Ali Husseini v. Rosa M. Durao et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 134)

FACTS

The evidence shows the following facts.   The defendant J.J.N. Associates (J.J.N.) owned a 2006 Dodge Magnum that it wished to bring to auction.   It contracted with the defendant Hartford Springfield Auction Co–Op (Hartford–Springfield) to auction off the vehicle.   The vehicle was to be auctioned off on or about March 18, 2008.   While Rosa Durao (Durao), an employee and/or agent of Hartford–Springfield, also a defendant, was driving the vehicle from a staging area to or from the auction block, the vehicle struck the plaintiff, Ali Husseini.   J.J.N. had no contact with Durao before or through the date of the incident.¹  J.J.N. Associates retained title to the vehicle at such time the accident occurred, but it alleges it did not have possession or control of the vehicle.   On the date of the incident in question, Hartford Springfield Auction Co–Op had exclusive control over Rosa Durao while operating the vehicle at auction.   On March 15, 2010, the plaintiff initiated this action via writ and summons, and filed a three-count complaint, alleging negligence against Durao (count one), J.J.N. Associates (count two), and the Hartford–Springfield Auction Co–Op (Count three).   The defendant J.J.N. Associates filed a motion for summary judgment on Count two on July 18, 2011, with a supporting memorandum of law on the ground that J.J.N. owes no duty to the plaintiff.   The plaintiff has not filed an opposition to J.J.N.'s motion.

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.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).

“The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ [T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Citation omitted;  internal quotation marks omitted.)  Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).

“The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence.”  (Internal quotation marks omitted.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 465, 976 A.2d 23 (2009).   When a party moves for summary judgment, it “is required to support its motion with supporting documentation, including affidavits.”  Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).   If “there [are] no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof.”  Id., 795.

In support of its motion, J.J.N. submits the following evidence:  copies of the defendant Durao's answers to requests for admissions in which she admits to, inter alia, being an employee of Hartford–Springfield and not an agent or employee of J.J.N.;   copies of the defendant Hartford–Springfield's answers to requests for admissions in which they admit, inter alia, that they offered the vehicle for sale on March 18, 2008, that they had exclusive possession and control over the business premises, had exclusive control over the means and methods Durao operated the vehicle during the car auction, that J.J.N. did not direct or instruct agents of Hartford–Springfield as to who would drive the vehicle or conduct the sale, and that they would not permit J.J.N. or its agents to operate the vehicle during the car auction;  excerpts of transcripts of deposition testimony of Durao in which she states she had no contact with J.J.N. before or through the date of the accident and that on the date of the incident no agent of employee J.J.N. told her how to operate the vehicle that hit the plaintiff;  excerpts of transcripts of deposition testimony of William Bristol, a managing member of the Hartford–Springfield Auction Co–Op, in which he states that J.J.N. delivered the vehicle to be sold and that owners are not allowed to drive the vehicles from the drop-off point to the consignment staging area, and that only employees or agents of the auction can operate or control the auto auction;  an affidavit of Frank DeGray, general manager of J.J.N. Associates, in which he attests that consistent with uniform, industry wide practices, J.J.N. holds title to the vehicle until after the auction in the event the vehicle is not sold, but surrenders possession and control of the vehicle to the auction company during the auction, whereafter if the vehicle is sold it would surrender title to the appropriate party.   Additionally, DeGray attests to that in accordance with industry custom, an auction employee took possession of the vehicle, and thereafter had exclusive possession of the vehicle after delivery and no agent of J.J.N. operated the vehicle after delivery, and that Hartford–Springfield had exclusive control over the means and methods of its employees during the auction, and that J.J.N. did not control or direct the means, methods or procedures used by Hartford–Springfield or its agents in directing the auction.   J.J.N. also attached a copy of a list of Hartford–Springfield's safety rules acknowledged by Durao on August 7, 2007.

J.J.N. argues that it is entitled to summary judgment because the evidence shows it owed no duty to the plaintiff.  “The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury.”  (Internal quotation marks omitted.)   Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007).   “Duty is a legal conclusion about retationships between individuals, made after the fact, and imperative to a negligence cause of action.   The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual.”  Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 615, 783 A.2d 462 (2001).

“Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).   However, “the issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”   (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003);  accord Sic v. Nunan, 128 Conn.App. 692, 699, 18 A.3d 667, cert. granted on other grounds, 301 Conn. 936, 23 A.3d 729 (2011).

It is clear from the face of the complaint that the plaintiffs seek to impose liability on J.J.N. as a principal of the agent Durao.   Generally as long as certain conditions are met, “[a] principal is subject to liability to a third party harmed by an agent's conduct when the agent's conduct is within the scope of the agent's actual authority ․ and;  ․ the agent's conduct is tortious ․” 1 Restatement (Third), Agency § 7.04 (2006).   The elements of an agency relationship are:  “(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.”  (Internal quotation marks omitted.)  McDermott v. Calvary Baptist Church, 263 Conn. 378, 384, 819 A.2d 795 (2003).  “[T]he existence of an agency relationship is a question of fact ․ Some of the factors ․ in assessing whether such a relationship exists include:  whether the alleged principal has the right to direct and control the work of the agent;  whether the agent is engaged in a distinct occupation;  whether the principal or the agent supplies the instrumentalities, tools, and the place of work;  and the method of paying the agent ․ In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal ․” (Citation omitted;  internal quotation marks omitted.)   National Publishing Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 678, 949 A.2d 1203 (2008).   See also, Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132, 464 A.2d 6 (1983) (“Agency is the fiduciary relation which results from the 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.”).

At the outset, the court will note that such evidence satisfies the burden on the movant to produce evidence showing that there is no genuine issue of material fact that J.J.N. did not control or have a right to control Durao, and, in the absence of evidence showing a genuine issue of material fact, would normally grant summary judgment on that basis alone.   However, the court notes that there exists a statutory presumption in motor vehicle accident cases involving non-owner motorists that the non-owner motorist is an agent of the owner, making the owner liable for the torts of the operator.

Specifically, General Statutes § 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.”  General Statutes § 52–183.  “By its plain terms, the sole purpose of § 52–183 is to shift the burden of adducing evidence regarding an agency relationship between the owner and the operator of a vehicle from the plaintiff to the defendant:  unless the defendant introduces persuasive evidence that no agency-relationship exists, the plaintiff need not present any evidence to prove it but, instead, may rely entirely on the statutory presumption.”  (Emphasis omitted.)  Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003).

The court is of the opinion that J.J.N. has submitted “persuasive evidence” that Durao was the agent of Hartford–Springfield, and that Durao was not an agent of J.J.N. because J.J.N. did not exercise control over Durao.   The court notes that while some Superior Court decisions have held that the statutory presumption alone is enough to deny summary judgment, this court is of the opinion that where persuasive evidence has been submitted to show that no agency relationship exists the presumption has been rebutted, especially when the motion for summary judgment is unopposed and there is no evidence submitted by the plaintiff showing the possibility of an agency relationship between Durao and J.J.N. In this case none is evident from the submitted documentation.   Therefore, summary judgment should be granted.   The court notes that it is hardly the first to take the view that a party can submit enough evidence on a motion for summary judgment to overcome the statutory presumption.   See, e.g., Skane v. Perusse, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 06 5005713 (October 27, 2008, Arnold, J.) (46 Conn. L. Rptr. 596) (granting summary judgment when opposing party submitted no evidence showing that owner gave permission for operator to use car, in the face of strong evidence that owner did not give such permission);  DeNitto v. Wargo, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05 50006978 (Nov. 15, 2007, Kochiss–Frankel, J.) (44 Conn. L. Rptr. 513);  Grossman v. Belville, Superior Court, judicial district of Danbury, Docket No. CV 02 0346459 (March 3, 2003, White J.);   McCarter v. Smith, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 010076240 (February 14, 2003, Klaczak, J.) (34 Conn. L. Rptr. 81) (Granting summary judgment when auto mechanic injured third party while operating owner's car because he “had authority to direct the work, when it should be done and how it should be done” thus making him an independent contractor and not an agent);  Curran v. Duncan, Superior Court, judicial district of Danbury, Docket No. CV 98 0333456 (Oct. 25, 2000, Adams, J.) (28 Conn. L. Rptr. 640);  Hannah v. Tony March Buick, Docket No. CV 98 0548002, judicial district of New London (May 14, 1999) (Mihalakos, J.) (detailed affidavit and documents sufficient to shift burden back to plaintiff;  summary judgment for vehicle owner granted);  Bevel v. Anneeta, Superior Court, judicial district of Fairfield, Docket No. CV 97 0344223 (February 3, 1998, Skolnick, J.) Palmer v. Enterprise, Superior Court, Judicial District of Stamford–Norwalk at Stamford, Docket No. CV 95 154434 (April 16, 1997, D'Andrea, J.) (evidence that plaintiff was not an authorized driver and not an employee, agent or servant of defendant sufficient to defeat presumption and support summary judgment).²

CONCLUSION

For the aforementioned reasons, the defendant J.J.N. Associates' motion for summary judgment on count two is granted.

Woods, J.

FOOTNOTES

FN1. In Durao's answers to requests for admissions, she replied “denied” the request that she admit:  Prior to and through March 18, 2008, Rosa M. Durao had never had any contact with J.J.N. Associates, Inc ․ its agents, employees, or representatives.”   However, she retracted this in her deposition:Q. I direct your attention to [Durao's answers for request for admissions] number 6. Can you please read number 6.A. [By Durao] Prior to and through March 18, 2008, Rosa M. Durao had never had any contact with J.J.N. Associates, Inc ․ its agents, employees, or representatives.Q. And what was your answer?A. Denied.Q. And you just stated that you never had any contact with J.J.N. Associates, any employees or agents of J.J.N. Associates prior to the date of the incident, correct?A. Yes.Q. Okay. So that answer is incorrect, right?A. I don't understand.Q. The question is asking if you had any contact with J.J.N. Associates prior to and on the date of the incident.A. I never—no.Q. So the answer that's written there, it says “Denied,” is incorrect.A. Yes..  FN1. In Durao's answers to requests for admissions, she replied “denied” the request that she admit:  Prior to and through March 18, 2008, Rosa M. Durao had never had any contact with J.J.N. Associates, Inc ․ its agents, employees, or representatives.”   However, she retracted this in her deposition:Q. I direct your attention to [Durao's answers for request for admissions] number 6. Can you please read number 6.A. [By Durao] Prior to and through March 18, 2008, Rosa M. Durao had never had any contact with J.J.N. Associates, Inc ․ its agents, employees, or representatives.Q. And what was your answer?A. Denied.Q. And you just stated that you never had any contact with J.J.N. Associates, any employees or agents of J.J.N. Associates prior to the date of the incident, correct?A. Yes.Q. Okay. So that answer is incorrect, right?A. I don't understand.Q. The question is asking if you had any contact with J.J.N. Associates prior to and on the date of the incident.A. I never—no.Q. So the answer that's written there, it says “Denied,” is incorrect.A. Yes.

FN2. Furthermore, the court notes that this interpretation in no way impinges on the legislative purpose of § 52–183, as if the plaintiff proves his case he can still collect from Durao's employer.   See Burke v. Diamond Group, Superior Court, judicial district of New Haven, Docket No. CV 03 0473077 (November 4, 2003, Arnold, J.) (“The language of § 52–183 creates a specific presumption of agency and, unless rebutted, evinces the legislature's intent to permit an employer to be sued for the negligent ․ operation of a motor vehicle by its employee”)..  FN2. Furthermore, the court notes that this interpretation in no way impinges on the legislative purpose of § 52–183, as if the plaintiff proves his case he can still collect from Durao's employer.   See Burke v. Diamond Group, Superior Court, judicial district of New Haven, Docket No. CV 03 0473077 (November 4, 2003, Arnold, J.) (“The language of § 52–183 creates a specific presumption of agency and, unless rebutted, evinces the legislature's intent to permit an employer to be sued for the negligent ․ operation of a motor vehicle by its employee”).

Woods, Glenn A., J.