Lachowicz v. Rugens

• Decision Date: 16 March 2010
• Docket Number: No. 30574.,30574.
• Citation: 989 A.2d 651,119 Conn.App. 866
• Parties: Ami LACHOWICZ v. Matthew RUGENS.
• Court: Connecticut Court of Appeals

989 A.2d 651

119 Conn.App. 866

Ami LACHOWICZ v. Matthew RUGENS.

No. 30574.

Appellate Court of Connecticut.

Argued December 2, 2009.

Decided March 16, 2010.

Anthony V. Federice, for the appellant (plaintiff).

Maribeth M. McGloin, for the appellant (intervening plaintiff).

Peter D. Clark, Shelton, for the appellee (defendant).

HARPER, ALVORD and MIHALAKOS, Js.

MIHALAKOS, J.

The plaintiff, Ami Lachowicz,¹ appeals from the summary judgment rendered by the trial court in favor of the defendant, Matthew Rugens, in this negligence action. The plaintiff claims that the court improperly granted the defendant's motion for summary judgment after concluding that the defendant owed no legal duty to her. We affirm the judgment of the trial court.

The record reveals the following facts. It is undisputed that on June 12, 2005, the plaintiff and the defendant were volunteer firefighters for the New Hartford volunteer fire department (department). On that date, the defendant was to drive the department rescue truck to a nearby lake to conduct a cold water training session. At the time when the plaintiff boarded the truck, she was wearing a full, one piece cold water rubber rescue suit. Prior to the plaintiff's attempting to climb into the truck, the ignition switch of the vehicle was in the on position, and the vehicle's engine was in operation. It is also undisputed that there was no forward movement of the fire truck at any time. The affidavit of the defendant attested to the fact that, although there was a vibration as a result of the engine having been turned on, there was no motion of the vehicle because the truck was in park.

In her complaint, the plaintiff alleges that as she was attempting to board the fire truck, she slipped and injured her knee. She alleges that the defendant was negligent in operating the fire truck by turning on its engine before allowing her to enter the vehicle safely and, as a result thereof, the vibration of the vehicle caused her to fall off the vehicle. The plaintiff argues that it was foreseeable to the defendant that the plaintiff would be injured if he started the fire rescue truck's engine prior to her boarding. We disagree with the plaintiff's contention that the harm that resulted from the defendant's operation of the fire rescue truck was foreseeable to the defendant, and, as a result, we conclude that the court properly granted the motion for summary judgment.

At the outset we note our standard of review. "Summary judgment is appropriate when 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.... Thus, because the court's decision on a motion for summary judgment is a legal determination, our review on appeal is plenary...." (Citations omitted; internal quotation marks omitted.) Heussner v. Day, Berry & Howard, LLP, 94 Conn.App. 569, 572-73, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38 (2006).

"The existence of a duty of care is a prerequisite to a finding of negligence." Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614, 783 A.2d 462 (2001). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand." (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). "If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85, 650 A.2d 153 (1994).

Our Supreme Court has stated that "the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717 A.2d 215 (1998).

"Our first step in an analysis of whether a duty exists and the extent of the defendant[s'] duty ... is to determine the foreseeability of the plaintiff[s'] injury...." (Internal quotation marks omitted.) Id. It is a well established tenet of our tort jurisprudence, however, that "[d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable. See Palsgraf v. Long Island R. Co., 248 N.Y. 339, 345, 162 N.E. 99 [1928].... [A] defendant [is] not required to take precautions against hazards [that are] too remote to be reasonably...