Century Boulevard is a six-lane thoroughfare which runs east and west. For several blocks on either side of the liquor store, it is straight and level. The posted speed limit is 35 or 40 miles per hour. . . . Roberts may have been speeding when she lost control of her car. In the opinion of defendants’ expert witness, her car was traveling at a speed of 30 to 35 miles per hour when it struck the phone booth. . . . [P]laintiff introduced declarations which established that this accident was not the first one involving a phone booth at this particular location. On February 13, 1973, some 20 months prior to plaintiff’s accident, another car struck a phone booth in this same location. Following this previous accident, defendants placed three steel “bumper posts” between the phone booths and the parking lot. No such posts were placed between the booths and Century Boulevard. At the hearing on the motion [for summary judgment] . . . the dispute between the parties centered on whether the evidence presented triable issues of fact as to the questions of duty and proximate cause. At the close of argument, the court granted the motion and entered a judgment of dismissal. This appeal by the plaintiff followed. Defendants contend that their duty to use due care in the location, installation, and maintenance of telephone booths does not extend to the risk encountered by plaintiff and that neither their alleged negligence in carrying out these activities nor any defect in the booth was a proximate cause of plaintiff’s injuries. These contentions present the same issue in different guises. Each involves this question – was the risk that a car might crash into the phone booth and injure plaintiff reasonably foreseeable in this case? Ordinarily, foreseeability is a question of fact for the jury. It may be decided as a question of law only if, “under the undisputed facts there is no room for a reasonable difference of opinion.” Accordingly, this court must decide whether foreseeability remains a triable issue in this case. If any triable issue of fact exists, it is error for a trial court to grant a party’s motion for summary judgment. Turning to the merits of this case, the question presented is a relatively simple one. Is there room for a reasonable difference of opinion as to whether the risk that a car might crash into the phone booth and injure an individual inside was reasonably foreseeable under the circumstances set forth above? In pursuing this inquiry, it is well to remember that “foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.” One may be held accountable for creating even “‘the risk of a slight possibility of injury if a reasonably prudent [person] would not do so.’” Moreover, it is settled that what is required to be foreseeable is the general character of the event or harm — e.g., being struck by a car while standing in a phone booth — not its precise nature or manner of occurrence. Here, defendants placed a telephone booth, which was difficult to exit, in a parking lot 15 feet from the side of a major thoroughfare and near a driveway. Under these circumstances, this court cannot conclude as a matter of law that it was unforeseeable that the booth might be struck by a car and cause serious injury to a person trapped within. A jury could reasonably conclude that this risk was foreseeable. This is particularly true where, as here, there is evidence that a booth at this same location had previously been struck. Indeed, in light of the circumstances of modern life, it seems evident that a jury could reasonably find that defendants should have foreseen the possibility of the very accident which actually occurred here. Swift traffic on a major thoroughfare late at night is to be expected. Regrettably, so too are intoxicated drivers. Moreover, it is not uncommon for speeding and/or intoxicated drivers to lose control of their cars and crash into poles, buildings or whatever else may be standing alongside the road they travel — no matter how straight and level that road may be. Where a telephone booth, which is difficult to exit, is placed 15 feet from such a thoroughfare, the risk that it might be struck by a car veering off the street, thereby causing injury to a person trapped within, cannot be said to be unforeseeable as a matter of law. It is of no consequence that the harm to plaintiff came about through the negligent or reckless acts of Roberts. “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” Here, the risk that a car might hit the telephone booth could be found to constitute one of the hazards to which plaintiff was exposed. Considering the case law and the circumstances of this case, this court cannot conclude as a matter of law that injury to plaintiff, inflicted by negligent or reckless third party drivers, was unforeseeable. “[Just] as we may not rely upon our private judgment on this issue, so the trial court may not impose its private judgment upon a situation, such as this, in which reasonable minds may differ.” Since the foreseeability of harm to plaintiff remains a triable issue of fact, the judgment is reversed and the case is remanded to the trial court for further proceedings consistent with the views expressed in this opinion. McInerney v. Polymer (Superior Court of Connecticut 2012) OPINION BY JUDGE SWIENTON: The defendants, Polymer Resources, LTD (PRL), William R. Feldman, and Philip Juzwick (collectively, “the defendants”), move to strike count three of the plaintiff’s complaint, a claim for assault and battery against the defendant, Juzwick, because the plaintiff has failed to plead facts sufficient to state a claim upon which relief may be granted. Count three of the complaint sounds in the tort of assault and battery.
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The post move to strike count three of the plaintiff’s complaint, a claim for assault and battery against the defendant, Juzwick, because the plaintiff has failed to plead facts sufficient to state a claim upon which relief may be granted. appeared first on Shine Essay.
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