Winston C. Brierley v. Cynthia Haas (2014)

MEMORANDUM (Motion for Summary Judgment, # 146, 148, Short Calendar, November 3, 2014)

The defendant moves for summary judgment on the ground that the plaintiff cannot maintain a negligence action because he failed to disclose an expert to testify as to the cause of the accident and the time to disclose such an expert has expired.

FACTS

On September 25, 2012, the plaintiff, Winston C. Brierley, filed a four-count complaint against the defendants, Cynthia and Eric Haas (the Haas defendants).   The Haas defendants filed their answer and special defense on November 20, 2012.   On September 26, 2013, following the court's order granting the plaintiff's motion to cite an additional party, the plaintiff amended his complaint to include a fifth count against the defendant Quality Lines, LLC (Quality Lines).   In response to the defendant Quality Lines' request to revise, on December 31, 2013, the plaintiff filed a revised complaint.   On April 24, 2014, the plaintiff filed an amended complaint in response to the defendant Quality Lines' motion to strike.   On May 27, 2014, the defendant Quality Lines filed its answer and special defense.   On September 16, 2014, the plaintiff filed a request for leave to file an amended complaint and attached an amended complaint that contained three additional counts of spoliation of evidence.¹  The defendants filed objections on September 29, 2014.   The court granted the plaintiff's request on October 14, 2014.

The operative complaint is the complaint dated September 16, 2014.²  In the operative complaint, the plaintiff alleges the following facts.   On August 2, 2012, the plaintiff was operating a 2005 Dodge Dakota truck owned by the Haas defendants, to which a trailer was attached.   The trailer was also owned by the Haas defendants.   The plaintiff was driving westbound on Route 6 in the town of Chaplin when he lost the ability to control the vehicle and ran off the road, resulting in a crash.   Prior to August 2, 2012, the Haas defendants were aware that the truck's power steering was not functioning properly and the trailer was overloaded and/or improperly loaded.   The plaintiff alleges that “power steering helps drivers steer vehicles by augmenting steering effort of the steering wheel.”   The truck's power steering is a hydraulic system, which requires fluid to transmit power.   The failure to maintain the fluid results in the breakdown of the power steering pump and causes the loss of power steering.

The plaintiff further alleges that the Haas defendants were negligent in that they failed to properly maintain and repair the truck.   The plaintiff also alleges that the Haas defendants improperly loaded and attached the overweight trailer to the truck and allowed it to be unsafely towed.   Additionally, the plaintiff alleges that the defendant failed to warn the plaintiff of the dangerous and defective condition of the truck, trailer, and power steering.   The plaintiff alleges that the defendant knew or should have known that the truck's power steering was in a dangerous and defective condition and failed to take proper and adequate measures to fix the defect.

In the third and fourth counts, the plaintiff alleges that the Haas defendants were reckless in that they unreasonably exposed the plaintiff to serious harm.   The plaintiff further alleges that a reasonable person would have foreseen the substantial risk to the plaintiff when the defendant failed to properly and adequately maintain the power steering, improperly loaded the trailer, and improperly weighted the trailer.

The plaintiff further alleges in count five that the defendant Eric Haas is a member of the defendant Quality Lines, which supplied the truck and/or trailer to the plaintiff.   The truck was provided to Quality Lines from the Haas defendants as a substitute vehicle.   The defendant Quality Lines is alleged to have loaded the trailer by and through its agents or members.   The plaintiff alleges that the defendant Quality Lines was negligent in that it:  (1) failed to properly maintain and adequately repair the truck;  (2) improperly loaded the trailer;  (3) attached an overweight trailer to the truck and allowed it to be towed unsafely;  and (4) failed to warn the plaintiff of the dangerous and defective conditions of the truck, trailer, and power steering.   The truck and/or trailer are alleged to have been unreasonably safe for operation, and the plaintiff was injured as a result.

In counts six through eight, the plaintiff alleges individual claims of spoliation against each defendant.   In counts six and seven, the plaintiff alleges the following facts.   On or about August 22, 2012, the Haas defendants and/or the Haas defendants' agent or representative received notice that the truck and trailer constituted evidence and must be preserved to allow for inspection of the truck and trailer in connection with litigation that would arise out of the claim.   The Haas defendants sold the truck at an auction following the August 2, 2012 accident, with the intent to deprive the plaintiff of his cause of action.   The plaintiff further alleges that an inspection of the truck was necessary to prove the existence of a defect and that the defect was a proximate cause of the accident.

In the eighth count, the plaintiff alleges the following facts against the defendant Quality Lines.   On or about August 22, 2012, the defendant Quality Lines and/or its agent or representative received notice that the truck and trailer constituted evidence and must be preserved.   The defendant Quality Lines discarded the contents of the trailer with the intent to deprive the plaintiff of his cause of action, and inspection of the trailer's contents is necessary to prove a defect and causation.

On July 23, 2014, the defendant Quality Lines filed its motion for summary judgment and memorandum in support.   The defendant Quality Lines attached to its memorandum:  (1) excerpts from the March 10, 2014 deposition of the plaintiff;  (2) excerpts from the May 30, 2014 deposition of Gregory Brierley, Jr., the plaintiff's brother;  (3) excerpts from the March 6, 2014 deposition of the defendant Eric Haas;  (4) the police report detailing the accident;  and (5) excerpts from the January 29, 2014 deposition of Robert Desjardin, the accident investigator.   On July 31, 2014, the Haas defendants filed their motion for summary judgment and memorandum in support, adopting the motion and memorandum of the defendant Quality Lines.   The Haas defendants attached the following exhibits to their memorandum:  (1) excerpts from the March 10, 2014 deposition of the plaintiff;  (2) excerpts from the March 6, 2014 deposition of Greg Brierley, Sr., the plaintiff's father;  and (3) excerpts from the May 30, 2014 deposition of Gregory Brierley, Jr., the plaintiff's brother.

The plaintiff filed his objections to both motions and memoranda of law on September 19, 2014.   The plaintiff attached the following exhibits to his memoranda:  (1) excerpts from the plaintiff's March 10, 2014 deposition;  (2) excerpts from the March 6, 2014 deposition of the defendant Eric Haas;  (3) excerpts from the March 6, 2014 deposition of Gregory Brierley, Sr.;  (4) a letter dated August 16, 2012, addressed to the defendant Eric Haas from the plaintiff's attorney;  (5) a letter dated August 20, 2012, addressed to the plaintiff's attorney from Farmers Insurance Group;  (6) a letter dated August 22, 2012, addressed to Farmers National Document Center from the plaintiff's attorney;  (7) a printout from a 21st Century Insurance webpage explaining five types of insurance coverage;  (8) the police report detailing the accident;  and (9) excerpts from the May 30, 2014 deposition of Gregory Brierley, Jr. On October 14, 2014, the defendant Quality Lines filed a reply memorandum.   The Haas defendants filed a reply memorandum on October 16, 2014.   The matter was heard at short calendar on November 3, 2014.

DISCUSSION

“Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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.”  (Citation omitted;  internal quotation marks omitted.)  Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist.”   (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

“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.)  Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319–20, 77 A.3d 726 (2013).  “It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

The defendant Quality Lines argues that the plaintiff's failure to disclose a liability expert is fatal to his claim.   The Haas defendants adopt the argument set forth by the defendant Quality Lines and argue that absent evidence of the causation of the accident, there is no genuine issue of material fact.   The plaintiff argues that he has set forth sufficient evidence to maintain his cause of action without an expert witness.   The plaintiff also argues, in the alternative, that his claim can survive a motion for summary judgment even if expert testimony is required because an adverse inference may be drawn that the evidence that the defendant intentionally destroyed would have been unfavorable to the defendant.

The defendant Quality Lines responds that the plaintiff's reliance on the malfunction theory is procedurally improper because the theory is not raised by the pleadings and if the court accepts the plaintiff's position that he can prove his case through circumstantial evidence, the case is barred by the exclusivity provision of the Connecticut Products Liability Act. The defendant Quality Lines also argues that judicial estoppel precludes the plaintiff from changing his position with respect to his need for a liability expert and the plaintiff must have independent concrete evidence of a defect and cannot rely solely on the spoliation adverse inference.   The Haas defendants respond that the malfunction theory is not applicable to this case and the defendants are entitled to summary judgment because there is an absence of evidence as to causation and the plaintiff cannot establish that a vehicle defect caused the accident.

A

Expert Testimony

Both the defendant Quality Lines and the plaintiff cite to cases involving product liability on the issue of whether expert testimony is necessary.   For example, the defendant Quality Lines cites to White v. Mazda Motor of America, Inc., 139 Conn.App. 39, 46, 54 A.3d 643 (2012), aff'd, 313 Conn. 610, 99 A.3d 1079 (2014), for the proposition that “in cases involving automobiles, expert testimony is particularly essential due to the highly technical, complex and specialized questions raised by such claims ․ [W]ithout such expert testimony, a jury would be unable to determine the proximate cause of the plaintiff's harm.”   This case involved a cause of action sounding in products liability as a result of a fire in a motor vehicle.   Id., 40.

The plaintiff in the present case cites to Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 218, 694 A.2d 1319 (1997), and Vaccarelli v. Ford Motor Co., Superior Court, judicial district of Waterbury, Docket No. CV–99–0153308 (July 6, 2001, Doherty, J.), among other cases, for the proposition that a jury may infer a defect without expert testimony in circumstances where the defect is not outside the ordinary knowledge of the jurors.   Again, these cases involved products liability claims.

The present case, however, involves claims of negligence, not products liability.  “Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”   (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “Summary judgment procedure is especially ill-adapted to negligence cases, where ․ 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 ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

Nevertheless, this court must consider the motions for summary judgment before it on the issue of expert testimony and determine whether there is no genuine issue of material fact and whether the defendants are entitled to judgment as a matter of law.  “It is well established that, [i]f the determination of the standard of care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony will be required ․ Nevertheless, [a]lthough expert testimony may be admissible in many instances, it is required only when the question involved goes beyond the field of the ordinary knowledge and experience of the trier of fact ․ The trier of fact need not close its eyes to matters of common knowledge solely because the evidence includes no expert testimony on those matters ․ [The Supreme Court] note[d] that expert testimony has not been required to show:  negligent boat operation;  ․ or detrimental effects of marijuana ․ [the] effect of operating gasoline station on traffic safety;  ․ negligence in failing to erect porch railing ․ Indeed, in Marquardt & Roche/Meditz & Hackett, Inc. v. Riverbend Executive Center, Inc., 74 Conn.App. 412, 426, 812 A.2d 175 (2003), the Appellate Court concluded that expert testimony was not required to demonstrate the difficulty of backing a vehicle out of a parking space, noting instead that that question is one which our legislature expects all operators of motor vehicles to consider on a regular basis when using public streets.”  (Citations omitted;  internal quotation marks omitted.)  Allison v. Manetta, 284 Conn. 389, 405–06, 933 A.2d 1197 (2007).

In Chasse v. Johnny's Autobody, Inc., Superior Court, judicial district of Middlesex, Docket No. CV–10–6003266–S (September 12, 2011, Wiese, J.), the plaintiff state trooper brought a negligence claim against the defendant autobody shop after a vehicle that the company's flatbed wrecker was attempting to tow from the scene of an accident rolled off of the flatbed wrecker and onto the plaintiff's vehicle in which he was seated as a result of the winch malfunctioning.   The defendant moved for summary judgment on the ground that the plaintiff failed to disclose an expert to testify as to the standard of care and failed to prove causation.  Id. The court held that an expert was not required because the allegations in the complaint were not technically complex.  Id., quoting Allison v. Manetta, 284 Conn. 389, 405–06, 933 A.2d 1197 (2007).   The plaintiff had pled a general negligence claim, which the court determined “does not typically require expert testimony.”  Id. The allegations did not “go beyond the ordinary knowledge of an ordinary juror.”   Id. “An ordinary juror [would] be able to determine whether the defendant knew that the winch was in need of repair without expert testimony because a juror [would] have the ability to weigh the evidence and other witness testimony ․” Id.

In the present case, the plaintiff's allegations are not overly complex.   The plaintiff has alleged negligence and recklessness as a result of the truck's power steering not functioning properly and the trailer being overloaded or improperly loaded.   The plaintiff has presented evidence that the defendants knew there was a problem with the power steering and delayed repairs.   Brierley Dep. 26:2–25, 44:2–18, 97:21–99:15.   According to the plaintiff's deposition, the defendant Eric Haas told the plaintiff to “push [the truck] this last day on the job—then tomorrow I will put it in the shop.”   Brierley Dep. 26:2–14, 99:24–100:12.   Also, the plaintiff represented in his testimony that the trailer was improperly loaded.   Brierley Dep. 49:15–52:19.   Accordingly, an ordinary juror will be able to determine whether the defendants knew that the power steering was in need of repair and whether the trailer was improperly loaded without expert testimony because a juror will have the opportunity to weigh the evidence, such as the parties' testimony.   Therefore, a genuine issue of material fact exists as to whether expert testimony is required and the defendants are not entitled to judgment as a matter of law.³

B

Causation

“Although 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, and summary judgment may be granted based on a failure to establish causation.”  (Internal quotation marks omitted.)  Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).  “The question of proximate causation ․ belongs to the trier of fact because causation is essentially a factual issue ․ It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion;  if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.”  (Internal quotation marks omitted.)  Sapko v. State, 305 Conn. 360, 373, 44 A.3d 827 (2012);  see also Chasse v. Johnny's Autobody, Inc., supra, Superior Court, Docket No. CV–10–6003266–S (“A court cannot grant summary judgment merely because, in its assessment, the plaintiff has a doubtful or anemic case.”).

In the present case, while the defendants claim that there is an absence of evidence as to causation, the plaintiff has presented some evidence on the issue.   Despite the plaintiff's lack of memory concerning the accident itself, according to the plaintiff's testimony as previously discussed, there were problems with the truck's power steering before and at the time of the accident.   Therefore, the plaintiff has demonstrated that a genuine issue of material fact exists on the issue of causation and the defendants are not entitled to judgment as a matter of law.

CONCLUSION

Summary judgment is not appropriate under the circumstances presented because the plaintiff has shown that a genuine issue of material fact exists as to the necessity of expert testimony and the existence of evidence on the issue of causation.   For the foregoing reasons, the defendants' motions for summary judgment are denied.

THE COURT

CALMAR, J.

FOOTNOTES

FN1. Count six pertains to Cynthia Haas, count seven to Eric Haas, and count eight to Quality Lines..  FN1. Count six pertains to Cynthia Haas, count seven to Eric Haas, and count eight to Quality Lines.

FN2. Although the defendants' motions for summary judgment are based on the complaint dated April 24, 2014, the court will consider the motions in regard to the operative complaint dated September 16, 2014.  Practice Book § 10–61 provides:  “When any pleading is amended the adverse party may plead thereto within the time provided by Section 10–8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section.   If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.”.  FN2. Although the defendants' motions for summary judgment are based on the complaint dated April 24, 2014, the court will consider the motions in regard to the operative complaint dated September 16, 2014.  Practice Book § 10–61 provides:  “When any pleading is amended the adverse party may plead thereto within the time provided by Section 10–8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section.   If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.”

FN3. Because the court has found that the plaintiff has met its burden of showing that a genuine issue of material fact exists, it is not necessary for the court to address the plaintiff's alternative argument that the court may draw the inference that the destroyed evidence would be unfavorable to the party that destroyed it.   The claim of spoliation will be determined at the time of trial..  FN3. Because the court has found that the plaintiff has met its burden of showing that a genuine issue of material fact exists, it is not necessary for the court to address the plaintiff's alternative argument that the court may draw the inference that the destroyed evidence would be unfavorable to the party that destroyed it.   The claim of spoliation will be determined at the time of trial.

Calmar, Harry E., J.