Manchenton v. Auto Leasing Corp.

• Decision Date: 09 March 1992
• Docket Number: No. 90-220,90-220
• Citation: 135 N.H. 298,605 A.2d 208
• Parties: John MANCHENTON and another v. AUTO LEASING CORP. and another.
• Court: New Hampshire Supreme Court

Page 208

605 A.2d 208

135 N.H. 298

John MANCHENTON and another v. AUTO LEASING CORP. and another.

No. 90-220.

Supreme Court of New Hampshire.

March 9, 1992.

Marcotte Law Firm, Lowell, Mass. (John P. Maynard, on the brief, and Kathleen M. O'Donnell, orally), for plaintiffs.

Devine, Millimet & Branch P.A., Manchester (Matthias J. Reynolds, on the brief, and James M. Costello, orally), for defendants.

THAYER, Justice.

The plaintiffs appeal the Superior Court's (Hollman, J.) order granting the defendants' summary judgment motion. This case involves an automobile accident in which defendant Auto Leasing Corporation's stolen vehicle, while being negligently operated by a thief, collided with the plaintiffs' vehicle giving rise to personal injury and wrongful death claims. On appeal, the plaintiffs contend that the trial court erred as a matter of law in finding that RSA 265:72 was not applicable to this case and in determining that the defendants' negligence was superseded by an intervening event relieving the defendants from liability. We affirm the trial court's grant of summary judgment.

Sometime between 8:30 p.m. on June 15, 1987, and 8:00 a.m. on June 16, 1987, Frederick Kania's vehicle was stolen from the private parking lot next to the apartment house where he resided in Portsmouth. Auto Leasing Corporation owned the vehicle and leased it to Raytheon Company. Raytheon entrusted the vehicle to its employee, Mr. Kania. At the time of the theft, the car was left unlocked and unattended. Mr. Kania also might have left the vehicle's keys inside the car, either in plain view or in the ignition. Approximately six days later, on June 21, 1987, the stolen vehicle was involved in a head-on collision with the plaintiffs' car on Route 28 in Windham. Mark Hilton, who stole the vehicle, was driving negligently when the accident occurred. As a result of the accident, Rita Manchenton suffered fatal injuries, and John and Edward Manchenton suffered severe and permanent injuries.

John, Edward, and the estate of Rita Manchenton, the plaintiffs, commenced suit against Mark Hilton, Auto Rental Corporation, Raytheon Company and Frederick Kania. Mr. Hilton, who is currently imprisoned for the crimes which he committed in connection with this incident, never filed an answer in this matter, was subsequently defaulted, and is not a party to this appeal. The claims against the remaining defendants center on the allegation that Mr. Kania violated RSA 265:72 by leaving the car unattended, unlocked, and with the keys either in the ignition or in plain view inside the car. The plaintiffs claimed that Mr. Kania's violation of this statute facilitated the theft and, thus, was a proximate cause of the harm they ultimately sustained. Alternatively, the plaintiffs claimed that Mr. Kania's actions amounted to common law negligence and proximately caused their injuries.

On March 21, 1990, the defendants collectively moved for summary judgment and, in support, submitted the deposition of Mr. Kania and its attached exhibits: the accident report and the pleadings from the criminal action against Mr. Hilton. The plaintiffs objected to the motion.

After a hearing, the court granted the defendants' motion. In its order, the court explicitly stated that, for the purpose of ruling on the motion, it was assuming that Mr. Kania left his keys inside the car, either in plain view or in the ignition. The court, however, found that RSA 265:72 was not applicable because the "defendants' vehicle was not parked on a 'way' as defined in RSA 259:125." The trial court further found, as a matter of law, that any negligence committed by Mr. Kania was not a proximate cause of the harm sustained by the plaintiffs.

On appeal, the plaintiffs assert the following: (1) the defendants' motion for summary judgment was fatally defective because it was not accompanied by an affidavit based upon the personal knowledge of an individual competent to testify at trial as required by RSA 491:8-a, II; (2) the trial court erred as a matter of law in finding that RSA 265:72 does not apply to the defendants' conduct and therefore cannot provide the basis for the plaintiffs' negligence suit; and (3) the trial court erred as a matter of law in holding that no reasonable person could find that the defendants' negligence was a proximate cause of the plaintiffs' injuries.

Pursuant to RSA 491:8-a, the trial court is obligated to grant summary judgment when, after considering all the evidence presented in the light most favorable to the non-moving party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Heaton v. Boulders Properties, Inc., 132 N.H. 330, 335, 566 A.2d 1127, 1130 (1989); see also ERA Pat Demarais Assoc's v. Alex. Eastman Found., 129 N.H. 89, 92, 523 A.2d 74, 76 (1986).

We first address the plaintiffs' contention that the defendants' motion for summary judgment did not satisfy the technical requirements of RSA 491:8-a. The statute provides, in part: "Any party seeking summary judgment shall accompany his motion with an affidavit based upon personal knowledge of admissible facts as to which it appears affirmatively that the affiants will be competent to testify." RSA 491:8-a, II (emphasis added). The defendants did not submit an affidavit along with their motion for summary judgment, but did submit the deposition of Mr. Kania. The plaintiffs contend that the submission of a deposition does not satisfy the affidavit requirement of RSA 491:8-a, II. Although we have previously stated that a motion for summary judgment that is not accompanied by an affidavit must be denied, Brown v. John Hancock Mut. Life Ins. Co., 131 N.H. 485, 490, 558 A.2d, 822, 824 (1989); Daigle v. City of Portsmouth, 131 N.H. 319, 329, 553 A.2d 291, 297 (1988); Omiya v. Castor, 130 N.H. 234, 237, 536 A.2d 194, 196 (1987), we have not previously considered whether a deposition may be submitted in place of an affidavit.

A deposition is defined as the testimony of a witness reduced to writing, under oath or affirmation, by oral examination or in response to written interrogatories, and with the opportunity of cross-examination. See Accident Indemnity Insurance Co. v. Feely, 279 Ala. 74, 181 So.2d 889, 891 (1966); State v. Lord, 42 N.M. 638, 660, 84 P.2d 80, 94 (1938). An affidavit is "a written statement, under oath, sworn to or affirmed by the person making it before some person who has authority to administer an oath or affirmation." Mountain States Resources, Inc. v. Ehlert, 195 Mont. 496, 503, 636 P.2d 868, 872 (1981) (quoting State v. Knight, 219 Kan. 863, 867, 549 P.2d 1397, 1401 (1976)). The terms are dissimilar in that a deposition is generally taken with notice to the adverse party, and with an opportunity for cross-examination. See Arizona Real Estate Dept. v. Arizona Land T. & T. Co., 14 Ariz.App. 509, 511, 484 P.2d 662, 664 (1971). Additionally, depositions may be used as evidence at trial, see N.H.R.Ev. 804(b)(1), whereas affidavits are generally not admissible as independent evidence of material facts at trial, see N.H.R.Ev. 802; 3 Am.Jur.2d, Affidavits § 30, at 490 (1986). More important however, as the definitions above reveal, depositions are fundamentally similar to affidavits in that both are written statements, but see Super.Ct.R. 45 (permitting videotaped depositions), that are sworn to before an authorized officer. Thus, although the distinctions between a deposition and an affidavit are well defined, it is apparent that testimony given in the form of a deposition may also satisfy the definition of affidavit. See Chubbuck v. Beaty, 80 Kan. 789, 790, 104 P. 558, 559 (1909) (deposition was a verified, written declaration of a witness and therefore an affidavit). Here, the deposition of Mr. Kania consisted of a statement that was reduced to writing, sworn to, and made before a person having the authority to administer an oath. Accordingly, we hold that the defendants' submission of the deposition of Mr. Kania with their motion for summary judgment was sufficient to satisfy the affidavit requirement of RSA 491:8-a, II.

The plaintiffs also argue that Mr. Kania's deposition does not satisfy the requirements of RSA 491:8-a because, even if it is equivalent to an affidavit, it contains inconsistent statements regarding the location of his car keys at the time of the theft resulting in a genuine issue of material fact. However, at the hearing on the defendants' motion for summary judgment, the court expressly assumed, for the purpose of ruling on the motion, that the keys were left inside the car, either in plain view or in the ignition. Additionally, plaintiffs' counsel agreed during this hearing that the court's assumption satisfied the concerns she had about the inconsistencies in Mr. Kania's deposition.

We now address the plaintiffs' contention that Mr. Kania's conduct is governed by RSA 265:72. This statute provides:

"No person driving or in charge of a vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the way."

RSA 265:72. We assume, for the purpose of deciding this question, that Mr. Kania left his key in the ignition.

"[A] causal violation of a statutory standard of conduct constitutes legal fault in the same manner as does the violation of a common law standard of due care...." Moulton v. Groveton Papers Co., 112 N.H. 50, 52, 289 A.2d 68, 71 (1972). As a general rule, whether a statute applies in a particular case is a preliminary question of law for the trial court to determine. Lupa v. Jensen, 123 N.H. 644, 646, 465 A.2d 513, 514 (1983). The proper determination is whether the harm that occurred was within the risk of danger against which the statute was designed to protect. See Bagley v. Controlled Environment Corp., ...