STEWART v. SPEARS, No. CV07 5009326S (Dec. 11, 2008)

2008 Ct. Sup. 19750
No. CV07 5009326SConnecticut Superior Court Judicial District of New Haven at New Haven
December 11, 2008

MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
THOMAS J. CORRADINO, Judge.

This case involves a rear end collision and the plaintiff has brought a motion for summary judgment on the question of liability. Attached to the motion are the responses made by the defendant to the plaintiff’s request for admissions and a police report.

The standards to be applied in deciding a motion for summary judgment are well known. If there is a material question of fact, it should not be granted since a party has a constitutional right to a trial. If there is no such question, it should be granted to avoid the inconvenience and expense of litigation.

The request to admit answered by the plaintiff establishes that it is undisputed that the plaintiff’s car was stopped at a red light and it is further undisputed that her vehicle was struck from behind by the vehicle operated by the defendant. The defendant further admitted that the plaintiff “did not stop her car abruptly prior to (the defendant) striking plaintiff’s car in the rear.”

The officer investigating the accident said the defendant was traveling west on Munson Street and was approaching that street’s intersection with Sherman Avenue. The defendant further told the officer that “when she tried to come to a stop behind (the plaintiff’s vehicle), she slid and struck (the plaintiff’s vehicle).” The officer made two other observations; he said that (1) “it should be noted that the road surface was covered in slush” and (2) he observed that “Op 1 (the defendant) is at fault in this accident. She was given a verbal warning for following too closely.”

The plaintiff has moved for summary judgment as to liability. The posture of the motion and objection are somewhat odd in that no affidavit or other documentary evidence were submitted by the defendant. But the plaintiff did submit a report from a police officer who made, in the CT Page 19751 court’s opinion, two important observations: (1) the roadway was covered in slush; (2) the defendant, although she tried to stop her car (presumably to avoid the collision), slid into the rear of the plaintiff’s vehicle.

If the defendant at trial sought to introduce her statement to the police that she slid when trying to stop, the court would not let it in — one’s own admissions are not within the admissions’ exception, they are simply hearsay. State v. Castonguay, 218 Conn. 486, 496-98 (1991). But the plaintiff submitted the police report attached to the motion for summary judgment. As noted in Tait’s Handbook of Connecticut Evidence, 4th ed. Tate and Prescott:

Hearsay evidence admitted without objection, if believed by the trier, is a sufficient basis for a finding of fact . . . But hearsay admitted without objection is subject to any infirmities due to any inherent weakness and a trier cannot rely on hearsay lacking in rational probative force . . .

The plaintiff, having submitted the police report to the court at the summary process stage, the court can consider its contents as if it came in without objection at trial. True, the limitations noted by Tait apply but the court cannot say the plaintiff’s hearsay statement in the police report has no probative force — it is corroborated by the police officer who noted “the road surface was covered with slush.”

An unavoidable accident theory is not persuasive to the court as a reason to deny the motion. The case of Dinda v. Sirois, 166 Conn. 68, 71-75 (1974) spelled out the weaknesses of that approach. It relies on conclusory reasoning and can distract from the real question — was there negligence.

But the assertion of skidding or sliding on slushy conditions can be a defense against negligence in a motor vehicle case. We live in the Northeast, roads sometimes get icy or covered with slush, vehicles on such road surfaces can skid or slide through no fault of the operator and under such conditions, operators of motor vehicles are not insurers. The point is “evidence of skidding is in and of itself not evidence of negligence.” Lowell v. Daly, 148 Conn. 266, 273 (1961).

Finally, the officer’s “opinion” as to fault is of no relevance to the court and has no probative force. He apparently was not a witness to the accident, he does not give the basis of his opinion. There is no reason offered why he should be regarded as a causation expert. CT Page 19752

The court does not grant the motion for summary judgment.

CT Page 19753