George Rodrigues v. Angie Milford et al. (2013)

MEMORANDUM OF DECISION

On February 7, 2011, the plaintiff, George S. Rodrigues, filed the three-count revised complaint in this action against the defendants, Angie Milord, Napoli Motors, Inc., and Progressive Insurance.¹  In the complaint, the plaintiff alleges the following facts.   On or about September 18, 2008, at approximately 6:01 p.m., the plaintiff was operating a Honda motorcycle in a northerly direction on White Plains Road in Trumbull, Connecticut, near the intersection with the Route 15/Merritt Parkway exit 50 off ramp.   At the same time, Milord was operating a 2005 Nissan Maxima owned by the defendant on the Route 15/Merritt Parkway exit 50 off ramp.   Upon reaching the intersection, Milord made an illegal left turn from the off ramp directly into the path of the plaintiff, causing the vehicles to collide and severely injuring the plaintiff.   The collision was the result of Milord's negligence and carelessness.

According to the police report, Milord was in the right lane coming off of the exit ramp, which was set off from the left lane by a solid white line.   The left lane was a left turn only lane, and the right lane was a right turn only lane leading onto the northbound lanes of White Plains Road. The accident occurred when Milord made an illegal left turn from the right lane, crossing a lane of oncoming traffic.

In the second count of the revised complaint, the plaintiff alleges that the accident occurred while Milord was taking a demonstration drive of the 2005 Nissan Maxima, which was authorized by the defendant.   Further, the plaintiff alleges that, during the test drive, the defendant, by and through its agent and/or employee Richard Clark, accompanied and purported to monitor and/or supervise Milord in operation of the vehicle.   In addition to Milord's negligence, the plaintiff claims that the accident was also the product of the defendant's negligence and carelessness in failing to properly monitor and supervise Milord.

On September 7, 2012, the defendant filed a motion for summary judgment on the ground that there is no genuine issue of material fact that the passenger was in no way affiliated with the defendant, and that even if the passenger was affiliated with the defendant, there is no genuine issue of material fact that the passenger was not negligent.   The defendant submitted a memorandum of law in support of its motion for summary judgment.   On October 17, 2012, the plaintiff filed an objection to the motion for summary judgment, accompanied by a memorandum of law.   On October 19, 2012, the defendant filed a reply memorandum accompanied by a memorandum of law.   On June 25, 2013, and October 31, 2013, respectively, the plaintiff filed supplemental objections to the defendant's motion for summary judgment, which included the affidavit of the plaintiff George S. Rodrigues.   Finally, on November 1, 2013, the defendant filed a reply memorandum to the plaintiff's supplemental objection memoranda.   The matter was heard at the short calendar on November 4, 2013.

“Summary judgment is a method of resolving litigation when 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 motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ․ However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).   “As the party moving for summary judgment, the [movant] 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).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non moving party.”   Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   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 ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ 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.)   Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

In its motion for summary judgment, the defendant argues that there is no genuine issue of material fact that Richard Clark, the passenger, was not an employee or agent of Napoli Motors.   The defendant also argues that there is no proof to support the plaintiff's allegations that Clark was monitoring or supervising Milord's operation of the vehicle at the time of the accident.   The defendant contends that the plaintiff has not made out a prima facie case that it owed the plaintiff a duty or that it breached such duty.   In response, the plaintiff argues that questions of the existence or nonexistence of an agency relationship are generally to be determined by a trier of fact.   The plaintiff submits that Scott Haverl, manager of Napoli Motors, admitted in his affidavit to having a business relationship with Clark.   The plaintiff has presented a deposition of Haverl in which Haverl admitted to the defendant's use of a bird dog system, a type of referral program.   The plaintiff contends that Haverl admits in his deposition that the way the system works is that if past customers bring new customers, the past customer is paid a $100 referral fee.   Further, Haverl's deposition revealed that Clark has made between one and five referrals to the defendant over the years.   The plaintiff has also presented the deposition of the defendant's comptroller, Debra Soares, who testified to the fact that a check was paid to Clark on October 3, 2008, less than a month after the demonstration drive accident, for a sale consummated in connection with the referral program.   It should be noted that the check references a 2005 Nissan Maxima, the same type of vehicle involved in the demonstration drive accident.   In addition, the plaintiff argues that the newly provided Employee Handbook states that a salesperson must accompany customers on demonstration drives.   In response, the defendant argues that, not only do refer-a-friend programs not create an agency relationship, but also that this specific refer-a-friend program does not create an agency relationship because the referring party is only eligible to receive $100, not entitled to receive it.   Further, the defendant argues that, even if the plaintiff can establish an agency relationship between Clark and Napoli Motors, the plaintiff has failed to set forth any facts to establish a negligence claim against the defendant.

Because Haverl's affidavit leaves no genuine issue of material fact as to whether Clark was an employee of the defendant, the issue for this court to determine is whether Clark might have been an agent of the defendant.  “The question of the existence or nonexistence of an agency relationship is ordinarily one of fact to be determined by the trier of fact.   It is only in the clearest circumstances, where no other conclusion could reasonably be reached, that the determination of fact by the trier may be disturbed.”   McLaughlin v. Chicken Delight, Inc., 164 Conn. 317, 323–24, 321 A.2d 456 (1973).

There are two manners by which an agency relationship may be established:  apparent authority and actual authority.  “Apparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses ․ Consequently, apparent authority is to be determined, not by the agent's own acts, but by the acts of the agent's principal ․ The issue of apparent authority is one of fact to be determined based on two criteria ․ First it must appear from the principal's conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority ․ Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent's action.”  (Internal quotation marks omitted.)  Gordon v. Tobias, 262 Conn. 844, 850–51, 817 A.2d 683 (2003).   In the present case, the plaintiff has failed to allege any action taken by the defendant principal that would have led the plaintiff to believe that Clark was acting as an agent on its behalf.   The plaintiff fails to allege that it acted in good faith based on a reasonable belief that Clark was an agent of the defendant, and, as a result, there is no genuine issue of material fact as to apparent authority.

A genuine issue of material fact exists, however, with respect to whether Clark had actual authority.  “[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.”  (Internal quotation marks omitted.)   Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 133, 464 A.2d 6 (1983).   As the party moving for summary judgment, it is the defendant's burden to show the nonexistence of any issues of material fact.   See Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 10–11.   Here, in the form of Haverl's deposition, the plaintiff has presented the court with evidence of the defendant's bird dog referral system, which Clark was admittedly a part of, having received his $100 commission between one and five times over the years.   Further, the plaintiff has presented the court with Soares' deposition, in which she admits that Clark was in fact paid a $100 commission less than one month after the accident and in reference to the same vehicle.

The plaintiff has also presented the Napoli Motors Employee Handbook, which states on page 34:  “14.   Demonstration Drives:  A salesperson must accompany customers on demonstration drives.”   These facts, presented by the plaintiff, are enough to overcome the defendant's contention that there is no genuine issue of material fact that there is no agency relationship between Clark and the defendant.   As to the first part of the test, the defendant has admitted that it paid for Clark's service of bringing Milord in as a potential customer, which, if proved, could be seen as a manifestation that Clark was an agent acting for the defendant.   Despite the defendant's assertion that it is not obligated to pay the $100 under its bird dog service, the facts alleged by the plaintiff create an issue of material fact as to Clark's status as an agent.   As to acceptance by the agent of the undertaking, Clark has not been deposed and his affidavit has not been taken, but it is undisputed by the defendant that he accompanied Milord on the demonstration drive and that he was in fact paid a $100 commission shortly thereafter.   This alone is enough to create an issue of material fact as to his acceptance of an undertaking of action, in this case the referral and demonstration drive, on behalf of the defendant.   The third part of the test requires the defendant to prove that there is no genuine issue of material fact that there was no understanding between the defendant and Clark that the defendant would be in control of the undertaking.   The defendant's payment of Clark, combined with the handbook rule that a salesperson must accompany all customers on demonstration drives, creates an issue of fact with respect to the control the defendant may have been asserting over Clark during the demonstration drive.   Given the facts presented by the parties, there remains a question of fact as to whether there is an agency relationship between the defendant and Clark that is best suited for determination by a trier of fact.

Having determined that there is a question of fact as to whether Clark was an agent of the defendant, the only question remaining is whether there is a question of fact as to the negligent supervision during the demonstration drive.   It is well established that negligence is ill-suited for decision on summary judgment.  “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).   Summary judgment is particularly “ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).  “[Q]uestions of negligence and contributory negligence are ordinarily questions of fact for the jury, yet when the undisputed evidence is so conclusive as to one of the controlling issues in the case, the question is one of law and not of fact for the jury.”  Whitney v. New York, N.H. & H.R. Co., 87 Conn. 623, 633, 89 A. 269 (1914).

In the present case, the plaintiff has met his burden by setting the scene of the accident, alleging that Milord was stopped at a stop sign off the exit ramp and made an illegal left turn where signs and the exit ramp itself clearly indicated that drivers could only turn right.   Connecticut law dictates that a car owner can be held liable for the negligence of the driver if the owner occupies it and allows another to drive it.  “If the owner of a car, while he also occupies it, allows another to drive it, but himself retains control of it and of the manner in which it is driven, he is liable for the actual driver's negligence in the operation.”  Reetz v. Mansfield, 119 Conn. 563, 569–70, 178 A. 53 (1935).   The defendant was undisputably the owner of the vehicle, and if Clark was its agent controlling the demonstration drive, as is sufficiently argued by the plaintiff, Clark's negligent supervision is attributed to the defendant.

In addition, the description given in the police report makes it clear that there are issues of fact as to the supervision of the demonstration drive.   The police report's depiction of the scene shows two separate lanes, one where drivers can only go left and one where drivers can only go right.   As we know, Milord went left from the right lane and had to cross a lane of traffic going in the opposite direction in order to do so.   If Clark had been properly supervising Milord, he would have made some kind of effort to stop her from taking such a dangerous and illegal turn.   It is thus evident that a question of material fact exists as to whether or not the supervision of Milord was negligent.  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   A question of material fact remains as to whether the defendant, via its potential agent Clark, negligently supervised Milord's demonstration drive that led to the accident with the plaintiff, and the motion for summary judgment must be denied.

For the foregoing reasons, the motion for summary judgment is denied.

GILARDI, J.T.R.

FOOTNOTES

FN1. Napoli's motion for summary judgment is the only motion being addressed here and thus Napoli will hereinafter be referred to as the defendant..  FN1. Napoli's motion for summary judgment is the only motion being addressed here and thus Napoli will hereinafter be referred to as the defendant.

Gilardi, Richard P., J.T.R.