66 Conn. App. 466 | Conn. App. Ct. | 2001
Opinion
The plaintiff, Laura Soares, administratrix of the estate of the decedent, Suzanne Soares, appeals from the summary judgment rendered in favor of the defendant George A. Tomasso Construction Corporation.
On October 26, 1998, the plaintiff commenced an action alleging that the defendant had negligently placed the pile of dirt in the grassy area, proximately causing the decedent’s death. The court rendered summary judgment, finding that the defendant owed no duty to the plaintiffs decedent. This appeal followed. Additional facts and procedural history will be set forth as necessary.
Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book § 17-49 provides in relevant part 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. . . . The test is whether a party would be entitled to a directed verdict on the same facts. ... On appeal, [w]e must decide
I
The plaintiff first claims that the court improperly determined that the defendant owed no duty of care to the decedent and improperly relied on Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 691 A.2d 1107 (1997). She claims that the defendant, a contractor that had used the area for two years, reasonably could foresee that a vehicle would deviate from the road and collide with the pile of dirt,
The following additional facts are relevant to our disposition of the plaintiffs claim. The court, in granting the defendant’s motion for summary judgment, noted that (1) the driver was intoxicated, (2) the truck had only one functional low beam headlamp and (3) the truck was traveling in the opposite lane of traffic. The court stated in its memorandum of decision that “[i]n its motion for summary judgment, [the defendant] argues that under the circumstances of this case, it owed no duty to the plaintiff and therefore is not hable for her death.” The court concluded as a matter of law that the driver’s behavior “does not constitute use of the vehicle in the ordinary course of travel” as defined in § 368 of the Restatement (Second) of Torts. The court further held that the defendant owed no duty to the plaintiff because “[u]nder these circumstances, the defendant could not reasonably foresee the possibility of an accident such as the plaintiffs.” (Internal quotation marks omitted.)
“Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so.” Dean v. Hershowitz, 119 Conn. 398, 407-408, 177 A. 262 (1935). “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). “The existence of a duty of care is an essential element of negligence. ... A duty
“Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. . . . The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. ... A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. . . . The problem for the law is to limit the legal consequences of wrongs to a controllable degree. . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results.” (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 632-33, 749 A.2d 630 (2000).
The plaintiff claims that the defendant owes the duty that adjacent landowners owe travelers on public roads. We have held that an adjacent landowner owes a duty only to those travelers who deviate from the road in the ordinary course of travel. Pion v. Southern New England Telephone Co., supra, 44 Conn. App. 662.
In her argument, the plaintiff attempts to distinguish the present case factually from Pion and other cases involving public utilities. She proposes that the general rule, for public policy reasons, be that the location of telephone poles adjacent to the road does not impose liability on a utility company unless that placement creates a hazard for travelers in the ordinary course of travel. She further argues that because there is no similar public policy protecting the defendant contractor involved here, Pion is not controlling. She cites cases from foreign jurisdictions to support her contention that such cases are inapposite. Her reliance, however, is misplaced.
In Indiana Limestone Co. v. Staggs, 672 N.E.2d 1377, 1379 (Ind. App. 1996), transfer denied, 726 N.E.2d 306 (Ind. 1999), the plaintiff driver was traveling on an icy roadway and lost control of her car. She crossed the center lane, left the roadway and struck an embankment at the comer of a quarry twenty-five feet from the road. Id. The vehicle fell onto the quarry, and the driver was killed. Id. The Indiana Court of Appeals upheld the denial of summary judgment because there was a factual issue as to whether there was a common-law relationship between the plaintiff and the defendant, as an
In fact, the Illinois courts, on which the plaintiff heavily relies, have adopted § 368 of the Restatement (Second) of Torts and have applied it to circumstances similar to those in the present case. In Kavanaugh v. Midwest Club, Inc., 164 Ill. App. 3d 213, 215, 517 N.E.2d 656 (1987), the plaintiffs decedent had an epileptic seizure while driving his vehicle. The vehicle veered off the highway and sank into a nearby retention pond owned by the defendant, resulting in the driver’s death. Id. After citing the Restatement, the Illinois Appellate Court determined that “[f]or a duty to attach, the person to whom it is owed must foreseeably deviate from the roadway in the ordinary course of travel. . . . The complaint must allege facts that demonstrate that the condition of the roadway is such that a vehicle is likely to deviate from it in the ordinary course of travel and come in contact with the artificial condition.” (Citation omitted.) Id., 218. The appeals court held that driving during an epileptic seizure is not in the ordinary course of travel. Id., 218-19.
Similarly, in Battisfore v. Morailes, 186 Ill. App. 3d 180, 182-83, 541 N.E.2d 1376 (1989), the decedent was
In this case, the defendant was not a landowner. Nor was the placement of the dirt mound comparable to the placement of the barrier segments in Vosbein. Any duty that the defendant may owe to the decedent is predicated on the vehicle being operated with due care in the ordinary course of travel. The court, therefore, properly relied on our decision in Pion in concluding as a matter of law that the decedent was not traveling in the ordinary course of travel and that the defendant owed no duty to the decedent.
II
The plaintiff next claims that the court improperly imputed the negligence of the truck’s driver to the decedent. She further argues in her brief that the court “confused the issues of ‘negligence’ of the plaintiff and ‘duty’ of the defendant.” We disagree.
Generally, the negligence of the operator of an automobile cannot be imputed to its passenger. See Silverman v. Silverman, 145 Conn. 663, 668, 145 A.2d 826 (1958). That concept, however, is irrelevant to the present case. In concluding that the defendant owed no duty to the decedent, the court did not impute the negligence of the truck’s driver to the decedent. It simply applied the law. Section 368 of the Restatement (Second) of Torts applies to all “travelers,” including drivers, passengers, pedestrians and so forth. See 2 Restatement (Second), supra, § 368. A “traveler” is “[a]
The court’s conclusions are supported by the record and, therefore, the defendant owed no duty to the decedent. Because the defendant owed no duty to the decedent, it was not negligent and the plaintiff cannot recover. The court, therefore, properly granted summary judgment in favor of the defendant.
The judgment is affirmed.
In this opinion the other judges concurred.
The George A. Tomasso Construction Corp. George A. Tomasso A Joint Venture also was named as a defendant. Judgment was rendered in favor of both defendants. We refer in 1his opinion to both defendants as the defendant.
In her brief, the plaintiff also argues that summary judgment is inappropriate in this case because there are mixed questions of fact and law. At no point, however, does the plaintiff challenge the trial court’s determination that there were no genuine issues of material fact. “The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law. ” Pion v. Southern New England Telephone Co., supra, 44 Conn. App. 660.
Section 368 of 2 Restatement (Second), supra, provides: “A possessor of land who creates or permils to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should
In Pion, the plaintiff was riding his bicycle downhill at a high rate of speed when he veered off the road and hit an electric signal repeater box and the telephone pole on which it was mounted. Pion v. Southern New England Telephone Co., supra, 44 Conn. App. 658. The land was controlled and maintained by the defendant. Id. The plaintiff had ridden his bicycle