Osso v. Marc Automotive, Inc.

Decision Date10 November 2015
Docket NumberX06UWYCV126023218
CourtConnecticut Superior Court
PartiesLuigi Osso et ux v. Marc Automotive, Inc. et al

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #224

Terence A. Zemetis, J.

ISSUE SUBMITTED

Whether the movant, Marc Automotive, Inc., has established there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law on Counts One and Two?

RELEVANT FACTS

The plaintiffs allege: that on April 21, 2010, Brian Sabia, a minor, stole a car from and owned by the MARC Automotive Inc., MARC, car dealership in Milford, CT and drove to Elmsford, NY. There Sabia attempted to evade a police stop and crashed into a car occupied by Luigi Osso causing Osso serious injury. MARC had negligently failed to secure the keys to the car Sabia stole. MARC knew that Sabia had stolen a car from its Milford car lot several months before the April 21, 2010 theft but failed to adequately secure the car keys to prevent similar theft. Count Two is a consortium count, alleging the same conduct by MARC, as the basis for recovery.

MARC moves for summary judgment asserting that MARC owed Osso no legal duty of care and/or that Sabia's theft of the MARC vehicle was a superseding cause shifting the legal responsibility of MARC, to Sabia, for the plaintiffs' damages.

MARC offers the deposition testimony of Marc Gloeckner, an owner of MARC, concerning the security measures undertaken by MARC at the dealership including the keybox used to hold the car keys, the limitation on access by customers of the repair/shop area of the garage, the security measures including bars on the windows and an alarm system on the building in which the keybox was stored, and the lighting and fencing of the dealership parking lot. Gloeckner described Sabia's January 2010 theft of keys and a car from MARC and the remedial actions taken by MARC following that event. Gloeckner testified that in January 2010 Sabia was allowed inside the garage to warm himself and while there Sabia surreptitiously stole a car key from the then open and accessible keybox. Later, after business hours, Sabia returned to the dealership and using the stolen car key stole a car from the MARC parking lot. Gloeckner described Sabia's April 2010 conduct of breaking into the dealership garage building by using a baseball bat to break a window, entering, through steel bars on the windows, the garage building holding the keybox. Then using tools to break into the keybox and steal a car key, all while a burglar alarm was sounding. Exiting the garage, Sabia then drove the stolen car through a chain link fence and chained exit.

The plaintiffs object to the instant motion arguing that MARC owes a legal duty to the Ossos and that their expert's affidavit and the deposition testimony of Sabia raise a genuine issue of material fact requiring a jury's determination whether Sabia's theft of the MARC vehicle and subsequent operation was a superseding cause relieving MARC of legal responsibility for the Ossos' damages. Ossos' expert concerning MARC's security avers that MARC's efforts failed to meet the industry standard for reasonable security measures. Exerpts of Sabia's deposition contradict Gloeckner's affidavit regarding remedial security measures following Sabia's car theft of a MARC vehicle in January 2010: the keybox being in the same position in April as in January, the lack of an audible burglar alarm or an alarm connected to a remote monitoring service, the lack of a guard dog or other live or even photographic guarding or monitoring of the garage/shop area and the ease of egress from the parking lot once the car key was secured due to inadequate blockade of the driveway exits.

LEGAL STANDARDS

The Connecticut Practice Book provides, in pertinent part, that a motion for summary judgment may be granted when there is no genuine issue of material fact in dispute and the movant is entitled to judgment as a matter of law.

Sec. 17-49.--Judgment
The judgment sought 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. (P.B. 1978-1997, Sec. 384.)

A moving party may seek summary judgment by assuming the truth of certain facts solely for purposes of the motion and on this basis argue that it is entitled to judgment as a matter of law. Alternatively, a movant may concede that certain facts are in dispute, but maintain that these facts are immaterial. " A material fact is a fact that will make a difference in the outcome of the case." (Citation omitted.) Reynolds v. Chrysler First Commercial Corp., 40 Conn.App. 725, 729, 673 A.2d 573, cert denied, 237 Conn. 913, 675 A.2d 885 (1996). A " genuine" issue has been described as a " triable, substantial or real" issue of fact or one that " can be maintained by substantial evidence." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). An issue of fact " encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." (Citations omitted.) Id., 379. The burden of showing the non-existence of a material fact cannot be met by mere assertion, but must be shown by " [e]videntiary facts or substantial evidence outside the pleadings." (Citations omitted; emphasis deleted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004). " Because litigants ordinarily have a constitutional right to have issues of fact decided by the finder of fact, the party moving for summary judgment is held to a strict standard. He must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Id., 802. The burden of proving the non-existence (or existence) of a genuine issue of material fact cannot be satisfied by relying on: arguments or assertions by counsel, either orally or in memoranda; Martinez v. Southington Metal Fabricating Co., 101 Conn.App. 796, 799, 924 A.2d 150, cert. denied, 284 Conn. 930, 934 A.2d 246 (2007); unadmitted allegations of the pleadings; Dinnis v. Roberts, 35 Conn.App. 253, 260, 644 A.2d 971, cert. denied, 231 Conn. 924, 648 A.2d 162 (1994); or on unauthenticated documents, speculative or conjectural claims, or other information that would be inadmissible evidence. See Nolan v. Borkowski, 206 Conn. 495, 507, 538 A.2d 1031 (1988) (speculative evidence " cannot serve as a basis for opposition to a motion for summary judgment"); New Haven v. Pantani, supra, 89 Conn.App. 678 (summary judgment procedure " could be circumvented by filing unauthenticated documents in support of summary judgment"). Furthermore, a motion for summary judgment that does not squarely address or refute all the material facts or legal claims raised by the pleadings or the opposing documents should be denied. See Fogarty v. Rashaw, 193 Conn. 442, 444, 476 A.2d 582 (1984).

" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of material facts, which under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law." Socha v. Bordeau, 277 Conn. 579, 585, 893 A.2d 422 (2006).

Additionally, " [t]he courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Id. at 585-86.

Especially important in the consideration of this motion is the evidence produced to support it. " As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of the motion fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such issue." Socha, 586.

" Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." Id. In response to a properly supported motion for summary judgment indicating the absence of any material disputed facts, the burden shifts to the non-movant to present a " factual predicate" demonstrating the existence of a genuine issue of material fact. Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992). Again, this factual predicate must be premised on " evidentiary facts" or " substantial evidence"; Martinez v. Southington Metal Fabricating Co., supra, 101 Conn.App. 799; and cannot be premised solely on mere assertions, unadmitted allegations of the pleadings, or speculative or inadmissible evidence. Id. at 799-800. " To oppose a motion for summary judgment successfully, the non-movant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Citations omitted; internal quotation marks omitted.) Reynolds v. Chrysler First Commercial Corp., supra, 40 Conn.App. 729.

" It must always be borne in mind that litigants have a constitutional right to have issues of fact decided by the jury and not by the court." Ardoline v. Keegan 140 Conn. 552, 555, 102 A.2d 352 (1954); see also Mather v. Griffin Hospital, supra, 207 Conn. 138; Robinson v. Backes, 91 Conn. 457, 460, 99 A....

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