Chirieleison v. Lucas, 34274.

144 Conn.App. 430

72 A.3d 1218

Graciela CHIRIELEISON, Administratrix (Estate of Jacqueline Bardales Chirieleison)

v.Robert S. LUCAS et al.

No. 34274.

Appellate Court of Connecticut.

Argued April 10, 2013.

Decided July 30, 2013.

Bruce J. Corrigan, Jr., Westport, for the appellant (plaintiff).

Aamina Ahmad, assistant town attorney, for the appellees (named defendant et al.).

DiPENTIMA, C.J., ALVORD and BISHOP, Js.

ALVORD, J.

The plaintiff, Graciela Chirieleison, administratrix of the estate of Jacqueline Bardales Chirieleison,¹ appeals from the summary judgment rendered in favor of the defendants, the town of Greenwich (town) and Robert S. Lucas,² on her wrongful death action. The plaintiff claims that the court improperly concluded that (1) both defendants were shielded from liability pursuant to the doctrine of qualified governmental immunity because Lucas was engaged in a discretionary governmental activity; (2) the decedent was not an identifiable person subject to imminent harm and, therefore, not within the exception to qualified governmental immunity; and (3) the plaintiff failed to establish a prima facie case of nuisance against the town. We affirm the judgment of the trial court.

The following facts and procedural history are undisputed or were set forth in the court's memorandum of decision. At approximately 5:30 a.m. on September 30, 2007, a vehicle operated by Rafael DeLaCruz struck a car that had been abandoned on the shoulder of Interstate 95 North between exits 4 and 5. DeLaCruz' vehicle was engulfed in flames. The state police and the Cos Cob Fire Police Patrol, Inc., (fire patrol), a volunteer organization operating under the control of the town fire department, responded to the accident. Lucas, a firefighter, drove a 2004 Pierce fire truck to the scene of the accident and, upon arriving, parked the fire truck in a position such that it shielded the emergency response personnel from the traffic on the highway. At the direction of the scene commander, Lucas left the emergency lights on and positioned the fire truck to block the right and center lanes of the highway. Lucas exited the fire truck and, accompanied by another firefighter, placed warning flares in a line extending approximately 100 feet from the fire truck to the guardrail. Lucas and the other firefighter decided to set up a series of traffic cones as well, and they began to walk back to the fire truck to retrieve the traffic cones.

As the emergency personnel were responding to the accident, Reynaldo Sanchez, Gerson DeLeon and the decedent were returning from a dance club in New York City on Interstate 95 North in a car driven by Sanchez. At approximately 6:09 a.m., Sanchez veered out of the line of cars travelling in the left lane of the highway. The Sanchez vehicle crossed through the line of warning flares at a high rate of speed and collided with the fire truck. Sanchez and the decedent died as a result of the accident. DeLeon survived, but suffered severe memory loss and could not remember anything about the accident.

The plaintiff commenced a wrongful death action against the defendants and, on April 4, 2011, filed the operative complaint.³ The complaint contained three counts: in count one the plaintiff alleged negligence against the firefighter Lucas, in count two the plaintiff alleged negligence against the town and in count three the plaintiff alleged nuisance against the town. On September 9, 2011, the defendants filed a motion for summary judgment as to all three counts. As to count one, negligence against firefighter Lucas, the defendants claimed that Lucas was entitled to summary judgment because (1) he was engaged in discretionary governmental acts and no exception to discretionary act immunity was applicable to the facts of this case, and (2) the plaintiff did not comply with notice requirements owed to a volunteer firefighter and a municipality pursuant to General Statutes § 7–308. ⁴ As to count two, negligence against the town, the defendants claimed that the town was entitled to summary judgment because (1) its officers were engaged in discretionary governmental acts and no exception to discretionary act immunity was applicable to the facts of this case, and (2) the plaintiff did not establish a prima facie case of negligence. As to count three, nuisance against the town, the defendants claimed that the town was entitled to summary judgment because the plaintiff could not establish a prima facie case of nuisance.

On January 24, 2012, the court issued a memorandum of decision granting the defendants' motion for summary judgment as to all three counts. The court rendered summary judgment on count one after concluding that Lucas was shielded from liability pursuant to the doctrine of qualified governmental immunity because he was engaged in a discretionary act and no exception to discretionary act immunity was applicable. On count two, the court rendered summary judgment based on a similar qualified governmental immunity analysis, as well as a conclusion that the plaintiff failed to establish a prima facie case of negligence. On count three, the court rendered summary judgment after concluding that the plaintiff failed to establish a prima facie case of nuisance. This appeal followed.

As a threshold matter, we raise the issue of whether the plaintiff's claims with regard to count two are moot. “Mootness raises the issue of a court's subject matter jurisdiction and is therefore appropriately considered even when not raised by one of the parties. Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [this] court's subject matter jurisdiction.... A determination regarding ... [the Appellate Court's] subject matter jurisdiction is a question of law....” (Citations omitted; internal quotation marks omitted.) Lyon v. Jones, 291 Conn. 384, 392, 968 A.2d 416 (2009).

In its memorandum of decision, the trial court rendered summary judgment on count two in favor of the town. The court determined that the town was shielded from liability pursuant to the doctrine of qualified governmental immunity because the town officials were engaged in discretionary governmental acts and no exception to discretionary act immunity was applicable under the circumstances of this case. The court continued its analysis of count two under a separate heading, which addressed the defendants' claim that the plaintiff had failed to establish a prima facie case of negligence. The court noted that “[i]n an automobile accident case, [a] plaintiff cannot merely prove that a collision occurred and then call upon the defendant operator to come forward with evidence that the collision was not a proximate consequence of negligence on his part.” (Internal quotation marks omitted.) Schweiger v. Amica Mutual Ins. Co., 110 Conn.App. 736, 741, 955 A.2d 1241, cert. denied, 289 Conn. 955, 961 A.2d 421 (2008). The court then found that the death of the decedent and Sanchez, coupled with DeLeon's lack of any memory of the accident, provided a “total lack of evidence ... as to the proximate cause of the injury.” As such, the court determined that the plaintiff had failed to present a genuine issue of fact that the town's negligence was the proximate cause of the accident and, accordingly, concluded that “summary judgment is granted as to the defendants' argument that the plaintiff has failed to provide any facts to support the claim of negligence.” ⁵

The plaintiff appeals the judgment rendered by the court that the town was protected by governmental immunity, but she does not appeal the ruling that the plaintiff failed to establish a prima facie case of negligence against the town. We can afford no relief to the plaintiff on her appeal with regard to count two because she did not appeal the court's judgment that the plaintiff failed to establish a prima facie case of negligence against the town. See Lyon v. Jones, supra, 291 Conn. at 394–95, 968 A.2d 416 (failure to appeal from court's findings on collateral estoppel renders claims raised with respect to General Statutes § 46a–70 [a] moot because appellate court would “not be able to provide ... any relief in light of the binding adverse finding with respect to those claims”); Housing Authority v. Davis, 57 Conn.App. 731, 732–34, 750 A.2d 1148, cert. denied, 254 Conn. 901, 755 A.2d 218 (2000) (court cannot provide practical relief on defendants' appeal from court's summary process judgment that their conduct constituted serious nuisance because they did not also appeal court's judgment that use, selling or possession of illegal drugs violated their public housing lease); Grasso v. Connecticut Hospice, Inc., 138 Conn.App. 759, 765–66, 54 A.3d 221 (2012) (court cannot provide practical relief when plaintiff does not appeal judgment on counterclaim that is directly adverse to claim on appeal). Accordingly, we conclude that the plaintiff's claims with regard to count two are moot, and we do not review them.

The plaintiff's claims with regard to the two remaining counts of her complaint—negligence against Lucas and nuisance against the town—will be examined under our well established standard of review for summary judgment. “Practice Book § [17–49] requires that 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. A material fact is a fact that will make a difference in the result of the case.... The facts at issue are those alleged in the pleadings.... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.... The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a...