Daniel Lewis et al. v. Habitat for Humanity of Greater New Haven, Inc. et al.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 130) AND OBJECTION TO MOTION FOR SUMMARY JUDGMENT (# 155)
On October 20, 2009, Daniel Lewis, the plaintiff, filed a revised complaint alleging in count one, negligence against Habitat for Humanity of Greater New Haven, Inc., and in count two, negligence against Habitat for Humanity International, Inc.1 This action arises out of injuries and losses allegedly sustained by the plaintiff on July 7, 2007, while participating in a fund-raising event called the Habitat Bike Challenge. While participating in the fund-raising event, the plaintiff was struck by an automobile. According to the complaint, Habitat for Humanity of Greater New Haven, Inc. was in control of the event as an affiliate of Habitat for Humanity International, Inc. (defendant).2 Specifically, the revised complaint alleges that the defendant had the authority to establish reasonable and prudent policies, restrictions, limitations and practices upon its affiliates and failed to institute such policies necessary to reduce or eliminate the risk of significant injury or death for participants in the Habitat Bike Challenge. Further, the plaintiff alleges in count two that the defendant was negligent in that it (1) failed to discontinue the event in the light of the known injuries and deaths associated with the event, (2) failed to develop and enforce the necessary policies, protocols, restrictions and safety precautions for its affiliates' fundraising events and (3) failed to take reasonable and prudent steps to monitor the fundraising and publicity efforts of its affiliates.
On November 30, 2010, the defendant moved for summary judgment. The motion was accompanied by a memorandum of law. On May 19, 2011, the plaintiff filed an objection to the motion for summary judgment along with a memorandum in support of said objection. The defendant filed a reply on June 2, 2011. On June 27, 2011, the plaintiff filed a surreply to the defendant's reply to the objection to the motion for summary judgment. This matter was heard at the short calendar on August 1, 2011.3
“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.” (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553, 985 A.2d 1042 (2010). “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.” (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). “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 ․ Once the moving party has met its burden ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue.” (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
In the present case, the defendant, in its memorandum of law, argues that it did not owe a legal duty to the plaintiff and is therefore not liable for the plaintiff's injuries. The defendant claims that its affiliate, Habitat for Humanity of Greater New Haven, Inc., was in control of the event and that the affiliate relationship is analogous to a franchisor/franchisee relationship where the court, Prescott, J., has held that no liability is imposed on the defendant franchisor for alleged torts committed by its affiliates (franchisees). As evidence of these assertions the defendants submitted the following: (1) the affidavit of Larry Gluth, (2) the order of Stefanova v. Hartford Area Habitat for Humanity, Superior Court, judicial district of Hartford, CV 08 5019943 (April 19, 2010, Prescott, J.), and later, (3) the affidavit of William Casey.
In its memorandum of law, the plaintiff argues that the affiliate relationship can amount to an agency relationship and that the determination of the nature of the legal relationship between the defendant and Habitat for Humanity of Greater New Haven, Inc. depends upon the facts of the situation. In support of this position, the plaintiff provided affidavits and documents to prove the defendant had a very active role in the activities of its affiliates and derived benefits from these activities, thus creating an agency relationship. The plaintiff asserts that there is sufficient evidence in the record from which a jury can conclude that the defendant owed a legal duty to the plaintiff and therefore, since the defendant has failed to establish that there is no genuine issue of material fact on the issue of agency, the motion for summary judgment must be denied.
In its reply, the defendant counters that the plaintiff did not submit any evidence to contest the facts that entitle the defendant to summary judgment including (1) that the defendant did not participate in, supervise, direct, or exercise any control over the fund-raising bike trip in question and (2) that the defendant received no funds from the event. Further, the defendant asserts that case law has stated that a franchisor's general oversight of franchisees is not the hands-on control required for liability to attach and therefore, the amount of control asserted by the defendant does not make it liable to the plaintiff for his injuries. The defendant also argues that a principal-agent relationship does not exist when, as in the present case, there is a lack of evidence of ownership of or control over, the place of work or the instrumentalities involved in the accident.
The plaintiff in his sur-reply, argues that the defendant has not met its burden of proving entitlement to summary judgment because all of the case law used by the defendant is in reference to premises liability cases and the defendant has failed to meet its burden of demonstrating that there are no material issues of fact with regard to the nature of the relationship between the defendant and its local affiliate.
“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 relationships 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). “A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn.App. 306, 318, 819 A.2d 844 (2003). “[T]he 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).
The plaintiff alleges that the defendant owed a duty to him because Habitat for Humanity of Greater New Haven, Inc. was an agent of the defendant. 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 ․ Finally, the labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of their agreement or understanding.” (Citation omitted; internal quotation marks omitted.) National Publishing Co. v. Hartford Fire Ins. Co., 287 Conn. 664, 678, 949 A.2d 1203 (2008).
In Corey v. Eastern Connecticut Health Network, Superior Court, judicial district of Hartford, Docket No. CV 09 5031120 (July 22, 2011, Sheldon, J.), the court denied summary judgment because it found that the plaintiff, “presented sufficient evidence to raise such a genuine of material fact on [the issue of an alleged agency relationship], which must be resolved by a fact finder.” The court also denied a motion for summary judgment in Doe v. Boy Scouts of America, Superior Court, Docket No. CV 94 0141153 (January 29, 1999, Tobin, J.), where the court found that if the Boy Scouts of America “had a certain amount of responsibility and control over the leaders of troop 211, as the plaintiff alleges and will have to further develop at trial, then it is not at all clear that there is no duty of care toward the plaintiff as a matter of law.” In Kosloff PPA v. Fairfield County Boy Scouts, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 80331 (September 30, 1993, McKeever, J.) [10 Conn. L. Rptr. 239], the court found that Boy Scouts America did not present enough evidence addressing the issue of their right to control the activities of their affiliate and accordingly, a question of material fact existed as to whether an agency relationship existed between the affiliates. See Hallahan v. Cartmel, Superior Court, judicial district of New London, Docket No. CV 04 4001071 (May 22, 2007, Gordon, J.) [43 Conn. L. Rptr. 654] (“Connecticut Superior courts considering summary judgment have found issues of material fact regarding local council ‘right to control’ in situations where local affiliates were operating under the direct guidance or control of local council”).
It would need to be determined if the affiliate agreement between the defendant and Habitat for Humanity of Greater New Haven, Inc. is consistent with the existence of an agency relationship. “The utilization of the word ‘affiliated’ is not necessarily inconsistent with the existence of an agency relationship. The word ‘affiliated’ is defined as ‘closely associated with another typically in a dependent or subordinate position.’ “ Koniak v. Sawhney, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV 93 042154 (January 13, 1994, Rush, J.). The court has held, in Stefanova v. Hartford, judicial district of Hartford, Docket No. CV 08 501994 (April 19, 2010, Prescott, J.), that “[t]he nature of the relationship between [the defendant and its affiliates] is akin to the relationship between a franchisor and franchisee.” See Snowberger v. Americo Henriques, Superior Court, Docket No. X06 CV 01 0167144 (September 18, 2002, McWeeny, J.) [33 Conn. L. Rptr. 135] (agency relationship must exist between franchisor and franchisee before franchisor could be held liable).
The defendant argues that the affiliate relationship between it and Habitat for Humanity of Greater New Haven, Inc. is analogous to a franchisor-franchisee relationship and that there is no agency relationship between the two entities. “Courts have consistently concluded that, absent exceptional circumstances ․ a franchisee is an independent contractor of the franchisor and that the franchisor is not liable as an agent for the torts committed by a franchisee. This rule is true even if the franchisor has the authority to dictate certain actions of the franchisee in order to protect its brand or trademarks.” Stefanova v. Hartford, supra, Superior Court, Docket No. CV 08 501994. “Generally, a franchise contract requires that the franchisee must maintain certain quality or service standards, so as to preserve the reputation of the trade name or trademark, and federal law requires that the franchisor exercise some control to avoid abandonment of the mark.” Oquendo v. G.V.L., Inc., Superior Court, judicial district of New Haven, Docket No. CV 07 5011963 (March 5, 2008, Bellis, J) [45 Conn. L. Rptr. 171]. “[T]ypically, a franchise is not a principal-agent relationship.” Id. Despite this general rule, even in a franchiser-franchisee relationship, “the issue is whether a particular franchisor in a given case has exercised such control over its franchise that it rises to the level of a principal-agent relationship, such that the franchisor owes a duty to a customer of its franchisee. This evaluation requires a court to examine both the relationship between the parties to the franchise agreement as well as the degree of control retained by the franchisor, not limited to possession and control of the physical premises.” Myrick v. Walker, judicial district of New Haven, Docket No. CV 09 5028369 (August 10, 2010, Zoarski, J.T.R.) “Courts of other jurisdictions have held that an agency relationship exists within the framework of a franchise agreement ․ Other courts, in the absence of an actual agency relationship, have held a franchisor liable under an apparent authority theory ․” (Citations omitted.) Oquendo v. G.V.L., Inc., supra, Superior Court, Docket No. CV 07 5011963.
Accordingly, even if the relationship in the present case is analogous to a franchisor-franchisce relationship, it would need to be determined if the defendant exercised sufficient control over Habit for Humanity of Greater New Haven, Inc., in order to establish an agency relationship. “An essential factor in an agency relationship is the right of the principal to direct and control the performance of the work by the agent.” (Internal quotation marks omitted.) Lee v. Duncan, 88 Conn.App 319, 324, 870 A.2d 1, cert. denied, 274 Conn. 902, 876 A.2d 12, (2005). In Oquendo v. G.V.L., Inc., supra, Superior Court, Docket No. CV 07 5011963, the court found that the plaintiff alleged sufficient facts to give rise to a duty owed to the plaintiff because the plaintiff, “sufficiently pled control and the right of control on the part of [the defendant] and an agency relationship such that the amended complaint sufficiently sets forth a direct claim of negligence as well as a claim based on an agency relationship.”
In the present case, there is a genuine issue of material fact as to whether there was an agency relationship between the defendant and Habitat for Humanity of Greater New Haven, Inc. While in its motion for summary judgment, the defendant provided evidence that it had no involvement in the event that injured the plaintiff, the plaintiff has presented sufficient evidence to raise a genuine issue of material fact on the issue of the existence of an agency relationship, which must be resolved by a fact finder. With its objection, the plaintiff provided documents to establish that the defendant has the ability to control many aspects of the affiliate including requirements and protocols for daily operations including the formation of affiliates, financial operations, record keeping and qualifications for the services it can provide. For example, in support of its argument, the defendant submitted the following documents: (1) The Affiliate Covenant agreement between the defendant and Habitat for Humanity Greater New Haven, Inc. which outlined the terms of their relationship; (2) portions of the Affiliate Operations Manual which states that the “Affiliate Operations Manual” is intended to be a daily guide for all affiliates and outlines the financial procedures each affiliate should enact; (3) The “Quality Assurance Checklist” which describes the defendant's requirements for each affiliate and (4) portions of the defendant's website describing the Habitat Bike Challenge. The defendant also submitted affidavits of many Habitat Bike Challenge participants describing their power point presentation duties to support the allegation that the presentation was geared toward raising awareness and donations for the defendant. The documents submitted by the defendants, including the affidavits of Larry Gluth and William Casey, fail to establish that there is no genuine issue of material fact as to the status of the relationship between the defendant and its affiliate Habitat for Humanity of Greater New Haven, Inc Accordingly, the court denies the motion for summary judgment.
For the foregoing reasons, the defendant has failed to establish that no genuine issue of material fact exists and, therefore, the court denies the defendant's motion for summary judgment.
FN1. According to the complaint, Hal Lewis and Jeanne Dise–Lewis were appointed by the Probate Court for the city and county of Denver to serve as co-conservators for Daniel Lewis and they bring this action within that capacity serving as plaintiffs. Daniel Lewis is hereinafter referred to as the plaintiff.. FN1. According to the complaint, Hal Lewis and Jeanne Dise–Lewis were appointed by the Probate Court for the city and county of Denver to serve as co-conservators for Daniel Lewis and they bring this action within that capacity serving as plaintiffs. Daniel Lewis is hereinafter referred to as the plaintiff.
FN2. Habitat for Humanity International, Inc. is the party moving for summary judgment and hereinafter referred to as the defendant.. FN2. Habitat for Humanity International, Inc. is the party moving for summary judgment and hereinafter referred to as the defendant.
FN3. An additional affidavit was filed by the plaintiff on October 11, 2011, almost two and one-half months after oral argument on the defendant's motion. The defendant filed an objection and reply to the supplemental filing of the affidavit on October 14, 2011. The court will not consider such an untimely filed affidavit.. FN3. An additional affidavit was filed by the plaintiff on October 11, 2011, almost two and one-half months after oral argument on the defendant's motion. The defendant filed an objection and reply to the supplemental filing of the affidavit on October 14, 2011. The court will not consider such an untimely filed affidavit.
Woods, Glenn A., J.