Summary
In Jackson v. Johnson, 9 Conn. App. 290, 518 A.2d 666 (1986), cert. denied, 202 Conn. 804, 519 A.2d 1208 (1987), this court determined that the defendant was not "operating" a motor vehicle within the terms of General Statutes 52-572c, a statutory exception to the doctrine of parental immunity.
Summary of this case from Rivera v. FoxOpinion
(4640)
The plaintiff, a minor who sought damages from his defendant mother for injuries he sustained when he rollerskated into the bent antenna of a car parked by the defendant in the driveway of the family home, appealed to this court after the trial court granted the defendant's motion for summary judgment. The plaintiff claimed that the doctrine of parental immunity, which prohibits negligence actions by unemancipated minors against their parents, was inapplicable to the facts here in light of the statute ( 52-572c) which abrogates that doctrine in actions to recover for injuries sustained as the result of negligence in the operation of a motor vehicle. Held that injuries, like those sustained by the plaintiff, which are unrelated to the movement of a vehicle do not arise In the course of the operation of a motor vehicle for the purposes of 52-572c.
Submitted on briefs October 10, 1986 —
Decision released December 16, 1986
Action to recover damages for personal injuries sustained as a result of the defendant's alleged negligence, brought to the Superior Court in the judicial district of Hartford-New Britain at Hartford where the court, Shaughnessy, J., granted the defendant's motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court. No error.
Michael W. Levy filed a brief for the appellant (plaintiff).
Robert C. Danaher filed a brief for the appellee (defendant).
This is an appeal from the granting of the defendant's motion for summary judgment. The plaintiff is the minor son of the defendant. He sustained injuries to his eye when he rollerskated into the bent antenna of a car which the defendant had parked in the driveway of the family home. The car had been loaned to the defendant by an automobile dealer while her own car was being repaired. It is not disputed that after the car had been parked, it stalled and could not be started again, that the defendant informed the dealer she could not start the car, that it was not moved until the dealer removed it a week later, and that the plaintiff's injuries were sustained two days after the car was parked.
The suit was instituted on behalf of the minor plaintiff by his sister. As used in this decision, the word plaintiff refers to the minor child.
The motion for summary judgment was granted because of the doctrine of parental immunity which prohibits negligence actions by unemancipated minors against their parents. The plaintiff claims that General Statutes 52-572c abrogated that doctrine on the facts of this case. That statute abolishes the usual immunity of a parent and child from suit against each other in actions brought by one against the other for negligence in the operation of a motor vehicle. The sole issue of this appeal, therefore, is whether the defendant was "operating" a motor vehicle at the time the plaintiff was injured.
General Statutes 52-572c provides: "In all actions for negligence in the operation of a motor vehicle, and in all actions accruing on or after October 1, 1979, for negligence in the operation of an aircraft or vessel, as defined in section 15-127, resulting in personal injury, wrongful death or injury to property, the immunity between parent and child in such negligence action brought by a parent against his child or by or on behalf of a child against his parent is abrogated."
The plaintiff also argues that this court should modify the doctrine of parental immunity in cases in which the parent has insurance. The doctrine has been modified to allow suits against a parent by a minor child for negligence if an injury occurs in the course of a business activity conducted by a parent away from the home. Dzenutis v. Dzenutis, 200 Conn. 290, 612 A.2d 130 (1986). Although the likely availability of insurance coverage, as is recognized by General Statutes 52-572c, may be pertinent in determining whether the doctrine should be abolished in certain types of cases' different rules of law should not be used for the insured and the uninsured. Id., 299. Since the prevalence of liability insurance probably exists in the same general degree in both the home and business scene, there appears to be little reason to retain the doctrine of parental immunity for negligence in the former case, but to abolish it in the latter case. The Supreme Court, however, has not yet so held. Dzenutis v. Dzenutis, supra, 299.
The term "operation" has been held to include situations in which the vehicle is parked or standing still provided that such a position is incident to travel. State v. Swift, 125 Conn. 399, 403-404, 6 A.2d 359 (1939); Nichols v. Watson, 119 Conn. 637, 640, 178 A. 427 (1935); Dewhirst v. Connecticut Co., 96 Conn. 389, 391-92, 114 A. 100 (1921); Stroud v. Water Commissioners, 90 Conn. 412, 414, 97 A. 336 (1916). However, a stop incident to movement is not the situation presented by the present case. Here, the record discloses that the car was disabled and had not been, nor could it be, moved by the defendant.
General Statutes 31-293a, allows suits against fellow employees, as an exception to the inability of one employee to sue another employee, in cases arising under the workers' compensation act if there is "negligence in the operation of a motor vehicle." Cases decided pursuant to that statute are instructive. General Statutes 31-293a and General Statutes 52-572c use identical language in framing the exception, and in this case we follow those cases which have interpreted General Statutes 31-293a. Injuries sustained which are unrelated to the movement of the vehicle, or the circumstances of the movement of the vehicle, do not arise in the course of the operation of the motor vehicle. Dias v. Adams, 189 Conn. 354, 360, 456 A.2d 309 (1983); Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 472 n. 1, 429 A.2d 943 (1980); Conti v. Rose Hill Poultry Co., 3 Conn. App. 246, 248, 486 A.2d 1145 (1985); Kegel v. McNeely, 2 Conn. App. 174, 178, 476 A.2d 641 (1984). In fact, as is the case here, "[a] car which is totally disabled cannot be said to have been operated." State v. Swift, supra, 404.