Scott Colman v. Charles McCarthy et al. (2013)

MEMORANDUM OF DECISION ON MOTION OF DEFENDANT DOLORES CIAMBRONE FOR SUMMARY JUDGMENT

On May 31, 2013, the defendant, Dolores Ciambrone (movant), moved for summary judgment as to her liability in the only count against her, count one, in this multiple automobile collision case.   The movant filed a memorandum of law and various exhibits.   The plaintiff, Scott Colman,¹ filed a memorandum of law in opposition and various exhibits on June 24, 2013.   The movant filed a reply brief on July 5, 2013.   The motion was argued on July 8, 2013.

FACTS

Count one of the plaintiff's amended complaint alleges that the movant, while operating her automobile in an easterly direction on state Route 2 in North Stonington, “may have caused a multiple car collision by striking the defendant, Charles McCarthy, who then struck the plaintiff's vehicle, causing a collision” and injury to the plaintiff by negligence including, among other allegedly negligent acts and omissions, (a) failing to keep her automobile under proper control;  (c) driving her automobile at a greater rate of speed than the circumstances warranted;  (d) applying the gas and accelerating her automobile;  and (e) failing to apply her brakes in time to avoid a collision.   The movant claims her acts and omissions with respect to operating her automobile in the early morning hours of February 1, 2009, cannot, as a matter of law, be found to be a proximate cause of the subject accident.   The movant argues that there exists no admissible evidence to contradict her evidence that she brought her automobile to a complete stop before she was rear-ended and struck the automobile in front of her.

DISCUSSION

“Summary judgment is a method of resolving litigation when 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.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012).   The moving party has the burden of establishing the nonexistence of any genuine issue of material fact.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   Once the moving party has met its burden, the burden shifts to the party opposing summary judgment to present evidence that establishes a genuine issue of material fact, and thus, defeat summary judgment.  Id. On summary judgment, the court views the evidence in the light most favorable to the nonmoving party.  Id.

The movant submitted excerpts of deposition testimony that support her argument that she came to a complete stop before she was rear-ended and that the plaintiff did not witness what occurred behind the automobile that struck him.

The plaintiff submitted deposition testimony of defendant Richard MacCall, to the effect that MacCall saw the movant's automobile stopped with its brake lights on right before his automobile hit hers.   After he was rear-ended and pushed into the rear end of the automobile the movant was driving, he thought the movant's automobile accelerated as if the movant had her foot on the gas pedal.   MacCall's automobile came to rest about fifty feet from where the movant's automobile came to rest.   The degree of impact of the movant's automobile on defendant McCarthy's automobile, which, in turn, hit the plaintiff's automobile, could reasonably be found, based on MacCall's testimony, to have been due in part to the movant's inattention—or even to her slipping her foot from the brake to the gas pedal.   A jury could believe MacCall that, after his automobile hit the movant's automobile, the movant did not stop her automobile as quickly as she could have and could reasonably infer from such a belief that, if the movant had stopped her automobile as quickly as reasonably possible, her automobile might have not hit McCarthy's automobile or might have hit it with less force, avoiding or diminishing the force of the collision of McCarthy's automobile with the plaintiff's automobile.   Such a belief and inference would be within one or more of the allegations of negligence listed above.   Put another way, only by taking the question of MacCall's credibility on the foregoing factual issues away from the jury could the court find that there is no triable issue of material fact.   That the court cannot do.

For the foregoing reasons, the movant's motion for summary judgment is denied.

Cole–Chu, J.

FOOTNOTES

FN1. Contrary to numerous papers, the plaintiff's last name is spelled Colman.   Plaintiff's deposition transcript, p. 42, lines 3–12, attached to plaintiff's brief..  FN1. Contrary to numerous papers, the plaintiff's last name is spelled Colman.   Plaintiff's deposition transcript, p. 42, lines 3–12, attached to plaintiff's brief.

Cole–Chu, Leeland J., J.