Omayra L. Gordian v. Joel Quinones (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 113.50)

FACTS

The plaintiff, Omayra L. Gordian, commenced a one-count complaint against the defendant, Joel Quinones, by writ, summons and complaint on March 17, 2012.   The complaint was returned to court on March 23, 2012.   The plaintiff alleges the following.   On the evening of July 20, 2011, the defendant was the owner of a Chrysler motor vehicle and was operating said vehicle in a general southerly direction on Kimberly Avenue, south of its intersection with Greenwich Avenue in New Haven, Connecticut and was stopped to make a left hand turn.   The left turn signal of the defendant's vehicle was activated.   On July 20, 2011, the plaintiff was the owner of a 1999 Honda motor vehicle and she was operating said motor vehicle in a general southerly direction on Kimberly Avenue, south of its intersection with Greenwich Avenue in New Haven, Connecticut, behind and to the rear of the defendant's motor vehicle.   As the plaintiff proceeded to the right around of the defendant's vehicle, the defendant, who had been stopped waiting to make a left turn, suddenly and without warning, turned right, causing a collision between the plaintiff's vehicle and his vehicle.

The plaintiff further alleges that the defendant was negligent in that he was operating his vehicle at too high a rate of speed;  did not have his vehicle under reasonable and proper control;  failed to properly use and/or apply the steering of his motor vehicle;  failed to apply his brakes;  failed to maintain a careful lookout;  failed to sound his horn or provide any other warning to the plaintiff;  failed to turn or take any other evasive action in order to avoid the collision;  made an improper right turn;  failed to properly signal for a right turn;  signaled for a left turn, but instead turned his vehicle to the right;  improperly moved his vehicle;  was traveling unreasonably fast in violation of Connecticut General Statutes § 14–218a;  made an improper right turn in violation of Connecticut General Statutes § 14–242(a);  failed to properly signal his intention to make a right turn in violation of Connecticut General Statutes § 14–242(b);  signaled for a left turn, but instead turned his vehicle to the right in violation of § 14–242(b);  and improperly moved his vehicle in violation of § 14–243(a).   The plaintiff alleges that as a result of the defendant's negligence she sustained injuries.

The defendant filed an answer and special defenses on June 20, 2012.   The defendant denies the plaintiff's allegations and by way of special defense alleges that the plaintiff's injuries were caused by her own negligence in that the plaintiff failed to keep a proper and reasonable lookout for other motor vehicles upon the highway;  failed to keep proper and reasonable control of her vehicle;  failed to act as a reasonable and prudent person under all circumstances and conditions then and there existing;  operated her vehicle at an unreasonable rate of speed in violation of Connecticut General Statutes § 14–218(a);  failed to comply with Connecticut General Statutes § 14–236 by failing to remain in her designated lane of traffic;  and was in violation of Connecticut General Statutes § 14–233 by passing the defendant on the right when it was unsafe to do so.

The defendant has filed a motion for summary judgment on grounds that it is entitled to judgment as a matter of law because there is no genuine issue of material of fact that the plaintiff improperly passed the defendant's motor vehicle on the right in violation of § 14–232 and that none of the exceptions provided for in § 14–233 apply.   Therefore, since the plaintiff was in an unlawful position relative to the defendant's vehicle at the time of any collision, summary judgment must enter for the defendant.   In support of its motion for summary judgment, the defendant submitted uncertified excerpts of the plaintiff's deposition, Exhibit B. The defendant also relies on two trial court decisions in support of its position that the plaintiff's alleged negligence entitles him to summary judgment as a matter of law, Exhibit A.

The plaintiff filed an objection to the defendant's motion.   The plaintiff argues that there are genuine issues of material facts as to the defendant's negligence.   In addition, the plaintiff argues that the defendant has failed to meet its burden that is required when moving for summary judgment, namely, that he must provide evidence to negate the allegations of negligence alleged against him in the plaintiff's complaint.   In support of her objection, the plaintiff has submitted uncertified excerpts of her deposition, Exhibit A;  an affidavit of the plaintiff, Exhibit B;  and a copy of the police report, Exhibit C. The defendant in support of its motion also submitted uncertified excerpts of the plaintiff's deposition.   Since neither party raised an objection to the submission of uncertified copies of the plaintiff's deposition transcript, the court, in its discretion, will consider the excerpted portions submitted by both parties.¹  The defendant did not raise an objection to the submission of the police report until oral argument.   The objection raised related to hearsay statements contained in the police report.   Although the report contains hearsay statements, the only statements contained in the police report were made by both the plaintiff and the defendant, both of whom were the only eyewitnesses to what occurred, and who are parties to this action.   In addition, the defendant had an opportunity to cross examine the plaintiff at her deposition on the exact statements that were made by the plaintiff and contained in the police report.   Thus, the court, in its discretion, will consider the police report.

Oral argument on the motion was heard on December 23, 2013.

DISCUSSION

This court begins its analysis by setting forth the well settled standard for deciding a motion for 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 ․ 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 a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ [I]ssue-finding, rather than issue-determination, is the key to the procedure ․ [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.

“It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17–45 and 17–46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.

“An important exception exists, however, to the general rule that a party opposing summary judgment must provide evidentiary support for its opposition, and that exception has been articulated in our jurisprudence with less frequency than has the general rule.   On 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 ․ Accordingly, [w]hen 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.  Allstate Ins. Co. v. Barron, [269 Conn. 394, 405, 848 A.2d 1165 (2004) ];  see also Harvey v. Boehringer Ingelheim Corp., [52 Conn.App. 1, 8–9, 724 A.2d 1143 (1999) ] (where summary judgment movant's affidavit did not dispense with factual issues raised by opponents' counterclaim, burden of proof did not shift to opponents, and their failure to file supporting affidavits was not a fatal flaw to their objection);  cf.  49 C.J.S. 379, [Judgments § 266 (1997) ] (if the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings).”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Mott v. Walmart Stores East, LP, 139 Conn.App. 618, 624–27, 57 A.3d 391 (2012).

The operative complaint in the present case contains a single count sounding in negligence.   The plaintiff has alleged a number of ways in which the defendant was negligent when their vehicles collided.   Instead of submitting proof that negates each claim of negligence alleged against him, the defendant argues that since no issue of fact exists that the plaintiff illegally passed the defendant's motor vehicle in violation of section 14–233, her cause of action against him is barred.   The court submits that this is not the appropriate standard to prevail on a motion for summary judgment and the defendant has not cited any authority supporting this standard.   The two cases cited by the defendant are inapposite.   Both cases were tried to the court, which indicates that both cases went before the trier of fact because there were issues of fact that needed to be determined by the trier.   Neither case was decided on a motion for summary judgment.   In Bradley v. Connecticut Transit, Superior Court, judicial district of New Haven at New Haven, Docket No. 92–032892, (DeMayo, J.) the plaintiff sought damages for personal injuries and property damage sustained in an accident when the plaintiff was operating his bicycle on Chapel Street in New Haven.  Id. He was followed by a friend also operating a bicycle.  Id. Both were traveling in a westerly direction as was the defendant's vehicle, a Connecticut Transit Bus. Id. At some point, the bicyclists overtook the bus which turned to the right, following the layout of Chapel Street which carries a third separate lane as it reaches the New Haven Green.  Id. This line is marked for loading and unloading.  Id. The plaintiff alleged that the bus veered sharply to the right, striking him and throwing him and his bicycle to the street.   The plaintiff's friend struck the rear of the bus.  Id. The defendant denied liability and argued that the plaintiff was passing on the right illegally.   The defendant claimed, as in the present case, that the plaintiff illegally passed on the right in violation of section 14–233.   The court in fact concluded that the defendant was not negligent, however this conclusion was not only based on the court's finding of plaintiff's illegal passing on the right, but also, that “the plaintiff offered no evidence to support his allegations of negligence on the part of the defendant.”  Id. First, clearly there were triable issues for the finder of fact since the case proceeded to trial.   Secondly, the fact that the plaintiff illegally passed on the right did not dispense with the court's determination of whether the defendant was negligent as alleged in the plaintiff's complaint.   The court noted that “the plaintiff offered no evidence to support his allegation of negligence on the part of the defendant.”  Id.

Likewise, the second decision cited by the defendant is also inapposite to the present case.  Dias v. Hershey Creamery et al., 2001 WL 418533, involved a negligence action that was tried to the court.   The matter was not decided on a summary judgment.   The plaintiff in Dias, alleged that as a result of the collision caused by the common-law negligence and statutory negligence of the defendant, he was caused to sustain numerous injuries and losses.   By way of special defense, the defendants alleged that the collision was caused by the plaintiff's own negligence—both common-law and statutory—specifically section 14–233, illegal passing on the right.   Since there were triable issues of fact, the case proceeded to trial and the court heard evidence and testimony concerning those issues.   After hearing the evidence, the court determined, as to liability, that the plaintiff was negligent in that he operated his vehicle in violation of section 14–233.   The court found that the plaintiff's negligence was a contributing factor to the collision and to the plaintiff's own injuries and losses.   The court also found the defendant negligent.   The court apportioned liability and found that the plaintiff was 40% negligent and the defendant was 60% negligent.   After apportioning liability, the court awarded the plaintiff damages in the amount of $15,520.   Again, in the Dias case, the fact that the court found that the plaintiff was negligent did not bar the plaintiff's cause of action against the defendant.   Clearly had the plaintiff been found to be more than 50% negligent he would have been entitled to no damages.

In the present case, the defendant seeks to have summary judgment rendered in his favor based solely upon a finding that no material issue exists that the plaintiff was negligent in that she violated section 14–233.   The defendant argues that the evidence is clear that the plaintiff illegally passed the defendant's vehicle on the right and therefore her cause of action against the defendant is barred.   Summary judgment requires a finding that there are no triable issues of fact as to the defendant's liability as alleged in the plaintiff's complaint.   As previously noted, the defendant is required to negate each claim as framed in the plaintiff's complaint.   This court might be persuaded by the defendant's argument had the defendant first put forth evidence to negate each claim of negligence made against him in the plaintiff's complaint, thus first establishing that no material fact existed that he was not negligent.   The defendant has only set forth evidence that contradicts the plaintiff's allegation that “she proceeded to the right around [the] 2001 Chrysler motor vehicle that was being operated by the defendant, Joel Quinones, which was stopped waiting to make a left turn.”

The plaintiff, contrary to this allegation in her complaint, testified at her deposition that:

Q: Okay. Tell me how you remember this accident.

A: I was driving, If I'm not mistaken, south on Kimberly Avenue.   The car in in front of me was stopped.   I wasn't sure which direction it was heading.   It did not have any turn signals on ․

Q: When you tried to go around it, which side did you try to go by on?

A: The right side.

Q: Okay. And do you have any idea why he came to a stop on Kimberly Avenue in the spot where he did?

A: No.

Q: Did you see any turn signal, either right or left, on his vehicle as he came to a stop?

A: No ․

Q: When the stopped in the road, did [the defendant] stop in the center—in the travel part of the road or was he further over to the left or to the right?

A: Further over to the right.

Q: But you still tried to pass him on the same side?

A: Um-hum.

Q: Yes?

A: Yes ․

Q: Why did you try to pass him on the right?

A: I wasn't sure which direction he was—he was going.

Q: Okay. But did it look to you like he was turning one way or the other?

A: No.

(Defendant's Exhibit B, Pl.'s Depo., pp. 21–29.

Although the defendant has submitted evidence to support its special defense that the plaintiff may have been negligent in that she illegally passed the defendant on the right, in violation of section 14–233, this alone does not warrant granting summary judgment in the defendant's favor.   Although the defendant has submitted evidence of plaintiff's violation of section 14–233, he has presented no evidence to negate the allegations of negligence against him.   Furthermore, although the plaintiff may have illegally passed the defendant on the right, the defendant has not established that no issue of fact exists that his alleged negligence was not a contributing factor to the accident.

The defendant has therefore failed to establish that no issue of fact exists as to his liability and therefore has failed to meet his burden for establishing that summary judgment should be granted in his favor.   Even if the court were persuaded that the defendant met his initial burden by demonstrating that no issue of fact exists that the plaintiff violated section 14–233, pursuant to the summary judgment standard, the inquiry does not end here.   The burden would then shift to the plaintiff to demonstrate that genuine issues of material fact exist as to whether she was negligent by violating section 14–233.   The evidence presented by the plaintiff raises such genuine issues of fact.   In the police report the plaintiff stated that “[the defendant's] vehicle appeared to be stopped in the road and she thought that his vehicle was going to make a left turn onto Greenwich Avenue ․ [S]he began passing the defendant's vehicle on the right when suddenly he cut in front of her vehicle ․ [S]he immediately stepped on her brakes but was unable to avoid sideswiping [his] vehicle ․ [The defendant] did not use any turn signals.”   (Pl. Exhibit C.) The plaintiff submitted excerpts from her deposition, Exhibit A and her affidavit, Exhibit B, which are both consistent with her statements in the police report.   The plaintiff further attested in her affidavit that “[a]t the time of the accident, [she] thought it was the defendant's intention to make a left hand turn ․” (Pl.'s Exhibit B).

Summary judgment is denied since the defendant has failed to meet his initial burden that no genuine issue of fact exists as to the allegations of negligence set forth against him in the plaintiff's complaint.   Furthermore, even if the court were persuaded by the defendant's argument that it has met its initial burden demonstrating that no issue of fact exists that plaintiff illegally passed the defendant on the right, the plaintiff has submitted evidence to raise an issue of fact regarding the plaintiff's alleged illegal passing.   In light of this, summary judgment is not warranted.

CONCLUSION

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

Wilson, J.

FOOTNOTES

FN1. Generally, uncertified copies of documentary evidence, such as the documents submitted by the parties, are generally inadmissable;  see New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005);  however, where neither party has raised an objection to the documents, the court, in its discretion, may consider the evidence in deciding the motion.   See Barlow v. Palmer, 96 Conn.App. 88, 91–92, 898 A.2d 835 (2006)..  FN1. Generally, uncertified copies of documentary evidence, such as the documents submitted by the parties, are generally inadmissable;  see New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005);  however, where neither party has raised an objection to the documents, the court, in its discretion, may consider the evidence in deciding the motion.   See Barlow v. Palmer, 96 Conn.App. 88, 91–92, 898 A.2d 835 (2006).

Wilson, Robin L., J.