Joanna B. Barlasz v. Angela Baraby et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANT JOSEPH DIMNO'S MOTION TO STRIKE

PROCEDURAL HISTORY AND FACTS:

This action arises from a motor vehicle accident.   The plaintiff alleges she was injured as a passenger in a vehicle which was struck by another vehicle owned by Enterprise Rental Car [sic] and operated by defendant Angela Baraby.   Three of the counts in the revised complaint are directed against defendant Joseph Dinino.   Dinino filed a motion to strike these counts.   Two of the three counts were withdrawn by the plaintiff prior to argument.   The remaining count against Dinino is the Fourth Count, which alleges Enterprise leased the vehicle to Dinino who, in turn, authorized Baraby to use it.   The allegations of the Fourth Count further state that Baraby was the agent, servant or employee of Dinino.

Dinino moves to strike the Fourth Count as “not cognizable as a matter of law.”   The plaintiff has filed an objection, claiming she has “adequately pled a count of negligent entrustment.”

LEGAL STANDARD:

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994).   Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

“A motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․ We construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.   In doing so, moreover, we read the allegations broadly ․ rather than narrowly.”  (Internal quotation marks omitted.)  Sylvan R. Shemitz Designs, Inc. v. Newark Corp., 291 Conn. 224, 231, 967 A.2d 1188 (2009);  see also Practice Book § 10–39 (addressing motion to strike).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  Westport Bank & Trust Co. v. Corcoran, Mallin & Aresco, 221 Conn. 490, 496, 605 A.2d 862 (1992).

In addition, it is well settled that “[t]he failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint ․” (Internal quotation marks omitted.)  Madsen v. Gates, 85 Conn.App. 383, 398, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004).   As a result, “[i]t is incumbent on a plaintiff to allege some recognizable cause of action in his complaint.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 121, 971 A.2d 17 (2009);  Practice Book § 10–20 (complaint “shall contain a concise statement of the facts constituting the cause of action”).   Yet “ ․ if the complaint puts the defendant on notice of the relevant claims, then a plaintiff's failure specifically to allege a particular fact. or issue is not fatal to his claim unless it results in prejudice to the defendant.”  Machado v. Hartford, 292 Conn. 364, 370 n. 7, 972 A.2d 724 (2009).

Sturm v. Harb Development, LLC, 298 Conn. 124, 130–31, 2 A.3 859 (2010).

“In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

ANALYSIS:

The defendant, Dinino, argues that the plaintiff, Barlasz, has failed to sufficiently allege a cause of action in the Fourth Count, either of agency or negligent entrustment.   In her objection to the motion to strike, the plaintiff argues that she has pled a count of negligent entrustment in the Fourth Count.   A review of the Fourth Count is not enlightening as to what the plaintiff is asserting.

In ¶ 2, the plaintiff alleges that Dinino authorized Baraby to use the vehicle.   The plaintiff further alleges that Baraby was the agent, servant or employee of Dinino, acting within the scope of her authority or employment.

In ¶ 4, the plaintiff claims her injuries were caused by the negligence and carelessness of “the defendant” in one or more of ten different ways.   The “defendant” appears to be Baraby in seven of those ways.   The “defendant” appears to be Dinino in the remaining three.   These are that Dinino:

h. allowed defendant Baraby permission to use the vehicle without knowing that she was legally allowed to operate a motor vehicle in Connecticut;

i. allowed defendant Baraby permission to use the vehicle while knowing or while he should have known that she would be operating the motor vehicle while her license was under suspension;  and

j. allowed defendant Baraby permission to use the vehicle while knowing or while he should have known that she had caused another mother [sic] vehicle accident with the same vehicle days earlier.

Dinino argues in his memorandum that the plaintiff has failed to cite General Statutes § 52–183 as to any claim of agency.   However, Dinino is not alleged to be the vehicle owner.   Additionally, in a footnote contained in her objection, the plaintiff specifically disavows a claim of statutory agency pursuant to General Statutes § 52–183.   She does not address whether she is claiming common-law agency.   It does appear that, in ¶ 2 of the revised complaint, the plaintiff is attempting to assert agency.   Although ¶ 4 is an amalgam of claims of negligence apparently directed to two different unspecified defendants, the plaintiff seems to attempt to allege that Dinino negligently entrusted Baraby with the vehicle, rather than that Baraby was acting as Dinino's agent.   Because it is not clear, the court will review Count Four as if both causes of action are asserted therein.

“․ [T]he 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.”  Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 133 (1983) (quoting Restatement (Second), 1 Agency § 1).

If the plaintiff is alleging agency, she has failed to allege any of the three elements of common-law agency.   The Fourth Count is legally insufficient to establish a claim of agency.

In her objection to the motion to strike, the plaintiff does not claim that she is asserting agency.   She claims she is alleging negligent entrustment.

In 1933, the Connecticut Supreme Court recognized the tort of negligent entrustment of a motor vehicle:  “An automobile, while capable of doing great injury when not properly operated upon the highways, is not an intrinsically dangerous instrumentality to be classed with ferocious animals or high explosives ․ and liability cannot be imposed upon an owner merely because he entrusts it to another to drive upon the highways.   It is, however, coming to be generally held that the owner may be liable for injury resulting from the operation of an automobile he loans to another, when he knows or ought reasonably to know that the one to whom he entrusts it is so incompetent to operate it by reason of inexperience or other cause that the owner ought reasonably anticipate the likelihood that in its operation injury will be done to others.”  (Citation omitted.)  Greeley v. Cunningham, 116 Conn. 515, 518, 165 A. 678 (1933).

Dinino argues that Greeley is inapplicable because Dinino is not an owner.   However, “a cause of action for negligent entrustment of an automobile is not dependent upon the ownership status of the defendant.”   Johnson v. Amaker, Superior Court, judicial district of New Haven at New Haven, Docket No. CV07 5013242 S (January 29, 2008, Bellis, J.) “[T]he Restatement [ (Second) of Torts] makes no reference to any requirement that the defendant in a negligent entrustment action be the owner of the instrumentality entrusted ․ Liability for negligent entrustment is not based on a defendant's ownership status but rather is based on whether the entrustor, by virtue of his status, has sufficient control over the vehicle of the owner to give rise to an action for negligent entrustment.”  (Internal quotations omitted.)   Jordan v. Sabourin, Superior Court, judicial district of New London, Docket No. 537041 (November 22, 1996, Hurley, J.T.R.) [18 Conn. L. Rptr. 269].   See also, Prior v. Lang, Superior Court, judicial district of Tolland at Rockville, Docket No. TTD CV07 5001248 (May 7, 2009, Bright, J.) and cases cited therein.   Therefore, the court reviews the elements of negligent entrustment as set forth in several Superior Court decisions:

“The essential elements of the tort of negligent entrustment of an automobile [are] that the entrustor knows or ought reasonably to know that one to whom he entrusts it is so incompetent to operate it upon the highways that the former ought to reasonably anticipate the likelihood of injury to others by reason of that incompetence, and such incompetence does result in injury ․ Liability cannot be imposed on a defendant under a theory of negligent entrustment simply because the defendant permitted another person to operate the motor vehicle ․ Liability can only be imposed if (1) there is actual or constructive knowledge that the person to whom the automobile is loaned is incompetent to operate the motor vehicle;  and (2) the injury results from that incompetence.”

Kaminsky v. Scoopo, Superior Court, judicial district of New Haven, Docket No. CV08 6002084 (July 30, 2008, Bellis, J.) [46 Conn. L. Rptr. 82], citing Griffin v. Larson, Superior Court, judicial district of Ansonia–Milford at Derby, Docket No. CV02 0079364 (August 18, 2004, Lager, J.).   A motion to strike was granted under similar circumstances to the instant case where the complaint did not allege “any facts suggesting that the defendant owner had actual or constructive knowledge of the defendant driver's dangerous propensities.”   Dervil v. Perez, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV04 4001545 (September 12, 2005, Lewis, J.).   See also, Chung v. Place Motors, Inc., Superior Court, judicial district of New London, Docket No. 560074 (February 11, 2003, Hurley, J.T.R.) [34 Conn. L. Rptr. 140] (Motion to strike granted where plaintiff “failed to adequately plead facts sufficient to find knowledge of the entrustee's incompetence.”).

While the plaintiff may have a valid cause of action based upon negligent entrustment, it has not been sufficiently pled.   The plaintiff has failed to allege either that Dinino had active or constructive notice that Baraby was incompetent to operate the motor vehicle or that such incompetence resulted in the plaintiff's injuries.   The Fourth Count is legally insufficient to establish a claim of negligent entrustment.

ORDER:

The defendant Joseph Dinino's motion to strike the Fourth Count of the plaintiff's revised complaint is granted.

Robert E. Young, Judge

Young, Robert E., J.