Scott Colman v. Charles McCarthy (2013)

MEMORANDUM OF DECISION ON MOTION OF DEFENDANT CHARLES McCARTHY FOR SUMMARY JUDGMENT

At the outset, the court must resolve a procedural tangle.   The named defendant, Charles McCarthy, filed a motion for summary judgment on March 7, 2013, bearing the docket number of this case, in Coleman v. McCarthy, Docket No. KNL CV11 6007711S.   The latter case is consolidated with this case, docket number KNL CV11 6009887S.   Both cases arise from the same multi-automobile collision in North Stonington, Connecticut.   In Coleman v. McCarthy, Docket No. KNL CV11 6007711S, the movant was originally a defendant.   Since April 6, 2013, except in the caption, Charles McCarthy has not been a defendant in Coleman v. McCarthy, Docket No. KNL CV11 6007711S, there being no objection to the plaintiff Scott Colman's March 22, 2013, request to amend his complaint by the fifteenth day after that request was filed.   See P.B. § 10–60(a)(3).   In this case, the movant, McCarthy, is the only defendant, but, again, he did not file his motion for summary judgment in this case.   Rather than deny the present motion, as filed in Coleman v. McCarthy, Docket No. KNL CV11 6007711S, based on mootness—because the movant is no longer a defendant in that case—the court deems this motion as being filed in this consolidated case, docket number KNL CV11 6009887S, there having been no objection to the motion based on its having been filed only in no.   KNL CV11 6007711S and opposition to the motion having been filed in this case.

In his amended complaint (complaint) in this case, the plaintiff alleges that he suffered injuries as a result of an automobile accident caused by the negligence of McCarthy.   The plaintiff alleges that McCarthy was negligent in one or more of the following ways:  by failing to keep his automobile under proper control;  by being inattentive and failing to keep a reasonable and proper lookout;  by driving his automobile at a greater rate of speed than the circumstances warranted;  by failing to sound his horn or give the plaintiff a timely warning regarding the collision;  by failing to turn his automobile to avoid the collision;  and by violating General Statutes §§ 14–218a(a), 14–80h, 14–240(a), 14–242(a), 14–242(c) and 14–240(b).

The movant's motion for summary judgment, with a memorandum of law and exhibits, was filed on March 7, 2013.   The movant claims that he did not breach any duty owed to the plaintiff and that no conduct of his was a proximate cause of the accident.   The plaintiff filed a memorandum of law in opposition, with various exhibits, on March 25, 2013, claiming that there exist genuine issues of material fact.¹

FACTS

The following undisputed facts, based on the admissible evidence ² presented on the present motion, are relevant to the court's disposition.   On February 1, 2009, at approximately 1:40 a.m., the plaintiff was operating his car and preparing to leave a gas station at the southeast corner of state Routes 2 and 627 in North Stonington, Connecticut.   He was at a complete stop at a driveway ³ of the gas station near the southern edge of Route 2. Route 2 at that place, at that time, had one lane in each direction—generally east and west.   At that time, the movant was operating a Jeep automobile eastbound on Route 2, having stopping for a red traffic light at the Route 627 intersection and resumed travel eastbound when the light turned green.   The movant slowed to enter the gas station, then came to a controlled stop—not a sudden stop—in the eastbound travel lane of Route 2 because, due to the location of the plaintiff's automobile in the gas station driveway, there was not enough room for the movant to turn his vehicle safely into the gas station.   The movant was stopped there approximately fifteen feet from the plaintiff's car for at least five seconds.   There were automobiles behind the movant.   The plaintiff remained stopped, too.

The next automobile traveling eastbound on Route 2 behind the movant was a black Volvo driven by the defendant Dolores Ciambrone.   Ciambrone saw the movant's Jeep slow and stop, and Ciambrone brought her Volvo to a full stop behind the movant's Jeep.

The next automobile traveling eastbound on Route 2 behind Ciambrone's Volvo was driven by former defendant Richard MacCall.   MacCall saw the black Volvo slow and stop and slowed his car, in turn.   No evidence was offered on the present motion that, but for what happened next, McCall would have failed to stop and would have hit Ciambrone's Volvo.

At that point, a fifth, unidentified automobile collided with the rear end of MacCall's automobile.   The force of that impact drove MacCall's automobile into the rear of Ciambrone's Volvo.   After being hit by MacCall's automobile, the Volvo was pushed forward and struck the rear of the movant's Jeep with sufficient force to propel the Jeep into the plaintiff's automobile.   The fifth vehicle—which fled the scene—was the cause of series of collisions which ended with the movant's Jeep colliding with the plaintiff's automobile.   Until the movant's Jeep was hit by the Volvo, the movant was in control of the Jeep and operating it in a reasonable manner in compliance with all laws.   There is no evidence that any sort of negligence on the movant's part caused his Jeep to collide with the plaintiff's automobile.   However, the collision between the Jeep and the plaintiff's automobile resulted in injury to the plaintiff.

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. Additionally, “[o]n a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial.”  (Internal quotation marks omitted.)  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012).

The movant did have a general duty, and various specific duties, to the plaintiff, essentially to operate the movant's Jeep with reasonable care, all circumstances considered.   See generally, Sic v. Nunan, 307 Conn. 399, 54 A.3d 553 (2012).   However, the movant has met his burden of establishing the absence of any genuine issue of material fact as to the lack of any breach by him of any duty owed to the plaintiff.   The movant has provided evidence negating each of the allegations of negligence in the complaint.⁴  The plaintiff offers no admissible evidence of any breach by the movant of any duty.   The plaintiff attaches pleadings as part of his opposition to the motion for summary judgment, but mere assertions are not sufficient to defeat a motion for summary judgment after the movant has borne the burden of adducing sufficient evidence to grant the motion.   See Marinos v. Poirot, 308 Conn. 706, 712, 66 A.3d 860 (2013).   Such assertions, in a complaint or in a brief, are insufficient to show a material issue of fact exists.  Gough v. Saint Peter's Episcopal Church, 143 Conn.App. 719, 728, 70 A.3d 190 (2013).

Moreover, even the hearsay statement of Ciambrone to her insurer's agent, if admissible arguendo;  see footnote two;  presents no triable issue of material fact as to a breach of duty by the movant.   The transcript of the telephone interview shows that Ciambrone said that, prior to impact, the movant's automobile—the Jeep—was behind her automobile;  she did not know how the Jeep was involved;  she does not know which automobile hit her automobile;  she did not hit the Jeep;  she hit a different vehicle—an SUV which “took off”—in front of her when it stopped short.⁵  The plaintiff has not met his burden of establishing that a genuine issue of material fact exists, after all, with respect to the movant's alleged negligence.

Based on the foregoing reasons, the motion for summary judgment is granted.

Cole–Chu, J.

FOOTNOTES

FN1. The plaintiff's reference to Practice Book § 384 is out of date;  the current version of the rule of practice is set forth in Practice Book § 17–49..  FN1. The plaintiff's reference to Practice Book § 384 is out of date;  the current version of the rule of practice is set forth in Practice Book § 17–49.

FN2. The content of the transcript of the unsworn, telephonic statement of defendant Dolores Ciambrone is inadmissible hearsay.   See Conn.Code Evid. §§ 8–1 and 8–2;  State v. Dickman, 146 Conn.App. 17, 37–38 (2013).   There is no claim that that transcript is relevant apart from its content, i.e., as evidence that Ciambrone made such a statement.   Also, the unsigned “affidavit” of Michelle McCarthy is disregarded..  FN2. The content of the transcript of the unsworn, telephonic statement of defendant Dolores Ciambrone is inadmissible hearsay.   See Conn.Code Evid. §§ 8–1 and 8–2;  State v. Dickman, 146 Conn.App. 17, 37–38 (2013).   There is no claim that that transcript is relevant apart from its content, i.e., as evidence that Ciambrone made such a statement.   Also, the unsigned “affidavit” of Michelle McCarthy is disregarded.

FN3. Both in his July 18, 2011, complaint in this case, Docket No. CV–11–6009887–S, and in his amended complaint dated March 21, 2013, the plaintiff alleges that he was “at the exit of a gas station.”   However, he does not allege that the “exit” was only an exit, that the movant knew or should have known that the “exit” was not an entrance, or that the movant was negligent for stopping or otherwise trying to enter the gas station at an “exit.”.  FN3. Both in his July 18, 2011, complaint in this case, Docket No. CV–11–6009887–S, and in his amended complaint dated March 21, 2013, the plaintiff alleges that he was “at the exit of a gas station.”   However, he does not allege that the “exit” was only an exit, that the movant knew or should have known that the “exit” was not an entrance, or that the movant was negligent for stopping or otherwise trying to enter the gas station at an “exit.”

FN4. The movant's brief indicates that the plaintiff testified, in deposition, that the movant put his vehicle's blinker, signaling his intent to turn.   The cited page of the plaintiff's deposition was not attached to the plaintiff's brief, but movant's representation was not disputed..  FN4. The movant's brief indicates that the plaintiff testified, in deposition, that the movant put his vehicle's blinker, signaling his intent to turn.   The cited page of the plaintiff's deposition was not attached to the plaintiff's brief, but movant's representation was not disputed.

FN5. There are inconsistencies between Ciambrone's statements to her insurer's agent and her deposition testimony.   However, even viewed in the light most favorable to the plaintiff, Patel v. Flexo Converters US.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013);  those inconsistencies do not reveal any material question of fact regarding absence of the movant's liability..  FN5. There are inconsistencies between Ciambrone's statements to her insurer's agent and her deposition testimony.   However, even viewed in the light most favorable to the plaintiff, Patel v. Flexo Converters US.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013);  those inconsistencies do not reveal any material question of fact regarding absence of the movant's liability.

Cole–Chu, Leeland J., J.