Olga Vazquez v. Kevin Cormier et al. (2012)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

On March 16, 2011, the plaintiff, Olga Vazquez, filed this four-count complaint alleging negligent assault and battery, wanton and reckless assault and battery, intentional assault and battery, and common-law negligence, against Kevin Cormier, Steven Becker and Russian Lady Associates, LLC (Russian Lady).   The complaint alleges the following.   On April 11, 2009, and for some time prior, the Russian Lady was doing business as “the Mansion,” an establishment located at 191 Ann Street in Hartford.   Cormier and Becker were permittees and/or backers of the Mansion owned and operated the Mansion.   On April 11, 2009, the plaintiff was a patron of the Mansion and, at approximately 1 a.m. she was forcibly removed from the building by employees of the Mansion who threw her through the back door of the establishment and onto the pavement outside, where they continued to assault the plaintiff.

In counts one through three of the complaint, the plaintiff alleges that the actions of the agents, servants and/or employees of the Mansion were negligent, reckless, and intentional, respectively.   In count four of the complaint, the plaintiff alleges that Cormier, Becker and/or the Russian Lady breached a duty to train and supervise the employees of the Mansion.

On May 9, 2011, defendant Becker filed this motion for summary judgment.

The defendant claims that the court should grant the motion for summary judgment because the complaint is barred pursuant to General Statutes § 34–133(a), which prevents holding a person liable solely for being a member or manager of a limited liability company.   The defendant asserts that he is a member of the Russian Lady not a permittee or backer of the Mansion, therefore § 34–133(a) applies to protect him from liability.

General Statutes § 34–133(a) provides in relevant part:  [A] person who is a member or manager of a limited liability company is not liable, solely by reason of being a member or manager ․ for a debt, obligation or liability of the limited liability company, whether arising in contract, tort or otherwise or for the acts or omissions of any other member, manager, agent or employee of the limited liability company.

The plaintiff counters that the complaint alleges the defendant supervised and controlled the employees that committed the assault and, therefore, his liability is not based solely on his status as a member of the Russian Lady.

It is well established that an officer of a corporation does not incur personal liability for its torts merely because of his official position.   Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby ․ Thus, a director or officer who commits the tort or who directs the tortious act done, or participates or operates therein, is liable to third persons injured thereby, even though liability may also attach to the corporation for the tort.  Sturm v. Harb Development, LLC, 298 Conn. 124, 132, 2 A.3d 859 (2010).

The opinion holds that under § 34–133(a), a member or manager of a limited liability company is not liable, solely by reason of being a member or manager but the term ‘solely’ opens the door to other types of liability, such as common-law liability.  Id., 136–37.

The plaintiff's complaint does not allege the defendant is liable solely based on his position as a member or manager of the Russian Lady but in counts one through three plaintiff alleges that the defendant is vicariously liable for the actions of the employees.

Moreover, in count four she alleges that the defendant is directly liable for negligently failing to train and supervise the employees.   The defendant has not produced any evidence to dispute the plaintiff's allegation that he had control over the Mansion and its employees.

Since there appears to be genuine material questions of fact, defendant's motion for summary judgment is denied.

Wagner, JTR

Wagner, Jerry, J.T.R.