Michael Reardon v. Chelsea Fredrickson et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

Pursuant to Practice Book § 17–49, the defendant Abby O'Malley moves for summary judgment on Second and Third Counts of the complaint.   For the reasons set forth herein, the motion is granted in part, and denied in part.

I. FACTS AND PROCEDURAL BACKGROUND

This lawsuit arises from a March 20, 2011 motor vehicle collision.   The plaintiff's vehicle was struck by a vehicle operated by the defendant Chelsea Fredrickson, who was at that time sixteen years old and an unlicensed driver.   The vehicle Fredrickson was driving was a 2000 Mitsubishi Galant owned by the defendant Abby O'Malley.

The events in the 24 hours prior to that incident are essential to the resolution of this motion.   Chelsea Fredrickson was a sometimes friend, acquaintance and high school classmate of Kayla O'Malley, the teenaged daughter of the defendant Abby O'Malley.   On the evening of Saturday, March 19, 2011, Fredrickson arrived, unexpected and uninvited at the O'Malley house (apparently after an argument with her parents) claiming she had “nowhere else to go.”

Through a series of events not clearly explained, at some point in that evening, Kayla O'Malley obtained the keys her mother's Mitsubishi Galant and drove it to Rocky Hill—with Chelsea Frederickson as a passenger—to pick up a third girl named Colby Cordaro.   Kayla then drove the three girls to Chelsea Fredrickson's house, where they obtained a “thirty pack” of beer.   Then Kayla drove the three back to the O'Malley residence where they slept over for the night.

Kayla O'Malley drove the Mitsubishi, even though she did not possess a driver's license and did not have her mother's permission.   This was not the first time Kayla had illegally driven the car;  she testified that, even though she had no license, on prior occasions she had driven the Mitsubishi without her mother's permission.   Abby O'Malley was aware of her daughter's episodes of driving the car without permission, and as a result, usually kept keys in her own possession, or locked in a safe within the home.

On the morning of March 20, 2011 Abby O'Malley left her home and drove to work in another vehicle she owned, leaving the Mitsubishi Galant behind.   The three girls were still at the home.   At some point the three girls got into an “altercation,” which resulted in Fredrickson being “chased” outside.   By some means, Fredrickson had gained possession of the keys to the Mitsubishi Galant.   Kayla O'Malley testified Fredrickson grabbed them from a table in the house.   Fredrickson testified she found them lying in the grass near the car.

Fredrickson used the keys to gain entry to the Mitsubishi, start the engine, and drive away.   At the time, Frederickson also did not possess a driver's license, although she had obtained a learner's permit.   When Kayla O'Malley and Colby Cordaro saw Fredrickson depart in the Mitsubishi, they called 9–1–1 and reported the car as stolen.   Fredrickson was headed southbound on Route 85 in Colchester when she was identified by police, who initiated a pursuit.   Fredrickson attempted a right turn off of Route 85 and on to Old Colchester Road, lost control of the vehicle, and struck the vehicle occupied by plaintiff Michael Reardon, who was stopped for stop sign.

The complaint is in five counts:  the First and Fourth Counts are brought against Chelsea Fredrickson, alleging negligence and recklessness.   The Fifth Count seeks underinsured motorist benefits from Reardon's insurer.   Those counts are not at issue here.   The Second and Third counts brought against Abby O'Malley are the subject of this motion.

The Second Count alleges that the vehicle driven by Fredrickson was owned by Abby O'Malley within the meaning of General Statutes § 52–183, and further alleges that:

8.  At the time of the collision, the defendant Chelsea Fredrickson, was operating said motor vehicle with the express or implied permission of the defendant, Abby O'Malley, and within the scope of her permission and general authority to do so.

Third Count alleges that:

8.  On March 20, 2011, prior to the motor vehicle collision described above, the defendant, Abby O'Malley knew that the defendant, Chelsea Fredrickson, was staying at the O'Malley home and that Chelsea Fredrickson was in a highly agitated, distressed and unstable state.

9. Prior to the motor vehicle collision described above the defendant, Abby O'Malley, knew that the keys to her car were on a table in her living room and readily accessible to the defendant, Chelsea Fredrickson.

10. Prior to the motor vehicle collision described above the defendant, Abby O'Malley, left her residence to go to work without placing the keys in a secure location or removing them from the premises when she knew, or in the exercise of reasonable care should have known, that it was dangerous to do so.

The defendant Abby O'Malley has moved for summary judgment, arguing that she cannot be held vicariously liable pursuant to General Statutes § 52–183 because the vehicle operator, Chelsea Fredrickson, was not her agent or servant, did not operate the vehicle in the course of employment, and was not permitted to operate the vehicle.   The defendant also argues that she cannot be held liable under a theory of negligent entrustment because her acts or omissions were not a proximate cause of the plaintiff's injuries.

II. ANALYSIS

A. Summary Judgment, Generally

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.   The party moving for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.  Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Internal quotation marks omitted.)  United Oil Co. v. Urban Development Commission, 158 Conn. 364, 379, 260 A.2d 596 (1969).

In reviewing the evidence offered, the trial court must “view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007).   When deciding a summary judgment motion, the trial court may not decide issues of material fact, but only determine whether such genuine issues exist.   Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

“The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.”  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

B. Discussion:  Vicarious Liability

General Statutes § 52–183 provides, in relevant part:  “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.”

In her motion for summary judgment the defendant argues that she has submitted evidence and has met her burden of rebutting the presumption of § 52–183.   Based on that evidence, it is undisputed that Fredrickson was not a member of the O'Malley family or household at the time she was operating the vehicle.   Also, the plaintiff concedes that he can present no evidence to support a claim that the defendant Fredrickson was acting as the agent of the defendant Abby O'Malley.   Nonetheless, the plaintiff opposes the summary judgment, “relying entirely upon the presumption created by [§ 52–183].”  (Plaintiff's July 12, 2013 Objection to Motion for Summary Judgment at p. 3.)

The plaintiff cites to the decisions of several superior court judges who have concluded that the existence of the statutory presumption in § 52–183 precludes the granting of summary judgment in favor of a vehicle owner.   See Masse v. Jonah, 27 Conn.Sup. 206, 233 A.2d 696 (1967) (owner's affidavit insufficient to prove facts stated, therefore, presumption not rebuffed);  Layden v. Agency Rent–A–Car, Superior Court, judicial district of New Haven, Docket Nos. CV 92 024200 and CV 92 021216 (November 17, 1994, Silbert, J.) (strong probability that there was no agency not sufficient to find there was no fact in dispute);  Torres v. Dellagheif, Superior Court, judicial district of Waterbury, Docket No. 125808 (March 10, 1996, Pellegrino, J.) (affidavit rebutting presumption does nothing more than create an issue of fact);  Doonan v. Clark, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 95 0148729 (October 21, 1997, Nadeau, J.) (relying on Layden and Torres).

On the other hand, numerous Superior Court judges have concluded that summary judgment was appropriate despite the statutory presumption.   See Lazaridis v. Progressive Northern Ins. Co., Superior Court, Judicial District of Stamford–Norwalk at Stamford, Docket No. FST CV 11 6011100 S (Nov. 7, 2012, Genuario, J.);   Sumler v. Galloway, Superior Court, Judicial District of New Haven at New Haven, Docket No. CV 10 6008976S (Aug. 31, 2010, Wilson, J.) [50 Conn. L. Rptr. 546];  Dontfraid v. Colony, Superior Court, Judicial District of New Haven at New Haven, Docket No. CV–07 5009746S (Dec. 8, 2008, A.Robinson, J.) [46 Conn. L. Rptr. 759];  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];  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];  Fletcher v. Stoleson, Superior Court, complex litigation docket of Stamford–Norwalk at Stamford, Docket No. X 05 CV 000177740 (March 11, 2002, Rogers, J.);   Curran v. Duncan, Superior Court, Judicial District of Danbury, Docket No. CV 98 0333456 (October 25, 2000, Adams, J.) [28 Conn. L. Rptr. 640], Hannah v. Buick, Superior Court, Judicial District of New London, Docket No. CV98 0548002 (May 14, 1999, Mihalakos, J.);   Bevel v. Annetta, 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. 154434 (April 16, 1997, D'Andrea, J.).

This court finds the reasoning of the latter line of cases more persuasive.   The existence of the presumption of § 52–183, standing alone, is not a bar to summary judgment.   In the face of credible evidence by the owner of the vehicle rebutting the statutory presumption, a plaintiff must present concrete evidence creating a genuine issue of fact as to the operation of the presumption.   In the present case, the plaintiff offers no evidence to contravene the defendant's proof rebutting the presumption.   The plaintiff suggests only that the jury is free to disbelieve the defendant's evidence, in which case the presumption would be operative.   That assertion, although valid, is not adequate to establish the existence of a genuine issue of material fact sufficient to defeat summary judgment.

The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).

“[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

In the present case, no rational jury would be at liberty to disbelieve the unchallenged evidence that there was no agency and/or family household relationship between Abby O'Malley and Chelsea Fredrickson at the time Fredrickson took O'Malley's vehicle.   There is no genuine issue of material fact regarding the lack of an agency relationship.   In the absence of stich a relationship there is no basis for holding Abby O'Malley vicariously liable for Fredrickson's negligent operation of the motor vehicle.

Accordingly, the defendant Abby O'Malley's motion for summary judgment as to the Second Count is granted.

C. Discussion:  Causation

In her motion for summary judgment the defendant argues that any acts or omissions on her part cannot, as a matter of law, satisfy the causation element of the plaintiffs' negligence claims.   Specifically, the defendant argues that her conduct was neither the cause in fact nor the proximate cause of Fredrickson's injuries.   The plaintiff argues in opposition that the risk created by O'Malley failing to adequately secure her car keys was foreseeable and that the defendant's conduct was therefore a proximate cause of the plaintiff's injuries.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries ․ The first component of legal cause is causation in fact.   Causation in fact is the purest legal application of ․ legal cause.   The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct ․”The second component of ‘legal cause’ is proximate cause, which [our Supreme Court has] defined as [a]n actual cause that is a substantial factor in the resulting harm.”  (Internal quotation marks omitted.)  Winn v. Posades, 281 Conn. 50, 56, 913 A.2d 407 (2007).

“Proximate cause is an actual cause that is a substantial factor in the resulting harm ․ The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct.   Foreseeability is likewise considered when the defendant claims there has been no negligence because an unforeseeable intentional tort, force of nature, or criminal event superseded the tortious conduct.”  (Citations omitted;  internal quotation marks omitted.)   Mirjavadi v. Vakilzadeh, 310 Conn. 176, 192 (2013).

[W]hen a defendant's conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, ․ the fact that the harm is brought about by the actions of a third party does not relieve the defendant of liability, even though the third party's conduct is criminal, if the harm that occurred is within the scope of the risk created by the defendant's conduct or reasonably could have been anticipated in light of the defendant's duty to protect.”  Doe v. Saint Francis Hospital and Medical Center, 309 Conn. 146, 172 (2013).

The defendant argues that O'Malley's failure to secure her keys cannot constitute a proximate cause of the plaintiff's injuries because “it was not within the scope of foreseeable risk” that Fredrickson would steal O'Malley's car and crash into Reardon.   In response, the plaintiff argues that based on her past experience with her own daughter, Abby O'Malley had ample reason to know that leaving the keys in the house, unsecured in a safe, “could result in the car being taken without her permission and used illegally by an unlicensed driver.”  (Plaintiff's July 12, 2013 Objection to Motion for Summary Judgment at p. 4.)

“The question of proximate cause is ordinarily a question of fact for the trier.”  Doe v. Manheimer, 212 Conn. 748, 756, 563 A.2d 699 (1989).   “[I]ssues of proximate cause may be determined by way of summary judgment only in rare circumstances.”  Kumah v. Brown, 130 Conn.App. 343, 349, 23 A.3d 758 (2011), aff'd, 307 Conn. 620, 58 A.3d 247 (2013).  “[T]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue ․ It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion;  if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.”  (Internal quotation marks omitted.)  Alexander v. Vernon, 101 Conn.App. 477, 485, 923 A.2d 748 (2007).

In the present case, the court cannot state with conviction that “the mind of a fair and reasonable man could reach only one conclusion” regarding whether the harm to the plaintiff is within the scope of the risk created by the defendant Abby O'Malley's conduct or reasonably could have been anticipated by her.   There is ample room for reasonable disagreement.   Therefore, the issue of causation under these facts is not a question of law, but a question of fact which must ultimately be resolved by a jury.

Accordingly, the defendant Abby O'Malley's motion for summary judgment is denied as to the Third Count.

III. CONCLUSION

Summary judgment will enter in favor of the defendant on the Second Count.   Summary judgment is denied as to the Third Count.

BY THE COURT,

Sheridan, J.

Sheridan, David M., J.