Rosario Flores v. City of New Britain (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 129

I.

PROCEDURAL HISTORY

The instant matter is brought pursuant to General Statutes § 13a–149, the defective highway statute.   The plaintiff alleges that she sustained injuries and other damages on April 7, 2008 as a result of potholes on Ellis Street in the city of New Britain, Connecticut.   The city, through pleadings dated September 30, 2001, has moved the court for summary judgment.   The plaintiff objects to the motion and has filed with the court a written objection dated August 26, 2011.   The court heard oral argument on October 17, 2011.

II.

DISCUSSION

The law concerning a motion for summary judgment is well established.   “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.”  (Internal quotation marks omitted.)  Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007).  “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.”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).

“The courts hold the [summary judgment] movant to a strict standard.   To satisfy his burden the movant must make a showing that 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 ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  (Internal quotation marks omitted.)   Id., 318–19.

The court has reviewed the entire record presented and finds that there are genuine issues of material fact in the present case.   These issues are whether the condition of the road was the sole proximate cause of the accident or whether the plaintiff was contributorily negligent.

III.

CONCLUSION

For the foregoing reasons, the motion is denied.

So ordered,

BY THE COURT

PETER EMMETT WIESE, JUDGE

Wiese, Peter E., J.