Eric Kurisoo v. Harry Ziegler et al. (2015)

RULING ON MOTION FOR SUMMARY JUDGMENT FILED BY THE DEFENDANT MYSTIC SEAPORT MUSEUM.  (Doc. No. 139.00)

This case is an action by the plaintiff, Eric Kurisoo, for money damages for injuries he sustained when his motorcycle was hit by a motor vehicle allegedly driven negligently by the defendant, Harry Ziegler, in Stonington, CT on September 20, 2013.  It is alleged that, at the time of the accident, Ziegler was operating his vehicle, a 1925 Stearns Knight, in a procession of antique cars for a car show organized, sponsored, directed, permitted, allowed and/or hosted by the defendant, Mystic Seaport Museum (“Mystic Seaport”).  In Count III of his Amended Complaint, the plaintiff seeks to hold Mystic Seaport liable in negligence for the accident on the grounds that Ziegler was, at all times mentioned in the complaint, the servant, agent or employee of Mystic Seaport.  Pending before the court is Mystic Seaport's motion for summary judgment arguing that Ziegler was not its servant, agent or employee at the time of the subject accident and, therefore, it cannot be held vicariously liable for the accident.  For the following reasons, the court finds that Mystic Seaport has failed to establish the non-existence of a material fact concerning the agency status of the defendant, Ziegler.  Nevertheless, Mystic Seaport is entitled to judgment as a matter of law for other reasons.  Therefore, the court grants the defendant's motion, and enters judgment in favor of the defendant, Mystic Seaport, on Count III of the plaintiff's Amended Complaint.

I

The law governing summary judgment is well-settled.  As our Appellate Court has summarized:

Practice Book § [17–49] requires that 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.  A material fact is a fact that will make a difference in the result of the case ․ The facts at issue are those alleged in the pleadings.  (Citation omitted;  internal quotation marks omitted.)  Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 809, 768 A.2d 950 (2001).

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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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent.  (Citations omitted;  internal quotation marks omitted.)  Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).

It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17–45 and 17–46, a party opposing a summary judgment motion ‘must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.’  Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1, 4, 724 A.2d 1143 (1999).  As noted by the trial court in this case, typically ‘[d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred.’  (Internal quotation marks omitted.)  New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).  Moreover, “[t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue ․ Such assertions are insufficient regardless of whether they are contained in a complaint or a brief ․ Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact.  (Citations omitted;  internal quotation marks omitted.)  Id., 244–45.

Rockwell v. Quintner, 96 Conn.App. 221, 227–29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).

The Practice Book further mandates that “[a]ny adverse party shall at least five days before the date the motion is to be considered on short calendar file opposing affidavits and other available documentary evidence.  Affidavits, and other documentary proof not already part of the file, shall be filed and served as are pleadings.”  Practice Book § 17–45.  “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.  Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.”  Practice Book § 17–46.

II

In connection with its motion for summary judgment, the defendant, Mystic Seaport, filed an affidavit of Leonard Parker, a volunteer for the car show run by the defendant, Mystic Seaport, with a copy of the advertisement for show attached.  The plaintiff filed an objection to the defendant's motion with deposition transcript excerpts, discovery responses, and a photograph of a banner that was attached to the cars in the subject procession attached.

Based on a review of the materials filed, the court finds the following facts:  Mystic Seaport Museum is a non-profit, educational institution that operates Mystic Seaport, located in Mystic, CT. It is a recreation of a Nineteenth Century coastal village with historic ships, and it offers related exhibits and attractions to the public.  It has, since 1996, sponsored an antique car show featuring pre–1930 vintage automobiles on the grounds of the Seaport called the “By Land and By Sea Antique Vehicle Show.” The show permits vintage car owners to exhibit their vehicles for public viewing on a Sunday.  Although there is an admission fee for entry to the Seaport, there is no extra charge for viewing the Sunday antique auto show.

At the time of the accident, the defendant, Ziegler, registered his antique car for inclusion in the show.  He was required to and did pay a $40.00 registration fee to be able to enter his car in the show.  As part of the weekend activities, Seaport staff and volunteers organized driving tours on the Friday and Saturday before the show for the entrants to give them the opportunity to see the local scenery and attractions and to allow them to exhibit their vehicles to the public.

On Friday, September 20, 2013, Ziegler participated in a 30–mile scenic tour of the Mystic/Stonington area arranged by the event volunteers and staff.  About 40 or 50 cars were involved.  The participants gathered at the Old Mystic Village north parking lot and were provided with printed driving directions, routes and a map to follow for the event's tour that particular day.  In addition, the participants were provided with banners to place on their antique cars by event volunteers and staff, which stated, “Follow Me on Sunday to Mystic Seaport to the Mystic Seaport Antique Vehicle Show.” Mr. Ziegler affixed the banner to his car prior to the tour commencing, and then he joined the tour.  It was not a parade of cars, with one following the other, and event organizers did not arrange for personnel to guard intersections or direct traffic along the route.  Cars did not follow one after the other.  Rather, each driver simply proceeded independently and followed the directions given at the start.  Although participants were not required to follow the route, it was assumed that most participants would stay together and follow the instructions.  They were instructed to follow the rules of the road, and be vigilant at intersections.  They were encouraged to remain on the prescribed route because Mystic Seaport arranged for a “trouble car” to help with breakdowns along the route, although there was no trouble car available on the day of the accident.

Mr. Zeigler did follow the directions he was given.  While on Coogan Boulevard at the intersection with Jerry Browne Road in North Stonington, he stopped at a stop sign, then proceeded to turn left (northbound) onto Jerry Browne Road when the collision occurred.

Mystic Seaport's witness avers, in a conclusory fashion, that over the course of the tours, the drivers retain exclusive control and responsibility over themselves and their antique cars.  None of the participants in the antique car show, including the defendant Zeigler, were servants, agents or employees of the Seaport, and at no time did the Seaport represent to the public that the participants were acting on behalf of the Seaport.  The Seaport does not pay any of the participants of the antique car show.  The Seaport does not own, lease or provide any of the vehicles in the touring event.  At no time did the Seaport authorize any of the participants in the antique car show, including Mr. Zeigler, to act on behalf of the Seaport in connection with any of the activities associated with the antique car show or touring event.

III

The defendant, Mystic Seaport, argues that summary judgment should enter in its favor as to the plaintiff's claims of vicarious liability for negligence alleged in Count III of the Amended Complaint, which are based on an alleged actual agency relationship between the defendant Mystic Seaport and Mr. Zeigler, because Ziegler was not a servant, agent or employee of the Seaport.  The court finds that Mystic Seaport has failed to establish the non-existence of a material fact concerning the agency status of the defendant, Ziegler, during the procession.  Indeed, there are multiple facts in the record tending to establish that he was an agent.  A trier of fact could conclude that Mr. Ziegler was an agent of Mystic Seaport during the procession.  Nevertheless the court concludes that the Seaport is entitled to summary judgment, as a matter of law, for the reasons explained below.

With respect to the issue of whether a tortfeasor can be considered the actual agent of a principal, rendering the principal responsible for the acts of their agent acting within the scope of his authority, the test is well-settled:

Agency is defined as the fiduciary relationship which results from 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 ․ In order to establish an agency relationship, a plaintiff must prove (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 ․ [a]n essential ingredient of agency is that the agent is doing something at the behest an for the benefit of the principal.

(Citations omitted;  internal quotation marks omitted.)  Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132–33, 464 A.2d 6 (1983).

In the instant case, the facts show that antique car owners, for a fee, were permitted to exhibit their vehicles at an annual Sunday car show, and partake in weekend amusements offered by the Seaport in connection with the show.  In part, entrants were patrons of the educational and entertainment offerings of the Seaport much the same as any other visitor to the facility;  but, in other aspects, they were the exhibits and the entertainment.  In particular, the Seaport offered, and the entrants accepted, the job of entertaining the public for the Seaport and for promoting and advertising the Seaport event during the procession of antique cars on the day of the accident.  Entrants were instructed how to proceed by the Seaport.  In fact, Mr. Ziegler drove the prescribed route with a banner inviting the public to follow him to see the show.  In weighing these facts, and depending on the credibility of the witnesses, the court believes that a trier of fact could fairly conclude that Mr. Ziegler was an actual agent for Mystic Seaport during the procession.  Ordinarily, that circumstance would preclude the court from entering summary judgment for the defendant.  See Rockwell v. Quintner, supra.

However, in an earlier ruling in this case, the court (Zemetis, J.) held that Mystic Seaport owed no duty of care to persons injured by the negligence of participants in the antique car show procession under the facts of this case.  See Memorandum of Decision, Doc. No. 119.01.  The existence of a duty is an essential element in a negligence action.  Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453, 857 A.2d 439 (2004).  “If the court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384–85, 650 A.2d 153 (1994).  Absent a duty, Mystic Seaport cannot be held liable, vicariously or otherwise.  To permit vicarious liability where there is no direct liability would be to accomplish indirectly that which could not be accomplished indirectly.  The law does not permit that type of legal circumvention.  See Crotta v. Home Depot, Inc., 249 Conn. 634, 644, 732 A.2d 767 (1999).

IV

For all of the foregoing reasons, the court finds that Mystic Seaport has failed to establish the non-existence of a material fact concerning the agency status of the defendant, Ziegler.  Nevertheless, Mystic Seaport is entitled to judgment as a matter of law for other reasons.  Therefore, the court grants the defendant's motion, and enters judgment in favor of the defendant, Mystic Seaport, on Count III of the plaintiff's Amended Complaint.

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.