III v. Norman Bloom et al. (2012)

MEMORANDUM OF DECISION RE JEANNE BLOOM'S MOTION TO STRIKE (142.00)

I. FACTS

On July 20, 2009, the plaintiffs, Anthony Angione III and Kim Wheeler,¹ commenced this action by service of process against the defendants, Norman Bloom, Jeanne Bloom (the defendant) ² and Norm Bloom & Son, LLC.³ In the operative pleading, the plaintiffs' revised complaint dated August 1, 2011, the plaintiffs allege the following facts relevant to the disposition of the motion that is currently before the court.   At some unknown time, Norman Bloom leased an Audi A4 vehicle from V.W. Credit Leasing, Ltd (V.W.Credit).  On the morning of July 21, 2007, the defendant, who is Norman Bloom's daughter, “was operating the [subject] Audi with permission, as an agent or servant and/or was otherwise operating it within the general scope of her authority ․” as a member of Norman Bloom's family.   The defendant then “authorized” her cousin Shannon Bloom ⁴ to drive the vehicle, and on July 21, 2007, Shannon Bloom “was operating the vehicle, or was otherwise acting for the benefit of and/or in concert with [the defendant]” and “was operating the vehicle within the scope of her authority or otherwise with general permission.”   According to the plaintiffs, all of the defendants should have been aware of the fact that Shannon Bloom lacked the requisite experience to drive the Audi under the circumstances presented.   On the morning of June 21, 2007, the plaintiff Angione was operating a motorcycle on Cove Avenue in Norwalk when he was hit by the subject Audi A4 driven by Shannon Bloom.   As a result of this traffic accident, Angione has suffered numerous extreme physical injuries that have rendered him paralyzed.

In the present case, the plaintiffs allege the following causes of action:  (1) count one—vicarious liability for the negligence of Shannon Bloom against Norman Bloom;  (2) count two—vicarious liability for the negligence of Shannon Bloom against the defendant;  (3) count three—vicarious liability for the negligence of Shannon Bloom against Norm Bloom & Son, LLC;  (4) count four—liability against Norman Bloom pursuant to General Statutes § 52–183;  (5) count five—liability against the defendant pursuant to § 52–183;  (6) count six—liability against Norm Bloom & Son, LLC pursuant to § 52–183;  (7) count seven—negligent entrustment against Norman Bloom;  (8) count eight—negligent entrustment against the defendant and (9) count nine—negligent entrustment against Norm Bloom & Son, LLC.

On August 1, 2011, the defendant filed a motion to strike counts two, five and eight of the plaintiffs' revised complaint, along with a memorandum of law in support of her motion.   The plaintiffs filed a memorandum of law in opposition to the defendant's motion on September 22, 2011.⁵  The court heard argument in this matter at short calendar on November 21, 2011.⁶

LEGAL DISCUSSION

“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).   In 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).   Therefore, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)   Batte–Homgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).   Nevertheless, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.   When deciding a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

I

VICARIOUS LIABILITY

The defendant first moves to strike count two, which alleges a claim for vicarious liability ⁷ against the defendant.   In her memorandum of law, the defendant raises two principal arguments as to why count two is legally insufficient.⁸  First, the defendant contends that the plaintiffs fail to allege that Shannon Bloom was the agent, servant or employee of the defendant or that Shannon Bloom was acting in furtherance of the defendant's business.   Second, the defendant argues that count two should be stricken because “[t]here is no cause of action at common law or by statute against a defendant who neither owned nor operated the vehicle involved in the accident where the claim is only based upon giving of permission to drive the vehicle.”   In essence, the defendant's position is that she cannot be held vicariously liable for the acts of Shannon Bloom because she was not the owner or operator of the vehicle and because the plaintiffs fail to allege that Shannon Bloom was acting as her agent at the time of the subject accident.   In response, the plaintiffs argue that count two sets forth a legally cognizable claim for vicarious liability because they allege that “Shannon Bloom became the agent of [the defendant]” when the defendant entrusted the automobile to Shannon Bloom.   As a result of this alleged conduct, the plaintiffs contend that the defendant can be held liable for the negligence of Shannon Bloom.

With respect to the defendant's first argument, the court finds that the plaintiffs do sufficiently allege that Shannon Bloom was acting as the defendant's agent.   In the revised complaint, the plaintiffs allege that on the date of the subject accident, the defendant “had permission” to use the vehicle from her father, Norman Bloom, and she was “operating the Audi with permission, as agent or servant, and/or was otherwise operating it within the general scope of her authority at a time prior to the collision.”   Then, the plaintiffs allege that the defendant “authorized Shannon Bloom ․ to operate the Audi vehicle and at the time, Shannon [Bloom] was operating the vehicle, or was otherwise acting for the benefit and/or in concert with [the defendant].”   Additionally, the plaintiffs allege that “Shannon Bloom was operating the vehicle within the scope of her authority or otherwise with general permission.”   Consequently, if read broadly and realistically, the plaintiffs do allege, at least facially, that Shannon Bloom was acting as the defendant's agent at the time of the accident that caused Angione's injuries.   In fact, the plaintiffs are effectively alleging that Shannon Bloom was acting as the subagent for the defendant, who was Norman Bloom's agent.

Because the plaintiffs do allege an agency relationship between Shannon Bloom and the defendant, the defendant will have to succeed on her only other argument in order for the court to strike count two.   As stated previously, this argument is that the plaintiffs cannot state a vicarious liability claim against the defendant because “[t]here is no cause of action at common law or by statute against a defendant who neither owned nor operated the vehicle involved in the accident where the claim is only based upon giving of permission to drive the vehicle.”   In her memorandum of law, the defendant does not provide the court with any citation to Connecticut appellate authority that would support such a broadly stated rule of law.

In Connecticut, “[v]icarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another].   Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another.”  (Internal quotation marks omitted.)  Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n.16, 849 A.2d 813 (2004).   “[C]ommentators have noted that vicarious liability is premised upon the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss.”   (Internal quotation marks omitted.)   Id., 693 n.16.

Connecticut has long recognized that the owner of a motor vehicle can be held vicariously liable for the negligent acts of the automobile's driver.   See, e.g., General Statutes § 52–183.   The present case, however, presents a different factual scenario because the plaintiffs are attempting to impute vicarious liability on an individual who was neither the owner, lessee nor the driver of the automobile.   Thus, the question for the court to resolve is whether the defendant, who the plaintiffs allege was acting as Norman Bloom's agent, can be held liable for the acts of her subagent.

On the issue of whether Connecticut law would allow the imposition of vicarious liability on an agent for the acts of a subagent in a case such as the present matter, the Connecticut Supreme Court's decision in Burwell v. Neumann, 130 Conn. 117, 32 A.2d 640 (1943), is instructive.   In Burwell, Esther Neumann asked her brother (Olson) to take her car and drive to her former residence in order to move a stove.   Neumann knew that this stove was too heavy for one person to move, so she expected that Olson would have to enlist the aid of another person.   Accordingly, Olson drove into town and asked his friend (Dykun) to assist him with this task.   Dykun indicated to Olson that he wanted to try driving Neumann's automobile, which Olson allowed him to do.   While driving Neumann's vehicle, Dykun caused an accident, which injured the Burwell plaintiffs.   Although the Supreme Court's Burwell opinion mostly involved the liability of Neumann for the acts of Dykun, the Supreme Court does note that “[w]e must then assume that this case falls within ․ the ․ limited doctrine we have referred to, and that Dykun's negligence was in effect that of Olson.”  Id., 121.   This quotation provides support for the conclusion that, in some instances, an agent can be held liable for the acts of a subagent when the subagent negligently drives a principal's automobile.   See also Plunkett v. Nationwide Mutual Ins. Co., 150 Conn. 203, 209, 187 A.2d 754 (1963) (noting that there are times when an automobile seller can be held liable for the negligent acts of a prospective purchaser who was driving a car because when “one permits another to operate a car but remains in control, the driver is no more than the alter ego of the other and his acts are in effect just as much the acts of that other as though the latter were the one actually operating the car ․ The seller is absolved only where his agent has abandoned his right to control the operation of the car and surrendered that operation wholly to the purchaser”).⁹

Accordingly, although there possibly may be a legally valid argument that would result in the striking of count two, the court will not strike this count for the reasons raised by the defendant in her motion to strike and argued in the accompanying memorandum.   See, e.g., Cimmino v. Marcoccia, Superior Court, judicial district of Fairfield, Docket No. CV 09 5023251 (August 12, 2009, Bellis, J.) (where the court stated that “[i]n ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion ․ While the grounds stated in the present motion are very broad, and include the plaintiff's failure to plead sufficient facts in support of a claim for vexatious lawsuit, the defendant has neither moved nor argued [a legally correct reason] as a basis for count one to be stricken.   Since a motion to strike should be construed in favor of the nonmoving party, the motion to strike count one is denied”).

II

GENERAL STATUTES § 52–183

Next, the defendant moves to strike count five, which alleges liability against the defendant pursuant to General Statutes § 52–183, because this statute only operates to impose liability against the owner of a motor vehicle.   As the plaintiffs do not allege that the defendant owned the subject automobile, the defendant argues that § 52–183 is inapplicable to the facts of this case.   The plaintiffs respond that the defendant can be held liable under § 52–183 because “the defendant effectively became a co-owner of the vehicle for the purposes of ․ § 52–183 after Norman Bloom delegated full use and control of the 2006 Audi to [the defendant];  thus Shannon Bloom, acting as [the defendant's] agent, became the agent of the owner of the vehicle at the time of the accident for the purposes of ․ § 52–183.”   The plaintiffs do not cite to any legal authority for this proposition.

Section 52–183 provides:  “In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment.   The defendant shall have the burden of rebutting the presumption.”  (Emphasis added.)   Accordingly, pursuant to its plain language, § 52–183 only creates a presumption of agency against the owner of the automobile.   Moreover, the Connecticut Supreme Court has clearly stated that “[t]his statute ․ would apply only if the plaintiffs proved that the [subject] car was owned by the defendants.”  Scalora v. Shaughnessy, 151 Conn. 252, 254, 196 A.2d 763 (1963).

In the present case, the plaintiffs allege that the vehicle at issue was owned by V.W. Credit and leased by Norman Bloom.   The plaintiffs fail to allege that the defendant had any ownership interest in the automobile.   It is clear that § 52–183 cannot be used to impose legal liability against the defendant, and, as a result, the court will grant the defendant's motion to strike count five.¹⁰  See, e.g., DePergola v. Procopio, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 94 054077 (August 6, 1996, Aurigemma, J.) (stating that “Section 52–183 does not apply in this case because this action was not brought against the owner of the motor vehicle”).

III

NEGLIGENT ENTRUSTMENT

Next, the defendant moves to strike count eight, in which the plaintiffs allege a cause of action against the defendant for negligent entrustment.   The defendant argues that count eight is legally insufficient because the plaintiffs fail to allege any facts indicating that the defendant had knowledge that Shannon Bloom was not competent to operate the subject motor vehicle on the date that she caused the accident that injured the plaintiff Angione.   Without such an allegation, the defendant contends that the plaintiffs cannot maintain a negligent entrustment claim.   Additionally, although she acknowledges that there is authority to the contrary, the defendant ostensibly also indicates that count eight is improper because a non-owner of a motor vehicle cannot be held legally liable for negligent entrustment.   In response, the plaintiffs argue that their negligent entrustment cause of action is legally sufficient because they allege facts indicating that the defendant was aware of Shannon Bloom's driving incompetence.   The plaintiffs further contend that there is nothing in Connecticut law that precludes a non-owner of a motor vehicle from being held liable for negligent entrustment.

Connecticut has recognized liability for the negligent entrustment of an automobile since the Supreme Court's decision in Greeley v. Cunningham, 116 Conn. 515, 518, 165 A. 678 (1933) (stating that “[i]t is ․ 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 to anticipate the likelihood that in its operation injury will be done to others”).   As recently stated by Judge Jennings, “on the appellate level, the doctrine of negligent entrustment has not developed beyond that which was announced in Greeley ․ [Nevertheless], the Supreme Court's decision in Greeley ‘virtually adopted’ the position subsequently taken by Restatement (Second) of Torts, which provides as follows:  ‘One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.’   2 Restatement (Second), Torts § 390, p. 314 (1965).”   Snell v. Norwalk Yellow Cab, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 10 013455 (May 24, 2011, Jennings, J.T.R.) (52 Conn. L. Rptr. 43, 47).

Despite the dearth of appellate authority on the contours of the negligent entrustment doctrine, “[s]everal Superior Court decisions have described the elements of the tort of negligent entrustment as follows:  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 resulted from that incompetence.”  (Internal quotation marks omitted.)  Ellis v. Jarmin, Superior Court, judicial district of New London, Docket No. CV 09 5010839 (December 19, 2009, Cosgrove, J.) (49 Conn. L. Rptr. 1, 2).  “[A] principal feature of a cause of action for negligent entrustment is the knowledge of the entrustor with respect to the dangerous propensities and incompetency of the entrustee.”   Mesner v. Cheap Auto Rental, LLC, Superior Court, judicial district of New Haven, Docket No. CV 07 5009039 (February 13, 2008, Bellis, J.).

In the recent decision of Smith v. Maynard, Superior Court, judicial district of New London, Docket No. CV 10 6005802 (May 19, 2011, Martin, J.) (51 Conn. L. Rptr. 910), the court surveyed multiple Superior Court cases in order to determine the amount of factual specificity that a plaintiff needs to allege regarding the knowledge of the entrustor with respect to the driving incompetence of the entrustee.   As stated by the Smith court, “decisions of the Superior Court have stricken negligent entrustment claims when the plaintiff has failed to allege specific facts that would place the defendant on notice of the operator's past history of incompetent driving or other dangerous propensities.   See e.g., Dervil v. Perez, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 04 4001545 (September 12, 2005, Lewis, J.T.R.) (granting motion to strike where complaint did not allege any facts suggesting that owner of motor vehicle had actual or constructive knowledge of driver's dangerous propensities);  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) (granting motion to strike brought against lessor of vehicle where complaint failed to adequately plead facts sufficient to find knowledge of the entrustee's incompetence);  Plimpton v. Amerada Hess Corp., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 99 0169861 (September 27, 1999, Karazin, J.) (granting motion to strike where complaint failed to allege that driver had any dangerous propensities or that defendant had actual or constructive knowledge of any dangerous propensities of driver).”  Id., 912.

On the other hand, “[d]ecisions of the Superior Court have refused to strike claims of negligent entrustment only when the plaintiff has plead specific facts to support a legal theory that the defendant had either constructive or actual knowledge of the driver's incompetence.   See Ellis v. Jarmin, supra, 49 Conn. L. Rptr. 1 (denying motion to strike given injured passenger's specific allegations that rental car company was negligent in entrusting a vehicle to driver because they knew, or should have known, that he was the subject of outstanding criminal warrants, and was therefore likely to flee from the police and cause harm to members of the public);  Whitely v. Sebas, Superior Court, judicial district of Ansonia–Milford, Docket No. 90031783 (August 10, 1990, Hartmere, J.) (2 Conn. L. Rptr. 296) (denying motion to strike negligent entrustment claim where complaint alleged that defendant knew his son was not fit to drive due to his past history of negligent driving).”   Id. After surveying this Superior Court law, the Smith court found the following allegation of knowledge on the part of the alleged entrustor to be legally insufficient:  “the plaintiff simply alleges that Donna Maynard ‘loaned the vehicle to ․ James Maynard for his use when she knew, or in the existence of due care, should have known, that he was irresponsible, incompetent, reckless and/or too inexperienced to operate a motor vehicle safely and she reasonably should have anticipated ․ the likelihood of injury to others.’   “ Id.

In the present case, in paragraphs twenty-eight and twenty-nine of count eight, the plaintiffs allege that the defendant “knew or should have known that Shannon Bloom lacked the experience, or was otherwise not competence [sic] to operate a vehicle on the roadways under the circumstances” and that the defendant “should have reasonably anticipated the likelihood of injury to others traveling on or about the roadway, including the [p]laintiff.”   These bare factual allegations, which are virtually indistinguishable from those found to be legally insufficient in Smith, comprise the entirety of facts alleged by the plaintiffs to support the “knowledge” element.   Therefore, the plaintiffs in this matter fail to allege sufficient facts to support a conclusion that the defendant had knowledge of Shannon Bloom's alleged driving incompetence, and the court grants the motion to strike count eight.¹¹

CONCLUSION

For all of the reasons stated above, the court grants the defendant's motion to strike counts five and eight, but denies the motion to strike count two.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. Wheeler is a plaintiff in this case based on the fact that she has been appointed as Angione's conservatrix..  FN1. Wheeler is a plaintiff in this case based on the fact that she has been appointed as Angione's conservatrix.

FN2. As she is the only defendant who is party to the motion to strike that is presently before the court, Jeanne Bloom will be referred to as “the defendant” in this memorandum..  FN2. As she is the only defendant who is party to the motion to strike that is presently before the court, Jeanne Bloom will be referred to as “the defendant” in this memorandum.

FN3. The plaintiffs allege that the defendant Norman Bloom was the principal and/or owner of the defendant limited liability company Norm Bloom & Son, LLC located in Norwalk, and that “[a]t all times relevant, [d]efendant Norm Bloom & Son, LLC paid, or otherwise made the lease payments, taxes and related expenses on the aforesaid vehicle, and/or otherwise maintained or controlled the use of and/or finances related to the vehicle.”.  FN3. The plaintiffs allege that the defendant Norman Bloom was the principal and/or owner of the defendant limited liability company Norm Bloom & Son, LLC located in Norwalk, and that “[a]t all times relevant, [d]efendant Norm Bloom & Son, LLC paid, or otherwise made the lease payments, taxes and related expenses on the aforesaid vehicle, and/or otherwise maintained or controlled the use of and/or finances related to the vehicle.”

FN4. Although they are not defendants in this matter, both V.W. Credit and Shannon Bloom are defendants in a companion case brought by these plaintiffs.   This companion case, which has been consolidated with the present matter, is docketed as Angione v. Bloom, FST CV 08 5006850.   Via a memorandum of decision dated October 6, 2011, the court, Jennings, J.T.R., granted V.W. Credit's motion for summary judgment with respect to all of the claims brought against it.   Therefore, Shannon Bloom is the only remaining defendant in the companion case..  FN4. Although they are not defendants in this matter, both V.W. Credit and Shannon Bloom are defendants in a companion case brought by these plaintiffs.   This companion case, which has been consolidated with the present matter, is docketed as Angione v. Bloom, FST CV 08 5006850.   Via a memorandum of decision dated October 6, 2011, the court, Jennings, J.T.R., granted V.W. Credit's motion for summary judgment with respect to all of the claims brought against it.   Therefore, Shannon Bloom is the only remaining defendant in the companion case.

FN5. Attached to the plaintiffs' memorandum of law in opposition is the defendant's certified deposition transcript.  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ [A reviewing court is] limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268–69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).   Consequently, the defendant's deposition transcript, and any argument found in the plaintiffs' memorandum of law in opposition that arises out of this transcript, cannot be considered by the court when ruling on this motion to strike..  FN5. Attached to the plaintiffs' memorandum of law in opposition is the defendant's certified deposition transcript.  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ [A reviewing court is] limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268–69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).   Consequently, the defendant's deposition transcript, and any argument found in the plaintiffs' memorandum of law in opposition that arises out of this transcript, cannot be considered by the court when ruling on this motion to strike.

FN6. This case has a somewhat tortured procedural history.   On November 8, 2010, the defendant filed a motion for summary judgment as to all of the counts alleged against her.   The plaintiff's objected to this motion for summary judgment on the ground that the defendant's arguments were more properly raised via a motion to strike.   Consequently, the defendant then filed the motion to strike that is currently before the court.   On October 3, 2011, the parties appeared before the court, Tobin, J., and argued this motion to strike.   Judge Tobin noted that it appeared as though the defendant's motion to strike was untimely pursuant to this case's scheduling order and he denied the motion to strike “without prejudice.”   The defendant then filed a motion for permission “to argue and obtain a ruling” on this motion to strike.   Judge Mintz, the presiding judge of the civil division, granted this motion for permission on November 1, 2011, so long as the motion to strike was argued before December 12, 2011.   Therefore, it would appear as though this motion to strike is properly before the court, and the court will rule on the merits of the motion..  FN6. This case has a somewhat tortured procedural history.   On November 8, 2010, the defendant filed a motion for summary judgment as to all of the counts alleged against her.   The plaintiff's objected to this motion for summary judgment on the ground that the defendant's arguments were more properly raised via a motion to strike.   Consequently, the defendant then filed the motion to strike that is currently before the court.   On October 3, 2011, the parties appeared before the court, Tobin, J., and argued this motion to strike.   Judge Tobin noted that it appeared as though the defendant's motion to strike was untimely pursuant to this case's scheduling order and he denied the motion to strike “without prejudice.”   The defendant then filed a motion for permission “to argue and obtain a ruling” on this motion to strike.   Judge Mintz, the presiding judge of the civil division, granted this motion for permission on November 1, 2011, so long as the motion to strike was argued before December 12, 2011.   Therefore, it would appear as though this motion to strike is properly before the court, and the court will rule on the merits of the motion.

FN7. Although the basis of the liability sought against the defendant in count two is somewhat unclear, paragraph twenty-five of count one, which is incorporated by reference into count two, alleges that “[t]he [p]laintiff's injuries and damages were caused by Shannon Bloom's negligence and carelessness, for which the [d]efendants are vicariously liable, and/or otherwise responsible ․” Accordingly, it appears that count two sets forth a cause of action against the defendant sounding in vicarious liability.   Moreover, in their memorandum of law in opposition to the defendant's motion to strike, the plaintiffs characterize count two as alleging a vicarious liability claim.   Therefore, the court construes this count accordingly.   See, e.g., Retirement Program for Employees of the Town of Fairfield v. Madoff, 130 Conn.App. 710, 718 n.10, 26 A.3d 93 (2011) (stating that “although [t]he interpretation of pleadings is always a question of law for the court ․ [i]f the parties at trial have adopted a certain construction of the pleadings ․ we should give deference to that construction”)..  FN7. Although the basis of the liability sought against the defendant in count two is somewhat unclear, paragraph twenty-five of count one, which is incorporated by reference into count two, alleges that “[t]he [p]laintiff's injuries and damages were caused by Shannon Bloom's negligence and carelessness, for which the [d]efendants are vicariously liable, and/or otherwise responsible ․” Accordingly, it appears that count two sets forth a cause of action against the defendant sounding in vicarious liability.   Moreover, in their memorandum of law in opposition to the defendant's motion to strike, the plaintiffs characterize count two as alleging a vicarious liability claim.   Therefore, the court construes this count accordingly.   See, e.g., Retirement Program for Employees of the Town of Fairfield v. Madoff, 130 Conn.App. 710, 718 n.10, 26 A.3d 93 (2011) (stating that “although [t]he interpretation of pleadings is always a question of law for the court ․ [i]f the parties at trial have adopted a certain construction of the pleadings ․ we should give deference to that construction”).

FN8. The sole ground stated on the face of the defendant's motion with respect to count two is that “there is no basis upon which to predicate any claim of vicarious liability as to [the defendant].”   Although that ground is rather unspecific, the plaintiffs do not argue that the defendant's motion should be denied because it does not comply with the requirements of Practice Book § 10–41..  FN8. The sole ground stated on the face of the defendant's motion with respect to count two is that “there is no basis upon which to predicate any claim of vicarious liability as to [the defendant].”   Although that ground is rather unspecific, the plaintiffs do not argue that the defendant's motion should be denied because it does not comply with the requirements of Practice Book § 10–41.

FN9. The conclusion that under certain circumstances an agent can be held liable for the acts of her subagent is supported by multiple treatises.   For instance, according to 3 Am.Jur.2d, Agency (2002) § 164:  “An agent may be liable to third persons for the conduct of its subagent within the sphere of activity in which the subagent is authorized to act.   However, an agent is not liable to third persons for the malfeasance or misfeasance of subagents he or she employs in the service of the principal unless the agent is guilty of fraud or gross negligence in their appointment, or unless the agent improperly co-operates in the acts or omissions of the subagent.”   Similarly, the Restatement (Second) of Agency § 351, p. 121 (1958) provides:  “An agent who directs or permits conduct of another under such circumstances that he should realize that there is an unreasonable risk of physical harm to others or their belongings is subject to liability for harm resulting from a risk which his direction or permission creates.”.  FN9. The conclusion that under certain circumstances an agent can be held liable for the acts of her subagent is supported by multiple treatises.   For instance, according to 3 Am.Jur.2d, Agency (2002) § 164:  “An agent may be liable to third persons for the conduct of its subagent within the sphere of activity in which the subagent is authorized to act.   However, an agent is not liable to third persons for the malfeasance or misfeasance of subagents he or she employs in the service of the principal unless the agent is guilty of fraud or gross negligence in their appointment, or unless the agent improperly co-operates in the acts or omissions of the subagent.”   Similarly, the Restatement (Second) of Agency § 351, p. 121 (1958) provides:  “An agent who directs or permits conduct of another under such circumstances that he should realize that there is an unreasonable risk of physical harm to others or their belongings is subject to liability for harm resulting from a risk which his direction or permission creates.”

FN10. Although this ground is not raised in the defendant's motion to strike, it is also worth noting that multiple Superior Court judges have held that § 52–183 does not give rise to a statutory right of action.   As stated by Judge Wilson:  “Sections 52–182 and 52–183 are not the source of any substantive rights or newly recognized vicarious liability.   These statutes do nothing more than create a rebuttable presumption of [the pertinent] relationship between the owner and the operator of a motor vehicle ․ which, under the common-law principle, renders the owner vicariously liable.”  (Internal quotation marks omitted.)   Lane v. Mayfield, Superior Court, judicial district of New Haven, Docket No. CV 08 5024091 (May 11, 2009, Wilson, J.).   Therefore, although “ §§ 52–181 and 52–183 ․ may assist the plaintiff in proving [vicarious liability] ․ it is superfluous and improper for these statutes to be pleaded in separate counts as if they provided alternative grounds for vicarious liability ․” Prior v. Lang, Superior Court, judicial district of Tolland, Docket No. CV 07 5001248 (May 23, 2007, Sferrazza, J.) (43 Conn. L. Rptr. 474, 475)..  FN10. Although this ground is not raised in the defendant's motion to strike, it is also worth noting that multiple Superior Court judges have held that § 52–183 does not give rise to a statutory right of action.   As stated by Judge Wilson:  “Sections 52–182 and 52–183 are not the source of any substantive rights or newly recognized vicarious liability.   These statutes do nothing more than create a rebuttable presumption of [the pertinent] relationship between the owner and the operator of a motor vehicle ․ which, under the common-law principle, renders the owner vicariously liable.”  (Internal quotation marks omitted.)   Lane v. Mayfield, Superior Court, judicial district of New Haven, Docket No. CV 08 5024091 (May 11, 2009, Wilson, J.).   Therefore, although “ §§ 52–181 and 52–183 ․ may assist the plaintiff in proving [vicarious liability] ․ it is superfluous and improper for these statutes to be pleaded in separate counts as if they provided alternative grounds for vicarious liability ․” Prior v. Lang, Superior Court, judicial district of Tolland, Docket No. CV 07 5001248 (May 23, 2007, Sferrazza, J.) (43 Conn. L. Rptr. 474, 475).

FN11. Having made this determination, it is unnecessary for the court to decide if a non-owner of a motor vehicle can negligently entrust an automobile.   Nevertheless, citing to the Restatement (Second) of Torts § 380, p. 100 (1965), Judge Jennings has noted that “[i]t is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.”  (Emphasis in original;  internal quotation marks omitted.)   Snell v. Norwalk Yellow Cab, Inc., supra, 52 Conn. L. Rptr. 47.   As the defendant's control over the vehicle is the relevant inquiry, “Superior Court decisions have consistently held that ownership is not a necessary element of the tort of negligent entrustment.”  (Internal quotation marks omitted.)  Id., 48.   In the present case, the plaintiffs allege that the defendant had permission to use the subject automobile from her father, Norman Bloom, who was the vehicle's lessee.   Therefore, the defendant's non-ownership of the vehicle might not preclude her from being held liable under a negligent entrustment theory..  FN11. Having made this determination, it is unnecessary for the court to decide if a non-owner of a motor vehicle can negligently entrust an automobile.   Nevertheless, citing to the Restatement (Second) of Torts § 380, p. 100 (1965), Judge Jennings has noted that “[i]t is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.”  (Emphasis in original;  internal quotation marks omitted.)   Snell v. Norwalk Yellow Cab, Inc., supra, 52 Conn. L. Rptr. 47.   As the defendant's control over the vehicle is the relevant inquiry, “Superior Court decisions have consistently held that ownership is not a necessary element of the tort of negligent entrustment.”  (Internal quotation marks omitted.)  Id., 48.   In the present case, the plaintiffs allege that the defendant had permission to use the subject automobile from her father, Norman Bloom, who was the vehicle's lessee.   Therefore, the defendant's non-ownership of the vehicle might not preclude her from being held liable under a negligent entrustment theory.

Adams, Taggart D., J.T.R.