Amber Arsenault v. Stanley Adelstein (2011)

MEMORANDUM OF DECISION

RE:  MOTION FOR SUMMARY JUDGMENT (NO. 116)

Facts and Procedural History

This action arises from an accident involving an all-terrain vehicle (“ATV”) that occurred on May 24, 2008, in Salem, Connecticut.   The plaintiffs, Amber Arsenault, a minor, and her mother, Katrina Arsenault, filed a complaint alleging negligent supervision against the defendants, Stanley, Donna and Spencer Adelstein.   The accident occurred on the defendants' property while Amber was riding on their ATV. The defendants filed their motion for summary judgment and memorandum in support on January 14, 2011.   The plaintiff's filed their objection and memorandum in opposition on February 10, 2011.   The parties appeared for oral argument at short calendar on March 21, 2011.

Discussion

“Practice Book § 17–49 provides that 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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 553–54, 985 A.2d 1042 (2010).

First, the defendants argue that Stanley and Donna Adelstein are entitled to summary judgment because General Statutes § 52–557j immunizes them from liability.   The court rejects this argument for all of the reasons previously discussed by this court in striking the defendants' special defense, which alleged their immunity from liability on the basis of § 52–557j.   The statute does not bar the plaintiffs' negligent supervision claim against the defendants.   See Galinski v. Neukom, supra, 37 Conn. L. Rptr. 508;  Coombe v. Kovach, supra, 42 Conn. L. Rptr. 472.

Next, the defendants argue that Spenser Adelstein is entitled to summary judgment because there is no evidence that he breached any duty to the minor plaintiff.   Specifically, the defendants argue that Spenser did not give the minor plaintiff permission to use the ATV. The plaintiffs counter that there is a genuine issue of fact as to whether the minor plaintiff had the defendants' permission to ride the ATV.

Based upon the affidavits and depositions presented by the parties, the court is satisfied that there exists a genuine issue of material fact as to whether the defendants gave the minor plaintiff permission to use the ATV on the date of the accident.   Specifically, the deposition of Donna Adelstein demonstrates that she was aware that Spenser and his minor guests were riding ATVs on the property and that she gave him permission to do so.

Conclusion

For all of the foregoing reasons, the defendants' motion for summary judgment is hereby denied.

Cosgrove, J.

Cosgrove, Emmet L., J.