Opinion
No. CV0750140428S
September 6, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#129)
The plaintiffs, Al Bayk and Setayesh Bayk, filed a two-count complaint on April 9, 2007 against the defendant, Direk Rodgers, for negligence and loss of consortium respectively. The following facts are alleged in the complaint. On January 10, 2007, at approximately 6:53 a.m., Rodgers was driving his vehicle in the left hand lane traveling eastbound on Route 68 in Wallingford, Connecticut. He was employed by the city of New Haven as a police officer and operating his vehicle within the course of his employment. At the same time, Al Bayk was traveling westbound in his vehicle on Route 68. Rodgers crossed the center line into the westbound lane and collided with Al Bayk's vehicle. As a result, Al Bayk sustained severe injuries. In addition, Setayesh Bayk has been deprived and will be deprived of the love, affection and consortium of her husband.
On July 30, 2007, the plaintiffs moved to cite in the city of New Haven, department of police services, the employer of Rodgers. The motion was granted on August 27, 2007, and the city was served with process on September 19, 2007. Al Bayk and Setayesh Bayk filed a four-count amended complaint on September 24, 2007, adding counts three and four against the city for a cause of action in vicarious liability and loss of consortium respectively.
On March 12, 2008, the city moved for summary judgment on the ground that it is entitled to immunity in the absence of referencing a statute abrogating its immunity and that Rodgers was not driving his vehicle in the course of his employment. It submitted a memorandum of law in support of the motion and various exhibits, including a copy of a certified excerpt of the deposition of Rodgers taken on July 23, 2007, an official and notarized copy of the accident report of January 10, 2007, and a copy of Stephanie Redding's affidavit, the city's assistant chief for the department of police services. The city filed a supplemental memorandum in support of its motion to which is attached Rodgers' responses to the "Request for Admissions." In response, the plaintiffs filed their memorandum of law in opposition on May 20, 2008, with a copy of Rodgers's affidavit, a copy of the same police report, a certified copy of the Wallingford police department case report and a certified copy of an excerpt from the deposition of Rodgers. A reply memorandum was filed by the city on July 30, 2007 with a certified excerpt of another portion of Rodgers' deposition and a copy of Rodgers' cell phone record for January 10, 2007.
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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] fact which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004). "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). Furthermore, as required by Practice Book § 17-46, [s]upporting 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." Since the evidence in the present case has been properly authenticated, certified, is a part of the record or has not been objected to by any of the parties, it is admissible.
As to counts three and four, the city argues that as the employer of Rogers it is immune from common-law vicarious liability for toritious acts of its employees unless the legislature has enacted a statute abrogating its immunity. The city argues that since the plaintiffs have not specified in their pleadings a statute abrogating its immunity, but instead, rely on a statute in the Workers' Compensation Act's definition section, and, that the plaintiffs cannot establish that the alleged injuries were caused by Rodgers while acting in the performance of his duties within the scope of his employment, the city is immune as a matter of law. The city further asserts that the plaintiffs have not met their burden of proof that Rodgers was performing a service for the city in the furtherance of its business while he was driving to work on January 10, 2007. In response the plaintiffs counter that there exist genuine issues of fact as to whether the city is legally responsible for damages caused by its employee during the course of his employment because based on the evidence Rodgers was actively engaged in a work-related telephone conversation at the time of the crash and this conversation was directly responsible for causing the crash. As such, the plaintiffs maintain that the city is vicariously liable. The plaintiffs further argue that any claimed deficiency in the pleadings, such as the failure of the plaintiffs to "specifically enumerate the statute upon which [they] rel[y] in claiming the defendant municipality is legally responsible for the negligence of its employee . . . has been rejected outright by our appellate courts . . . [and] this issue would have been more appropriately raised in a request to revise."
Practice Book § 10-3(a) provides in relevant part: "When any claim made in a complaint . . . is grounded on a statute, the statute shall be specifically identified by its number." Our appellate courts have construed this rule "as directory rather than mandatory." Criscuolo v. Mauro Motors, Inc., 58 Conn.App. 537, 545, 754 A.2d 810 (2000). As long as the defendant is sufficiently apprised of the nature of the action; Goodrich v. Diodato, 48 Conn.App. 436, 443, 710 A.2d 818 (1998); the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery." Spears v. Garcia, 66 Conn.App. 669, 675-76, 785 A.2d 1181 (2001), aff'd 263 Conn. 22, 818 A.2d 37 (2003). In the present case, the plaintiffs argue that they sent a notice of intent to bring a claim pursuant to General Statutes § 7-465 dated April 25, 2007 to the city of New Haven, city clerk. Therein, the plaintiffs stated that they intend "to pursue a claim for civil damages against the city of New Haven and [its] agents, servants and employees arising out of an automobile accident . . . between Mr. Bayk and Direk Rodgers, a New Haven police officer who was operating a motor vehicle in the course of his employment." The city in its memo in support of its motion for summary judgment states that "Rodgers was not operating his vehicle in the scope of or in the course of his employment as a matter of law for the purposes of vicarious liability." Thus, it seems clear, that even though the plaintiffs did not enumerate the statute specifically relied on in their complaint, the city was on notice of the claims being made against it.
"The tort liability of a municipality has been codified in [General Statutes] § 52-557n." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 320, 907 A.2d 1188 (2006). Section 52-557n(a)(1) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . (A) [t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . ." "[T]he language of § 52-557n(a) is clear and unambiguous with respect to vicarious liability. Such language plainly indicates the legislature's intent to abrogate governmental immunity that the common law gives to municipalities with respect to vicarious liability." Spears v. Garcia, supra, 66 Conn.App. 678.
"[V]icarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another]. Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another" (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n. 16, 849 A.2d 813 (2004).
"[U]nder the common-law doctrine of respondeat superior . . . an employer [may be] held [vicariously] liable for the tortious conduct of its employees when they act in their capacity as employees." Daoust v. McWilliams, 49 Conn.App. 715, 730, 716 A.2d 922 (1998); see Pelletier v. Bilbiles, 154 Conn. 544, 547, 227 A.2d 251 (1967). The Connecticut Supreme Court has "long adhered to the principle that in order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer's business . . . But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply . . . [I]f [the] employee's actions are not authorized by his employer and he is acting for his own interests and not in furtherance of his employer's business, [the] employer cannot be held vicariously liable for [the] employee's actions." (Citations omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990). "A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phrase during the period covered by his employment . . . While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful . . . that does not end the inquiry. Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business . . . Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable." (Citations omitted; internal quotation marks omitted.) Id., 209-10.
"In most cases, it is the function of the jurors to determine from the facts before them whether, under this test, a servant was acting within the scope of his employment . . . In some situations, however, the acts of the servant are so clearly without the scope of his authority that the question is one of law." (Citation omitted; internal quotation marks omitted.) Brown v. Housing Authority, 23 Conn.App. 624, 628, 583 A.2d 643 (1990).
The city offered into evidence an affidavit of the assistant chief of the department of police services in which she attested that on January 10, 2007, Rogers did not report to work, was not responding to any emergency, is not compensated or reimbursed for his travel time to and from work and the route he travels each day to and from work is chosen by him. In response to the city's request for admissions, Rodgers stated that on January 10, 2007, he was driving his own vehicle, he was not responding to an emergency, he chooses his own driving route, the accident occurred before his work day began, he is not paid for travel time or reimbursed for any travel expenses and he "was not operating his vehicle within the scope of his employment." The city also submitted excerpts from Rodgers' deposition in which he testified that when he drives to and from work with his personal vehicle he wears his police uniform and that on January 10, 2007, a friend called to tell him that his police officer friend had died overnight.
Attached to its reply memorandum, the city offered as evidence a copy of Rogers' cell phone records. The copy, which was not properly authenticated but to which no objection was made, indicates that on January 10, 2007, there was a call that connected to an 860 area code. Since New Haven has a 203 area code, it is reasonable to conclude that the call was not from the police dispatcher but from a friend of Rodgers as he testified in his deposition.
The inquiry is whether Rodgers was within the scope of employment when he was talking on his cell phone about a fellow officer having died earlier that morning. Based on the evidence submitted there is no question that at the time of the accident, Rodgers was not furthering the city's business nor was he furthering it while he was on his cell phone, the city cannot be found to be vicariously liable for the injuries and damages sustained by the plaintiffs. Moreover, he had not yet started his work but was on his way from his house to work when the accident occurred. Absent special circumstances, traveling to and from work is insufficient to show that the act is within the employee's scope of employment. See Heinen v. Duprey, Superior Court, judicial district of New London, Docket No. CV 543804 (May 21, 1999, Martin J.) (24 Conn. L. Rptr. 550, 551).
Since there are no genuine issues of material fact, the city's motion for summary judgment is granted.