eyewitness affidavits, are that he was driving his truck at a speed of approximately 35 miles per hour and that Mr. Johnson's actions were the proximate cause of the collision. As stated above, Mr. Esposito has not met his burden of showing that no genuine issues of material fact exist. Accordingly, Mr. Esposito's motion for summary judgment is denied as to the third count of the revised complaint.
VI
For the reasons set forth above, the motion for summary judgment of the defendant Bernard James Esposito, II (#131.00) is DENIED.