Mark Viccaro v. Peerless Insurance Company (2015)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (# 141)

In this suit for uninsured motorist benefits under an automobile insurance policy, the defendant insurer, Peerless Insurance Company, has moved for summary judgment in its favor on the complaint of the plaintiff, Mark Viccaro.   Essentially, the motion is for summary judgment that the plaintiff's claims are barred by the special defense of assumption of the risk.   Specifically, the defendant claims that the complaint is barred, as a matter of law, by the defense that the plaintiff “observed or should have observed that Mr. Dumas [the driver of the vehicle in which the plaintiff chose to be a passenger] consumed such a quantity of alcoholic beverages before [Mr. Dumas] drove that [the plaintiff] knew, or should have known, that Mr. Dumas was in an intoxicated condition.” ¹

“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.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010);  see Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 56, 68 A.3d 1162 (2013).   The party seeking summary judgment has the burden of showing 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).   The court views the evidence in the light most favorable to the nonmoving party.   See Brooks v. Sweeney, supra.   The court's function here is not to decide issues of material fact, but only to determine whether any such issue exists.   See Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).   Statements that are merely conclusions are not considered evidence for present purposes.   See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).   Summary judgment “ ‘is appropriate only if a fair and reasonable person could conclude only one way.’  ․'[A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.'  “ (Citations omitted.)   Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

The defendant argues that the law of the state where the subject automobile accident occurred—Rhode Island—is that “[t]o assume a risk of harm, a plaintiff must ‘[know] of the existence of the risk and [appreciate] its unreasonable character.’  [Walker v. Jackson, 723 A.2d 1115, 1117 (R.I.1999) ].”   Accepting this as the applicable law of the state in which the plaintiff would have to recover damages from Mr. Dumas, in whose shoes stands the defendant, as issuer of the subject uninsured motorist coverage (up to the policy limit), the court cannot conclude that there is only one reasonable inference from the evidence presented on the motion, i.e. that the plaintiff both knew of the existence of the risk of getting in the car with Mr. Dumas on the evening in question and appreciated the unreasonable character of that risk.   Although the plaintiff alleges that Mr. Dumas was driving under the influence of alcohol, that is no admission that the plaintiff knew that was true when he got in the car with Mr. Dumas.   Whether a risk of harm has been assumed by the plaintiff is generally a question for the trier of fact.  Id. Indeed, the special defense (see note 1) goes on to allege that the plaintiff had “consumed so much alcohol that he was rendered unfit to make proper uses of his senses and faculties.”   This is hardly a case where the only reasonable inference from the evidence is that drawn by the movant.

Taylor v. Coats, 180 N.C.App. 210, 213–14, 636 S.E.2d 581 (2006), relied upon by the defendant, is unpersuasive because it conflates what the plaintiff knew with what the plaintiff should have known—that the driver was “appreciably impaired.”   What the plaintiff should have known is not part of the Rhode Island standard for assumption of risk, according to Walker v. Jackson, supra, 723 A.2d 1117.   A motion for summary judgment cannot be granted based on inferences as to what someone knew because inferences are for the trier of fact.   See Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994) (summary judgment inappropriate based on inferences about state of mind).   Moreover, even if what the plaintiff should have known about Mr. Dumas's level of inebriation were pertinent to the defense of assumption of risk in Rhode Island, that issue would be for the jury to decide.

For these reasons, the motion for summary judgment is denied.

Cole–Chu, J.

FOOTNOTES

FN1. See defendant's February 5, 2014, Revised Answer, Affirmative Defense and Special Defenses to Complaint, “Affirmative Defense/Special Defense No. 1”:  “The plaintiff is chargeable with negligence and assumed the risks which the plaintiff claims caused his injuries in that:  1. He observed or should have observed that Mr. Dumas consumed such a quantity of alcoholic beverages before [Mr. Dumas] drove that he knew, or should have known, that Mr. Dumas was in an intoxicated condition;  2. [The plaintiff] consumed so much alcohol that he was rendered unfit to make proper uses of his senses and faculties;  and 3. Because of either one or both of the above, he failed to use the care of a reasonably prudent person under the circumstances then and there existing.”.  FN1. See defendant's February 5, 2014, Revised Answer, Affirmative Defense and Special Defenses to Complaint, “Affirmative Defense/Special Defense No. 1”:  “The plaintiff is chargeable with negligence and assumed the risks which the plaintiff claims caused his injuries in that:  1. He observed or should have observed that Mr. Dumas consumed such a quantity of alcoholic beverages before [Mr. Dumas] drove that he knew, or should have known, that Mr. Dumas was in an intoxicated condition;  2. [The plaintiff] consumed so much alcohol that he was rendered unfit to make proper uses of his senses and faculties;  and 3. Because of either one or both of the above, he failed to use the care of a reasonably prudent person under the circumstances then and there existing.”

Cole–Chu, Leeland J., J.