Opinion
HHDCV156059825S
01-30-2017
Tomasz Lazuk v. First Student, Inc., et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE: MOTION FOR SUMMARY JUDGMENT (#125) & MOTION FOR SUMMARY JUDGMENT (#134)
Kevin G. Dubay, J.
The following procedural history is relevant to the motions presently before the court. On May 19, 2015, the plaintiff commenced this action through service of process upon the defendants. The plaintiff's ten-count complaint alleges the following: count one: First Student--Respondeat Superior; count two: First Student--Statutory Recklessness; count three: First Student--Common-Law Recklessness; count four: First Student--Negligent Entrustment; count five: Cintron-Contreras--Negligence; count six: Cintron-Contreras--Statutory Recklessness; count seven: Cintron-Contreras--Common-Law Recklessness; count eight: Mercedes-Benz--Respondeat Superior; count nine: Mercedes-Benz--Statutory Recklessness; count ten: Mercedes-Benz--Common-Law Recklessness. On November 2, 2015, the defendants filed their answer, denying the allegations and leaving the plaintiff to his proof.
The plaintiff's motion for default for failure to plead as to all defendants was granted by the clerk on October 30, 2015. Pursuant to Practice Book § 17-32(b), upon the defendant's filing of their answer, the default was automatically set aside by operation of law since judgment had not yet been rendered.
On September 28, 2016, the defendant, Mercedes-Benz, moved for summary judgment (Entry 125), on the ground that counts eight, nine and ten of the plaintiff's complaint are preempted by the Graves Amendment, 49 U.S.C. § 30106. On September 30, 2016, all defendants moved for summary judgment (Entry 134) as to counts two, three, four, six, seven, and nine of the plaintiff's complaint. The plaintiff filed her objection on December 8, 2016, after which the defendants filed their reply memorandum on January 5, 2017. The parties argued their respective positions before the court at short calendar on January 9, 2017.
DISCUSSION
" [S]ummary 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." (Internal quotation marks omitted.) Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). " The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Internal quotation marks omitted.) Bank of America, N.A. v. Aubut, 167 Conn.App. 347, 358, 143 A.3d 638 (2016).
In his memorandum in opposition, and at short calendar, the plaintiff did not object to the court granting summary judgment as to counts two, three, nine and ten. Accordingly, summary judgment is granted in favor of the defendants as to counts two, three, nine and ten.
The court also notes that no party has moved for summary judgment as to counts one and five. Thus, counts four, six, seven and eight remain for adjudication.
I
Count Four: Negligent Entrustment
Beginning, in sequential order with count four, negligent entrustment against First Student, the plaintiff alleges, inter alia., that First Student had actual or constructive notice that Cintron-Contreras was incompetent to drive a motor vehicle, because she had been involved in a prior collision, and was previously cited for motor vehicle violations. In their motion for summary judgment, the defendants argue that the plaintiff cannot establish a cause of action in negligent entrustment, as there is no evidence supporting prior infractions or convictions. In his opposition, the plaintiff counters that the defendants knew or should have known about Cintron-Contreras' prior felony conviction for tax fraud, and, that First Student had previously issued a written warning to Cintron-Contreras for driving while distracted.
When an 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." Greeley v. Cunningham, 116 Conn. 515, 520, 165 A. 678 (1933). " Superior Court cases applying the negligent entrustment doctrine established in Greeley note that Greeley adopted the approach set forth in the Restatement of Torts." Jordan v. Sabourin, Superior Court, judicial district of New London, Docket No. CV-96-0537041-S (November 22, 1996, Hurley, J.T.R.) (18 Conn.L.Rptr. 269, 270, Id. ).
The Restatement provides: " [o]ne 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." 2 Restatement (Second), Torts § 390 (1965).
Contrary to the defendants' argument, the comments to the Restatement emphasize that liability turns on the conduct of the supplier of the chattel, not the incompetence of the user. " The rule stated in this Section sets out the conditions under which a supplier of a chattel is subject to liability. As always this phrase denotes that a supplier is liable if, but only if, his conduct is the legal cause of the bodily harm complained of and if the person suffering the harm is not subject to any defense such as contributory negligence, which will prevent him from recovering damages therefor." (Emphasis added.) Id., comment (c). See also Prior v. Lang, Superior Court, judicial district of Tolland, Docket No. CV-07-5001248-S, (May 7, 2009, Bright, J.).
In the present case, there is no evidence in the record demonstrating First Student's actual or constructive knowledge that Cintron-Contreras was incompetent to operate a motor vehicle. In Shea v. Brown, 146 Conn. 631, 633, 153 A.2d 419 (1959), the Supreme Court held that a car dealership was not liable in negligent entrustment after a customer with a suspended driver's license caused a motor vehicle accident while test driving a car from the dealer's lot. In that case, the dealership failed to ascertain whether the driver possessed a valid driver's license prior loaning the vehicle. Id., 632. The Court reasoned that the plaintiff's evidence demonstrating that the driver's operator's license was suspended merely " showed that when he took the car for a trial he did not possess a license to operate on the public highways"; Id., 633; and failed to establish that the driver lacked the " skill, technique or capability necessary for the operation of an automobile." Id. In the present case, there is no showing that First Student knew that Cintron-Contreras was so unskilled as to be incapable of driving a motor vehicle. Moreover, even viewing the evidence in a light most favorable to the plaintiff, one prior collision and one written warning are insufficient in demonstrating the requisite incompetence necessitated by the rule. See Shah v. Brooks, Superior Court, judicial district of Hartford, Docket No. 99-0591221-S (September 27, 1999, Lavine, J.) (25 Conn.L.Rptr. 554, 555, Id. ) . Lastly, evidence of tax evasion bears no relevance in ascertaining an individual's competency to operate a motor vehicle. The defendants, therefore, have met their burden demonstrating the nonexistence of any material fact as to this issue. Accordingly, summary judgment is granted in favor of the defendants as to count four.
Counts Six and Seven: Recklessness
Counts Six and Seven allege statutory recklessness and common-law recklessness, respectively, against Cintron-Contreras. In their memorandum, the defendants argue that there is no evidence supporting the plaintiff's assertion that Cintron-Contreras was distracted from driving due to cell phone use at the time of the incident, and, additionally, that a brief distraction while driving is not indicative of recklessness. In response, the plaintiff argues that the issue of recklessness is unsuitable for summary judgment because it presents a question of fact. The plaintiff further argues that excessive speed may be proved by circumstantial evidence, such as evidence of vehicular damage. See Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 777, 83 A.3d 576 (2014) (" A plaintiff can prove the elements of negligence using either direct or circumstantial evidence"). In support of the allegation that Cintron-Contreras was traveling at an excessive speed, the plaintiff submits photographic evidence of the damage to both vehicles after the school bus rear-ended the plaintiff's car. Based upon the damage portrayed in the photographs, it is not unreasonable to conclude that a genuine issue of material fact exists as to whether the bus was travelling at an excessive rate of speed under the circumstances. Accordingly, summary judgment as to counts six and seven is denied.
The court notes that the plaintiff submitted unauthenticated evidence in support of its position. As a general rule, " [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.) Rockwell v. Quintner, 96 Conn.App. 221, 234 n.10, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). " However, where unauthenticated documents are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them." Grasson v. Salati, Superior Court, judicial district of New Haven, Docket No. CV-10-5033540-S, (March 21, 2013, Wilson, J.); see also Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). In the present case, the defendant has not made an evidentiary objection to the documents; therefore, the court may properly consider the unauthenticated evidence submitted by the plaintiff.
III
Count Eight: Respondeat Superior
In Count Eight, the plaintiff alleges the doctrine of Respondeat Superior, seeking to impose vicarious liability as against Mercedes-Benz. Mercedes-Benz separately moves for summary judgment as to this count in Entry 125, dated September 20, 2016. In its memorandum, the defendant argues that the allegations in Count Eight are preempted by the Graves Amendment, 49 U.S.C. § 30106. The Amendment essentially relieves owners of leased vehicles from liability for harm to persons or property if the owner is engaged in the business of renting or leasing motor vehicles, and when there is no negligence or criminal wrongdoing on the part of the owner. Id. Moreover, the defendant argues that Connecticut's Supreme Court embraces this same principle, as articulated in Rodriguez v. Testa, 296 Conn. 1, 26, 993 A.2d 955 (2010) (concluding that the Graves Amendment preempts state law and is a valid exercise of Congressional authority under the commerce clause of the United States constitution). The court agrees with the defendant. Accordingly, summary judgment is granted in favor of the defendants as to count eight.
CONCLUSION
Summary judgment is granted in part, and denied in part. The defendants' motions for summary judgment, Entries 125 and 134, are granted as to counts two, three, four, eight, nine, and ten. The defendants' motion for summary judgment, Entry 134, is denied as to counts six and seven. The court notes that no party has moved for summary judgment against count one or count five.