Theresa Gillerlane et al. v. David Nitschmann et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 118

On May 20, 2013, the plaintiffs, Theresa Gillerlane, Chloe Gillerlane, and Clare Gillerlane, submitted a motion for summary judgment accompanied by a memorandum of law in support, arguing that, based on the undisputed facts, no genuine issues of material fact exist and they are therefore entitled to judgment as a matter of law as to liability.   In support of their motion, the plaintiffs submitted a copy of the police report from the day of the accident.   Subsequently, on May 29, 2013, the defendants, David Nitschmann and Paul Nitschmann, filed an objection to the plaintiffs' motion for summary judgment.   In support of their objection, the defendants submitted a memorandum of law.   Thereafter, on July 25, 2013, the plaintiffs filed a reply to the defendants' objection with an attached affidavit of the plaintiff Theresa Gillerlane.   The matter was heard at short calendar on October 15, 2013.

BACKGROUND

On October 1, 2012, the plaintiffs filed a six-count amended complaint, which is the operative complaint, alleging the following facts.   On August 5, 2010, the plaintiff Theresa Gillerlane was operating her motor vehicle in an easterly direction on Middletown Road in Colchester with her minor children, plaintiffs Chloe and Clare Gillerlane, as passengers.   Intending to turn left onto Ashley Lane, Theresa Gillerlane slowed to a stop and illuminated her left turn signal.   Before she was able to make her intended turn, her vehicle was struck from behind by a motor vehicle operated by the defendant David Nitschmann.   During all relevant times, the vehicle being operated by David Nitschmann was owned by his father, the defendant Paul Nitschmann, who had given David Nitschmann permission to use the vehicle.   The plaintiffs further allege that, pursuant to the “Family Car Doctrine,” David Nitschmann was acting as an agent of Paul Nitschmann for purposes of this action.

The collision was caused by the “negligence and carelessness of the defendant, David Nitschmann” in that, inter alia, he was inattentive, failed to keep proper lookout, failed to reasonably control the vehicle he was operating, was following too closely, was driving too fast for the conditions, and failed to avoid the collision.   As a result of David Nitschmann's negligence and carelessness, the plaintiffs sustained physical and emotional injuries and are seeking monetary damages, as well as any further relief the court deems reasonable.   Moreover, pursuant to the Family Car Doctrine, Paul Nitschmann is vicariously liable for the injuries each plaintiff suffered as a result of David Nitschmann's negligence and carelessness.

LAW RE 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.”  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56–57, 68 A.3d 1162 (2013).  “[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ 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.”   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).   A party's conclusory statements, “in the affidavit and elsewhere ․ do not constitute evidence sufficient to establish the existence of disputed material facts.”  Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).

APPLICABLE LAW

In the present case, the plaintiffs argue that, based on the undisputed facts, there are no genuine issues of material fact with regard to the defendants' negligence, and, as such, they are entitled to judgment as a matter of law as to liability only.   Conversely, the defendants argue that genuine issues of material fact exist with regard to liability.   Specifically, the defendants argue that the plaintiffs have failed to establish each element of negligence, as they submitted only the police report from the day of the accident, which does not take into consideration “other potential factors which may have caused the collision such as the weather and/or road conditions.”   Furthermore, the defendants argue that the police report submitted by the plaintiffs is inadmissable.   In response, the plaintiffs assert that they need not prove each element of negligence for purposes of their motion for summary judgment, as they are moving for summary judgment as to liability only.   Moreover, they argue that the police report is admissible.

“Litigants have a constitutional right to have issues of fact decided by a jury ․ Summary judgment procedure is especially ill-adapted to negligence cases, where, as here, the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․ Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Citations omitted;  internal quotation marks omitted.)   Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 198–99, 319 A.2d 403 (1972).

“Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.”  Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202–03, 663 A.2d 1001 (1995).  “For an item contained in a [police] report to be admissible, it must be based on the entrant's own observation or on information of others whose business duty it was to transmit it to the entrant.”  (Internal quotation marks omitted.)   Annecharico v. Patterson, 44 Conn.App. 271, 277, 688 A.2d 1341 (1997).

ANALYSIS

In the present case, viewing the facts in a light most favorable to the defendants, the plaintiffs have failed to meet their burden of demonstrating the nonexistence of any genuine issue of material fact.   The only evidence the plaintiffs submit in support of their motion is the police report from the day of the accident and an affidavit of the plaintiff Theresa Gillerlane.   While the narrative of the police report describes the circumstances of the collision, contains statements of each party describing what happened, and conclusively states that the “crash was cause by [the defendants' vehicle] for following too close to [the plaintiffs' vehicle],” it is not conclusive on the issue of negligence.   Even if the police report and David Nitschmann's statements that he “could not see very far in front of his vehicle,” and that he “tried pressing his brakes but his vehicle did not stop” are deemed admissible, they are not conclusive, as there are other factors the trier of fact may consider.

“[T]his court [cannot] simply assume that negligence is the only explanation when, as here, the injured party's vehicle is struck from behind while at a full stop.   In O'Brien v. Cordova, 171 Conn. 303, 370 A.2d 933 (1976), our Supreme Court expressly rejected a claim that evidence of a rear-end collision compelled a finding of negligence:  ‘All the evidence indicates is that there was a rear-end collision.   Common experience shows that motor vehicle accidents are not all due to driver negligence.’  Id., at 306.   See also Naarden v. Amendola, Superior Court judicial district of New Haven, Docket No. [CV–09–5027075–S] (October 15, 2010, Zoarski, J.T.R.) (summary judgment denied where defendant driver was distracted and struck plaintiff's vehicle from behind);  Severino v. Gail, Superior Court, judicial district of New Haven at Meriden, Docket No. [CV–03–0285227–S] (August 30, 2004, Frazzini, J.) (37 Conn. L. Rptr. 754) (rear-end collision, summary judgment denied).”   Lasley v. Covenant Ins. Co., Superior Court, judicial district of New Britain, Docket No. [CV–12–5015520–S] (April 9, 2012, Sheridan, J.).

Because genuine issues of material fact exist with regard to the defendants' liability regardless of whether the police report and the statements contained therein are admissible, the court need not address the admissibility of the report for purposes of this motion.   Furthermore, the affidavit of Theresa Gillerlane is conclusory and self-serving and, without more, is not enough to demonstrate that no genuine issues of material fact exist with regard to liability.   Therefore, the plaintiffs have failed to meet their burden with respect to their motion for summary judgment.

ORDER

For the foregoing reasons, the plaintiffs' motion for summary judgment as to liability is denied.

Devine, J.

Devine, James J., J.