Luis Ortiz v. Gustavo Nascimiento (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (121.00)

I. Facts

The plaintiff Ortiz was an employee at a service station located in the Cos Cob section of Greenwich, Connecticut known as Le Mans 24.   Ortiz claims he was injured on November 12, 2007 when a co-employee, the defendant Nascimiento, while driving a Jaguar automobile on to a hydraulic lift for an oil change on the Le Mans premises caused the vehicle to strike and injure him.   Nascimiento moves for summary judgment dismissing the complaint.

II. Standard of Review

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.”  Appleton v. Board of Education, 254 Conn. 205, 209 (2000).   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 (1985).  “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 judgment as a matter of law.”  Appleton v. Board of Education, supra, 254 Conn. 209.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)   United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379 (1969).   The trial court, in the context of summary judgment motion, may not decide issues of material fact, but only determine whether such genuine issues exist.  Nolan v. Borkowski, 106 Conn. 495, 500 (1988).

“Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact [question] ․ a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.   It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.”  Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554 (1998).  “[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  Appleton v. Board of Education, supra, 254 Conn. 209.

III. Discussion

The thrust of the defendant's motion is (1) his own affidavit denying he was driving the Jaguar at the time of the accident, (2) deposition testimony of Le Mans' owner, LeBreton, who stated he was driving the Jaguar at the time of the incident, and (3) deposition testimony of another co-worker, Sorrentino, who said Nascimiento never drove vehicles around the service station.

The motion is opposed by the plaintiff who offers his own affidavit and deposition testimony to the effect that Nascimiento was driving the Jaguar which hit him, as well as the affidavit of Estrella, Ortiz's son-in-law that Sorrentino told Estrella that Nascimiento was driving the Jaguar when it struck Ortiz.

The motion for summary judgment is denied.   While some of the material presented in opposition to the motion may be inadmissible hearsay, there are distinct and unresolved questions of fact highly material to the resolution of this case.   It is not appropriate to resolve these facts on summary judgment, particularly when the issues involve the credibility of fact witnesses.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.