Diana Silonova v. Town of Greenwich (2013)

MEMORANDUM OF DECISION—MOTION FOR SUMMARY JUDGMENT (# 122.00)

Nature of the Proceeding

This is an action arising from a one-car accident in Greenwich that resulted in serious injuries to the plaintiff.   In a one-count complaint, Plaintiff asserts a cause of action based on what often is referred to as the (municipal) highway defect statute, General Statutes § 13a–149, claiming that the accident and her injuries were a result of the defective condition of the road, for which the town of Greenwich is responsible.

Defendant town has moved for summary judgment, claiming that plaintiff cannot prevail, as a matter of law.   In particular, defendant contends that plaintiff cannot establish at least two of the required elements of such a cause of action—the existence of a defect and sole proximate cause.¹  In support of its motion, defendant has submitted extensive documentation—primarily, excerpts from depositions, the police report relating to this accident, and pleadings concerning a related case (disclosure of expert and complaint).

Plaintiff has filed an objection to the motion, relying upon the perceived inadequacy of defendant's submission.   No affidavit or other evidentiary submission has been filed in support of the objection.

Legal Standards

Summary Judgment

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.)  Sherman v. Ronco, 294 Conn. 548, 553–54 (2010).

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 ․ The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it 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.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11 (2008).

A material fact ․ [is] a fact that will make a difference in the result of the case ․ Hurley v. Heart Physicians P.C. (Internal quotation marks omitted.)  278 Conn. 305, 314 (2006).

In deciding a motion for summary judgment, the court is not concerned about relative weakness or strength of positions;  the court's only concern is whether, as a matter of law, there can be only one possible outcome.  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 631 (2012).

Highway Defect Claims

To recover under § 13a–149, a plaintiff must prove, by a fair preponderance of the evidence, (1) that the highway was defective as claimed;  (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect;  (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so;  and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.  Lombardi v. East Haven, 126 Conn.App. 563, 573–74 (2011) (internal quotation marks omitted).

Discussion

As quoted above, in order to prevail on its motion for summary judgment, defendant “must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.”   To prevail on its claim that the road on which the accident occurred was not defective (or more accurately, that plaintiff cannot prove that the road was defective), defendant must negate each and every “specification” asserted in the complaint as to how and why plaintiff believes the road was defective.   To establish that plaintiff cannot prove sole proximate cause, defendant must do more than show that there is evidence of plaintiff's own negligence or other possible causes, but instead must establish that such other cause is either admitted or essentially indisputable as a proximate cause of the accident.  D'Arcy v. Shugrue, 5 Conn.App. 12, 28–29 (1985).

Defendant contends that plaintiff's product liability lawsuit against Toyota,² from which so much of the materials submitted by defendant comes, establishes a lack of sole proximate cause, as in that lawsuit, plaintiff blamed her injuries on the defective nature of the vehicle.   If this were a situation in which there were a claim that a defect in the vehicle had caused the accident, defendant's position might require closer analysis.   However, the claim in the Toyota litigation essentially focused on crashworthiness—the ability of the vehicle to protect its occupants in a crash-type situation.   Assuming that sole proximate cause ultimately focuses on injuries rather than the accident itself,³ defendant simply has identified an issue as to which injuries, if any, were solely caused by an alleged defect in the road and which were caused or aggravated by the alleged defect in the vehicle.   The claims against Toyota, even if factually correct, do not negate the road's role in causing the accident—being the sole proximate cause of the accident.   With that more precise focus, defendant could only prevail if there was a basis on which to conclude that the product liability claim against Toyota involving crashworthiness was indisputably responsible for all of plaintiff's resulting injuries such that the allegedly-defective road, itself, could not have been a proximate cause of any injuries.   There is nothing before the court at this time that even purports to meet that burden.

Defendant also asserts that plaintiff was negligent, thereby negating sole proximate cause, by virtue of not having worn a seatbelt.   There are a number of reasons why this does not establish an absence of sole proximate cause.   First of all, it is not factually demonstrated to be true, as opposed to being a factual issue.   Police investigators inferred from their examination of the vehicle, after the accident, that plaintiff had not been wearing her seatbelt.   Plaintiff, on the other hand, according to the deposition testimony provided to the court, seemed somewhat surprised by that assertion, and assessing her testimony in a manner most favorable to the nonmoving party, the implication seems to be that she routinely would wear a seatbelt.  (She has no specific recollection of the accident including whether she actually had been wearing a seatbelt time.)

Aside from the factual issue, there is again the distinction between causation of accident and causation of injuries.   The failure to wear a seatbelt did not cause the accident, or at least defendant has not suggested a plausible scenario in which that might have been the case.   The question then becomes what injuries, if any, would have been sustained, even if plaintiff had been wearing a seatbelt.   Defendant has not established what the outcome would have been in that scenario and therefore has not demonstrated “quite [clearly] what the truth is.”   As with the claim against Toyota, at most defendant has identified an issue as to which injuries may have been proximately caused by the failure to wear a seatbelt as opposed to the crash itself, in turn allegedly due to a defect in the road.

Finally, as a purely-legal matter, General Statutes § 14–100a(c)(3) provides:  “Failure to wear a seat safety belt shall not be considered as contributory negligence nor shall such failure be admissible evidence in any civil action ” (emphasis added).   Under the statute, not only is the “seatbelt defense” not contributory negligence but the fact of non-use is inadmissible “in any civil action.” ⁴  As a highway defect claim is a “civil action,” the statutory prohibition facially applies, and defendant has not articulated any reason why it would or should not apply here.   Inadmissible evidence cannot be used to establish a right to summary judgment, New Haven v. Pantini, 89 Conn.App. 675, 678 (2005),⁵ and in the absence of some countervailing consideration, the court cannot consider non-use of a seatbelt.

Defendant also tries to establish a lack of sole proximate cause based on plaintiff's conduct via the claim that plaintiff was exceeding the speed limit at the time of the accident.   Even assuming that speed in excess of the speed limit had been established beyond any factual issue, there still would remain the question of whether it was a proximate cause of the accident.   Under the highway defect statute, the question is not whether one can find a flaw in plaintiff's conduct that might constitute negligence, but rather whether any possible negligence was actually a proximate cause.   The standard is whether the highway defect was the “sole proximate cause” and the ability to point to some negligence on the part of the plaintiff, in a vacuum, is insufficient;  it is for a jury to decide whether such negligence was a proximate cause sufficient to defeat sole proximate cause.⁶  In a different context, an intoxicated driver may be guilty of negligence per se, but if the accident involved a rear-end collision while the intoxicated driver's vehicle was stopped at a traffic light, it is unlikely that anyone would even suggest that that negligence might have been a proximate cause of the accident.

Defendant's reliance on Mazzuca v. Sullivan, 94 Conn.App. 97 (2006), cert. denied 278 Conn. 905 (2006.  (Memorandum at pp. 15–16) warrants detailed attention.   Defendant is correct that in that case, the trial court had rendered summary judgment based on the plaintiff's inability to prove sole proximate cause, which was affirmed by the Appellate Court.   A critical distinction, however, is revealed in footnote 6 (specifically referenced by plaintiff during argument):  “Although the plaintiff opposed the defendant's motion for summary judgment, he did not claim that there were any factual issues in dispute.”   In Mazzuca, then, the court effectively was being asked to determine the existence of sole proximate cause on what amounted to a stipulated set of facts.   Plaintiff, here, does not concede that there are no factual issues in dispute, such that the burden on defendant, as moving party, is to demonstrate that there are no factual issues, rather than asking the court to rule upon essentially stipulated facts.

The cases cited in Mazzuca are consistent with this analysis.   All of the cases cited in the relevant discussion, 94 Conn.App. 103, with the exception of White v. Burns, 213 Conn. 307 (1990), were cases that had been resolved by a jury prior to the appeal.  White v. Burns (which had been decided on summary judgment), was not a case in which the existence of sole proximate cause was an issue but rather was a challenge to sole proximate cause as being a requirement under the State highway defect statute—probably because no one seriously could contend that the condition of the roadway, as relevant to that case, had been the sole proximate cause of the accident.⁷

Given the unusual—borderline-unique—procedural circumstances of Mazzuca, the fact that Mazzuca involved summary judgment is not germane to the issues before this court.

Defendant, then, has not provided an adequate rationale why the court should not abide by the general principle that in almost all circumstances, proximate cause is inherently a factual issue that must be decided by the factfinder.   Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 321–22 (2004).

Turning, then, to the question of whether there was or might have been a defect in the road, sufficient to allow the issue to go to a jury, the court must start with paragraph 12 of plaintiff's complaint, asserting six specifications of statutory violation by the town.   In order for defendant to prevail on a motion for summary judgment, it must demonstrate that plaintiff cannot prevail on any of the six allegations.   From an alternate perspective, defendant's motion must be denied if there is a factual issue as to even one.

Defendant notes that plaintiff has not identified any experts relating to liability (Memorandum at p. 12).   The court is unaware of any general obligation to provide expert testimony as to issues of highway defects, however commonplace it might be to rely on them.   The only area in which expert testimony might be required would be with respect to design defects (since the design of a highway likely is outside the experience and knowledge of the average juror).⁸  Assuming that an expert would be required for that allegation, that is only one of the six specifications identified by plaintiff.   The lack of an expert as to other issues does not preclude plaintiff from proving that there was a defective condition that caused the accident.

During argument, defendant specifically contended that the allegation of trees near the road (¶ 12(e) of complaint) essentially was a design issue for which expert testimony would be required.   Even assuming that the initial planting of trees is an aspect of design in a broad sense, the court does not accept the contention that trees near a highway properly are analyzed in the same manner as design defects.   There are complementary reasons for the court's conclusion.   The initial design of the road is, in large measure, the result of significant engineering efforts.   Changing the grade, pitch, width, etc., of a road is not a matter of maintenance but rather encompasses a redesign and re-engineering of the road, with significant capital consequences—essentially, reconstruction.   That presumably is why, in a design defect scenario, the issue is whether the design was “inadmissible” as of the initial construction of the road—was the road designed improperly at the outset, Stotler v. Department of Transportation, 142 Conn.App. 826, 837–39 (2013)—or is it merely that “times have changed” such that the existing layout falls short of current engineering/design standards?  (Short on-ramps on the parkways come to mind.)   Trees, on the other hand, can be trimmed or, in a worst-case scenario, cut down.   Neither trimming a tree nor cutting it down is a significant engineering project—the closest it comes to engineering is that planning is required to make sure that in the process, nothing falls on anybody or anything that might be susceptible to damage or injury.   Regardless of whether the court's inferred rationale for the rule pertaining to design defect is correct, the court believes that trees more properly come within the more general scope of a highway defect as “[a]ny object in, upon, or neither traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling there on, or which, from its nature in position, would be likely to produce that result,” Stotler, 142 Conn.App. 835 (quotation marks, omitted).

Defendant has not submitted to the court anything indicating why, conclusively, the failure to inspect and maintain the roadway, the proximity of trees to the roadway, etc., cannot constitute defects within the meaning of the highway defect statute under the circumstances of this case.   For example, the fact that police officers on the scene have testified that the road was dry and free of any ice and snow does not conclusively eliminate any and all conditions that might have been discovered by proper inspection and remedied by proper maintenance ⁹ —at least in the absence of evidence that the conditions described by the police conclusively negate each and all possible defects as alleged by plaintiff.  (For example, the court does not see anything in the police report discussing the presence, much less proximity, of trees.¹⁰ )  As previously noted, in order to establish lack of a defect, defendant would have to negate all specifications and this clearly has not been done.   Until defendant meets its burden, there is no burden imposed on plaintiff to come forward with contrary evidence, Ramirez, supra.

Conclusion

Defendant has pointed out why it believes that, for numerous reasons, plaintiff's case is extraordinarily weak.   Summary judgment is not intended to evaluate claims of weakness but rather only claims of non-viability.  Mott, supra.   A party has as much right to submit a weak case as a strong case to the jury.  Maffucci v. Royal Park Limited Partnership, 42 Conn.App. 563, 572 (1996).

Defendant has not established that plaintiff's action is fatally flawed and therefore its motion for summary judgment must be denied.

POVODATOR, J.

FOOTNOTES

FN1. Defendant, particularly during argument, treated due care (lack of contributory negligence) as a concept distinct from sole proximate cause.   From the court's perspective, due care is a subset (or subsidiary element) of sole proximate cause;  in the absence of any question about third-party conduct or independent causes, they become alternate names for the same issue.   The court believes it is analytically simpler to address due care under the umbrella of sole proximate cause.   See, e.g. Smith v. New Haven, 258 Conn. 56, 60 (2001), where the court stated that “the sole proximate cause doctrine precludes municipal liability, not only where the plaintiff was contributorily negligent, but also where other purported tortfeasors or independent nontortious factors contributed to the injury ․”.  FN1. Defendant, particularly during argument, treated due care (lack of contributory negligence) as a concept distinct from sole proximate cause.   From the court's perspective, due care is a subset (or subsidiary element) of sole proximate cause;  in the absence of any question about third-party conduct or independent causes, they become alternate names for the same issue.   The court believes it is analytically simpler to address due care under the umbrella of sole proximate cause.   See, e.g. Smith v. New Haven, 258 Conn. 56, 60 (2001), where the court stated that “the sole proximate cause doctrine precludes municipal liability, not only where the plaintiff was contributorily negligent, but also where other purported tortfeasors or independent nontortious factors contributed to the injury ․”

FN2. Silonova v. Toyota Motor Sales, U.S.A., Inc., UWYCV116011920S (J.D. Waterbury Complex Litigation docket)..  FN2. Silonova v. Toyota Motor Sales, U.S.A., Inc., UWYCV116011920S (J.D. Waterbury Complex Litigation docket).

FN3. Many cases, such as Lombardi, supra, do talk about sole proximate cause relating to both the accident and injuries, while others focus on causation of the accident with the injuries being the consequence of the accident (proximately caused by the accident).   Ordinarily, the distinction is not of much significance, as the inquiry almost always focuses on what caused the accident and then what injuries flowed from the accident.   Here, there is a potential distinction between cause of accident and cause of injuries, even if all injuries were, in a broad sense, caused by the accident.   The court need not decide now whether the usual rule applies—that an initial tortfeasor is liable for subsequent tortious conduct by others, naturally flowing from the original incident, e.g. medical malpractice in treatment;  see, e.g. Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 250 n.16 (2008)—or whether subsequent causation issues cut off governmental liability under a highway defect statute.   The crashworthiness issue does not automatically negate the existence of injuries resulting from the initial (alleged) responsibility of the town, which is all that is required for this analysis..  FN3. Many cases, such as Lombardi, supra, do talk about sole proximate cause relating to both the accident and injuries, while others focus on causation of the accident with the injuries being the consequence of the accident (proximately caused by the accident).   Ordinarily, the distinction is not of much significance, as the inquiry almost always focuses on what caused the accident and then what injuries flowed from the accident.   Here, there is a potential distinction between cause of accident and cause of injuries, even if all injuries were, in a broad sense, caused by the accident.   The court need not decide now whether the usual rule applies—that an initial tortfeasor is liable for subsequent tortious conduct by others, naturally flowing from the original incident, e.g. medical malpractice in treatment;  see, e.g. Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 250 n.16 (2008)—or whether subsequent causation issues cut off governmental liability under a highway defect statute.   The crashworthiness issue does not automatically negate the existence of injuries resulting from the initial (alleged) responsibility of the town, which is all that is required for this analysis.

FN4. By contrast, General Statutes § 14–300(g) prohibits certain pedestrian-related violations from being treated as negligence per se, without precluding admissibility..  FN4. By contrast, General Statutes § 14–300(g) prohibits certain pedestrian-related violations from being treated as negligence per se, without precluding admissibility.

FN5. Although courts sometimes consider uncertified transcript excerpts and other nonauthenticated documentary submissions in connection with summary judgment (in the absence of an objection from the “other” party), this is not a situation where adherence to some formality would render the information admissible.   Plaintiff generally objected to technical non-compliance with the rules and specifically claimed that lack of use of a seatbelt was not a proper consideration..  FN5. Although courts sometimes consider uncertified transcript excerpts and other nonauthenticated documentary submissions in connection with summary judgment (in the absence of an objection from the “other” party), this is not a situation where adherence to some formality would render the information admissible.   Plaintiff generally objected to technical non-compliance with the rules and specifically claimed that lack of use of a seatbelt was not a proper consideration.

FN6. The court recognizes that in some cases, the distinction is not made clearly if at all, Nikiel v. Turner, 119 Conn.App. 724 (2010).   Sometimes this happens because the distinction is not raised and sometimes because there is no distinction under the facts of the case.  (In Nikiel, plaintiff had been walking in the roadway instead of on a sidewalk as required by statute;  if plaintiff had obeyed the statute, she would not have encountered the defect causing her fall.   Even so, the issue of her negligence had been submitted to the jury.)Notably, defendant cites Bovat v. City of Waterbury, 258 Conn. 574 (2001) at page 14 of its memorandum (and plaintiff also cited it during argument).   At pp. 586–87, the court explains that the inquiry as to sole proximate cause is concerned with identifying causes of the accident and injuries, and particularly determining whether anything other than the allegedly defective condition of the road was such a cause.Later on that same page of its memorandum, defendant cites Williamson v. Commissioner of Transportation, 209 Conn. 310, 321 (1988) for the proposition that “if there is any negligence by the [plaintiff], even one percent, [she] may not recover.”   The quoted language is taken out of context.   As made clear in the surrounding sentences, the quoted statement was made in the course of a discussion of causation, with numerous references to whether conduct contributed to or caused the injuries.   (Again, this was a case in which the issue had gone to the jury.)As something of a tautology, sole proximate cause is concerned with proximate cause..  FN6. The court recognizes that in some cases, the distinction is not made clearly if at all, Nikiel v. Turner, 119 Conn.App. 724 (2010).   Sometimes this happens because the distinction is not raised and sometimes because there is no distinction under the facts of the case.  (In Nikiel, plaintiff had been walking in the roadway instead of on a sidewalk as required by statute;  if plaintiff had obeyed the statute, she would not have encountered the defect causing her fall.   Even so, the issue of her negligence had been submitted to the jury.)Notably, defendant cites Bovat v. City of Waterbury, 258 Conn. 574 (2001) at page 14 of its memorandum (and plaintiff also cited it during argument).   At pp. 586–87, the court explains that the inquiry as to sole proximate cause is concerned with identifying causes of the accident and injuries, and particularly determining whether anything other than the allegedly defective condition of the road was such a cause.Later on that same page of its memorandum, defendant cites Williamson v. Commissioner of Transportation, 209 Conn. 310, 321 (1988) for the proposition that “if there is any negligence by the [plaintiff], even one percent, [she] may not recover.”   The quoted language is taken out of context.   As made clear in the surrounding sentences, the quoted statement was made in the course of a discussion of causation, with numerous references to whether conduct contributed to or caused the injuries.   (Again, this was a case in which the issue had gone to the jury.)As something of a tautology, sole proximate cause is concerned with proximate cause.

FN7. White v. Burns was a consolidated appeal arising from the 1983 accident at the Stratford toll plaza on the Connecticut Turnpike in which a trailer truck struck a number of motor vehicles, killing seven people and injuring many others.   As reported in the background recitation in the decision (213 Conn. 309), the operator of the truck was convicted of seven counts of negligent homicide..  FN7. White v. Burns was a consolidated appeal arising from the 1983 accident at the Stratford toll plaza on the Connecticut Turnpike in which a trailer truck struck a number of motor vehicles, killing seven people and injuring many others.   As reported in the background recitation in the decision (213 Conn. 309), the operator of the truck was convicted of seven counts of negligent homicide.

FN8. During argument, the court referred to McIntosh v. Sullivan, 274 Conn. 262, 294 (2005), ostensibly as standing for the proposition that an expert was required for design defect cases—specifically, that a design defect case was more than just a battle of experts.   In reality, it was the dissent in McIntosh (Katz, J.) that quoted an earlier Supreme Court decision that contained such language (274 Conn. 294, quoting from Donnelly v. Ives, 159 Conn. 163, 168 (1970))..  FN8. During argument, the court referred to McIntosh v. Sullivan, 274 Conn. 262, 294 (2005), ostensibly as standing for the proposition that an expert was required for design defect cases—specifically, that a design defect case was more than just a battle of experts.   In reality, it was the dissent in McIntosh (Katz, J.) that quoted an earlier Supreme Court decision that contained such language (274 Conn. 294, quoting from Donnelly v. Ives, 159 Conn. 163, 168 (1970)).

FN9. It does address—negate—the allegations in ¶ 12(c) of the complaint..  FN9. It does address—negate—the allegations in ¶ 12(c) of the complaint.

FN10. Although recent cases seemingly have narrowed the ability to claim that objects not directly on the highway can constitute highway defects, see, e.g. Stotler v. Department of Transportation, 142 Conn.App. 826, 836 (2013), defendant does not discuss how this situation fits in that arguably-narrowed framework—and again, this is but one of the six specifications in ¶ 12..  FN10. Although recent cases seemingly have narrowed the ability to claim that objects not directly on the highway can constitute highway defects, see, e.g. Stotler v. Department of Transportation, 142 Conn.App. 826, 836 (2013), defendant does not discuss how this situation fits in that arguably-narrowed framework—and again, this is but one of the six specifications in ¶ 12.

Povodator, Kenneth B., J.