Teodoro v. City of Bristol

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DAWN TEODORO v. CITY OF BRISTOL ET AL.

(AC 39185)

DiPentima, C. J., and Sheldon and Norcott, Js.

Syllabus

The plaintiff, as parent and next friend of her daughter, B, who had sustained

injuries during a high school cheerleading practice, sought to recover

damages for negligence from the defendants, the city of Bristol, the

city’s board of education and the coach who had supervised the practice

at the time of B’s injuries. The defendants filed a motion for summary

judgment on the ground of governmental immunity, and the plaintiff

filed an opposition to the defendants’ motion with attached exhibits

that included, inter alia, excerpts from the original certified transcripts

of the depositions of B and the coach. The defendants thereafter filed

an additional excerpt from the transcript of B’s deposition. The plaintiff,

without permission of the court, then filed a surreply brief, and the

defendant, with the permission of the court, filed a surreply brief. The

trial court stated during oral argument on the motion for summary

judgment that it would not consider the deposition excerpts because

it considered them to be unauthenticated and, thus, inadmissible as

evidence. The court stated that the excerpts were not separately certified

as true and accurate excerpts from the original certified deposition

transcripts, and were not accompanied by affidavits from persons with

personal knowledge of the contents of the original certified transcripts

averring that the excerpts were true and accurate excerpts of the original

certified transcripts. The trial court granted the motion for summary

judgment, concluding, inter alia, that the defendants were entitled to

governmental immunity. The court thereafter rendered judgment for the

defendants, from which the plaintiff appealed to this court. Held:

1. The trial court, in deciding the motion for summary judgment, improperly

failed to consider the excerpts that the plaintiff submitted from the

certified deposition transcripts of B and the coach, both of whom were

fully available, and did not object to them until prompted to do so by

the court; because the applicable rule of practice (§ 17-46) expressly

allows for the use of such excerpts, which were submitted with pages

from the original deposition transcripts that established that the original

transcripts were accurate transcriptions of the testimony under oath by

B and the coach, the excerpts were properly authenticated under the

applicable rule of practice (§ 17-45) that governs admissible evidence

as to issues raised in summary judgment motions, and, thus, the trial

court erred by refusing to consider them in deciding the motion.

2. The trial court did not abuse its discretion in not considering the parties’

surreply memoranda of law; the applicable rule of practice ([2016] § 11-

10) provided that no surreply memoranda can be filed without the

permission of the judicial authority, and the court, thus, had the discre-

tion not to consider that additional briefing.

Argued October 16, 2017—officially released August 28, 2018

Procedural History

Action to recover damages for the defendants’ alleged

negligence, and for other relief, brought to the Superior

Court in judicial district of New Britain, where the court,

Young, J., granted the defendants’ motion for summary

judgment and rendered judgment thereon, from which

the plaintiff appealed to this court. Reversed; further

proceedings.

Daniel P. Scholfield, with whom, on the brief, was

Steven J. Errante, for the appellant (plaintiff).

Thomas R. Gerarde, with whom was Ondi A. Smith,

for the appellees (defendants).

Opinion

SHELDON, J. The plaintiff, Dawn Teodoro, as parent

and next friend of her minor daughter, Brianna Teodoro,

appeals from the summary judgment rendered by the

trial court in favor of the defendants, the city of Bristol

(city), the Bristol Board of Education (board) and board

employee Sophia Bayne, in this action to recover dam-

ages for injuries suffered by Brianna due to the alleged

negligence of the defendants in conducting and super-

vising a high school cheerleading practice. On appeal,

the plaintiff challenges the court’s decision to grant

the defendants’ motion for summary judgment without

considering either (1) excerpts from the certified tran-

scripts of two depositions taken in this case, one of

Brianna and the other of Bayne, which the plaintiff had

filed in opposition to the motion, or (2) the surreply

brief with attached exhibits which she later filed, with-

out the court’s permission, in further opposition to

the motion.

The amended complaint and record demonstrated

the following. The plaintiff alleged that the defendants

negligently caused Brianna’s injuries and resulting dam-

ages as follows. On the evening of January 7, 2013,

while Brianna was practicing as a member of the junior

varsity cheerleading squad of Bristol Eastern High

School under the supervision of Bayne, her coach, she

attempted, for the first time ever, to perform a cheer-

leading stunt known as the ‘‘ladder stunt.’’ To perform

that stunt, two cheerleaders acting as ‘‘bases,’’ flanked

by front and back spotters to protect the participants’

safety, lift a third cheerleader acting as the ‘‘flyer’’ into

the air, where they hold her as she transitions from half

to full extension. Practicing as the ‘‘flyer’’ with her stunt

group on that evening, Brianna had difficulty per-

forming the ladder stunt, twice attempting but failing

to complete it. Although Bayne was aware of Brianna’s

difficulty in performing the stunt and of her resulting

apprehensiveness about trying to perform it again, she

instructed Brianna to ‘‘try it one more time,’’ but then

walked away to assist other cheerleaders without

assisting Brianna to perform the stunt a third time or

giving her further instruction as to how to do so cor-

rectly. When Brianna thereafter complied with Bayne’s

instructions by trying to perform the stunt again, she

fell to the floor after being lifted into the air and transi-

tioning from half to full extension, causing her to break

several bones in her arm. The plaintiff alleged that

Bayne’s conduct in supervising Brianna was negligent

because, inter alia, she encouraged Brianna to perform

the stunt again despite Brianna’s uncertainty and appre-

hensiveness, when she knew or should have known

that it was unsafe and unreasonable to do so; failed to

give Brianna hands-on assistance in performing the

stunt again or proper instruction as to how to perform

it correctly when it should have been apparent that

her failure to do so would likely subject Brianna to

imminent harm; and failed to provide sufficient spotters

to catch Brianna if she fell. The defendants answered

the plaintiff’s amended complaint by denying all allega-

tions of negligence against them and interposing the

special defense of qualified governmental immunity.

On October 9, 2015, the defendants filed a motion

for summary judgment on the ground of qualified gov-

ernmental immunity, together with a supporting memo-

randum of law and several exhibits, including an

affidavit from Christopher Cassin, the board’s supervi-

sor of athletics, physical education and health; an affida-

vit from Bayne; and a memorandum of decision granting

a defense motion for summary judgment on the ground

of qualified governmental immunity in another Superior

Court action in which the plaintiff, an injured cheer-

leader, sought to recover damages from municipal

defendants for injuries she claimed to have suffered

due to their negligence in conducting a high school

cheerleading practice. On the basis of those submis-

sions, the defendants argued that there was no genuine

issue of material fact that they were entitled to prevail

on their special defense of qualified governmental

immunity, and thus to the entry of judgment in their

favor on the plaintiff’s claims of negligence, because

the conduct and supervision of cheerleading practices

is a governmental activity that requires the exercise

of discretion. They further argued that there was no

evidence that their alleged negligence in exercising such

discretion in this case came within an exception to

qualified governmental immunity by subjecting Bri-

anna, as an identifiable member of a narrowly defined

class of foreseeable victims, to a risk of imminent harm.

On December 11, 2015, the plaintiff filed a memoran-

dum of law in opposition to the defendants’ motion

along with several attached exhibits, including her sec-

ond amended complaint; excerpts from the original cer-

tified transcripts of Brianna’s and Bayne’s depositions

in this case; the plaintiff’s disclosure of Dr. Gerald S.

George as an expert witness on the subjects of biomech-

anics and cheerleading safety; an excerpt from the

National Federation of State High School Associations

2012–13 Spirit Rules Book; and an excerpt from the

Bristol Public Schools Coaching Handbook.1 On the

basis of those materials, the plaintiff claimed that the

defendants’ motion should be denied because the evi-

dence she had submitted raised two genuine issues of

material fact as to the viability of the defendants’ special

defense of qualified governmental immunity: first,

whether the conduct and supervision of cheerleading

practices involves the performance of ministerial,

rather than discretionary, duties, as to which the special

defense of qualified governmental immunity is unavail-

able as a matter of law; and second, even if the conduct

and supervision of cheerleading practices involves the

performance of discretionary duties, whether Bayne’s

alleged negligence in performing such duties in this

case, as evidenced by Brianna’s and Bayne’s deposition

testimony, fell within an exception to qualified govern-

mental immunity because Brianna was subjected to a

risk of imminent harm.

Thereafter, on March 2, 2016, the defendants filed a

reply memorandum in further support of their motion.

Attached to the reply memorandum were two additional

exhibits: a supplemental affidavit from Cassin, and an

additional excerpt from the original certified transcript

of Brianna’s deposition. On the basis of Brianna’s depo-

sition testimony, so supplemented, the defendants

argued, inter alia, that before Brianna fell, she did not

object to performing the ladder stunt again or tell Bayne

of her fear of so doing, and thus Bayne had no notice

that by instructing Brianna to try the stunt one more

time, she was subjecting her to a risk of imminent harm.

Both the plaintiff and the defendants included, as parts

of each deposition excerpt they filed in connection with

the defendants’ motion, the cover page of the original

deposition transcript from which the excerpt in ques-

tion was taken, the page of the transcript on which the

court reporter certified the truth and accuracy of the

entire deposition, as he transcribed it, and the page of

the transcript on which the deponent swore before the

court reporter, who took her oath in his capacity as a

notary public, that she had read the entire transcript

of the deposition and certified to its truth and accuracy,

as transcribed or as later corrected on the attached

errata sheet.2 Neither party objected in writing to the

other party’s submission of or reliance upon any such

deposition excerpt, so authenticated, as evidence in

support of or in opposition to the motion, or suggested

that any corrections had ever been made to the tran-

script on an errata sheet.

On March 4, 2017, after the previously described

memoranda and materials were filed, the plaintiff, with-

out the permission of the trial court, filed a surreply

brief in further opposition to the motion. Attached to

that brief were several additional exhibits, including an

affidavit from her expert, Dr. George; a document listing

the ‘‘highlights’’ of Dr. George’s professional resume;

and a copy of the bylaws of the Connecticut Student

Activities Conference. These additional exhibits bore

only upon the plaintiff’s claim that the defendants were

not entitled to governmental immunity because their

duties in conducting and supervising cheerleading prac-

tices were ministerial, rather than discretionary, in

nature.

The court heard oral argument on the defendants’

motion on March 7, 2016. During the argument, when

the defendants’ counsel began to present argument in

support of the motion based upon Brianna’s certified

deposition testimony, the court advised the parties that

it considered the deposition excerpts they had submit-

ted to be unauthenticated, and thus to be inadmissible

as evidence on the motion unless all parties consented,

because such excerpts were neither separately certified

as true and accurate excerpts from the original certified

deposition transcripts, nor accompanied by affidavits

from persons with personal knowledge of the contents

of such original certified transcripts, averring that the

excerpts were true and accurate excerpts from those

transcripts. When the defendants’ counsel was

informed by the court that she could, but need not,

consent to the use of the deposition excerpts as evi-

dence in support of or in opposition to the motion,

she promptly reversed course, declining to offer her

consent, although the deposition excerpt she had sub-

mitted and relied upon was presented and authenticated

in the same manner as the excerpts submitted by the

plaintiff. It would be ‘‘fair,’’ she suggested, if no such

deposition excerpt from either party was considered in

deciding the motion. Accordingly, the court announced

that, in the absence of an agreement among the parties,

none of the deposition excerpts they had filed would

be considered in deciding the motion.

When counsel for the plaintiff was so informed of the

court’s decision not to consider the deposition excerpts

she had filed in opposition to the defendants’ motion,

she promptly asked the court for permission to supply

it with a sworn affidavit averring that the excerpts she

had submitted were true and accurate excerpts from

Brianna’s and Bayne’s original certified deposition tran-

scripts. The court twice refused this request despite

observing that no party had suggested that any such

excerpt was inaccurate in any way.

The court also advised the parties during the argu-

ment that the plaintiff’s surreply brief and attached

exhibits had been filed improperly, without the court’s

permission, in violation of Practice Book § 11-10 (c).

Even so, it granted the defendants permission to file

their own surreply brief in response to the plaintiff’s

surreply brief in case it should ultimately decide to

consider such briefs and exhibits in deciding the

motion. One week later, on March 14, 2016, the defen-

dants filed their own surreply brief without addi-

tional exhibits.

By an order dated April 18, 2016, the court granted the

defendants’ motion for summary judgment. The court

ruled, on the basis of the evidence it found to be admissi-

ble, that the defendants were entitled to governmental

immunity because there was no genuine issue of mate-

rial fact that (1) cheerleading is a student athletic activ-

ity authorized by the board, and thus Bayne’s conduct

in supervising that activity was public in nature;3 (2)

Bayne’s duties while engaging in such supervisory activ-

ity were discretionary, rather than ministerial, in nature;

and (3) Bayne’s alleged negligence in performing such

discretionary duties on the evening of Brianna’s fall did

not come within an exception to qualified governmental

immunity by subjecting Brianna, as an identifiable mem-

ber of a narrowly defined class of foreseeable victims,

to a risk of imminent harm.4 In rendering summary

judgment in favor of the defendants as aforesaid, the

court did not consider any of the deposition excerpts

that the parties had filed in connection with the defen-

dants’ motion on the previously stated ground that they

were not authenticated properly. Nor did the court con-

sider either party’s surreply brief or the exhibits

attached to the plaintiff’s surreply brief because, as it

had noted during the argument, the plaintiff’s surreply

brief and exhibits had been filed without the court’s per-

mission.

On appeal, the plaintiff claims that the trial court

erred in granting the defendants’ motion for summary

judgment (1) without considering the deposition tran-

script excerpts she had filed in opposition to the motion,

and (2) without considering her surreply brief and

attached exhibits. We agree with the plaintiff that the

trial court erred in not considering the deposition

excerpts she offered in opposition to the motion on the

ground that they were not authenticated properly. We

disagree, however, that the trial court abused its discre-

tion in not considering the plaintiff’s surreply brief and

attached exhibits. We therefore reverse the summary

judgment rendered by the trial court in favor of the

defendants, and remand this case for further consider-

ation of the defendants’ motion in accordance with

this opinion, and for such other proceedings as may

thereafter be appropriate, according to law.

‘‘Before addressing the plaintiff’s claims in greater

detail, we note that . . . [b]ecause the present case

was disposed of by way of summary judgment, we first

address the appropriate framework for appellate review

of a summary judgment determination.’’ (Internal quota-

tion marks omitted.) Grady v. Somers, 294 Conn. 324,

331, 984 A.2d 684 (2009). The purpose of summary judg-

ment procedure is to provide a vehicle for ending litiga-

tion short of trial where the admissible evidence

available to the parties, as presented to the court, estab-

lishes that the moving party is entitled to judgment as

a matter of law because there is no genuine issue as

to one or more material facts upon which his right to

judgment depends. See Practice Book § 17-49 (summary

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’’).

The ultimate facts upon which a party’s right to a

judgment in his favor depends are determined by the

pleadings, which not only identify the claims and

defenses upon which the parties have joined issue, but

the factual theories upon which they have committed

themselves to proving those claims and defenses.

Although the sufficiency of such pleaded allegations to

state viable claims and defenses can be determined

by comparing the pleaded claims and defenses to the

pleaded allegations, the availability to the pleader of

evidence to prove such allegations cannot be inferred

from the mere fact that they have been pleaded. Accord-

ingly, our rules of court require any party moving for

summary judgment to prove to the court that admissible

evidence available to him not only tends to prove the

material facts upon which his right to judgment

depends, but eliminates any genuine issue as to the

existence of such material facts, thereby establishing

his right to prevail on his claim or defense as a matter of

law. A party opposing summary judgment, by contrast,

need only demonstrate that the admissible evidence

available to the moving party is insufficient to eliminate

any genuine issue as to the material facts upon which

the movant’s right to judgment depends, or that admissi-

ble evidence available to her is sufficient to raise a

genuine issue as to the existence of one or more such

material facts. ‘‘In deciding a motion for summary judg-

ment, the trial court must view the evidence in the light

most favorable to the nonmoving party. . . . The party

moving for summary judgment has the burden of show-

ing the absence of any genuine issue of material fact

and that the party is, therefore, entitled to judgment as

a matter of law.’’ (Internal quotation marks omitted.)

Grady v. Somers, supra, 294 Conn. 331.

Because a motion for summary judgment must be

adjudicated without conducting trial, our rules of prac-

tice have established an alternative procedure for estab-

lishing the availability of admissible evidence in support

of or in opposition to a motion for summary judgment.

Under that procedure, the party seeking summary judg-

ment must first support his motion by filing certain

designated types of materials with the court that consti-

tute, contain or demonstrate the availability to the party

of admissible evidence. Such materials, pursuant to

Practice Book § 17-45, include sworn affidavits, certi-

fied transcripts of testimony given under oath, disclo-

sures and pleadings. If such materials establish the

availability of admissible evidence tending to prove the

material facts upon which the movant’s right to judg-

ment depends, the burden shifts to the nonmovant to

file similar materials tending to raise a genuine issue

as to any such material fact. The court’s task in

reviewing the parties’ submissions is not to decide any

factual issues they raise, but only to decide if, in fact,

they raise any such factual issues, as by demonstrating

a potential inconsistency or conflict in the admissible

evidence concerning one or more facts upon which the

movant’s right to judgment depends. In the event the

court determines that there is such a genuine issue of

material fact, it must deny the motion for summary

judgment and leave resolution of the issue to the trier

of fact at trial, who will hear and evaluate the evidence

on both sides of that issue firsthand before deciding

it. ‘‘On appeal, we must determine whether the legal

conclusions reached by the trial court are legally and

logically correct and whether they find support in the

facts set out in the memorandum of decision of the

trial court. . . . Our review of the trial court’s decision

to grant the [defendants’] motion for summary judgment

is plenary.’’ (Internal quotation marks omitted.) Id.

I

The first issue raised in this appeal concerns the

process by which one form of evidence routinely sub-

mitted in connection with motions for summary judg-

ment must be authenticated before the court can

consider it in deciding such a motion. The evidence in

question consists of excerpts from certified transcripts

of testimony given under oath. Because the purpose of

authentication, as established in our case law, is to

make a preliminary showing that the proffered evidence

is what the party offering it claims it to be, it is important

at the outset to understand the reason why such tran-

scripts, if authenticated, are admissible on a motion for

summary judgment. Importantly, certified transcripts

of testimony given under oath are not admitted in con-

nection with such motions because they constitute

admissible evidence at trial. This is because, under our

rules of evidence, the admissibility of prior sworn testi-

mony depends upon both the unavailability of the wit-

ness to testify at trial and the prior availability to all

other parties of an opportunity to cross-examine the

witness when he gave his prior sworn testimony. Conn.

Code Evid. § 8-6 (1). Instead, the reason why such certi-

fied transcripts are admissible in connection with sum-

mary judgment motions is to demonstrate the

availability to the party submitting them of live testi-

mony from the witnesses, consistent with their prior

sworn testimony, as it appears in the certified tran-

scripts. The purpose of authentication of such certified

transcripts is thus to make a preliminary showing that

they accurately record testimony that the witnesses in

question gave under oath.

In this case, the trial court sua sponte refused to

consider two deposition excerpts filed by the plaintiff

and one deposition excerpt filed by the defendants in

connection with the defendants’ motion for summary

judgment because they failed to submit either full certi-

fied transcripts of the witnesses’ depositions or to file

affidavits from knowledgeable witnesses separately

establishing that the excerpts in question were true and

accurate excerpts from such full certified transcripts.

The plaintiff complains that the trial court’s ruling to

this effect constituted an overly strict application of

the authentication requirement and deprived her

improperly of actual, reliable proof as to the availability

of admissible evidence in opposition to the defendants’

motion. For the following reasons, we agree with the

plaintiff and reverse the trial court’s ruling rendering

summary judgment in favor of the defendants in this

case.

The plaintiff asserts that our standard of review over

her first claim is plenary. The defendants argue, to the

contrary, that we must review the plaintiff’s claim under

the abuse of discretion standard. Because, however,

the claim involves the interpretation of a rule of prac-

tice, we agree with the plaintiff.5 See Wiseman v. Arm-

strong, 295 Conn. 94, 99, 989 A.2d 1027 (2010) (‘‘[t]he

interpretation and application of a statute, and thus a

Practice Book provision, involves a question of law over

which our review is plenary’’).

‘‘Practice Book § 17-45 provides in relevant part that

[a] motion for summary judgment shall be supported

by such documents as may be appropriate, including

but not limited to affidavits, certified transcripts of

testimony under oath, disclosures, written admissions

and the like. . . . That section does not mandate that

those documents be attached in all cases, but we note

that [o]nly evidence that would be admissible at trial

may be used to support or oppose a motion for summary

judgment. . . . Practice Book § [17-45], although con-

taining the phrase including but not limited to, contem-

plates that supporting documents to a motion for

summary judgment be made under oath or otherwise

reliable. . . . [The] rules would be meaningless if they

could be circumvented by filing [unauthenticated docu-

ments] in support of or in opposition to summary judg-

ment. . . .

‘‘Therefore, before a document may be considered

by the court [in connection with] a motion for summary

judgment, there must be a preliminary showing of [the

document’s] genuineness, i.e., that the proffered item

of evidence is what its proponent claims it to be. The

requirement of authentication applies to all types of

evidence, including writings . . . . Conn. Code Evid.

§ 9-1 (a), commentary. Documents in support of or in

opposition to a motion for summary judgment may be

authenticated in a variety of ways, including, but not

limited to, a certified copy of a document or the addition

of an affidavit by a person with personal knowledge

that the offered evidence is a true and accurate repre-

sentation of what its proponent claims it to be.’’

(Emphasis altered; internal quotation marks omitted.)

Gianetti v. Anthem Blue Cross & Blue Shield of Con-

necticut, 111 Conn. App. 68, 72–73, 957 A.2d 541 (2008),

cert. denied, 290 Conn. 915, 965 A.2d 553 (2009).

This court has never directly addressed the issue of

whether an excerpt from a certified deposition tran-

script must be separately certified as such, apart from

the certification of the original transcript from which

it was excerpted, in order to make it admissible in

support of or in opposition to a motion for summary

judgment under Practice Book § 17-45. Our Superior

Courts are divided as to what type of certification is

required for that purpose.6 Because our review is ple-

nary, we consider, but are not bound by, these

decisions.

Where no party objects, a court may, but is not

required to, review uncertified deposition transcripts.

Barlow v. Palmer, 96 Conn. App. 88, 92, 898 A.2d 835

(2006). There is no indication in the record that the

present defendants objected to the deposition excerpts

until the court, sua sponte, invited them to do so at oral

argument.7 In their reply memorandum, by contrast, the

defendants did object to the plaintiff’s exhibit D, an

uncertified disclosure of the plaintiff’s expert witness.

At oral argument, moreover, the defendants also

objected to the uncertified coaching handbook as

improperly before the court because it was not authenti-

cated. However, far from objecting to the plaintiff’s

submission of the subject excerpts from the certified

deposition transcripts of Brianna and Bayne, the defen-

dants themselves submitted, as an attachment to their

reply memorandum, an overlapping excerpt from Brian-

na’s certified deposition transcript, which was authenti-

cated in precisely the same manner as the plaintiff had

authenticated the excerpt from that same deposition

that she had submitted.8 By so doing, without correcting

the plaintiff’s submission in any way, then expressly

relying upon such excerpts in their own summary judg-

ment argument, the defendants effectively stipulated to

the authenticity of both excerpts from Brianna’s deposi-

tion, which the parties had submitted as true and accu-

rate excerpts from the original certified transcript of

that deposition. ‘‘Stipulations or admissions prior to or

during a trial provide two other means of authentica-

tion.’’ Conn. Code Evid. § 9-1 (a), commentary.

The plaintiff claims that the trial court’s reading of

Practice Book § 17-45 was overly narrow, and that that

section allows a court to consider more than merely

entire certified deposition transcripts or excerpts from

deposition transcripts that have been separately certi-

fied for their truth and accuracy as such by an affidavit

from the court reporter or the submitting party’s attor-

ney. She contends that because the phrase ‘‘certified

transcripts of testimony under oath’’ is not defined in

Practice Book § 17-45 or elsewhere, and the deposition

transcript excerpts she submitted along with her oppo-

sition memorandum of law included the deposition

cover page, the page on which the court reporter certi-

fied the accuracy of the entire deposition transcript as

he transcribed it, and the page on which the deponent

swore that she had read the entire deposition transcript

and certified to its truth and accuracy, so transcribed,

it fully satisfied the requirements of the rules of practice.

At oral argument, the trial court disagreed with the

plaintiff’s contention.9 We, however, agree with the

plaintiff.

Because all that is required for a court to consider

a document in support of or in opposition to a motion

for summary judgment is ‘‘a preliminary showing of [the

document’s] genuineness’’; (internal quotation marks

omitted) New Haven v. Pantani, 89 Conn. App. 675,

679, 874 A.2d 849 (2005); we hold that the certification

page from the original certified deposition transcript

from which an excerpt was taken is sufficient to authen-

ticate the excerpt as an accurate transcription of testi-

mony given under oath, and thus to establish its

admissibility for summary judgment purposes, at least

where, as here, it is accompanied by other portions of

the original deposition transcript tending to establish

that the testimony set forth in it was given under oath

and that it was accurately transcribed. Such proof of

genuineness is fully consistent with the purpose for

which certified transcripts of depositions are admitted

in support of or in opposition to summary judgment

motions, which is to prove that the submitting party

has available to her, for presentation at trial, admissible

evidence consistent with the witness’ prior recorded

testimony under oath. If the court reporter has duly

certified that the entire deposition was given under oath

and that it was accurately transcribed, he has thereby,

necessarily, certified that the excerpt in question was

accurately transcribed as part of that sworn testimony,

a fact that was confirmed in this case by the defendants’

own submission of and reliance upon excerpts from

the same original deposition transcript in support of

their motion, and by the deponent’s certification under

oath that she had read her entire testimony, so tran-

scribed, and found it to be truthful and accurate.

Our rules of practice, in fact, expressly allow for the

use of such excerpts. See Practice Book § 17-46, which

provides in relevant part: ‘‘Sworn or certified copies of

all papers or parts thereof referred to in an affidavit

shall be attached thereto.’’ (Emphasis added.) There is

therefore no requirement that the entire document be

attached to make an excerpt therefrom admissible in

support of a summary judgment motion.

We acknowledge concerns that a trial court may have

in considering an excerpt from a deposition transcript;

see footnote 9 of this opinion; however, we find that

those concerns are easily addressed. In cases such as

this one, where both parties have access to full copies

of the original deposition transcripts from which the

excerpts in question were taken, if a party includes the

cover page of the transcript, the page on which the court

reporter certifies the accuracy of his transcription, and

the page on which the deponent certifies under oath

that, upon reading the entire deposition, the testimony

in it is truthful and accurate, nothing more can be

required of the submitting party to make her ‘‘prelimi-

nary showing of [the document’s] genuineness . . . .’’

(Internal quotation marks omitted.) New Haven v. Pan-

tani, supra, 89 Conn. App. 679. A party must, of course,

include enough of the full deposition transcript in the

submitted excerpt to put the testimony upon which she

wishes to rely in its proper context, so that its meaning

can be understood and its true significance can be prop-

erly evaluated by the court, but she has no need—

indeed, no right—to file other portions of the deposition

that contain testimony that is irrelevant to the issues

raised on summary judgment, or that contain answers

that are beyond the personal knowledge or competency

of the deponent or are otherwise inadmissible in evi-

dence. If, however, an opposing party wishes to object

to a proffered deposition excerpt, in whole or in part,

on any basis, he has ample means at his disposal to

protect his rights. If he feels that the chosen excerpt

is inadmissible in evidence on the issues raised on the

pending motion, he can move to strike the entire

excerpt or object to particular portions of it. If the court

agrees with his position, it can grant him relief after both

parties have been heard on the issue. If, by contrast,

he feels that the excerpt, though admissible as submit-

ted, is nonetheless misleading because it does not

include portions of the original deposition transcript

that shed important light on issues which the excerpt

concerns, he can seek the court’s permission, under

§ 1-5 (b) of the Connecticut Code of Evidence, to intro-

duce any other part of the deposition that ‘‘ought in

fairness to be considered contemporaneously with’’ it.

That, in fact, is what the defendants in this case did by

attaching additional excerpts from Brianna’s deposition

to their reply memorandum. Where, moreover, a party

proffers excerpts from a certified deposition transcript

that has not already been made available to all counsel,

Practice Book § 17-47 entitles his opponent to request

a postponement of all summary judgment proceedings

to enable him to conduct further investigation, pursue

additional discovery or obtain additional affidavits in

order to respond effectively to the motion.10

Here, the plaintiff submitted excerpts from the certi-

fied depositions of Brianna and Bayne, both of which

were fully available to the defendants, who did not

object to them until prompted to do so by the court.

Because such excerpts were submitted along with

pages from the original deposition transcripts establish-

ing that such original transcripts were accurate tran-

scriptions of the deponents’ truthful testimony under

oath, such excerpts were properly authenticated for the

purpose of Practice Book § 17-45, which is to establish

the availability of admissible evidence bearing upon the

issues raised on the defendants’ summary judgment

motion. For that reason we conclude that the court

erred by refusing to consider such deposition excerpts

in deciding the motion. Thus, we reverse the court’s

granting of summary judgment in favor of the defen-

dants and remand this case for further proceedings on

that motion.

II

The plaintiff also claims that the trial court erred

in not considering the parties’ reply memoranda. We

review this claim under the abuse the discretion stan-

dard. ‘‘An abuse of discretion standard would be consis-

tent with the general rule that [t]he trial court has wide

discretion in granting or denying amendments [to plead-

ings] before, during, or after trial.’’ (Internal quotation

marks omitted.) Dimmock v. Lawrence & Memorial

Hospital, Inc., 286 Conn. 789, 799, 945 A.2d 955 (2008).

The plaintiff claims that the court agreed at oral argu-

ment to consider the parties’ reply memoranda. It is

undisputed that the court granted the defendants one

week from oral argument to file a surreply memoran-

dum in response to the plaintiff’s surreply. It is further

undisputed that the court did not consider either party’s

surreply briefs in deciding the motion for summary

judgment.

Practice Book § 11-10 was amended on June 12, 2015,

with an effective date of January 1, 2016, to add current

subsections (b) and (c) to the rule. According to com-

mentary accompanying the amendment, ‘‘[t]his change

. . . [clarified that] [n]o surreply memoranda can be

filed without the permission of the judicial authority.’’

Practice Book (2016) § 11-10, commentary. The court

therefore had discretion under the rules of practice not

to consider this additional briefing. We conclude that

the court did not abuse its discretion in not considering

the parties’ surreply memoranda.

The judgment is reversed and the case is remanded

for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

1

Of all of the exhibits attached to the plaintiff’s memorandum of law,

only the excerpts from the certified deposition transcripts are at issue in

this appeal.

2

Neither party included such errata sheets.

3

See Jahn v. Board of Education, 152 Conn. App. 652, 658–59, 99 A.3d

1230 (2014); Sevigny v. Daviau, Superior Court, judicial district of Windham,

Docket No. CV-XX-XXXXXXX, 2013 WL 4504831 (July 31, 2013).

4

On the basis of the information it did consider, the court concluded that

this was not a case in which a specific plaintiff was an identifiable victim

because such cases, primarily Sestito v. Groton, 178 Conn. 520, 423 A.2d

165 (1979), are limited to their facts. See, e.g., Edgerton v. Clinton, 311

Conn. 217, 240, 86 A.3d 437 (2014). Instead, the court determined that only

the identifiable class of victims exception to governmental immunity could

potentially apply, and pursuant to Grady v. Somers, 294 Conn. 324, 984

A.2d 684 (2009), the identifiable class of foreseeable victims is limited to

schoolchildren attending public school during school hours.

5

Even if we assume arguendo that the trial court’s decision to accept or

reject the deposition transcript excerpts should be reviewed under the abuse

of discretion standard; see Barlow v. Palmer, 96 Conn. App. 88, 91, 898 A.2d

835 (2006); the court’s denial of the plaintiff’s request to cure the defect would

constitute an abuse of discretion. See, e.g., New Hartford v. Connecticut

Resources Recovery Authority, 291 Conn. 433, 484–85, 970 A.2d 592 (2009)

(court should allow requested supplementation ‘‘if it will promote the eco-

nomic and speedy disposition of the controversy between the parties, will

not cause undue delay or trial inconvenience, and will not prejudice the

rights of any other party’’ [internal quotation marks omitted]).

6

There is no consensus among Superior Court judges as to whether and

under what circumstances excerpts from deposition transcripts are suffi-

ciently authenticated such that they can be considered in support of or in

opposition to motions for summary judgment. One court held that deposition

transcript excerpts, with cover pages and court reporter certifications, may

properly be considered under Practice Book § 17-45. See Clark v. Norwalk,

Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-93-

0146667, 1998 WL 886599, *3 (December 10, 1998). Other courts have consid-

ered excerpts from deposition transcripts when a copy of the court reporter’s

certification of the entire original transcript is submitted with it. See Mangels

v. Yale, Superior Court, judicial district of Fairfield, Docket No. XX-XXXXXXX-

S, 2006 WL 438593, *3 (February 15, 2006); Jensen v. DePaolo, Superior

Court, judicial district of New Haven, Docket No. CV-XX-XXXXXXX-S, 2004 WL

166486, *1 n.4 (June 30, 2004). Other courts have held that providing the

title page but not the certification page with an excerpt from a deposition;

see Marsala v. Yale-New Haven Hospital, Inc., Superior Court, judicial

district of Ansonia-Milford, Docket No. XX-XXXXXXX (March 19, 2015) (60

Conn. L. Rptr. 196, 197 nn.4–8), aff’d, 166 Conn. App. 432, 142 A.3d 316

(2016); or a certification page from a full deposition with an excerpt from

that deposition; see Colon v. New Haven, Superior Court, judicial district

of New Haven, Docket No. CV-XX-XXXXXXX-S, 2011 WL 4953436, *2 n.1 (Sep-

tember 28, 2011); will not adequately authenticate such deposition excerpts

for consideration in support of or in opposition to a motion for summary

judgment.

7

The following colloquy occurred:

‘‘The Court: . . . [M]y general practice for as long as I’ve been doing this

has been that I follow the rules of practice unless there is consent by both

sides to look away from the requirements of the Practice Book, and I

don’t have that here, mainly because [the defendants’] exhibits mostly are

authenticated, with the exception of one, which is exhibit E. [The defendants

do not] have that problem. Although, if I were to allow you to submit an

affidavit that, what is there—and I don’t think there’s any claim that the

excerpts are inaccurate, but to authenticate that that is the testimony, that

there is no errata that changes any of the substantive testimony, then I

would consider [the defendants’] exhibit E as well because there would be

some sort of agreement of counsel on that. [The defendants’ counsel], back

to you, briefly. Is there an agreement on that as to the deposition excerpts?

‘‘[The Defendants’ Counsel]: Uh—

‘‘The Court: It’s up to you. You don’t have to.

‘‘[The Defendants’ Counsel]: Your Honor, I don’t want to concede that

the entirety of the plaintiff’s submissions are appropriate for a motion for

summary judgment at this point. I mean, exhibit E was attached to point out

portions of the transcript that weren’t included in the plaintiff’s submission

because there were only certain pages here and there. So, if Your Honor is

not considering transcripts on both sides, I think that would be fair.

‘‘The Court: Okay. So, we don’t have an agreement. So, I’m just letting

you know that, and it can’t come as any surprise that I won’t consider things

that are not properly authenticated unless there’s agreement of counsel,

and, here, we don’t have.’’ (Emphasis added.)

8

The defendants’ exhibit E was an excerpt from the transcript of Brianna’s

deposition that included the first page, a portion of the deponent’s testimony,

the page on which the court reporter certified the entire deposition, and

the page with the certificate of the deponent.

9

The following colloquy occurred:

‘‘[The Plaintiff’s Counsel]: With respect to the deposition excerpts, it was

my understanding under the rule that a certification page would certify

those excerpt transcripts were accurate and authenticate them.

‘‘The Court: If the entire transcript was there, I wouldn’t have a problem

with it. But when you’re taking page 3 and then page 5 and then page 8 and

then page 27, the normal practice would be to, either you, yourself, saying

that or whoever took the deposition, that this is what transpired and these

are from the original—I don’t even think you have to be there, but somebody

needs to authenticate it, even if it’s counsel. If it’s not counsel, it should

properly be the court reporter that does that, and I can tell you from my

own practice way back when, I would go to the court reporter with copies

of the transcript and say, give me a certification page, and they would do

that; then you don’t have problems with it. But you open yourself up to

having them excluded by the manner that you’ve chosen to do these things.

‘‘[The Plaintiff’s Counsel]: I will state in full disclosure, Your Honor, that

I—we actually, when we had these depositions, initially, did not even have

the certification page from the court reporter, and so I went so far as to

get that, thinking that it would be enough. Now, seeing that—

‘‘The Court: How could you not have the certification page if you’re getting

a sealed transcript?

‘‘[The Plaintiff’s Counsel]: We didn’t have the signed certification page.

‘‘The Court: Okay. And it may be a question of a missing errata page. I

don’t know if your client changed any of her answers substantively because

I don’t know whether there was an errata page, and I don’t know whether

any of the testimony changed because those excerpts haven’t been certified.

That’s the problem I have.’’

The plaintiff’s counsel then twice requested judicial permission to provide

an affidavit authenticating and certifying the deposition transcript excerpts,

which the court denied.

10

Practice Book § 17-47 provides in relevant part: ‘‘Should it appear from

the affidavits of a party opposing the motion that such party cannot, for

reasons stated, present facts essential to justify opposition, the judicial

authority . . . may order a continuance to permit affidavits to be obtained

or discovery to be had or may make such other order as is just.’’