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DOCKET NO: UWY-CV-20-6055310 S : SUPERIOR COURT
RYAN GOMBOS, ET AL : J.D. OF WATERBURY
VS. : AT WATERBURY
SEASIDE WINE AND LIQUOR, LLC, ET AL : JULY 8, 2021
DEFENDANT ALLISON LODER’S REPLY MEMORANDUM OF LAW IN SUPPORT
OF MOTION FOR SUMMARY JUDGMENT
The Defendant Allison Loder respectfully submits a Reply Memorandum to Plaintiffs
Ryan and Jeffrey Gombos’ Objection to Allison Loder’s Motion for Summary Judgment and
Memorandum of Law in Support, dated June 25, 2021 (#178.00).
I. Defects in Plaintiff’s Objection
Summary judgment motions and objections must be supported by competent evidence.
Practice Book Section 17-45 required “appropriate documents, including but not limited to
affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the
like”. The Connecticut Supreme Court states that the section does not limit the documents to
those identified in the rule, “but we note that ‘only evidence that would be admissible at trial
may be used to support or oppose a motion for summary judgment.’” New Haven v. Pantani,89
Conn. App. 675,678 (2005), citing Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185,
202-203 (1995). The Court also states that the rule “contemplates that supporting documents to a
motion for summary judgment be made under oath or otherwise reliable”. Id., citing United
States Autombile Assn. v. Marburg, 46 Conn. App. 99, 107-108 (1997).
An objection to motion for summary judgment “must present an evidentiary foundation
to demonstrate the existence of a genuine issue of material fact.” Appleton v. Board of
Education, 254 Conn. 205, 209 (2000). “The existence of (a) genuine issue of material fact must
be presented by counter-affidavits and concrete evidence.” Pion v. Southern New England
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Telephone Co., 44 Conn. App. 657, 663 (1997). Plaintiff here “may not rely on mere speculation
or conjecture as to the true nature of facts to overcome a motion for summary judgment.” Doty
v. Shawmut Bank, 58 Conn. App. 427, 430 (2000).
a. Application of Allegations of Amended Complaint:
Plaintiffs filed a Request for Leave to Amend Complaint and proposed Amended
Complaint on April 28, 2021 (#146.00) the same day that this defendant, Allison Loder, filed her
Motion for Summary Judgment per the scheduling order agreed to by the parties at a status
conference with the Court. The defendant timely filed an Objection to Request to Amend on
April 30, 2021 (#149.00), citing prejudice with the pending summary judgment. The Court
overruled this objection (#149.10) by Order which did not address the pending summary
judgment motions. A Motion for Clarification/Articulation and Reconsideration (#177.00) was
filed June 25, 2021, not yet acted upon. The Court ordered an objection to the same to be filed
by July 9, 2021 (#184.10) after this reply brief was due under the agreed schedule for summary
judgments. A Caseflow Request was filed requesting a status conference on the issue. Plaintiff’s
counsel was not available for the date and time proposed.
Plaintiffs’ Objection to Summary Judgement is presented based upon the assumption that
the Amended Complaint is now the operative complaint in response to the defendant’s Motion
for Summary Judgment, absent clarification. Defendant’s position is that the Amended
Complaint was not the operative complaint when her motion was filed and the factual allegations
asserted in that Amended Complaint are not evidence and should not be considered. Defendant
respectfully represents that possible Requests to Revise and Motion to Strike are being
considered for the new allegations which drastically seek to alter social host liability and create a
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cause of action for “aiding and abetting” social host liability presently not recognized in
Connecticut.
Caselaw in Connecticut generally has held that the allowance of an amended complaint
when a summary judgment motion is pending is left to the discretion of the court. Miller, et al.
v. Fishman, et al., 102 Conn. App. 286 (2007). The Court in Miller, p.300 held that the
amendment in that case should have been allowed as it “did not change the identity of the causes
of action; it merely specified the ways in which the defendant was negligent”. The decision,
however, cites at page 292, LaFlamme v. Dallessio,65 Conn. App. 1,7 (2001) in which the
discretion of the court was proper in rendering summary judgment on the operative complaint
and not allowing the amendment.
Defendant respectfully that the Court exercise its discretion in not considering argument
based on the allegations of the Amended Complaint and as they do not relate back to the original
Complaint.
b. Report and Addendum of Charles McKay, M.D., Exhibit B of Plaintiff’s
Objection
Plaintiffs attached to their Memorandum in Opposition to Summary Judgment a report,
dated May 8, 2021, of a toxicologist recently disclosed as an expert witness by the plaintiff,
Janelle Pompea in a consolidated action. This expert has not been disclosed by these plaintiffs or
disclosed in this action.
Defendant respectfully submits that this report should not be considered as competent
evidence in consideration of the subject motion for summary judgment. First, the genuineness of
the attached report has not been authenticated in any way, it is not even addressed to the
plaintiffs in this action but to the attorney in another action. Connecticut courts have long
required that a document to be considered as evidence in ruling on summary judgment must have
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“a preliminary showing of (the document’s) genuineness”…. The requirement applies to all
types of evidence, including writings”. New Haven v. Pantani, supra at 679, citing Conn. Code
of Evidence Section 9-1(a).
Secondly, the expert report attached as Exhibit B to the plaintiffs’ objection would not
otherwise by admissible at trial. Id, 678. Conn. Code of Evidence Section 7-2 allows opinion
testimony at trial. The evidence code does not allow the submission of reports in lieu of
testimony. Plaintiff here attempts to rely on a report, not any certified testimony or even an
affidavit based on personal knowledge.
Additionally, the report of Dr. McKay provides no evidence or even opinion causally
relating the intoxication of the driver to any alcohol brought to the party by this defendant,
Alison Loder. He does not rely on any of the deposition testimony concerning Ms. Loder’s
bringing alcohol to the party or providing it to the operator. Section 7-2 allows opinion
testimony of an expert only if it “will assist the trier of fact in understanding the evidence or in
determining a fact in issue.” There is nothing in this report which establishes a material issue of
fact as to Alison Loder’s negligence or recklessness.
Finally, Dr. McKay’s attempt at tying the operator’s intoxication to the vodka admittedly
brought to the party by the defendant Loder is entirely speculative and lacks evidentiary
foundation. Page 4 of his report, Dr. McKay states that “alcohol unaccounted for by history
could be attributed to additional consumption of approximately 3-6 ounces of vodka or 24-48
ounces of Budweiser beer, or some combination thereof.” (emphasis added). Any claim of
consumption of vodka by the operator is entirely speculative. Connecticut law is clear that to
establish a causal connection between a claimed injury and defendant’s conduct “must be based
upon more than conjecture and surmise.” Winn v. Posadedes, 281 Conn. 50, 56-57 (2007). See
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also, Trahan v. Cochran, KNLCV 17 6031855S (October 23, 2019) (Knox, J.), granting motion
for summary judgment where plaintiff has failed to establish causation by competent and
objective evidence.
See also Affidavit of Dr. Scott Lukas, attached hereto as Exhibit K. Dr. Lukas, an expert
in toxicology has reviewed Dr. McKay’s report, states that as a matter of “toxicology and
scientific certainty, it is impossible to conclude the source of alcohol” from blood alcohol levels.
He disputes that Dr. McKay’s attempts to substantiate the allegations of consumption of vodka
by the operator is not supported by scientific evidence.
c. Letter of Robert H. Powers, Ph.D. Exhibit A of Plaintiff’s Objection
Similar to the arguments above, plaintiffs have attached to their Objection a letter dated
May 24, 2021 from Dr. Powers identified as a Forensic Toxicologist to their Objection. This
letter is addressed to counsel for the Gombos plaintiffs. It is not certified or the contents attested
to. Dr. Powers has also never been disclosed as an expert witness in this case, pursuant to
Practice Book Section 13-4. A proper disclosure of expert would, at a minimum provide
information concerning the author of the letter’s qualifications and the evidentiary facts he
reviewed in issuing an opinion. Plaintiffs have provided no caselaw to establish that either of
these opinion letters are not inadmissible hearsay.
Like Dr. McKay’s report discussed above, Dr. Power’s letter does not qualify as
competent, admissible evidence and should not be considered by this Court in ruling on the
pending summary judgment.
d. Report of Robert Novelly, Ph.D. Exhibit J of Plaintiff’s Objection
Plaintiff has provided a report of a neuropsychologist, Dr. Novelly, in support of his
claims that the two year statute of limitations should not be a bar to this claim. However, Exhibit
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J, attached is not certified or sworn to. Further, plaintiff provides no evidence as to how this
report relating to a February 23, 2021, is not hearsay evidence and allowed as competent
evidence in contesting summary judgment.
e. Plaintiffs’ Reliance on Testimony of Ryan Gombos:
Plaintiffs have attached and rely on portions of Ryan Gombos’ deposition testimony in
their objection. However, in the section of plaintiffs’ memorandum entitled “Gombos filed his
Complaint Timely” (p.14-15) plaintiffs’ claim that Ryan Gombos traumatic brain injury provides
a reason why the statute of limitations does not apply. Plaintiffs cite at page 15 of the
memorandum a quote from a medical provider, Dr. Novelly, which is attached as Exhibit J.
Defendant also respectfully submits that, if Mr. Gombos memory impairments provide an
exception to the jurisdictional requirements of the statute of limitations, that the accuracy of
deposition testimony to establish a material issue of fact should likewise be questioned and not
relied upon in this decision.
II. There is no genuine issue of material fact that Allison Loder WAS NOT the co-
host of the party, and therefore, she was not the proximate cause of the
plaintiffs’ injuries and also owed no duty to the plaintiffs.
Simply put, this was not Allison Loder’s party and, therefore, she could not have been
considered the co-host of the April 14, 2017 gathering as to subject her to any liability or duty
owed to the plaintiffs. By all accounts, this was Janelle Pompea’s social gathering, and hers
alone. The party was at Janelle Pompea’s house, who resided at 32 Dayton Road, Redding, CT
on April 14, 2017. See Exhibit D, pages 19-21, lines 24-4 of the January 25, 2021 Deposition of
Janelle Pompea. There is no issue of material fact that Allison Loder only brought one bottle of
Exclusiv vodka to the gathering on April 14, 2017. She did not buy any other alcohol
paraphernalia such as cups, balls, cans of alcohol, or nips in the seven day period prior to the
subject gathering. See Exhibit B, page 90, lines 6-14 of the January 8, 2020 Deposition of
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Allison Loder. The plaintiff appears to argue that because Allison Loder played beer pong, that
this was her party. However, there has been no evidence provided that assisted in securing any of
the items used to play beer pong on April 14, 2017. Janelle Pompea admitted that the table they
used for beer pong was a table from Janelle’s house. See Exhibit D, pages 162-163 of the
January 25, 2021 deposition of Janelle Pompea. Tom Bull testified that he believes Janelle
brought the beer pong balls and all the stuff they used for beer pong from inside her house. See
Exhibit E, page 157, lines 4-7 and 16-18 of the January 26, 2021 Deposition of Tom Bull. With
regard to the cups utilized for beer pong, Janelle Pompea testified that it was possible that she
had cups available at her house. See Exhibit D, pages 143-144, lines 22-4 of the January 25,
2021 deposition of Janelle Pompea.
The plaintiffs firstcite Biron v. GEM Manufacturing, Docket Number CV08-5010887S
(May 28, 2009, Brunetti, J.)[2009 WL 1707480] to support their contention that Allison Loder
owed a duty of care to the plaintiffs. However, that case is clearly distinguishable. Biron involves
an ultimate tortfeasor who caused an accident as the result of intoxication. Id. the subject
defendants drove the ultimate tortfeasor part of the way home and physically gave him the keys
after showing visible signs of intoxication. Id. The plaintiff in the mater alleged that the subject
defendants knew or should have known that the intoxicated driver was intoxicated and incapable
of driving. Id. This is clearly distinguishable from the present matter. Again, this was not Allison
Loder’s home. See Exhibit D, pages 19-21, lines 24-4 of the January 25, 2021 Deposition of
Janelle Pompea. It has been well established that Allison Loder did not provide Ryan
Capozziello alcohol, nor did he consume any alcohol provided by Allison Loder. (See above
arguments; see also page 11 of Memorandum of Law in Support of Motion for Summary
Judgment, Entry No. 148.00.)
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Unlike the Biron case, there is no evidence in the present matter that Allison Loder
observed signs of intoxication of Ryan Capozziello in order to prevent him from driving. By all
accounts, Ryan Capozziello did not appear intoxicated at the party to even suggest that he was
incapable of operating a motor vehicle. Tom Bull testified that Ryan Capozziello did not get
drunk playing beer pong on April 14, 2017. See Exhibit E, page 74, lines 4-6 of the January 26,
2021 deposition of Tom Bull. Tom Bull further testified that he felt Ryan Capozziello was in the
right state of mind to drive when Tom Bull gave him the keys to Bull Vehicle. Id. at page 106,
lines 1-9. Tom Bull even went on to testify that he was “surprised” that Ryan Capozziello was
above the legal limit on April 14, 2017 and that he “didn’t think at all, like, at one point ever did
[he] think [Ryan Capozziello] was drunk or, like, intoxicated at all.” Id. at pages 145-146, lines
14-6. Ryan Gombos also testified that he remembers talking to people who say that Ryan
Capozziello did not even seem that drunk. See Exhibit F, pages 122-123, lines 16-5 of the
January 27, 2021 deposition of Ryan Gombos.
Additionally, aside from the fact that not one of the 10 party attendees who have been
deposed to date have testified to witnessing Ryan Capozziello consume vodka, let alone vodka
brought to the gathering by Allison Loder (see Memorandum of Law in Support of Motion for
Summary Judgment, Entry No. 148.00, page 11), the plaintiffs have not presented evidence that
demonstrates that Allison Loder “substantially assisted the intoxication of Ryan Capozziello.
Ryan Capozziello was asked specifically at his January 3, 2020 deposition whether or not he
asked Allison Loder for alcohol on April 14, 2017, whether or not he consumed any vodka on
April 14, 2017, and whether or not Allison Loder gave him any alcohol on April 14, 2017. See
Exhibit A, page 139, lines 2-10 of the January 3, 2020 deposition of Ryan Capozziello. In
responding to each of three questions, Mr. Capozziello’s answer was “no.” Id.
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The plaintiffs also cite to Stein v. Gipstein, Docket Number CV09-5010246 (January 25,
2011, Martin, J.)[2011 WL 522893] in an attempt to amplify their argument that Allison Loder
was somehow the host of the April 14, 2017 gathering at the Pompea residence. The plaintiffs’
objection, however, fails to mention key facts of Stein that allowed the court to find a genuine
issue of material fact as to whether the subject defendant provided “substantial assistance” to the
party:
Upon learning that his parents planned to travel out of state and leave him unsupervised
for the weekend, Lavruk sought the defendant's assistance in inviting friends to a social
gathering he intended to host on January 27, 2007. Benitez and Glas, both guests at the
party, testified that prior to attending the gathering, they were under the impression that
alcohol would be served that evening. The defendant and Lavruk prepared Lavruk's
residence for the party by removing breakable items from shelves, moving plants and
bringing a wooden slab upstairs from the basement for use in a drinking game. The
defendant knew the name of a student at Stonington High School, “Voots,” who could
buy alcohol for the party, and provided Lavruk with a phone number for Lavruk to call
to obtain the alcohol. The defendant and Lavruk traveled together to procure the
alcohol from “Voots.” Lavruk testified that he believed that the defendant drove to the
meeting, while the defendant testified that he believed that Lavruk drove to the meeting.
Only Lavruk's money was used to purchase the alcohol, but it is unclear which party
conducted the transaction with “Voots.” …
While the defendant and Lavruk asserted in their police statements that they intended to
have a small gathering at Lavruk's residence, seventy to one hundred underage
individuals attended the party. Some of the other guests brought alcohol to the party. The
beer purchased by the defendant and Lavruk, and the beer brought to Lavruk's
residence by other guests, were stored together in Lavruk's garage. There were
approximately 300 beers in Lavruk's garage during the party, in addition to various forms
of hard alcohol, cups and ice present in and around Lavruk's house. The defendant
helped Lavruk control the party by monitoring guests' behavior and asking certain
guests to leave the premises.
Stein v. Gipstein, No. CV095010246, 2011 WL 522893, at *2-3, No. CV095010246, 2011 WL
3926362. Stein is clearly distinguishable from the present matter. Whereas the evidence supports
that all Allison Loder did was bring a bottle of vodka to the party that Ryan Capozziello clearly
did not drink from and of which she clearly did not make available for him to drink from, the
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facts of Stein indicate that it was essentially the subject defendant’s party at someone else’s
house. The subject defendant in Stein not only secured beer for the gathering, but also invited
guests, got the house ready for a party prior to guests arriving, admitted to “intending” to have a
small gathering signifying that it was his party, comingling the alcohol he helped purchase with
other alcohol, and helping the person whose home it was control the party and monitor guests’
behavior. Id. (Emphasis added.) That is a “substantial” difference from what the evidence
demonstrates Allison Loder did. Despite what the plaintiff claims, there is no evidence that
Allison Loder “encouraged partygoers to drink, encouraged partygoers to distribute alcohol, and
encouraged them to play drinking games” that could possibly consider her a “co-host” of the
party.
Wherefore, the evidence demonstrates that Allison Loder was not a “co-host” of the party
as to subject her to any form of liability for the actions of Ryan Capozziello, and as such,
summary judgment should be granted in her favor.
III. The plaintiffs have failed to meet their burden of establishing the existence of a
genuine issue of material fact with regard to Allison Loder being the proximate
cause of their injuries.
The plaintiffs cite to Bohan v. Last, 236 Conn. 670, 674 (1996) in an attempt to
demonstrate that Allison Loder’s actions were a proximate cause of the plaintiffs’ injuries.
Specifically, they quote the passage: “[A] social host or other purveyor of alcohol will be liable,
to the minor served or to innocent third parties thereafter injured, if… as a matter of act, a
proximate cause relationship [exists] between the service of alcohol and the damages ensuing
from the minor’s consumption of alcohol.” Id. While the defendant denies she was the social
host of the party, and the evidence substantially demonstrates that she was not, a proximate cause
relationship would still need to exist between the service of alcohol and the damages ensuing
from the minor’s consumption of alcohol. Id. In the present matter, no evidence offered by the
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plaintiff in opposition to the defendant’s motion for summary judgment establishes such a
proximate cause relationship. In fact, all rebuttal evidence offered by the plaintiff is based on
mere speculation.
a. Any suggestion that Allison Loder brought beer to the party is based on
speculation.
“Although the court must view the inferences to be drawn from the facts in the light most
favorable to the party opposing the motion ... a party may not rely on mere speculation or
conjecture as to the true nature of the facts to overcome a motion for summary judgment.... A
party opposing a motion for summary judgment must substantiate its adverse claim by showing
that there is a genuine issue of material fact together with the evidence disclosing the existence
of such an issue.” (Citation omitted; internal quotation marks omitted.) Tuccio Development, Inc.
v. Neumann, 111 Conn.App. 588, 594, 960 A.2d 1071 (2008).
In Escourse v. 100 Taylor Ave., LLC, 150 Conn. App. 819, 829–31 (2014), evidence
submitted in a plaintiff pedestrian’s opposition to a defendant’s motion for summary judgment,
which consisted of an affidavit of pedestrian's mother with an appended photograph of snow
piled near scene of hit-and-run accident and deposition testimony of landowner's neighbor about
snow removal practices in the area and about a prior alleged incident of improper snow removal
from landowner's property on an unspecified date, was too speculative and conjectural to raise a
genuine issue of material fact as to liability and proximate cause in pedestrian's negligence action
alleging that landowner plowed snow from his parking lots across street onto other side of road
and sidewalk, thereby blocking sidewalk and forcing pedestrian to walk on shoulder of road
before being hit. Such evidence merely established the size and location of snowbank relative to
landowner's property and the probable use of a snowplow by someone generally, but the
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evidence did not support the inference that landowner plowed snow from his property into street,
onto shoulder of roadway, or onto sidewalk. Id.
In other negligence cases, our Supreme Court has concluded that the evidence was
insufficient to support a plaintiff's verdict because the plaintiff failed to remove from the realm
of conjecture, guesswork, or speculation the issues of fault or proximate cause. See, e.g., Winn v.
Posades, supra, 281 Conn. at 59–60, 913 A.2d 407 (plaintiff failed to establish that conduct was
proximate cause when “a number of factual possibilities ... could explain how the accident
occurred”); Boehm v. Kish, supra, 201 Conn. at 393, 517 A.2d 624 (holding plaintiff provided no
basis in facts to conclude that accident caused by intoxication to prove dram shop liability);
Meade v. Warehouse Transport, Inc., 165 Conn. 553, 555–56, 338 A.2d 111 (1973) (holding that
many possible proximate causes and lack of facts pointing significantly to any one of them as
due to negligence of tractor trailer operator rendered plaintiffs' negligence claim too conjectural);
see also Toomey v. Danaher, 161 Conn. 204, 212, 286 A.2d 293 (1971); Chasse v. Albert, 147
Conn. 680, 683, 166 A.2d 148 (1960); Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750
(1959). The Supreme Court, in Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 788, 83
A.3d 576 (2014), referred to the plaintiffs' failure to present evidence sufficient to prove
causation in Winn, Chasse, and Palmieri: “In Palmieri and Winn, none of the drivers or
occupants could testify about the collisions or provide any information about how they had
occurred. ... In Chasse, although there was an eyewitness, that eyewitness could corroborate only
that a collision had occurred and did not provide additional information about negligence or
causation. ... Thus, in Palmieri, Chasse, and Winn, there was no evidence to causally connect the
conduct of the allegedly negligent driver with the collision and subsequent damage and injuries.”
(Citations omitted.) See also Schweiger v. Amica Mutual Ins. Co., 110 Conn.App. 736, 741–42,
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955 A.2d 1241 (holding plaintiff failed to provide evidence that defendant's negligence
proximately caused unexplained rear-end collision), cert. denied, 289 Conn. 955, 961 A.2d 421
(2008).
In the present matter, the evidence presented by the plaintiffs in opposition to the motion
for summary judgment fails to establish a genuine issue as to whether Ryan Capozziello
consumed alcohol provided by Allison Loder on April 14, 2017. Plaintiffs attempt to utilize
speculative testimony of Janelle Pompea to try and establish a genuine issue of material fact that
Allison Loder brought beer to the party. Janelle Pompea testified that she remembers “Allie also
bringing a box, what looked like a 36-pack of beer.” (Emphasis added.) See Exhibit D, page
120, lines 4-9 of the January 25, 2021 Deposition of Janelle Pompea. However, what the plaintiff
failed to mention in her memorandum is that Janelle did not know if Allison Loder brought the
box or if she was carrying it for someone else. See Exhibit D, page 120, lines 15-18 of Janelle
Pompea’s January 25, 2021 deposition. The plaintiff’s memorandum of law coincidentally also
fails to mention that Janelle did not even know if Allison Loder purchased the blue box. See
Exhibit D, page 120, lines 19-21 of the January 25, 2021 Deposition of Janelle Pompea. Most
strikingly, Janelle Pompea testified that she does not even know if this supposed blue box Ms.
Loder was carrying even contained beer. (See Exhibit D, p.121, lines 6-8; p. 121, lines 18-23.)
(Emphasis added.)
To summarize: the only evidence the plaintiffs to support their allegation that Allison
Loder brought beer to the party is that Janelle Pompea witnessed Allison Loder carry in a blue
box. Again, Janelle did not know what was in the blue box, ifthe box even contained beer, if
Allison Loder purchased the blue box, or if Allison was just carrying it for someone else. Id.
Such guesswork cannot be used to overcome a motion for summary judgment.
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The plaintiffs have provided no objective evidence linking their injuries to Allison
Loder’s alleged negligence or recklessness. Wherefore, as the plaintiffs have failed to provide
evidence as to create a genuine issue of material fact that Allison Loder was the proximate cause
of their injuries, the defendant’s summary judgment should be granted.
b. The evidence supports the contention that Allison Loder did not bring beer to
the party.
Despite the argument by the plaintiffs that the defendant brought beer to the party, the
evidence actually supports the contention that Allison Loder only brought vodka to the party.
Allison Loder denied bringing anything else but Exlcusiv vodka to Janelle Pompea’s house on
April 14, 2017. See Exhibit B, pages 105-106, lines 19-4 of Allison Loder’s January 8, 2020
deposition. This statement was corroborated by a number of individuals who attended the
gathering of April 14, 2017, including plaintiff/defendant Tom Bull and non-party witness, Katie
Nolan. Specifically, Tom Bull testified that “[Allison Loder] didn’t bring any beer. The only
alcohol that she had was the vodka… [p]rior that week, on the Monday get-together she had the
same bottle with her.” See Exhibit E, page 190, lines 6-22 of the January 26, 2021 deposition of
Tom Bull. Katie Nolan, who testified to being completely sober on April 14, 2017 as she does
not drink alcohol, testified to the following:
Q. Allison Loder, okay. So you guys arrived before Allison Loder?
A. Yes.
Q. And did you see her arrive?
A. I did.
Q. All right. And when she arrived, what did she have with her when she arrived?
A. She had a bag with her.
Q. Do you know what was in the bag?
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A. I know that she pulled out a bottle of vodka from the bag, but I don't know what
else was in there.
Q. Do you know if she brought anything else besides a bottle of vodka?
A. Not that I remember.
Q. Did you see her carrying anything on her way in in her hands?
A. Just the bag was swung around her shoulder.
See Exhibit I, page 38, lines 4-22 of the March 25, 2021 Deposition of Katie Nolan. Katie Nolan,
who was sober and arrived prior to Allison Loder, actually witnessed her arrive only with a
single bottle of vodka. This is far more concrete evidence that Allison Loder only brought a
bottle of vodka compared to the conjecture and speculation of Janelle Pompea’s testimony.
Wherefore, as the concrete evidence is in support of there being no genuine of issue of material
fact that Allison Loder was not the proximate cause of the plaintiff’s injuries, and the plaintiffs
have yet to provide concrete rebuttal evidence, summary judgment should still be granted in her
favor.
c. The evidence supports the contention that Allison Loder did not make her bottle
of vodka available for Ryan Capozziello to consume, and therefore, Ryan
Capozziello could not have consumed her vodka as to make Allison Loder the
proximate cause of the plaintiff’s claimed injuries.
The evidence supports Allison Loder’s testimony that she did not make her vodka
available for Ryan Capozziello to consume. Allison Loder specifically testified that after getting
out of her car, she grabbed her bottle of vodka from the car and put it in her bag. See Exhibit B,
page 67, lines 10-13 of the January 8, 2020 Deposition of Allison Loder. Ms. Loder further
testified that the bottle of Exclusiv vodka would stay in her bag throughout the party and would
only take it out to drink from it and then put it back in her bag. Id. at page 73, lines 2-8. When
she took the bottle out, it would be in her hand and she would not place it down on the table. Id.
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at page 73, lines 19-22. In fact, she had her bag on her at all times, and never took her bag off
because she did not want other people drinking her alcohol. Id. at pages 81-82, lines 23-4.
Multiple attendees of the April 14, 2017 gathering corroborated Allison’s testimony by
attesting to seeing Ms. Loder with a small bag around her shoulder. Tom Bull testified at his
January 26, 2021 deposition that for the majority of the time on April 14, 2017, Ms. Loder’s
bottle of vodka was in her bag; she would sling it over, unzip it, take it out, drink, put it back in,
zip itand put itback. See Exhibit E, page 190, lines 3-11 of Thomas Bull’s January 26, 2021
deposition. Tom Bull never saw Allison put the bottle of vodka out on the table for general
consumption; in his words it was “her own thing.” Id. at pages 191-192, lines 25-4. Even Janelle
Pompea testified that Ms. Loder would hold the bottle and then put it back into her bag. See
Exhibit D, page 117, lines 3-7 of the January 25, 2021 deposition of Janelle Pompea. As such,
there is no genuine issue of material fact that Allison Loder made her alcohol available for Ryan
Capozziello to consume. This defeats all speculative contentions made from the plaintiffs of the
possibility of Ryan Capozziello consuming Allison Loder’s vodka. Wherefore, summary
judgment should still be granted in her favor.
IV. The plaintiffs’ complaint was not filed timely
In Section C of Objection (p.14-17), plaintiff claims that this action was timely filed
against the defendant Allison Loder. Plaintiff concedes that the action was not brought within
the two year limitation period of Conn. Gen. Stat. 52-584, but claims that the three year statute of
repose should apply. Conn. Gen. Stat. 52-584 provides that no action for negligence or
recklessness “shall be brought but within two years from the date when the injury is first
sustained or discovered or in the exercise of reasonable care should have been
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discovered…except that no action may be brought more than three years from the date of the act
or omission complained of”. (emphasis added)
Plaintiff’s objection states that (a)bsent deposition testimony and answers to
interrogatories in related litigation, he would not have been able to pursue the responsible
parties.” (p.14) However, no competent evidence such as sworn testimony or affidavit is
presented to support this broad assertion. Plaintiff relies on Exhibit J, an unverified 2021 report
of a psychologist. However, plaintiff does not provide any evidence as to any reasonable efforts
to discover responsible parties was made by him or on his behalf. Note that this action was
commenced on behalf of the minor plaintiff by his father. The original complaint brought was
filed within the two year statute of limitations. If additional discovery was needed of potential
additional parties, other actions had been timely commenced by other occupants of the subject
motor vehicle. Practice Book Section 13-27 provides a mechanism to take necessary depositions
prior to the return date or commencement of suit.
Plaintiff relies on the Supreme Court decision in Tarnowsky v. Socci, 271 Conn. 284, 297
(2004) which was remanded for a finder of fact to determine “(w)hen the plaintiff in the present
case knew or should have known the defendant’s identity”. However, the court emphasized that
“a plainitff’s ignorance of the identity of the tortfeasor will not excuse the plaintiff’s failure to
bring a negligence action with three years”. Therefore, plaintiff’s additional causes of action
against this defendant alleging she is co-host of the party and/or aided and abetted social host
liability were clearly brought after the expiration of the three years and barred by Conn. Gen.
Stat. 52-584. Plaintiff claims these claims relate back to the original complaint, however, the
issue was not decided in the Court’s decision overruling defendant’s objection to amend no has
17
any caselaw been cited in support of these novel claims. Wherefore, summary judgment should
still be granted in favor of Allison Loder.
V. Conclusion
The plaintiffs’ bald assertion that a genuine issue of material fact exists does not make it so.
Allison Loder has provided the Court with concrete evidence which conclusively establishes she is
entitled to judgment as a matter of law. In contrast, the plaintiffs have submitted no evidence, admissible
or otherwise, in response. The plaintiffs have, therefore, failed to carry their burden of demonstrating the
existence of a genuine issue of material fact. I
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DOCKET NO: UWY-CV-20-6055310 S : SUPERIOR COURT RYAN GOMBOS, ET AL : J.D. OF WATERBURY VS. : AT WATERBURY SEASIDE WINE AND LIQUOR, LLC, ET AL : JULY 8, 2021 DEFENDANT ALLISON LODER’S REPLY MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT The Defendant Allison Loder respectfully submits a Reply Memorandum to Plaintiffs Ryan and Jeffrey Gombos’ Objection to Allison Loder’s Motion for Summary Judgment and Memorandum of Law in Support, dated June 25, 2021 (#178.00). I. Defects in Plaintiff’s Objection Summary judgment motions and objections must be supported by competent evidence. Practice Book Section 17-45 required “appropriate documents, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like”. The Connecticut Supreme Court states that the section does not limit the documents to those identified in the rule, “but we note that ‘only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment.’” New Haven v. Pantani,89 Conn. App. 675,678 (2005), citing Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202-203 (1995). The Court also states that the rule “contemplates that supporting documents to a motion for summary judgment be made under oath or otherwise reliable”. Id., citing United States Autombile Assn. v. Marburg, 46 Conn. App. 99, 107-108 (1997). An objection to motion for summary judgment “must present an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” Appleton v. Board of Education, 254 Conn. 205, 209 (2000). “The existence of (a) genuine issue of material fact must be presented by counter-affidavits and concrete evidence.” Pion v. Southern New England 1 Telephone Co., 44 Conn. App. 657, 663 (1997). Plaintiff here “may not rely on mere speculation or conjecture as to the true nature of facts to overcome a motion for summary judgment.” Doty v. Shawmut Bank, 58 Conn. App. 427, 430 (2000). a. Application of Allegations of Amended Complaint: Plaintiffs filed a Request for Leave to Amend Complaint and proposed Amended Complaint on April 28, 2021 (#146.00) the same day that this defendant, Allison Loder, filed her Motion for Summary Judgment per the scheduling order agreed to by the parties at a status conference with the Court. The defendant timely filed an Objection to Request to Amend on April 30, 2021 (#149.00), citing prejudice with the pending summary judgment. The Court overruled this objection (#149.10) by Order which did not address the pending summary judgment motions. A Motion for Clarification/Articulation and Reconsideration (#177.00) was filed June 25, 2021, not yet acted upon. The Court ordered an objection to the same to be filed by July 9, 2021 (#184.10) after this reply brief was due under the agreed schedule for summary judgments. A Caseflow Request was filed requesting a status conference on the issue. Plaintiff’s counsel was not available for the date and time proposed. Plaintiffs’ Objection to Summary Judgement is presented based upon the assumption that the Amended Complaint is now the operative complaint in response to the defendant’s Motion for Summary Judgment, absent clarification. Defendant’s position is that the Amended Complaint was not the operative complaint when her motion was filed and the factual allegations asserted in that Amended Complaint are not evidence and should not be considered. Defendant respectfully represents that possible Requests to Revise and Motion to Strike are being considered for the new allegations which drastically seek to alter social host liability and create a 2 cause of action for “aiding and abetting” social host liability presently not recognized in Connecticut. Caselaw in Connecticut generally has held that the allowance of an amended complaint when a summary judgment motion is pending is left to the discretion of the court. Miller, et al. v. Fishman, et al., 102 Conn. App. 286 (2007). The Court in Miller, p.300 held that the amendment in that case should have been allowed as it “did not change the identity of the causes of action; it merely specified the ways in which the defendant was negligent”. The decision, however, cites at page 292, LaFlamme v. Dallessio,65 Conn. App. 1,7 (2001) in which the discretion of the court was proper in rendering summary judgment on the operative complaint and not allowing the amendment. Defendant respectfully that the Court exercise its discretion in not considering argument based on the allegations of the Amended Complaint and as they do not relate back to the original Complaint. b. Report and Addendum of Charles McKay, M.D., Exhibit B of Plaintiff’s Objection Plaintiffs attached to their Memorandum in Opposition to Summary Judgment a report, dated May 8, 2021, of a toxicologist recently disclosed as an expert witness by the plaintiff, Janelle Pompea in a consolidated action. This expert has not been disclosed by these plaintiffs or disclosed in this action. Defendant respectfully submits that this report should not be considered as competent evidence in consideration of the subject motion for summary judgment. First, the genuineness of the attached report has not been authenticated in any way, it is not even addressed to the plaintiffs in this action but to the attorney in another action. Connecticut courts have long required that a document to be considered as evidence in ruling on summary judgment must have 3 “a preliminary showing of (the document’s) genuineness”…. The requirement applies to all types of evidence, including writings”. New Haven v. Pantani, supra at 679, citing Conn. Code of Evidence Section 9-1(a). Secondly, the expert report attached as Exhibit B to the plaintiffs’ objection would not otherwise by admissible at trial. Id, 678. Conn. Code of Evidence Section 7-2 allows opinion testimony at trial. The evidence code does not allow the submission of reports in lieu of testimony. Plaintiff here attempts to rely on a report, not any certified testimony or even an affidavit based on personal knowledge. Additionally, the report of Dr. McKay provides no evidence or even opinion causally relating the intoxication of the driver to any alcohol brought to the party by this defendant, Alison Loder. He does not rely on any of the deposition testimony concerning Ms. Loder’s bringing alcohol to the party or providing it to the operator. Section 7-2 allows opinion testimony of an expert only if it “will assist the trier of fact in understanding the evidence or in determining a fact in issue.” There is nothing in this report which establishes a material issue of fact as to Alison Loder’s negligence or recklessness. Finally, Dr. McKay’s attempt at tying the operator’s intoxication to the vodka admittedly brought to the party by the defendant Loder is entirely speculative and lacks evidentiary foundation. Page 4 of his report, Dr. McKay states that “alcohol unaccounted for by history could be attributed to additional consumption of approximately 3-6 ounces of vodka or 24-48 ounces of Budweiser beer, or some combination thereof.” (emphasis added). Any claim of consumption of vodka by the operator is entirely speculative. Connecticut law is clear that to establish a causal connection between a claimed injury and defendant’s conduct “must be based upon more than conjecture and surmise.” Winn v. Posadedes, 281 Conn. 50, 56-57 (2007). See 4 also, Trahan v. Cochran, KNLCV 17 6031855S (October 23, 2019) (Knox, J.), granting motion for summary judgment where plaintiff has failed to establish causation by competent and objective evidence. See also Affidavit of Dr. Scott Lukas, attached hereto as Exhibit K. Dr. Lukas, an expert in toxicology has reviewed Dr. McKay’s report, states that as a matter of “toxicology and scientific certainty, it is impossible to conclude the source of alcohol” from blood alcohol levels. He disputes that Dr. McKay’s attempts to substantiate the allegations of consumption of vodka by the operator is not supported by scientific evidence. c. Letter of Robert H. Powers, Ph.D. Exhibit A of Plaintiff’s Objection Similar to the arguments above, plaintiffs have attached to their Objection a letter dated May 24, 2021 from Dr. Powers identified as a Forensic Toxicologist to their Objection. This letter is addressed to counsel for the Gombos plaintiffs. It is not certified or the contents attested to. Dr. Powers has also never been disclosed as an expert witness in this case, pursuant to Practice Book Section 13-4. A proper disclosure of expert would, at a minimum provide information concerning the author of the letter’s qualifications and the evidentiary facts he reviewed in issuing an opinion. Plaintiffs have provided no caselaw to establish that either of these opinion letters are not inadmissible hearsay. Like Dr. McKay’s report discussed above, Dr. Power’s letter does not qualify as competent, admissible evidence and should not be considered by this Court in ruling on the pending summary judgment. d. Report of Robert Novelly, Ph.D. Exhibit J of Plaintiff’s Objection Plaintiff has provided a report of a neuropsychologist, Dr. Novelly, in support of his claims that the two year statute of limitations should not be a bar to this claim. However, Exhibit 5 J, attached is not certified or sworn to. Further, plaintiff provides no evidence as to how this report relating to a February 23, 2021, is not hearsay evidence and allowed as competent evidence in contesting summary judgment. e. Plaintiffs’ Reliance on Testimony of Ryan Gombos: Plaintiffs have attached and rely on portions of Ryan Gombos’ deposition testimony in their objection. However, in the section of plaintiffs’ memorandum entitled “Gombos filed his Complaint Timely” (p.14-15) plaintiffs’ claim that Ryan Gombos traumatic brain injury provides a reason why the statute of limitations does not apply. Plaintiffs cite at page 15 of the memorandum a quote from a medical provider, Dr. Novelly, which is attached as Exhibit J. Defendant also respectfully submits that, if Mr. Gombos memory impairments provide an exception to the jurisdictional requirements of the statute of limitations, that the accuracy of deposition testimony to establish a material issue of fact should likewise be questioned and not relied upon in this decision. II. There is no genuine issue of material fact that Allison Loder WAS NOT the co- host of the party, and therefore, she was not the proximate cause of the plaintiffs’ injuries and also owed no duty to the plaintiffs. Simply put, this was not Allison Loder’s party and, therefore, she could not have been considered the co-host of the April 14, 2017 gathering as to subject her to any liability or duty owed to the plaintiffs. By all accounts, this was Janelle Pompea’s social gathering, and hers alone. The party was at Janelle Pompea’s house, who resided at 32 Dayton Road, Redding, CT on April 14, 2017. See Exhibit D, pages 19-21, lines 24-4 of the January 25, 2021 Deposition of Janelle Pompea. There is no issue of material fact that Allison Loder only brought one bottle of Exclusiv vodka to the gathering on April 14, 2017. She did not buy any other alcohol paraphernalia such as cups, balls, cans of alcohol, or nips in the seven day period prior to the subject gathering. See Exhibit B, page 90, lines 6-14 of the January 8, 2020 Deposition of 6 Allison Loder. The plaintiff appears to argue that because Allison Loder played beer pong, that this was her party. However, there has been no evidence provided that assisted in securing any of the items used to play beer pong on April 14, 2017. Janelle Pompea admitted that the table they used for beer pong was a table from Janelle’s house. See Exhibit D, pages 162-163 of the January 25, 2021 deposition of Janelle Pompea. Tom Bull testified that he believes Janelle brought the beer pong balls and all the stuff they used for beer pong from inside her house. See Exhibit E, page 157, lines 4-7 and 16-18 of the January 26, 2021 Deposition of Tom Bull. With regard to the cups utilized for beer pong, Janelle Pompea testified that it was possible that she had cups available at her house. See Exhibit D, pages 143-144, lines 22-4 of the January 25, 2021 deposition of Janelle Pompea. The plaintiffs firstcite Biron v. GEM Manufacturing, Docket Number CV08-5010887S (May 28, 2009, Brunetti, J.)[2009 WL 1707480] to support their contention that Allison Loder owed a duty of care to the plaintiffs. However, that case is clearly distinguishable. Biron involves an ultimate tortfeasor who caused an accident as the result of intoxication. Id. the subject defendants drove the ultimate tortfeasor part of the way home and physically gave him the keys after showing visible signs of intoxication. Id. The plaintiff in the mater alleged that the subject defendants knew or should have known that the intoxicated driver was intoxicated and incapable of driving. Id. This is clearly distinguishable from the present matter. Again, this was not Allison Loder’s home. See Exhibit D, pages 19-21, lines 24-4 of the January 25, 2021 Deposition of Janelle Pompea. It has been well established that Allison Loder did not provide Ryan Capozziello alcohol, nor did he consume any alcohol provided by Allison Loder. (See above arguments; see also page 11 of Memorandum of Law in Support of Motion for Summary Judgment, Entry No. 148.00.) 7 Unlike the Biron case, there is no evidence in the present matter that Allison Loder observed signs of intoxication of Ryan Capozziello in order to prevent him from driving. By all accounts, Ryan Capozziello did not appear intoxicated at the party to even suggest that he was incapable of operating a motor vehicle. Tom Bull testified that Ryan Capozziello did not get drunk playing beer pong on April 14, 2017. See Exhibit E, page 74, lines 4-6 of the January 26, 2021 deposition of Tom Bull. Tom Bull further testified that he felt Ryan Capozziello was in the right state of mind to drive when Tom Bull gave him the keys to Bull Vehicle. Id. at page 106, lines 1-9. Tom Bull even went on to testify that he was “surprised” that Ryan Capozziello was above the legal limit on April 14, 2017 and that he “didn’t think at all, like, at one point ever did [he] think [Ryan Capozziello] was drunk or, like, intoxicated at all.” Id. at pages 145-146, lines 14-6. Ryan Gombos also testified that he remembers talking to people who say that Ryan Capozziello did not even seem that drunk. See Exhibit F, pages 122-123, lines 16-5 of the January 27, 2021 deposition of Ryan Gombos. Additionally, aside from the fact that not one of the 10 party attendees who have been deposed to date have testified to witnessing Ryan Capozziello consume vodka, let alone vodka brought to the gathering by Allison Loder (see Memorandum of Law in Support of Motion for Summary Judgment, Entry No. 148.00, page 11), the plaintiffs have not presented evidence that demonstrates that Allison Loder “substantially assisted the intoxication of Ryan Capozziello. Ryan Capozziello was asked specifically at his January 3, 2020 deposition whether or not he asked Allison Loder for alcohol on April 14, 2017, whether or not he consumed any vodka on April 14, 2017, and whether or not Allison Loder gave him any alcohol on April 14, 2017. See Exhibit A, page 139, lines 2-10 of the January 3, 2020 deposition of Ryan Capozziello. In responding to each of three questions, Mr. Capozziello’s answer was “no.” Id. 8 The plaintiffs also cite to Stein v. Gipstein, Docket Number CV09-5010246 (January 25, 2011, Martin, J.)[2011 WL 522893] in an attempt to amplify their argument that Allison Loder was somehow the host of the April 14, 2017 gathering at the Pompea residence. The plaintiffs’ objection, however, fails to mention key facts of Stein that allowed the court to find a genuine issue of material fact as to whether the subject defendant provided “substantial assistance” to the party: Upon learning that his parents planned to travel out of state and leave him unsupervised for the weekend, Lavruk sought the defendant's assistance in inviting friends to a social gathering he intended to host on January 27, 2007. Benitez and Glas, both guests at the party, testified that prior to attending the gathering, they were under the impression that alcohol would be served that evening. The defendant and Lavruk prepared Lavruk's residence for the party by removing breakable items from shelves, moving plants and bringing a wooden slab upstairs from the basement for use in a drinking game. The defendant knew the name of a student at Stonington High School, “Voots,” who could buy alcohol for the party, and provided Lavruk with a phone number for Lavruk to call to obtain the alcohol. The defendant and Lavruk traveled together to procure the alcohol from “Voots.” Lavruk testified that he believed that the defendant drove to the meeting, while the defendant testified that he believed that Lavruk drove to the meeting. Only Lavruk's money was used to purchase the alcohol, but it is unclear which party conducted the transaction with “Voots.” … While the defendant and Lavruk asserted in their police statements that they intended to have a small gathering at Lavruk's residence, seventy to one hundred underage individuals attended the party. Some of the other guests brought alcohol to the party. The beer purchased by the defendant and Lavruk, and the beer brought to Lavruk's residence by other guests, were stored together in Lavruk's garage. There were approximately 300 beers in Lavruk's garage during the party, in addition to various forms of hard alcohol, cups and ice present in and around Lavruk's house. The defendant helped Lavruk control the party by monitoring guests' behavior and asking certain guests to leave the premises. Stein v. Gipstein, No. CV095010246, 2011 WL 522893, at *2-3, No. CV095010246, 2011 WL 3926362. Stein is clearly distinguishable from the present matter. Whereas the evidence supports that all Allison Loder did was bring a bottle of vodka to the party that Ryan Capozziello clearly did not drink from and of which she clearly did not make available for him to drink from, the 9 facts of Stein indicate that it was essentially the subject defendant’s party at someone else’s house. The subject defendant in Stein not only secured beer for the gathering, but also invited guests, got the house ready for a party prior to guests arriving, admitted to “intending” to have a small gathering signifying that it was his party, comingling the alcohol he helped purchase with other alcohol, and helping the person whose home it was control the party and monitor guests’ behavior. Id. (Emphasis added.) That is a “substantial” difference from what the evidence demonstrates Allison Loder did. Despite what the plaintiff claims, there is no evidence that Allison Loder “encouraged partygoers to drink, encouraged partygoers to distribute alcohol, and encouraged them to play drinking games” that could possibly consider her a “co-host” of the party. Wherefore, the evidence demonstrates that Allison Loder was not a “co-host” of the party as to subject her to any form of liability for the actions of Ryan Capozziello, and as such, summary judgment should be granted in her favor. III. The plaintiffs have failed to meet their burden of establishing the existence of a genuine issue of material fact with regard to Allison Loder being the proximate cause of their injuries. The plaintiffs cite to Bohan v. Last, 236 Conn. 670, 674 (1996) in an attempt to demonstrate that Allison Loder’s actions were a proximate cause of the plaintiffs’ injuries. Specifically, they quote the passage: “[A] social host or other purveyor of alcohol will be liable, to the minor served or to innocent third parties thereafter injured, if… as a matter of act, a proximate cause relationship [exists] between the service of alcohol and the damages ensuing from the minor’s consumption of alcohol.” Id. While the defendant denies she was the social host of the party, and the evidence substantially demonstrates that she was not, a proximate cause relationship would still need to exist between the service of alcohol and the damages ensuing from the minor’s consumption of alcohol. Id. In the present matter, no evidence offered by the 10 plaintiff in opposition to the defendant’s motion for summary judgment establishes such a proximate cause relationship. In fact, all rebuttal evidence offered by the plaintiff is based on mere speculation. a. Any suggestion that Allison Loder brought beer to the party is based on speculation. “Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.... A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Citation omitted; internal quotation marks omitted.) Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 594, 960 A.2d 1071 (2008). In Escourse v. 100 Taylor Ave., LLC, 150 Conn. App. 819, 829–31 (2014), evidence submitted in a plaintiff pedestrian’s opposition to a defendant’s motion for summary judgment, which consisted of an affidavit of pedestrian's mother with an appended photograph of snow piled near scene of hit-and-run accident and deposition testimony of landowner's neighbor about snow removal practices in the area and about a prior alleged incident of improper snow removal from landowner's property on an unspecified date, was too speculative and conjectural to raise a genuine issue of material fact as to liability and proximate cause in pedestrian's negligence action alleging that landowner plowed snow from his parking lots across street onto other side of road and sidewalk, thereby blocking sidewalk and forcing pedestrian to walk on shoulder of road before being hit. Such evidence merely established the size and location of snowbank relative to landowner's property and the probable use of a snowplow by someone generally, but the 11 evidence did not support the inference that landowner plowed snow from his property into street, onto shoulder of roadway, or onto sidewalk. Id. In other negligence cases, our Supreme Court has concluded that the evidence was insufficient to support a plaintiff's verdict because the plaintiff failed to remove from the realm of conjecture, guesswork, or speculation the issues of fault or proximate cause. See, e.g., Winn v. Posades, supra, 281 Conn. at 59–60, 913 A.2d 407 (plaintiff failed to establish that conduct was proximate cause when “a number of factual possibilities ... could explain how the accident occurred”); Boehm v. Kish, supra, 201 Conn. at 393, 517 A.2d 624 (holding plaintiff provided no basis in facts to conclude that accident caused by intoxication to prove dram shop liability); Meade v. Warehouse Transport, Inc., 165 Conn. 553, 555–56, 338 A.2d 111 (1973) (holding that many possible proximate causes and lack of facts pointing significantly to any one of them as due to negligence of tractor trailer operator rendered plaintiffs' negligence claim too conjectural); see also Toomey v. Danaher, 161 Conn. 204, 212, 286 A.2d 293 (1971); Chasse v. Albert, 147 Conn. 680, 683, 166 A.2d 148 (1960); Palmieri v. Macero, 146 Conn. 705, 708, 155 A.2d 750 (1959). The Supreme Court, in Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 788, 83 A.3d 576 (2014), referred to the plaintiffs' failure to present evidence sufficient to prove causation in Winn, Chasse, and Palmieri: “In Palmieri and Winn, none of the drivers or occupants could testify about the collisions or provide any information about how they had occurred. ... In Chasse, although there was an eyewitness, that eyewitness could corroborate only that a collision had occurred and did not provide additional information about negligence or causation. ... Thus, in Palmieri, Chasse, and Winn, there was no evidence to causally connect the conduct of the allegedly negligent driver with the collision and subsequent damage and injuries.” (Citations omitted.) See also Schweiger v. Amica Mutual Ins. Co., 110 Conn.App. 736, 741–42, 12 955 A.2d 1241 (holding plaintiff failed to provide evidence that defendant's negligence proximately caused unexplained rear-end collision), cert. denied, 289 Conn. 955, 961 A.2d 421 (2008). In the present matter, the evidence presented by the plaintiffs in opposition to the motion for summary judgment fails to establish a genuine issue as to whether Ryan Capozziello consumed alcohol provided by Allison Loder on April 14, 2017. Plaintiffs attempt to utilize speculative testimony of Janelle Pompea to try and establish a genuine issue of material fact that Allison Loder brought beer to the party. Janelle Pompea testified that she remembers “Allie also bringing a box, what looked like a 36-pack of beer.” (Emphasis added.) See Exhibit D, page 120, lines 4-9 of the January 25, 2021 Deposition of Janelle Pompea. However, what the plaintiff failed to mention in her memorandum is that Janelle did not know if Allison Loder brought the box or if she was carrying it for someone else. See Exhibit D, page 120, lines 15-18 of Janelle Pompea’s January 25, 2021 deposition. The plaintiff’s memorandum of law coincidentally also fails to mention that Janelle did not even know if Allison Loder purchased the blue box. See Exhibit D, page 120, lines 19-21 of the January 25, 2021 Deposition of Janelle Pompea. Most strikingly, Janelle Pompea testified that she does not even know if this supposed blue box Ms. Loder was carrying even contained beer. (See Exhibit D, p.121, lines 6-8; p. 121, lines 18-23.) (Emphasis added.) To summarize: the only evidence the plaintiffs to support their allegation that Allison Loder brought beer to the party is that Janelle Pompea witnessed Allison Loder carry in a blue box. Again, Janelle did not know what was in the blue box, ifthe box even contained beer, if Allison Loder purchased the blue box, or if Allison was just carrying it for someone else. Id. Such guesswork cannot be used to overcome a motion for summary judgment. 13 The plaintiffs have provided no objective evidence linking their injuries to Allison Loder’s alleged negligence or recklessness. Wherefore, as the plaintiffs have failed to provide evidence as to create a genuine issue of material fact that Allison Loder was the proximate cause of their injuries, the defendant’s summary judgment should be granted. b. The evidence supports the contention that Allison Loder did not bring beer to the party. Despite the argument by the plaintiffs that the defendant brought beer to the party, the evidence actually supports the contention that Allison Loder only brought vodka to the party. Allison Loder denied bringing anything else but Exlcusiv vodka to Janelle Pompea’s house on April 14, 2017. See Exhibit B, pages 105-106, lines 19-4 of Allison Loder’s January 8, 2020 deposition. This statement was corroborated by a number of individuals who attended the gathering of April 14, 2017, including plaintiff/defendant Tom Bull and non-party witness, Katie Nolan. Specifically, Tom Bull testified that “[Allison Loder] didn’t bring any beer. The only alcohol that she had was the vodka… [p]rior that week, on the Monday get-together she had the same bottle with her.” See Exhibit E, page 190, lines 6-22 of the January 26, 2021 deposition of Tom Bull. Katie Nolan, who testified to being completely sober on April 14, 2017 as she does not drink alcohol, testified to the following: Q. Allison Loder, okay. So you guys arrived before Allison Loder? A. Yes. Q. And did you see her arrive? A. I did. Q. All right. And when she arrived, what did she have with her when she arrived? A. She had a bag with her. Q. Do you know what was in the bag? 14 A. I know that she pulled out a bottle of vodka from the bag, but I don't know what else was in there. Q. Do you know if she brought anything else besides a bottle of vodka? A. Not that I remember. Q. Did you see her carrying anything on her way in in her hands? A. Just the bag was swung around her shoulder. See Exhibit I, page 38, lines 4-22 of the March 25, 2021 Deposition of Katie Nolan. Katie Nolan, who was sober and arrived prior to Allison Loder, actually witnessed her arrive only with a single bottle of vodka. This is far more concrete evidence that Allison Loder only brought a bottle of vodka compared to the conjecture and speculation of Janelle Pompea’s testimony. Wherefore, as the concrete evidence is in support of there being no genuine of issue of material fact that Allison Loder was not the proximate cause of the plaintiff’s injuries, and the plaintiffs have yet to provide concrete rebuttal evidence, summary judgment should still be granted in her favor. c. The evidence supports the contention that Allison Loder did not make her bottle of vodka available for Ryan Capozziello to consume, and therefore, Ryan Capozziello could not have consumed her vodka as to make Allison Loder the proximate cause of the plaintiff’s claimed injuries. The evidence supports Allison Loder’s testimony that she did not make her vodka available for Ryan Capozziello to consume. Allison Loder specifically testified that after getting out of her car, she grabbed her bottle of vodka from the car and put it in her bag. See Exhibit B, page 67, lines 10-13 of the January 8, 2020 Deposition of Allison Loder. Ms. Loder further testified that the bottle of Exclusiv vodka would stay in her bag throughout the party and would only take it out to drink from it and then put it back in her bag. Id. at page 73, lines 2-8. When she took the bottle out, it would be in her hand and she would not place it down on the table. Id. 15 at page 73, lines 19-22. In fact, she had her bag on her at all times, and never took her bag off because she did not want other people drinking her alcohol. Id. at pages 81-82, lines 23-4. Multiple attendees of the April 14, 2017 gathering corroborated Allison’s testimony by attesting to seeing Ms. Loder with a small bag around her shoulder. Tom Bull testified at his January 26, 2021 deposition that for the majority of the time on April 14, 2017, Ms. Loder’s bottle of vodka was in her bag; she would sling it over, unzip it, take it out, drink, put it back in, zip itand put itback. See Exhibit E, page 190, lines 3-11 of Thomas Bull’s January 26, 2021 deposition. Tom Bull never saw Allison put the bottle of vodka out on the table for general consumption; in his words it was “her own thing.” Id. at pages 191-192, lines 25-4. Even Janelle Pompea testified that Ms. Loder would hold the bottle and then put it back into her bag. See Exhibit D, page 117, lines 3-7 of the January 25, 2021 deposition of Janelle Pompea. As such, there is no genuine issue of material fact that Allison Loder made her alcohol available for Ryan Capozziello to consume. This defeats all speculative contentions made from the plaintiffs of the possibility of Ryan Capozziello consuming Allison Loder’s vodka. Wherefore, summary judgment should still be granted in her favor. IV. The plaintiffs’ complaint was not filed timely In Section C of Objection (p.14-17), plaintiff claims that this action was timely filed against the defendant Allison Loder. Plaintiff concedes that the action was not brought within the two year limitation period of Conn. Gen. Stat. 52-584, but claims that the three year statute of repose should apply. Conn. Gen. Stat. 52-584 provides that no action for negligence or recklessness “shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been 16 discovered…except that no action may be brought more than three years from the date of the act or omission complained of”. (emphasis added) Plaintiff’s objection states that (a)bsent deposition testimony and answers to interrogatories in related litigation, he would not have been able to pursue the responsible parties.” (p.14) However, no competent evidence such as sworn testimony or affidavit is presented to support this broad assertion. Plaintiff relies on Exhibit J, an unverified 2021 report of a psychologist. However, plaintiff does not provide any evidence as to any reasonable efforts to discover responsible parties was made by him or on his behalf. Note that this action was commenced on behalf of the minor plaintiff by his father. The original complaint brought was filed within the two year statute of limitations. If additional discovery was needed of potential additional parties, other actions had been timely commenced by other occupants of the subject motor vehicle. Practice Book Section 13-27 provides a mechanism to take necessary depositions prior to the return date or commencement of suit. Plaintiff relies on the Supreme Court decision in Tarnowsky v. Socci, 271 Conn. 284, 297 (2004) which was remanded for a finder of fact to determine “(w)hen the plaintiff in the present case knew or should have known the defendant’s identity”. However, the court emphasized that “a plainitff’s ignorance of the identity of the tortfeasor will not excuse the plaintiff’s failure to bring a negligence action with three years”. Therefore, plaintiff’s additional causes of action against this defendant alleging she is co-host of the party and/or aided and abetted social host liability were clearly brought after the expiration of the three years and barred by Conn. Gen. Stat. 52-584. Plaintiff claims these claims relate back to the original complaint, however, the issue was not decided in the Court’s decision overruling defendant’s objection to amend no has 17 any caselaw been cited in support of these novel claims. Wherefore, summary judgment should still be granted in favor of Allison Loder. V. Conclusion The plaintiffs’ bald assertion that a genuine issue of material fact exists does not make it so. Allison Loder has provided the Court with concrete evidence which conclusively establishes she is entitled to judgment as a matter of law. In contrast, the plaintiffs have submitted no evidence, admissible or otherwise, in response. The plaintiffs have, therefore, failed to carry their burden of demonstrating the existence of a genuine issue of material fact. I