Opinion
No. FST CV 04 4001545
September 12, 2005
MEMORANDUM OF DECISION
The defendant, Saybrook Ford, Inc. (Saybrook Ford), has filed motion #107 to strike the third count of the complaint filed by the plaintiff, Jocelyn Dervil. Practice Book § 10-39. The defendant moves to strike on the ground that said count fails to set forth a cognizable cause of action in negligent entrustment.
In the first count of her complaint, the plaintiff alleges that, as the result of the negligence of the defendant driver, Pablo Perez, she was injured in a motor vehicle accident on I-95 in Old Saybrook on September 30, 2002. In the second count, the plaintiff alleges that the owner of the vehicle that Perez was driving, Saybrook Ford, is also liable pursuant to General Statutes § 52-183, which provides that the driver is presumed to be the "agent and servant" of the vehicle owner and operating the vehicle "in the course of his employment."
In the third count of the complaint, which is the subject of the motion to strike, the plaintiff alleges that Saybrook Ford is also liable under a theory of "negligent entrustment." The plaintiff alleges that the owner knew or should have known that Perez was an incompetent and reckless driver, but that nevertheless the owner entrusted a vehicle to the driver. The plaintiff also alleges that Saybrook Ford knew or should have known that Perez would get involved in an accident and injure someone.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, CT Page 12431 173, 851 A.2d 1113 (2004). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 823 A.2d 1202 (2003). "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . it is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . ." (Citations omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
"[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, supra, 173. The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986).
Murdock v. Croughwell, 268 Conn. 559, 570, 848 A.2d 363 (2004), refers favorably to section 317 of the Restatement (Second), Torts and states that this section "imposes a duty on an employer to control the conduct of an off-duty employee when the conduct complained of occurs on the employer's premises or utilizes a chattel of the employer's, if the employer knows or has reason to know that he can control the employee and recognizes the necessity of doing so." The present case involves Saybrook Ford as owner of a charter, a motor vehicle.
Our Supreme Court also discussed Section 390 of the Restatement (Second), Torts, which governs liability for negligent entrustment of dangerous instrumentalities to incompetent persons, provides: "One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them."
Connecticut case law adopted the doctrine of negligent entrustment of automobiles over seventy years ago. "When the evidence proves that the owner of an automobile knows or ought reasonably to know that one to whom he entrusts it is so incompetent to operate it upon the highways that the former ought reasonably to anticipate the likelihood of injury to others by reason of that incompetence, and such incompetence does result in such injury, a basis of recovery by the person injured is established. That recovery rests primarily upon the negligence of the owner in intrusting the automobile to the incompetent driver." Greeley v. Cunningham, 116 Conn. 515, 520, 165 A. 678 (1933).
"An automobile, while capable of doing great injury when not properly operated upon the highways, is not an intrinsically dangerous instrumentality . . . and liability cannot be imposed upon an owner merely because he entrusts it to another to drive upon the highways." (Citations omitted.) Greeley v. Cunningham, supra, 116 Conn. 518. Nevertheless, "the owner may be liable for injury resulting from the operation of an automobile he loans to another, when he knows or ought reasonably to know that the one to whom he entrusts it is so incompetent to operate it, by reason of inexperience or other cause, that the owner ought reasonably to anticipate the likelihood that in its operation injury will be done to others." (Emphasis added.) Id. That liability "rests primarily upon the negligence of the owner in intrusting the automobile to the incompetent driver," not the negligence of the entrustee. Id., 520.
A number of Superior Court cases have discussed negligent entrustment of a motor vehicle. One such case ruled that the negligence of the incompetent driver is not the determinative factor in a negligent entrustment action. Rather, the core of a negligent entrustment action is whether the entrustor was negligent in supplying a vehicle to the incompetent driver. McKee v. Robinson, Superior Court, judicial district of New London at Norwich, Docket No. 091410 (November 30, 1989) (1 Conn. L Rptr. 68, 69). "The principal features of the tort of negligent entrustment lie in the knowledge of the supplier concerning the dangerous propensities of the entrustee and in the foreseeability of harm." (Internal quotation marks omitted.) Jordan v. Sabourin, Superior Court, judicial district of New London, Docket No. 537041 (November 22, 1996) ( 18 Conn. L. Rptr. 269). This statement is an articulation of the Greeley court's requirement that the entrustor "knows or ought reasonably to know" of the incompetence of the entrustee. Greeley v. Cunningham, supra, 116 Conn. 520.
The plaintiff contends that in order to state a claim for negligent entrustment, she need only allege that the owner of the vehicle knew or had reason to know that the person to whom he entrusted his motor vehicle is incompetent in some manner, and that incompetence on the part of the driver caused the injury. The plaintiff, however, has not alleged any facts suggesting that the defendant owner had actual or constructive knowledge of the defendant driver's dangerous propensities. "In fact, it is not even clear from the complaint that the defendant driver had any dangerous propensities irrespective of the analysis with regard to knowledge of the defendant." Plimpton v. Amerada Hess Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 99-0169861 (September 27, 1999).
As presently drafted, the third count of the complaint does not sufficiently spell out a cause of action in negligent entrustment. Thus, this case more closely resembles Shea v. Brown, 146 Conn. 631, 633, 153 A.2d 419 (1959), in which the Supreme Court determined that a car dealer's salesman did not negligently entrust a motor vehicle when he permitted an 18-year-old customer, whose license was suspended, to test drive a vehicle without inquiring about the status of his driver's license.
Therefore, the defendant's motion to strike the third count is granted.
So Ordered.
Dated at Stamford, Connecticut, this 12th day of September 2005.
William B. Lewis, Judge (T.R.)