Joseph Wright, Administrator v. DB (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (No. 157)

The motion for summary judgment now before the court arises out of a tragic accident that claimed the life of the plaintiff's decedent, Kristie Wright (“Wright”).

The submissions of the parties establish that, on January 22, 2002, the proponent of the motion, defendant Sohail Lodhi, leased a retail store and gasoline station in Manchester.   The premises were subleased from the named defendant, DB Companies, Inc. (“DB”).  The premises were directly at the foot of a T-intersection, with Pine Street pointing directly at the pumps.   On the day in question, while Wright was filling her car at one of the pumps, a motorist named Axel Kjellberg, heading down Pine Street, lost control of his car and drove directly into Wright's car, pushing it into the gas pumps.   Gasoline exploded, fatally injuring Wright.   Her administrator subsequently commenced this action against a number of defendants, including Lodhi, suing in both his administrative and (for loss of consortium) spousal capacities.

Counts Five, Six, Seven, and Eight of the Sixth Amended Complaint are directed against Lodhi.   Counts Five and Six (the wrongful death and loss of consortium counts will be considered together) allege dangerous and defective premises because of the absence of a barrier between Pine Street and the pumps.   Counts Seven and Eight allege negligence, contending that Lodhi's clerk failed to press an emergency button to shut off the flow of gasoline in a timely manner.

Lodhi filed the motion for summary judgment now before the court on April 12, 2010.   The motion claims, as to Counts Five and Six, that the premises were not unreasonably dangerous or defective and, as to Counts Seven and Eight, that the clerk's failure to press the emergency button was not the proximate cause of Wright's injuries and death.   The motion was argued on June 15, 2010.   At argument, the plaintiff was given additional time to submit additional evidence concerning Counts Seven and Eight.   On July 28, 2010, the plaintiff filed a letter requesting that the court “decide the pending motion for summary judgment based on the existing record.”

The portion of the motion addressed to Counts Five and Six merits little discussion.   Unhappily, neither party has submitted photographs of the premises, but the diagram of the premises submitted by the plaintiff establishes that the question whether the defendant's failure to erect a protective barrier in these circumstances created defective or dangerous premises presents “a classic jury question.”  Johnson v. Hatoum, 239 So.2d 22, 27 (Fla.Dist.Ct.App.1970), cert. dismissed, 244 So.2d 740 (Fla.1971).   While Lodhi has submitted evidence that his lease prohibited him from changing the position of the pumps, he has made no showing that he was similarly prevented from erecting a protective barrier.

The portion of the motion addressed to Counts Seven and Eight presents a more complex problem.   At argument, both parties agreed on the pertinent question:  was the clerk's failure to press the emergency shut-off button the proximate cause of Wright's injuries?   The problem, however, is that the plaintiff depends on speculation for the answer.   Lodhi has submitted a letter from Rudy Kissmann, the Manchester Fire Marshal, stating that, “I do not believe this contributed to the extension of the fire, due to the fact that the emergency breakaways. (three), located in the ground for the pumps, operated properly.”   Lodhi has additionally submitted deposition testimony of Marshal Kissmann stating that, “Whether or not the button was pushed within the station or the sheer protection [sic], there would be a certain amount of gasoline within the hoses and the dispensing unit ․ [I]f the fuel stopped, even if the person hit the kill switch, it may not have had any difference.”  (Kissmann deposition at 90, 93.)

The plaintiff has submitted no evidence factually contradicting Lodhi's evidence on this point.   The plaintiff argues, however, that the fact finder could nevertheless conclude that the “amount of gasoline within the hoses and the dispensing unit” would have been insufficient to cause the injuries that she, in fact, suffered.   The problem is that the plaintiff has submitted no expert (or indeed any) evidence to substantiate this claim.   Although specifically invited to do so at argument, the plaintiff has declined the invitation.

The Appellate Court has recently reminded us that:

A plaintiff must establish that the defendant's conduct legally caused the injuries ․ The first component of legal cause is causation in fact.   Causation in fact is the purest legal application of ․ legal cause.   The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct ․ The second component of legal cause is proximate cause ․ The test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries ․ Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the defendant's conduct ․ The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection ․ This causal connection must be based upon more than conjecture and surmise.

Shukis v. Board of Education, 122 Conn.App. 555, 583 (2010).  (Internal quotation marks, brackets, and citation omitted.)

Looking at the submitted evidence in the light most favorable to the plaintiff, the court concludes that the question whether the “amount of gasoline within the hoses and dispensing unit” would or would not have been sufficient to cause the injuries that Wright suffered is simply beyond the experience of an ordinary factfinder.   Expert evidence is consequently required.  Santopietro v. City of New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996).   For any fact finder without the requisite technical training and experience, providing an answer to this question would require “conjecture and surmise.”   On the basis of the evidence submitted to this court, nothing in the ordinary factfinder's life experience could possibly supply an answer to the factual question presented.   Under these circumstances, the motion must be granted as to Counts Seven and Eight.

The motion is denied as to Counts Five and Six. It is granted as to Counts Seven and Eight.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.