Opinion
CV166059411S
04-06-2017
Kristin Hutchins v. Metro Taxi Company, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#114)
Robin L. Wilson, J.
FACTS
This action arises out of an incident that occurred on or about January 1, 2014. The plaintiff, Kristin Hutchins, alleges that she was assaulted while traveling as a passenger in the taxi cab of the defendants, Transportation General, Inc. (Transportation) and Samuel Opare (Opare). On December 29, 2015, the plaintiff filed a two-count complaint in this matter, with both counts sounding in negligence. In the complaint, the plaintiff alleges the following facts. On or about January 1, 2014, at approximately 2:00 a.m., the plaintiff called for taxi transport to the corner of Chapel and Ferry Streets, and a taxi cab arrived approximately thirty minutes later. The plaintiff and her husband climbed into the back seat and closed the doors, with the plaintiff sitting behind the driver, who was later identified as Samuel Opare. Two males suddenly approached the driver side of the taxi cab, opened the rear door, and became verbally abusive toward the plaintiff. The plaintiff closed the cab door and struggled with one of the males for approximately five minutes to keep the door closed. During the struggle, Opare did not lock the doors and the taxi remained stationary, despite the plaintiff and her husband yelling at him to " Go." One of the males punched the plaintiff in the mouth with a " fistful of brass knuckles" and the plaintiff was " hurled across the seat." Compl., p. 2, ¶ 10-11. The plaintiff's lip was bleeding profusely, at which time Opare gave her a cloth to control the bleeding and finally sped away from the scene. The plaintiff suffered injuries as a result of Opare's negligence in that he did not lock the doors of the vehicle, he maintained the vehicle's stationary position, and he did not drive away from the scene. At the time of the incident, Opare was " the agent, servant and/or employee" of Transportation, and " he was operating the taxicab within the scope of his agency and/or employment, or was operating said vehicle with the permission of the owner; or within the scope of his general authority to do so." Compl., p. 2-3, ¶ 13. The incident was due to the negligence and carelessness of Transportation in that it negligently entrusted its motor vehicle to Opare who was not properly trained. The plaintiff seeks compensatory damages for expenses from medical care and treatment.
At the time the complaint was filed, the allegations contained therein were directed against Metro Taxi Company, Inc. and John Doe, as the plaintiff was unaware of the name of the driver. On September 21, 2016, the plaintiff filed two motions to substitute, the first motion seeking to substitute Transportation General, Inc. for Metro Taxi Company, Inc., and the second motion seeking to substitute Samuel Opare for John Doe. The court granted both motions on January 5, 2017.
On April 6, 2016, the defendants filed an answer and three special defenses. On April 12, 2016, the plaintiff filed a reply to the special defenses, denying all of the material allegations contained therein. On November 1, 2016, the defendants filed a motion for summary judgment, accompanied by a revised supporting memorandum of law and a copy of the plaintiff's responses to the defendants' Request for Admissions. On December 14, 2016, the plaintiff filed an objection to the defendants' motion for summary judgment, accompanied by a supporting memorandum in opposition and a copy of the plaintiff's responses to the defendants' Request for Admissions. Oral argument was heard on the motion at short calendar on December 19, 2016.
DISCUSSION
" 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 . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts 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 . . . A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015).
" Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). " Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). " The 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.
The defendants argue that they are entitled to summary judgment because the defendants owed no duty to the plaintiff, and therefore, the plaintiff cannot maintain a negligence action. Specifically, the defendants argue that they had no duty to aid or protect the plaintiff from an unanticipated third-party assault. The plaintiff counters that there is a genuine issue of material fact as to whether the defendants had a duty to protect the plaintiff. The plaintiff further argues that there is a question of fact as to whether the attack was a foreseeable occurrence.
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . [T]here can be no actionable negligence . . . unless there exists a cognizable duty of care." (Citation omitted; internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n.13, 849 A.2d 813 (2004). " [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004).
" [G]enerally, [there] is no duty that obligates one party to aid or to protect another party . . . One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another." (Citation omitted; internal quotation marks omitted.) Id. This special relationship arises in a common carrier, and therefore, " [a] common carrier . . . has a duty to use the utmost care consistent with the nature of its business to guard its passengers against all dangers which might reasonably and naturally be expected to occur, in view of all the circumstances." (Citations omitted; internal quotation marks omitted.) Green v. H.N.S. Management Co., 91 Conn.App. 751, 758, 881 A.2d 1072 (2005), cert. denied, 277 Conn. 909, 894 A.2d 990 (2006).
At oral argument, the defendants conceded that Metro Taxi is a common carrier, and therefore this fact is undisputed. See also Shay v. Norwalk, Taxi, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-12-6012737-S, Docket No. CV-12-6013544-S (March 7, 2013, Tobin, J.T.R.) (55 Conn.L.Rptr. 755, ) (taxi company defendant operated common carrier business); Gilmore v. Acme Taxi Co., 349 Mass. 651, 652, 212 N.E.2d 235 (1965) (cab company held to duty of care of common carrier). Therefore, there is no question of fact regarding whether the defendants had a heightened duty of care to aid or protect their passengers. As such, the court must next consider whether, even with the heightened duty of care imposed, the defendants had a duty to protect the plaintiff against the criminal acts of a third party, where the attack was not reasonably foreseeable.
" The high standard of care to which a common carrier is held . . . does not make it an insurer of the plaintiff's safety . . . [A] common carrier is not required to guard a passenger against all hazards . . ." (Citations omitted; internal quotation marks omitted.) Green v. H.N.S. Management Co., supra, 91 Conn.App. 759. " The general rule . . . is that the carrier is bound to warn passengers of a danger when the circumstances are such that the carrier ought reasonably to foresee that it exists and that a passenger would not, in the exercise of reasonable care, be likely to observe and apprehend it." Bowes v. New England Transportation Co., 126 Conn. 200, 205, 10 A.2d 589 (1940).
Connecticut courts have considered the relationship between the duty of a common carrier and the criminal acts of a third party to a limited extent. One trial court has, however, considered the duty owed by a bus driver to protect its passengers against a third party's criminal conduct. In Johnson v. Connecticut Transit Management, Inc., 39 Conn.Supp. 301, 463 A.2d 625 (1983), the plaintiff was on the defendants' bus in downtown Hartford, when the plaintiff noticed many of the windows were broken and the seats and aisles were covered with broken glass. Id., 302-03. As the plaintiff turned to sit down, something was thrown through the window and his face was peppered with granules of shattered glass; the driver told the passengers to keep their heads down and proceeded to downtown Hartford by a different route. Id., 303. The question presented to the court was whether the defendants were negligent by continuing to board passengers at a time when riotous conduct was taking place and bringing the damaged bus back to the location of such conduct, and whether the defendants breached a duty owed to the passengers. Id. The court stated that " [i]n defining the level of due care required in a given circumstance, it is not necessary that the defendant have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Emphasis omitted; internal quotation marks omitted.) Id., 303-04. The defendants pointed to the total lack of specific history or knowledge concerning the unknown assailant, but in applying the test, the court held that " it was foreseeable . . . that the damaged condition of the bus as it proceeded back toward the city, the site of the earlier damage, would invite further missile throwing which, in fact, was precisely what happened." Id., 304.
In Walker v. Metropolitan Atlanta Rapid Transit Authority, 226 Ga.App. 793, 487 S.E.2d 498, 500 (1997), the court considered whether the defendant, a common carrier, was entitled to summary judgment where the criminal conduct of a third party was unforeseeable. In that case, the plaintiff was on the platform of the Georgia State MARTA station when, suddenly and without provocation, two unknown individuals grabbed him and threw him onto the tracks. Id. The plaintiff subsequently sued the defendant, MARTA, and alleged that they were negligent in three ways: " failure to provide adequate security, failure to make an incident report, and failure to render aid." Id. In granting the defendant's motion, the court pointed to the absence of evidence of prior violent and assaultive conduct or any other evidence of foreseeability, and stated that " [the plaintiff] must show MARTA to have knowledge of conditions likely to result in an assault upon a passenger." Id., 502.
In Tortes v. King County, 119 Wn.App. 1, 84 P.3d 252 (2003), the court considered whether the defendant, the Municipality of Metropolitan Seattle, was entitled to summary judgment in a negligence action where the defendant was a common carrier. In that case, a third party approached the bus driver while the bus was moving, shot and killed the driver, and then immediately shot himself in the head. Id., 255. The bus fell off a bridge and a passenger on the bus sustained injuries and brought the negligence action against the defendant, alleging that the defendant was negligent because it should have provided a greater police presence. Id. In affirming the trial court's decision granting the defendant's motion for summary judgment, the court reasoned that " as a general rule, a common carrier is not required to take measures to protect its passengers from the unforeseen intentional misconduct or criminal acts of third persons." Id. The court further stated that while " it is . . . true that a common carrier owes the highest degree of care to its passengers . . . the duty or standard of care owed by a common carrier is not one of strict liability. A common carrier is not the insurer of its passengers' safety, and negligence should not be presumed or inferred from the mere happening of an accident." Id. Thus, absent evidence of prior violent crimes on the defendant's busses, or evidence that the defendant knew the third party had excessively dangerous propensities, the plaintiff was unable to show that the defendant violated a duty of care. Id.
Although not factually similar to the present case, the legal concept of duty and the foreseeability of criminal acts of third parties, and the evidence required to establish foreseeability in such a case, is set forth in the seminal case of Monk v. Temple George Associates, LLC, 273 Conn. 108, 869 A.2d 179 (2005). In Monk, the plaintiff attended a New Haven nightclub and parked her car at the defendants' parking lot for a fee. While in the nightclub, Denson, the former girlfriend of the plaintiff's husband, verbally confronted the plaintiff, as she had done on a prior occasion two months earlier. The plaintiff left the nightclub, and Denson followed the plaintiff into the parking lot, continuing the verbal attack. Denson then physically attacked the plaintiff in the defendant's parking lot. The plaintiff sued Temple George Associates, the owner of the parking lot. Temple George moved for summary judgment on grounds that it did not owe the plaintiff a duty. The trial court granted the motion for summary judgment on the ground that it is inconsistent with public policy to impose on parking lot owners and managers a duty of care to business invitees who are attacked intentionally on the premises by assailants with whom the invitees are acquainted. The Appellate Court affirmed the trial court's ruling on the motion for summary judgment and the Supreme Court reversed. Before addressing the policy concerns regarding the imposition of a duty of care on specific types of defendants, the Supreme Court first set out to determine whether under the foreseeability prong a duty existed according to law, absent other considerations. The court determined that it did. In addressing the foreseeability prong, the court stated: " Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action . . . The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . [In other words], would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Citations omitted; internal quotation marks omitted.) Id., 115. The court concluded based upon the evidence that was submitted in support of the motion that " the defendant's lot was located in the nightclub area of New Haven, a major Connecticut city. The defendants conducted business during the evening hours, at a time when many people would be seeking parking for the purpose of attending the clubs in the surrounding area. According to [the plaintiff's expert] Sullivan's report, 'serious crimes had occurred in the vicinity prior to this incident . . . [and the] [d]efendants knew or should have known that such serious crimes occurred. The police department deployment for crowd control was another cue that should have alerted [the] defendants to the risk of personal injury or property damage to patrons' vehicles or persons . . . [Moreover] [a]lthough lighting in the lot appeared to be adequate at the time of [Sullivan's] inspection, the obscured site lines from the street created an opportunity for someone to commit an assault out of the view of the police who were posted nearby."
" It seems quite foreseeable that, under these circumstances, an attack on a patron of the premises could occur, whether spontaneously or as precipitated by an argument at one of the neighboring nightclubs. It also is probable that the presence of a parking attendant would have decreased the likelihood that such an attack would occur. Indeed, Sullivan makes these very conclusions in his report.
" Additionally, the defendants' reliance on the fact that the attack was intentional and therefore constituted an intervening cause is unavailing because, in Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 609, 662 A.2d 753 (1995), this court: (1) affirmed a judgment against a parking garage owner on whose unattended premises a woman was murdered; and (2) expressly disavowed any intention to elevate the burden of proof in premises liability claims involving criminal or intentional acts beyond foreseeability. One of the determining factors in our conclusion in Stewart that the murder was foreseeable was the history of criminal activity in and around the garage . This is also a factor that Sullivan described and relied on in his report. Accordingly, it was reasonably foreseeable that a criminal assault of the general nature of the one perpetrated against the plaintiff in the present case might occur on the premises." (Emphasis added; footnotes omitted.) Id., 115-16.
In the present case, both parties agree that the approach of the unknown assailants was sudden. Moreover, there was no evidence presented to show that the approach could be considered foreseeable, nor was evidence presented to the court to show that the defendants had knowledge of prior similar violent acts in the area, or of any violent acts in general in the area. Thus, an ordinary person in the defendants' position, knowing what the defendant knew or should have known, would not have anticipated an attack of this nature against the plaintiff. The defendants therefore have met their burden of demonstrating that the initial approach and subsequent attack were unforeseeable acts from which they owed no duty to protect the plaintiff. The plaintiff further argues that, while the approach was unforeseeable, the actual attack was foreseeable because of the length of the encounter. The plaintiff alleged that during the encounter, the plaintiff was struggling to close the door while one of the unknown assailants attempted to open it, and that the " dangerous confrontation went on for five minutes, or longer." Pl.'s Opp'n Mot. Summ. J., p. 5. This statement is conclusory, however, regarding the length of the encounter, and no additional evidence was presented on this point. In attempting to demonstrate the existence of a material fact, the plaintiff must provide an evidentiary foundation. See Stuart v. Freiberg, supra, 316 Conn. 821. Therefore, the plaintiff fails in demonstrating the existence of a material fact as to whether the physical attack on the plaintiff was foreseeable. Accordingly, the defendants' motion for summary judgment is granted on the ground that the criminal conduct of the third parties was unforeseeable, and thus, the defendants did not owe a duty to protect the plaintiff against such conduct.
At short calendar, the plaintiff referenced Doe v. Terry, Superior Court, judicial district of Waterbury, Docket No. CV-08-5008897-S, (January 10, 2011, Shaban, J.). In that case, the defendant taxicab driver was found to be negligent when he allowed another person (Terry) to accompany him in the taxicab while he was driving the plaintiff to her home. Id. The defendant subsequently exited the taxicab, and instructed Terry to drive the plaintiff home, after which Terry sexually and physically assaulted her. Id. A jury found that the defendant was negligent and that his negligence was a substantial factor in causing the plaintiff's injuries. Doe, however, is distinguishable from the present case because in that case there was evidence that the defendant knew who Terry was, allowed him to enter the taxicab, and then allowed him to drive the plaintiff home by himself Id. In the present case, the assailants were unknown to both parties, and they suddenly approached the taxicab, after which the assault occurred. Here, there is simply no evidence to show that an attack of this nature was foreseeable. Therefore, a finding of negligence in Doe does not support a finding of negligence or that a duty existed in the present case. The Doe case is therefore not persuasive authority.
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is granted.