Opinion
FSTCV186038427S
07-01-2019
Erwin HERNANDEZ v. Henry ANDERSON
UNPUBLISHED OPINION
OPINION
POVODATOR, JTR.
This is a lawsuit arising from a somewhat bizarre and tragic series of events. At the time of the accident, the plaintiff was an employee of a restaurant, Table 104, located on Long Ridge Road in Stamford. Defendant Anderson was a patron of the restaurant, driving a modified vehicle. To the extent that the term "modified" is nonspecific, in this case it refers to modification of controls, enabling a driver with a disability/handicap that might otherwise prevent him from driving a non-modified vehicle, to operate the vehicle as modified.
Upon arrival at the restaurant, defendant Anderson entrusted his vehicle to defendant Daniel Teclechiel, a valet attendant at (and employed by) the restaurant. While driving the vehicle within the restaurant parking lot, defendant Daniel Teclechiel either lost control or was unable to control the vehicle, as the vehicle collided with a parked car and then crashed into the restaurant building itself, causing severe injuries (including eventual amputation of part of his leg) to the plaintiff who had been working inside the restaurant.
The most recent version of the complaint asserts claims of negligence directed to the owner of the vehicle, the valet/operator of the vehicle (General Statutes § 31-293a authorizing suit against a fellow employee arising from operation of a motor vehicle), and just recently added, the installer of the modified operating controls. These claims of negligence are not being challenged by the pending motion to strike.
The plaintiff filed an amended complaint after this motion to strike had been filed, pleading over against a third party brought in by the defendants. As the subsequently-filed complaint does not materially alter the allegations related to this issue, the court is addressing the merits of the motion notwithstanding cases such as Wilson v. Hryniewicz, 38 Conn.App. 715; cert. denied, 235 Conn . 918, 665 A.2d 610 (1995) and more recently Rockstone Capital, LLC v. Sanzo, 175 Conn.App. 770, 787-88 (2017), indicating that the filing of an amended complaint constitutes a withdrawal of the earlier operative complaint. Absent any material change to the allegations of the relevant count, it would be form over substance to require a re-filing of the motion, objection, etc., when nothing of substance has changed.
The plaintiff also has asserted a claim of recklessness directed to the owner of the vehicle, and the defendant owner has moved to strike that count, based on a claim of legal insufficiency. The defendant owner contends that the allegations of the recklessness count do not assert factual claims that could rise to the level of recklessness if proven, such that that count should be stricken.
The standards for a motion to strike are sufficiently well-established that they do not need to be recited in detail. See, e.g., Strano v. Azzinaro, 188 Conn.App.183, 187, 204 A.3d 705, 707 (2019). In summary form, the court is to determine whether the factual allegations of the complaint, accepting them as true and giving the nonmoving party the benefit of all reasonable favorable inferences, are sufficient to establish a legally-cognizable claim being pursued by the non-moving party.
In his objection, the plaintiff seems to think that the defendant actually is making two independent arguments- the conduct and circumstances alleged are not sufficiently egregious to constitute recklessness, and the recklessness count is inherently flawed because the allegations of recklessness are essentially identical to the allegations of negligence directed to the defendant owner. The court does not perceive there to be two separate claims of legal insufficiency, but rather that the identical nature of the allegations is an aspect of the claim that the recklessness count does not allege facts and circumstances rising to the level of recklessness. In effect, the defendant is arguing that the fact that the counts are linguistically indistinguishable establishes or confirms that the counts are legally indistinguishable as well- that the recklessness count only asserts claims constituting negligence.
In asserting that the defendant owner was negligent as well as reckless, the plaintiff refers to a variety of regulatory procedures and directives relating to motor vehicles with modified operating controls, and particularly those cautioning/warning against entrusting a modified vehicle to an operator not appropriately trained to operate such a vehicle. Assuming the existence of such authorities (discussed below), the starting point would appear to be the premise that the defendant owner should not have entrusted his vehicle to the defendant operator/valet. Even or perhaps especially starting with that premise, the defendant owner contends that the absence of any further allegations relating to aggravating circumstances precludes characterization of those claims as anything beyond negligence.
The court is well aware of the somewhat related split of authority relating to recklessness in the operation of a motor vehicle with many courts taking the position that the same allegations (or same allegations with minimal modifications) can assert recklessness as were used to justify a claim of negligence. Other courts take the position that there must be significant additional factually-aggravating circumstances for the claim to rise to the level of recklessness. This court is sensitive to the context-sensitive nature of factual allegations. Driving at 50 mph through a "school zone" might well be deemed reckless (in addition to negligent) based solely on the speed, if it occurs at about 3 P.M. (dismissal time), but likely would be more difficult to characterize as reckless if it occurred at 3 A.M. Thus, a single allegation that a defendant had been driving a vehicle at a high rate of speed through a school zone around dismissal time might seem to be sufficient to establish negligence as well as recklessness, without any further differentiation, depending on factual details.
Another factor that this court considers is the sequential nature of pleadings. In most instances, a claim of negligence is asserted prior to a claim of recklessness directed to the same defendant. However, if the recklessness count were to be asserted first rather than after a negligence count, would it suffice? To put it another way, if the recklessness count were to be viewed in isolation without regard to the existence or location of a negligence count, with the allegations suffice to assert a legally sufficient claim of recklessness?
This case, however, does not implicate those considerations or modes of analysis. This case does not involve the actual operation of a motor vehicle involved in an accident, but rather entrustment of the motor vehicle. As will be discussed immediately below, there is less of a continuum of conduct and more of a discrete or binary quality to negligent entrustment. Therefore, the court believes is best to start with the requirements for a cognizable claim of negligent entrustment, before proceeding to determine whether the plaintiff has alleged a claim of reckless entrustment (assuming that there is such a cause of action).
Cases involving claims of negligent entrustment regularly look to the seminal case of Greeley v. Cunningham, 116 Conn. 515 (1933):
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 entrusting the automobile to the incompetent driver. 116 Conn. 520.
Recently (if in a different context), our Supreme Court indicated its continued adherence to the principles articulated in Greeley and declined an invitation to expand or modify the concept of negligent entrustment. Soto v. Bushmaster Firearms International, LLC, 331 Conn. 53, 75-85, 202 A.3d 262, 278-83 (2019).
As discussed by this court in Maisonette v. Gromiller, No. FSTCV 176031477S, 2018 WL 3203887 (Conn.Super.Ct. June 5, 2018), the constructive knowledge prong ("ought reasonably to know") does not generally incorporate a duty to investigate, especially in the absence of any circumstances that would suggest an investigation was necessary. The focus is on what the defendant actually knew, and whether that knowledge was sufficient to know that the operator was not fit to drive or was sufficient to put the owner on notice of facts from which that conclusion could or should have been drawn.
For example, the court briefly discussed Peterson v. Swain, No. CV055001192S, 2010 WL 1795883 (Conn.Super.Ct. Apr. 6, 2010), where the facts were deemed sufficient to present a material issue of fact as to whether the lessor was on notice of potential problems with the information provided by a prospective lessee of a motor vehicle, sufficient to preclude summary judgment in favor of the lessor. (The facts relating to a 2003 transaction, as recited at *7, were: "Twenty-five-year-old Swain presented a Texas driver’s license, which listed a date of birth of June 17, 1937, as proof that he was the sixty-six-year-old Raider. On the business credit application, Swain represented that he had been self-employed as a dentist for nearly forty years, a period of time extending more than 15 years before he had been born. He also represented that he had been a resident of Connecticut for nearly two years, but presented an out-of-state driver’s license. The temporary insurance card issued by Progressive indicated that the policy was taken out in Life Dental’s name, but there was evidence that the card was actually taken out in Swain’s name.")
There is no claim in the complaint that defendant Anderson had actual knowledge that the valet driver to whom he entrusted his vehicle was unqualified/incompetent to drive his modified vehicle. There is no assertion or implication that he had asked the valet driver (or if there was a supervisor, any supervisor) about qualifications to drive his modified vehicle, and if anything, the import of his allegations of negligence is that it is claimed to be blameworthy that there was no such inquiry. There is no allegation that the defendant owner was told that the valet was unqualified/incompetent to drive his modified vehicle.
Against this backdrop, the essence of the claims of the plaintiff is that the defendant owner was negligent in entrusting his vehicle to the valet driver because he should have assumed incompetence to drive (for all of the reasons stated in the specifications of negligence) or at a minimum should have inquired about qualifications based on such considerations (notwithstanding the general proposition that inquiry is not required in an entrustment scenario).
The point of this exercise is that actual or constructive knowledge of the incompetence/incapability of the valet to operate the defendant owner’s vehicle safely is a necessary component of the claim of negligence directed to that owner. Therefore, since knowledge (actual or constructive) and a failure to act on that knowledge are already required for negligent entrustment, what is the potential aggravating factor that might permit these facts to be characterized as proof of recklessness? This is not a situation where there are explicit or implicit increased risks, above and beyond those associated with negligent entrustment- if anything, the risks were implicitly circumscribed by virtue of the fact that the vehicle was not being turned over to an incompetent driver for use on a public road but rather for use within a parking lot (valet parking).
The court need not address the question of the nature of circumstances which might be sufficient to constitute reckless entrustment (assuming that such a cause of action is to be recognized). It is sufficient for purposes of this motion and analysis, however, to recognize that the factual allegations of recklessness are indistinguishable from those alleging negligence, except insofar as there are conclusory assertions of an aggravated mental state (recklessness). If a claim of negligent entrustment implicates- requires!- knowledge that the vehicle was being entrusted to an incompetent driver, how does the same factual predicate also rise to the level of recklessness, without some further factual assertion of aggravating circumstances? It is a simple yes-or-no as to knowledge (actual or constructive) and the plaintiff has not identified or suggested any possible aggravating factor that would not exist in all negligent entrustment scenarios involving modified vehicles.
One is guilty of reckless misconduct when knowing or having reason to know of facts which would lead a reasonable [person] to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him. (Internal quotation marks and citation, omitted.) Craig v. Driscoll, 64 Conn.App. 699, 721, 781 A.2d 440, 454 (2001), aff’d, 262 Conn. 312, 813 A.2d 1003 (2003).
The plaintiff appears to be treating the failure to ascertain or assure that the permissive use of a handicap-modified vehicle as presumptive recklessness on the part of the owner- because all such owner-drivers will have received substantially the same training and associated warnings identified by the plaintiff. While the court can conceive of a scenario where there might be a legally-plausible claim of reckless entrustment, e.g., entrusting a modified vehicle to an underage intoxicated driver, there is nothing in the complaint suggesting anything other than a factually-garden-variety entrustment of a modified vehicle to an individual not trained in the operation of a modified vehicle.
The plaintiff cites and relies upon Craig v. Driscoll, 262 Conn. 312, 341-43, 813 A.2d 1003 (2003), for the proposition that the addition of a characterization of conduct as reckless, when that conduct previously has been characterized as negligent, can suffice to assert a legally-sufficient claim of recklessness. The court already has acknowledged that in many situations, the same general description of conduct can suffice for recklessness even if there is no verbal distinction from the conduct characterized as negligent other than addition of the claim that the conduct was reckless (e.g., speeding in a school zone scenario). In the case of negligent entrustment, however, there is something of a binary quality- either the owner knew or had reason to know that the driver was incompetent/unqualified to drive, or he did not have such actual or constructive knowledge. The court cannot conceive of a cognizable continuum as to the existence of knowledge of incompetence, where beyond a certain level the existence of that knowledge could rise to the level of recklessness. This must be distinguished from the substance of the knowledge- again, as already noted, if the vehicle had been entrusted to someone with additional qualities of incompetence beyond mere lack of training and operation of the modified vehicle, such as being under-age and/or intoxicated, those additional factors might well justify a claim of recklessness. Here, at the risk of being repetitious, the only claim is that there was negligent entrustment because the driver was incompetent because he had not been trained to operate a modified vehicle.
Thus, in Craig, the court noted that recklessness could be inferred from the allegations that in addition to furnishing alcohol to an intoxicated individual, "[t]he allegation of a specific policy to continue to serve alcohol to a particular patron, who is known to have an excessive drinking problem, while that patron already is intoxicated, with the knowledge that that patron would be operating a motor vehicle upon leaving the bar reflects wilful, wanton and reckless conduct sufficient to survive a motion to strike." Unlike Craig, here there are no facts explicit or implied beyond the mere negligent entrustment of a vehicle to an individual not trained to operate it due to its modifications. To be comparable, Craig would have had to have relied upon nothing more than an assertion that the customer had been served at a time that he was known to be intoxicated.
Indeed, the court notes that while the plaintiff has claimed legal authority for an obligation to ensure that a modified vehicle is only to be operated by an individual trained to use the vehicle, the identified authorities do not appear to have any binding or compulsory quality in that regard- and to the extent that the court has been able to locate them on-line, they do not appear to contain any affirmative directives/prohibitions as suggested by the plaintiff. The publications/guides identified by the plaintiff do not have the force of law because they appear to be just that- guides- and even if they contained language prohibiting entrusting a modified vehicle to someone not trained, that would not create any legal duty, except to the extent that they incorporated directives from duly promulgated regulations or statutes. The same is true of the reference to the Federal Register; see, footnote 3. The Federal Register reference, in turn, concerns adoption of provisions in the Code of Federal Regulations relating to modified vehicles, which do have the force of law, but the court was unable to find any specific language in the relevant/referenced sections (Subpart C of 49 CFR 595 (§ 595.6 et seq.)) addressing the need for training of a third-party operator before a vehicle was entrusted to such third party. Rather, the focus is on mandated safety equipment that might be impacted by modifications for use by persons unable to operate an unmodified vehicle.
The court located DOT SH 810 733 and could not find any language even warning an owner about entrusting a modified vehicle to an untrained operator much less suggesting a prohibition on such use. The only language the court could locate relating to "other drivers" makes no mention of a prerequisite of training on the modified vehicle. ("Finally, remember to enlist the help of a family member or friend to drive you to all of your training sessions. (It’s important to have someone else who can drive your vehicle in case of an emergency.") The plaintiff refers to a state guide- "BRS publication revised 2012"- and although the court found a guide on-line (https://portal.ct.gov/DORS/Content-Pages/Programs/Driver-Training-Program), this document may not be the one intended by the plaintiff and notably does not contain any language suggestive of the proposition that modified vehicles should not be operated by individuals not trained in their use. (The court also found a brief and clearly-older on-line publication at http://www.ct.gov/dmv/LIB/dmv/20/29/handi.pdf which again does not contain any language suggestive of a warning much less prohibition relating to operation of modified vehicles but persons not specially trained.) Again, a guide or publication (not claimed to summarize or recite language from a regulation or statute (and no regulation or statute has been identified)) would not be binding or mandatory. The defendant also refers to Federal Register 49 CFR Part 595 published February 27, 2001 Part III, Volume 66 No. 39 Tuesday February 27, 2001, without specific page identification. (https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/mvss/66FedReg7 2001 595-FinalRule.pdf.) The court has reviewed the discussion of 49 CFR 595 without locating any language suggestive of a directive that modified vehicles should not be operated by individuals not trained in their use (and the Federal Register was being used to announce promulgation of rules, as codified in the Code of Federal Regulations- it is not itself a codification of applicable statutes or regulations). At Page 16426, there is a reference to consideration of the possible operation of a modified vehicle by a non-handicapped operator ("The California Department of Rehabilitation argued that pedals should not be removed or blocked by adaptive equipment because non-disabled individuals need to be able to drive vehicle if necessary") but the court was unable to locate language relating to the conditions under which a non-disabled (non-trained) operator should be permitted to operate a modified vehicle.
At the bottom of page 6 of his brief, the plaintiff states that "[t]here was also standard warning decals stating that said vehicle was a modified vehicle and should not be operated by an untrained driver." There is no corresponding allegation in the complaint and he does not identify the authority or purpose of such a label- and he does not claim to be quoting the actual language used. There is legal authority for a label, but not one addressing who should or should not operate the modified vehicle. 49 CFR 595.7(d) requires a label and mandates that the label is to provide information about the modifier of the vehicle and the modifications; the only required warning-type language relates to possible impact on safety features. ("This vehicle has been modified in accordance with 49 CFR 595.6 and may no longer comply with all Federal Motor Vehicle Safety Standards in effect at the time of its original manufacture.")
Notwithstanding the court’s inability to find language addressed to non-disabled drivers in the authorities identified by the plaintiff, the court will review the language as quoted in the plaintiff’s brief- notwithstanding the "speaking" quality of such references (given their lack of status as "law" to which reference can be made).
The NHTSA’s own brochure on adaptive vehicles for persons with disabilities as cited in Plaintiff’s second count mandates that "both new and experienced drivers need training on how to safely use newly installed adaptive equipment." They further state, "this equipment can be very complex. So it’s extremely important to obtain on the road training and practice with a driver rehabilitation specialist who has advanced expertise and knowledge of adaptive technologies[.]"
The State of Connecticut Bureau of Rehabilitation Services publication on Vehicle Modification as cited in Plaintiff’s second count states under the section of "Consumer Responsibilities" mandates that the disabled person must contact their Driver Training Program provider in order to get proper training and certification before certification of the vehicle and licensure is approved. "It is strongly recommended that you NOT take this vehicle on the road or attempt to use any of the new equipment until you have been properly Trained and Certified for Licensure to drive through the DTP[.]" (Emphasis omitted.)
These passages clearly are directed to the intended regular-end-user of the vehicle- the person in need of the modifications- without any apparent attention to drivers able to utilize standard controls. Indeed, as reflected in the discussions set forth in the Federal Register as cited by the plaintiff, there is a preference for modifications not to alter the functionality of standard installed controls, with specific discussions relating to the brake pedal (see footnote 3)- and unless a modification removed functionality of a standard control, the plaintiff does not explain why a non-disabled operator might need extensive (or any) training. Accentuating the distinction is that as already noted by the court, in this instance, there does not appear to have been any basis for a concern that the valet driver would "take this vehicle on the road." As previously noted, at least one of the publications cited by the plaintiff (DOT SH 810 733, as quoted in footnote 3) explicitly recognizes that there may be situations where a non-handicapped operator may need to operate the vehicle, and aside from the explicit recognition of such a scenario, there is no mention of ensuring that that driver be trained in operation of the modified vehicle prior to such operation.
Again, the issue before the court is not whether the defendant owner, knowing what he did and even considering the plaintiff’s proffered interpretation of various non-binding publications, should have known or assumed that the valet driver was untrained and therefore potentially "incompetent" to drive the vehicle. The issue of whether it was reasonable to act as the named defendant did, and whether there is a statutory/regulatory basis for potential liability for negligent entrustment, are not before the court at this time. The court was required to go through this analysis because a claim of recklessness requires something in the nature of an extreme departure from ordinary care (see, e.g., Gilman v. Shames, 189 Conn.App. 736, 745 (2019)), and in order to assess the sufficiency of the claim of recklessness, the court needs to have an understanding of the basis for claiming a duty that the plaintiff contends was not merely ignored but egregiously ignored.
Again, Craig, as relied upon by the plaintiff, implicitly recognized the need for something more- explicit or implicit- than negligence, to allow a claim of recklessness to survive a motion to strike. There is no "something more" explicit or implicit in the claim of recklessness.
The court, then, is left with common-law principles and possible references (seemingly more accurately, inferences) in non-binding governmental publications to the undesirability of allowing untrained operators of modified vehicles. With those applicable standards, the court cannot conclude that the mere substitution of the word recklessness for negligence and/or similar non-factual changes suffice to allege a legally sufficient claim of recklessness.
Indeed, ¶11(b) of the second count of the then-operative complaint (#114.00)- presumably inadvertently- contained a reference to a negligent characterization of conduct rather than reckless. (This appears to have been corrected in the now-operative version of the complaint.)
The plaintiff implicitly is arguing that any time a handicapped owner of a motor vehicle entrusts his modified vehicle to a third party for something involving incidental driving such as valet parking, there is a sufficient basis for a claim of recklessness, based on nothing more than the owner’s experience in being trained and licensed in the operation of such a vehicle. The court cannot agree that such an inference is reasonable, and the public policy implications are of concern- handicapped drivers cannot use valet parking under threat of liability for recklessness, absent verification of qualifications of a valet driver.
Aside from issues relating to negligent entrustment, the owner could face liability under principles of vicarious liability applicable to permissive use of a motor vehicle by a third party, which would have no such apparent public policy implications.
There are other situations involving entrustment of a vehicle that involve incidental driving, such as bringing the vehicle to a repair or service station for an oil change or some car wash businesses that do not allow the owner to remain in the vehicle as it proceeds through the washing equipment.
Accordingly, the motion to strike is granted.
The court has reviewed 49 CFR 595, the subject of the cited material in the Federal Register, which is discussed in the body of this decision.