Anthony Openchofski v. Dennis Belles (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 113)

The defendant, Michael Sousa, moves for summary judgment in this personal injury action.   For reasons stated below, this court denies this motion.

FACTS

On May 19, 2009, the plaintiff, Anthony Openchofski, commenced this action by service of process on the defendants, Dennis Belles and Michael Souza.   The plaintiff filed his writ, summons and complaint on June 1, 2009.   The plaintiff's complaint alleged the following facts.   On or about June 21, 2008, the plaintiff transported his hydraulic log splitter to Sousa's property in order to split logs for Sousa.   The plaintiff and Sousa loaded logs into the splitter while Belles operated the splitter.   As the plaintiff was loading logs into the splitter, Belles engaged the splitter.   As a result of Belles engaging the splitter, the splitter caught the plaintiff's right ring finger.   The accident severed the plaintiff's right ring finger.

The complaint also alleges that at the time of the accident, “Belles was operating said hydraulic log splitter as the agent, servant and/or employee of ․ Sousa and was acting for the benefit of ․ Sousa.”   Count one of the plaintiff's complaint alleges a claim of negligence against Belles.   Count two of the plaintiff's complaint alleges a claim of vicarious liability against Sousa for Belles' alleged negligence.

On June 23, 2009, Belles filed an answer.   On August 27, 2009, Sousa filed an answer and counterclaim.   On August 25, 2010, Sousa filed a motion for summary judgment and an accompanying memorandum of law in support of the motion.   On August 30, 2010, the plaintiff filed a motion for extension of time and the court granted that motion on September 13, 2010.   On September 24, 2010, the plaintiff filed an objection to Sousa's motion and memorandum of law in opposition to the motion.   The court heard the matter at short calendar on November 8, 2010.

ANALYSIS

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

Sousa argues that in order to prevail on the claim of vicarious liability, the plaintiff must prove that Sousa exercised control over the actions of Belles.   Sousa argues that there is no genuine issue of material fact as to whether he exercised control over the actions of Belles.   In support of that argument, Sousa submits the deposition testimony of the plaintiff.   Sousa argues that in the deposition, the plaintiff testified that at the time of the accident, the plaintiff was in control of the log splitting operation;  he knew the most about the log splitter;  Sousa knew the least;  the plaintiff chose the location of the operation;  Sousa did not tell Belles what to do;  Belles was not Sousa's employee;  and the only connection between Belles and Sousa was that the two are cousins.   Sousa also submits an affidavit by Belles, in that affidavit, Belles swears that on previous occasions, Belles worked with the plaintiff using the log splitter;  on those occasions, he worked at the plaintiff's direction;  Sousa at no time controlled the log splitting operation;  and the plaintiff, rather than Sousa, controlled the operation.   From that evidence, Sousa argues he did not control Belles' actions, and therefore cannot be liable to the plaintiff for Belles's negligence.

The plaintiff counters that there is a genuine issue of material fact as to whether Sousa controlled Belles' actions.   The plaintiff cites Sousa's deposition testimony.   The plaintiff argues that in that deposition, Sousa testified that the log splitting operation was commenced for Sousa's benefit and at his direction;  Sousa had ultimate control over the operation;  Sousa had authority to intervene if either the plaintiff or Belles were behaving irresponsibly;  Sousa dictated the time and location of the log splitting operation;  Sousa asked Belles to procure the log splitter;  and Sousa specifically arranged for Belles to be present to assist in the log splitting operation.   Finally, the plaintiff argues that as a matter of law, the parties' own characterization of their respective roles does not control whether an agency relationship existed.

“Agency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act ․ Thus, the three elements required to show the existence of an agency relationship include:  (1) a manifestation by the principal that the agent will act for him;  (2) acceptance by the agent of the undertaking;  and (3) an understanding between the parties that the principal will be in control of the undertaking ․ Moreover, it is a general rule of agency law that the principal in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the [agency relationship].”  (Citation omitted;  internal quotation marks omitted.)  McDermott v. Calvary Baptist Church, 263 Conn. 378, 384, 819 A.2d 795 (2003).

“The underlying rationale of the modern doctrine of respondeat superior in its application to this type of case is that every man who prefers to manage his affairs through others, remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others, while they are engaged upon his business and within the scope of their authority ․ But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order of the doctrine to apply.”   (Citations omitted;  internal quotation marks omitted.)  Mitchell v. Resto, 157 Conn. 258, 262, 253 A.2d 25 (1968).

“[T]o constitute the relation of master and servant, the one for whom the service is rendered must consent to receive the services as master, that is consent to their being performed under his direction and control.   There must be submission by one giving service to the directions and control of the one receiving it as to the manner of performance ․ In the absence of this the relation does not exist ․ There is no dispute about the ultimate test.   It is the right of general control of the means and methods used by the person whose status is involved.”  (Citations omitted;  internal quotation marks omitted.)   Oleksinski v. Filip, 129 Conn. 701, 702-03, 30 A.2d 912 (1943).   Furthermore, “[t]he fact that the [service provided] was gratuitous in itself is not decisive of the question of agency.   A volunteer may in law be the servant of one who accepts his services.”  Id., 702.

In order for the plaintiff to prove Sousa's liability in this case for the actions of Belles, the plaintiff will have to prove that Sousa exercised control over Belles' actions.   Whether Sousa did in fact exercise that control, therefore, is a material fact.   Sousa's initial showing demonstrates that there is no genuine issue with respect to that material fact.   He cites both the deposition testimony of the plaintiff and the affidavit of Belles.   The facts Sousa points to in both the deposition and the affidavit tend to show that Sousa did not exercise control over Belles' actions.   Specifically, Belles' sworn statement to that effect, and the plaintiff's testimony that he controlled the log splitting operation.

The plaintiff's citation to record testimony, however, demonstrates that a genuine issue as to the material fact of control still exists.   The plaintiff cites the deposition testimony of Sousa.   There, Sousa testified that he initiated the entire operation and admitted that he had ultimate control over the safety of all three individuals because the log splitter was operating on his property.

Sousa did not point any further evidence to meet his ultimate burden, as the party moving for summary judgment, to demonstrate that there is no genuine issue of material fact.   The evidence cited by the plaintiff in his reply brief at the least demonstrates that there remains a question of which individual controlled the operation, or whether anyone was in charge at all.   Sousa's motion for summary judgment is denied because there are no genuine issue as to material facts as to whether an agency relationship existed between Sousa as master and Belles as servant.

Cogrove, J.

Cosgrove, Emmet L., J.