Cheryl A. Longo et al. v. Town of Ledyard et al. (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 132)

On October 31, 2013, the defendants, Officer Eric Bushor, Officer Alan C. Muench, and the town of Ledyard (the town),¹ filed a motion for summary judgment as well as a memorandum of law in support.   In support of their motion for summary judgment, the defendants submit the following evidence:  (1) a signed and sworn affidavit of Officer Bushor;  (2) a signed and sworn affidavit of Officer Muench;  (3) a certified copy of the deposition testimony of Philip Denning, Jr.,² and (4) a copy of the notice of intention to commence suit filed by the plaintiffs pursuant to General Statutes § 7–465.   On December 4, 2013, the plaintiffs responded with an objection to the defendants' motion for summary judgment and filed an accompanying memorandum of law.   In support of their objection, the plaintiffs submitted a certified copy of a Department of Public Safety Investigation Report (police report).   On December 6, 2013, the defendants filed a reply to the plaintiffs' objection to the defendants' motion for summary judgment.   The matter was heard at short calendar on December 9, 2013.

BACKGROUND

On August 23, 2012, the plaintiffs, Cheryl A. Longo and her minor child, filed a sixteen-count complaint against Denning, Officer Bushor, Officer Muench, and the town.   Pursuant to a request to revise, the plaintiffs filed an amended complaint on April 23, 2013.   The amended complaint alleges the following facts.   On September 7, 2010, at approximately 9:48 p.m., Longo, while pregnant with her minor child, was wearing her seatbelt and was in the front passenger seat in her husband's vehicle, traveling in a southerly direction on Route 12 in Ledyard, Connecticut.   On the same date and time, Denning was operating a vehicle at an extremely high rate of speed, being chased by, and was refusing to pull over for the police vehicles of Officer Bushor and Officer Muench.   In fleeing from the police vehicles, Denning struck the rear of the Longos' vehicle with great force.   As a result, the plaintiffs suffered various injuries and damages, including the premature birth of the minor child.

The plaintiffs set forth the following claims against the defendants.   Counts three and four are brought by Longo and are directed against Officer Bushor and Officer Muench, respectively, for negligence.   Counts five and seven are brought by Longo and are directed against the town for the negligence of Officer Bushor and Officer Muench, respectively, pursuant to § 7–465.   Counts six and eight are brought by Lungo and are directed against the town for the negligence of Officer Bushor and Officer Muench, respectively, pursuant to General Statutes § 52–557n.   Counts eleven and twelve are brought by the minor child and are directed against Officer Bushor and Officer Muench, respectively, for negligence.   Counts thirteen and fifteen are brought by the minor child and are directed against the town for the negligence of Officer Bushor and Officer Muench, respectively, pursuant to § 7–465.   Counts fourteen and sixteen are brought by the minor child and are directed against the town for the negligence of Officer Bushor and Officer Muench, respectively, pursuant to § 52–557n.

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.”  (Internal quotation marks omitted.)  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56–57, 68 A.3d 1162 (2013).  “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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

ANALYSIS

The defendants argue that summary judgment should be granted because the actions of Officer Bushor and Officer Muench were not the actual or proximate cause of the plaintiffs' injuries.   Additionally and in the alternative, a review of the notice filed by the plaintiffs pursuant to § 7–465 indicates that notice was not filed on behalf of the minor child.   The plaintiffs counter that they have properly set forth material facts that the collision was due to the negligence and carelessness of the defendants.   Additionally, the notice which was filed with the clerk clearly meets the statutory prerequisites for the minor child pursuant to § 7–465.   In response, the defendants reiterate that reasonable minds could only conclude that Officer Bushor and Officer Muench were not the cause of the accident.   Moreover, notice was only filed on behalf of Longo pursuant to § 7–465, and not on behalf of the minor child.

I. Causation

The defendants argue that the actions of Officer Bushor and Officer Muench were not the actual or proximate cause of the plaintiff's injuries.  “The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 139, 2 A.3d 859 (2010).  “To prevail on a negligence claim, a plaintiff must establish that the defendant[s'] conduct legally caused the injuries ․ The first component of legal cause is causation in fact.   Causation in fact is the purest legal application of ․ legal cause.   The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct ․ The second component of legal cause is proximate cause ․ [T]he test of proximate cause is whether the defendant[s'] conduct is a substantial factor in bringing about the plaintiff[s'] injuries ․ Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendants' conduct] ․ The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection ․ The causal connection must be based on more than conjecture and surmise.”  (Internal quotation marks omitted.)   Winn v. Posades, 281 Conn. 50, 56–57, 913 A.2d 407 (2007).  “[I]ssues of proximate cause may be determined by way of summary judgment only in rare circumstances.”  Kumah v. Brown, 130 Conn.App. 343, 349, 23 A.3d 758 (2011).   Moreover, “[a]lthough the issue of causation generally is a question reserved for the trier of fact ․ the issue becomes one of law when the mind of a fair and reasonable person could reach only one conclusion ․” (Internal quotation marks omitted.)  Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).

Based on the evidence submitted in support of their motion for summary judgment, the defendants take the position that the actions of Officer Bushor and Officer Muench were not the actual or proximate cause of the plaintiffs' injuries because Denning did not hit the Longos' vehicle as a result of being chased by the police.   More specifically, that the accident would have occurred without the officers' actions and that it would require conjecture for a fact finder to conclude that this incident could have been prevented if the officers acted differently.   The defendants cite to several statements made by Denning in his deposition in support of their argument.   For example, that Denning testified did not see any flasher-type lights on the top of the car that was allegedly following him and could not identify anything else about that vehicle.   Denning could also not say whether there were any vehicles behind him when the accident occurred.   According to Denning, it would be a fair statement to say that, when the accident occurred, he did not know whether there were police vehicles near where the accident happened.   He also clearly testified that he believed that there was someone behind him imitating a police officer.   Moreover, the defendants cite to the affidavits of Officer Bushor and Officer Muench, which state that the officers' cruisers never contacted Denning's vehicle or the Longos' vehicle.   Therefore, the defendants argue that it is clear that Denning was not fleeing from the officers, but instead the accident was the result of his intoxication.   Thus, as a matter of law, their actions were not the actual or proximate cause of the plaintiffs' injuries.

The plaintiffs counter that genuine issues of material fact exist with respect to the issue of causation.   In particular, the plaintiffs argue that as noted in the police report, Officer Bushor stated that he was traveling ninety-five (95) miles per hour and that Denning's vehicle was still accelerating away from him.   Officer Bushor also observed Denning's vehicle pass Officer Muench in his clearly marked patrol vehicle.   The police report also indicates that Denning was intoxicated and uncooperative.   Moreover, the plaintiffs cite to several statements made by Denning in his deposition.   In particular, that Denning testified in his deposition that he remembered a car behind him flashing its lights, like a police officer's car sometimes does.   Denning pulled over twice because he thought it was a police officer.   After waiting for someone to approach Denning's vehicle, Denning indicated that he took off like a bat out of hell because he was scared and really did not know what was going on.   When asked what he recalled after turning onto Route 12, Denning indicated that he remembered seeing a police officer's car up ahead of him on the side of the road.   Moreover, although Denning had no recollection of the accident, he recalled trying to evade the person behind him imitating an officer.   Therefore, the plaintiffs argue that the issue of causation is clearly a factual determination for a jury.

In the present case, the plaintiffs have claimed various ways in which Officer Bushor and Officer Muench's alleged negligence caused the plaintiffs' injuries, including, but not limited to, their failure to exercise reasonable care and judgment;  failing to understand the seriousness and consequences of their actions;  failing to have their motor vehicles under proper and reasonable control;  failing to operate their police vehicles in accordance with policies and procedures adopted by the town, concerning the conduct of its officers in engaging in pursuit of a motor vehicle;  and violating motor vehicle laws, in that they operated an emergency vehicle and disregarded statutes, ordinances, or regulations governing direction of movement or turning in specific directions in violation of General Statutes § 14–283.   The moving party “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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11.   Since there are conflicting statements of fact regarding whether Denning was fleeing from Officer Bushor and Officer Muench at the time of the accident, the issue of causation is one for the trier of fact because a fair and reasonable person could reach more than one conclusion as to the issue of causation.   See Abrahams v. Young & Rubicam, Inc., supra, 240 Conn. 307.   Accordingly, the court must deny the defendants' motion for summary judgment with respect to counts three, four, five, six, seven, eight, eleven, twelve, thirteen, fourteen, fifteen, and sixteen of the operative complaint because the defendants have not met their burden.

II. Notice

In the alternative, the defendants argue that a review of the notice filed by the plaintiffs pursuant to § 7–465 indicates that notice was not filed on behalf of the minor child.  Section 7–465 provides in relevant part:  “No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefore arose and written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued ․” “The purpose of a provision requiring statutory notice of a claim as a condition precedent to bringing an action for damages against the municipality is to give the officers of the municipality such information as will enable them to make a timely investigation of the claim and to determine the existence and extent of liability ․ The notice is to be tested with reference to the purpose for which it is required, which is to furnish the party against whom a claim was to be made such warning as to prompt him to make such inquiries as he might deem necessary or prudent for the preservation of his interests, and such information as would furnish him a reasonable guide in the conduct of such inquiries, and in obtaining such information as he might deem helpful for his protection ․ Unless the notice patently meets or fails to meet the requirements of the statute, the question of its sufficiency is a question of fact.”  (Citations omitted;  internal quotation marks omitted.)   Fraser v. Henninger, 173 Conn. 52, 55–56, 376 A.2d 406 (1977).   Moreover, “[n]otice provisions are generally construed liberally in favor of a claimant who is attempting to establish compliance with their terms, and substantial compliance with a statute requiring notice of injury is all that is required.”  Id., 58.

In the present case, the plaintiffs provided written notice to the town of the intent to commence this lawsuit.³  The notice states, inter alia, “that Cheryl A. Longo ․ intends to bring a civil action against Officer Alan C. Muench and Officer Eric Bushor, and their employer, the Ledyard Police Department and/or the Town of Ledyard, and/or the agents, servants and employees of the above named employees of the Town of Ledyard;  and the Town of Ledyard, Connecticut, jointly, for personal physical injuries and/or damages, pursuant to Connecticut General Statutes § 7–465.”  (Defendants' Motion for Summary Judgment, Exhibit D.) The date, time, and place where the damages incurred were “[o]n or about September 7, 2010 at approximately 9:45 p.m.,” on “Route 12 in Ledyard, Connecticut.”  Id. Moreover, that “Cheryl Longo sustained ․ physical injuries including injuries to her ․ uterus, suffering complications with her pregnancy, with possible injury to her fetus, as she was three months pregnant ․” Id. As required by § 7–465, the plaintiffs' notice specifically set forth the time when and the place where the damages were sustained.   It also set forth the surrounding circumstances of the injuries so that as to enable the municipal officers “to make a timely investigation of the claim and to determine the existence and extent of liability.”  Fraser v. Henninger, supra, 173 Conn. 55.   Although the notice did not specifically name the minor child, the notice did state that the injuries Longo incurred included complications with her pregnancy, with possible injury to her fetus.   This information furnishes the municipal officers such warning as to prompt them to make such inquiries as they might deem necessary or prudent for the preservation of their interests.   See id., 56.   Therefore, the notice patently meets requirements of § 7–465.   Accordingly, the court denies the defendants' motion for summary judgment with respect to counts thirteen and fifteen of the operative complaint.

ORDER

For the foregoing reasons, the defendants' motion for summary judgment (# 132) with respect to counts three, four, five, six, seven, eight, eleven, twelve, thirteen, fourteen, fifteen, and sixteen of the operative complaint is denied.

Devine, J.

FOOTNOTES

FN1. For purposes of this decision, Officer Eric Bushor, Officer Alan C. Muench, and the town of Ledyard will be referred to as the defendants.   Philip Denning, Jr., the remaining defendant, is not a party to the present motion for summary judgment..  FN1. For purposes of this decision, Officer Eric Bushor, Officer Alan C. Muench, and the town of Ledyard will be referred to as the defendants.   Philip Denning, Jr., the remaining defendant, is not a party to the present motion for summary judgment.

FN2. It appears that the plaintiffs have misspelled Philip Denning, Jr.'s name as “Phillip” in the summons and throughout the proceedings in this action.   The proper spelling of his name is apparent from Denning's deposition testimony submitted in support of the defendants' motion for summary judgment and a Department of Public Safety Investigation Report submitted in support of the plaintiffs' objection to the defendants' motion for summary judgment..  FN2. It appears that the plaintiffs have misspelled Philip Denning, Jr.'s name as “Phillip” in the summons and throughout the proceedings in this action.   The proper spelling of his name is apparent from Denning's deposition testimony submitted in support of the defendants' motion for summary judgment and a Department of Public Safety Investigation Report submitted in support of the plaintiffs' objection to the defendants' motion for summary judgment.

FN3. The notice of intent to commence suit is dated February 28, 2011.   A copy of the notice is attached to the defendants' motion for summary judgment as Exhibit D..  FN3. The notice of intent to commence suit is dated February 28, 2011.   A copy of the notice is attached to the defendants' motion for summary judgment as Exhibit D.

Devine, James J., J.