Suzanne Sablosky, Executrix and Individually v. Albert Ouellette (2012)

MEMORANDUM OF DECISION

The plaintiff, Suzanne Sablosky, individually and as executrix of her late husband's estate, applies for a prejudgment remedy in the amount of $2,000,000 for the wrongful death of her husband, Michael Sablosky, and moves for an order for disclosure of assets under General Statutes §§ 52–278d and 52–278n, respectively.   Both remedies embrace the same standards and requisite findings by the court, and the court addresses the issues pertaining to these requests together.

A prejudgment remedy hearing is limited to a determination of whether there is probable cause to believe that a judgment of at least the amount sought by the application will be rendered in the applicant's favor, § 52–278d.   The hearing “is not a full-scale trial on the merits.”  Chen v. Bernadel, 101 Conn.App. 658, 661–62 (2007).   Under § 52–278d(a), a prejudgment remedy shall be granted if, upon consideration of the facts before the court and taking into account any defenses, countervailing claims, set-offs, exemptions, and the adequacy of insurance, probable cause exists that judgment will be rendered in the applicant's favor.  Cahaly v. Benistar Property Exchange Trust Co. Inc., 268 Conn. 264, 271–72 (2004).   The court must gauge the applicant's future success or failure by weighing the probabilities surrounding both factual and legal issues.  Doe v. Rapaport, 80 Conn.App. 111, 116–17 (2003).

Probable cause is “a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.”   J.K. Scanlon v. Construction Group, Inc., 80 Conn.App. 345, 350 (2003).   The concept of probable cause embraces a “flexible common sense standard” which demands neither that a belief be “correct [n]or more likely true than false,” Id.

In her complaint, the plaintiff alleges that the defendant, Albert Ouellette, negligently caused Michael Sablosky's death.   She seeks compensation on behalf of the estate for his wrongful death and for herself for loss of consortium.   On April 26, 2012, the court held an evidentiary hearing pursuant to § 52–278d.

The elements of negligence which the plaintiff will have to prove, by a preponderance of the evidence, at trial are 1. the existence of a duty of care owed by the defendant to the decedent;  2. breach of that duty;  3. that that breach was a substantial factor in producing the decedent's injuries and death;  and 4. actual injury.  Twin Oaks Condominium Association v. Jones, 132 Conn.App. 8, 12 (2011).   The existence of a duty of care by one motorist to another user of the highway and the infliction of actual injury are beyond dispute in this case.   As to the other elements, the plaintiff asserts that the defendant committed common-law and statutory negligence when attempting to make a left turn across the decedent's lane of travel.

Under the common law, negligence is the failure to exercise reasonable care, i.e. the care a reasonably prudent person would employ under all the circumstances.  Hoelter v. Mohawk Services, Inc., 170 Conn. 495, 50 (1976).   The more dangerous those circumstances, the greater the care that must be used to comprise reasonable care.  Galligan v. Blais, 170 Conn. 73, 77 (1976).

The defendant denies that he operated his van negligently and alleges that the decedent was contributorily negligent in the operation of his motorcycle.

The court concludes that the plaintiff has demonstrated probable cause that judgment will be rendered in her favor.   While several specifications of negligence alleged by the plaintiff are unsupported by the evidence presented at the hearing, those specifications which allege that the defendant failed to keep a proper lookout, failed to keep his van under reasonable control, and failed to execute a left turn properly, safely, and in accordance with statute were supported by the evidence adduced.   This level of evidence is sufficient to warrant in the mind of an ordinarily intelligent person that these allegations are true.

The evidence showed that the decedent was riding his motorcycle in his own lane, southbound on Route 32 in Willington, in broad daylight, with no adverse weather, traffic, or road conditions present.   The defendant attempted to make a left turn across the decedent's lane and never saw the decedent until the decedent leapt from the motorcycle.   The defendant's wife was a passenger in the van and saw the decedent on his motorcycle far enough ahead to shout a warning to her husband before the tragedy occurred.   A reasonable person could justifiably entertain the belief that it was the defendant's inattentiveness which was a substantial factor in causing the incident and injuries to the decedent.

At the hearing scant evidence was produced as to any culpability on the part of the decedent for causing his own demise except for the defendant's claim that the failure to wear a helmet constituted contributory negligence.   It is undisputed that the decedent wore no helmet.   As to the other allegations of contributory negligence, it must be kept in mind the decedent was entitled to assume that the defendant would operate his van reasonably safely and in accordance with applicable laws until that assumption had become unwarranted.   Turbert v. Mather Motors, Inc., 165 Conn. 422, 429 (1973).   Also, when a sudden emergency arises, which was not caused by the operator of a vehicle, the operator is to be judged by the standard of a reasonable person reacting to those emergent circumstances.  Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 312 (1970).

Turning the issue of driving a motorcycle without a helmet, the plaintiff points out that statutory law no longer obligates a motorcyclist to wear a helmet.   The plaintiff argues that, as a matter of law, the decision not to wear a helmet can never constitute contributory negligence on the part of an injured motorcyclist.   The defendant counters that, while the legislature has expressly barred the refusal to wear a seatbelt as a form of contributory negligence, it has not seen fit to enact a similar ban with respect to the failure to wear a motorcycle helmet.   According to the defendant, such an allegation of contributory negligence is, therefore, cognizable.

The court determines that, under the facts of this case, it is unnecessary for the court to resolve that interesting question.   No evidence was proffered to warrant a reasonable person to conclude that the lack of a helmet was a substantial factor in causing the accident.   There is no allegation that the presence of a helmet would have made the decedent more conspicuous or enhanced his ability to operate the motorcycle due to road or weather conditions.   The absence of a helmet seems, in this case, more akin to a failure to mitigate damages.

For example, if a police officer directing traffic failed to wear a fluorescent vest, if one was required, that failure might be a substantial factor if the officer were struck by a vehicle.   But if the officer failed to don a bullet-resistant vest, that failure would not be regarded as a proximate cause of his or her being shot.

As to the amount of the prejudgment remedy needed to secure a prospective judgment, it is uncontroverted that the defendant maintained liability insurance up to a maximum of $100,000.   There is the possibility that much more substantial coverage is accessible through a different policy, but that precise coverage issue is the subject of pending declaratory judgment litigation.

The court heard evidence regarding the losses sustained by the decedent and the plaintiff from his death.   Taking into consideration the decedent's age, lifestyle, and condition of health and also that of the plaintiff, the court determines that $750,000 is sufficient to serve to secure potential judgment.   The decedent suffered from COPD and received disability payments because of his condition.   This ailment required him to use an oxygen tank occasionally.

The application for prejudgment remedy is granted in the amount of $750,000, and the motion for disclosure of assets is granted.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.