Opinion
FSTCV176031477S
06-05-2018
Ralph MAISONETTE v. Matthew GROMILLER
UNPUBLISHED OPINION
POVODATOR, J.
Nature of the Proceeding
Currently before the court is the motion for summary judgment filed by the defendant Hertz Corporation, arising from a motor vehicle accident in which one of its vehicles was involved. The issue before the court is whether Hertz can be held liable to the plaintiff for the accident giving rise to this action, based on a theory of negligent entrustment- allowing the defendant operator to rent the vehicle that subsequently was in the accident causing injury to the plaintiff.
The court will rely upon the plaintiff’s recitation of facts, with minimal modification as appropriate:
Plaintiff alleges that early in the morning of November 27, 2015, Defendant, Matthew Gromiller ... was operating a motor vehicle owned by [defendant] Hertz, headed northbound on I-95 on the southbound side and that Plaintiff was operating his vehicle headed southbound at that same time and place. [Defendant] Gromiller’s vehicle collided head on into the Plaintiff’s vehicle, causing Plaintiff severe and permanent injuries. Plaintiff pleads both negligence and recklessness against Defendant, alleging a number of specifications of conduct.
Plaintiff [has asserted] a separate claim against Hertz for negligently entrusting Gromiller with its vehicle. This claim asserts that Hertz was negligent in that it permitted, allowed or encouraged the Defendant Matthew Gromiller to operate their motor vehicle, although it knew or should have known that he was a careless and/or unsafe driver. Also, that Hertz knew or should have known of the Defendant Gromiller’s reckless driving history as Hertz previously rented multiple vehicles to the Defendant, Matthew Gromiller ...
Hertz has admitted its corporate status ... and has subsequently admitted in materials submitted in support of its Motion that it rented the vehicle in question to Gromiller ... [T]he affidavit of its representative, Jeremy Schneyman ..., submitted in support of the Motion admits that "[p]rior to November 27, 2015, the Hertz Corporation had rented vehicles to Mr. Gromiller" and that prior to that date Gromiller "had been involved in two accidents while operating a Hertz vehicle ..."
Schneyman also claims that "[t]here were no records in either of the two prior accidents to indicate that Mr. Gromiller was driving under the influence of drugs and/or alcohol" and that at the time of the rental in question "Hertz had no records concerning Mr. Gromiller’s previous driving history nor any criminal history, if any[.]" ...
Despite this claim by Hertz, Gromiller in his objection to the Motion has submitted multiple news reports of an incident that occurred in early 2012, approximately 3 years before the Hertz rental to Defendant at issue in this case. See Greg Cannel, Fairfield Cops Charge Man for Drugs in Rental Car, Fairfield Daily Voice, January 23, 2012, available at http://fairfield.dailyvoice.com/news/fairfield-cops-charge-man-for-drugsin-rental-car/463307/; Caitlin Mazzola, Man Returns Car to Fairfield Hertz with PCP Inside, Fairfield Patch, January 23, 2012, available at https://patch.com/connecticut/fairfield/man-returns-car-to-fairfield-hertz-with-pcp-inside; ops: Man charged after leaving illegal drugs in rental car, Fair field Citizen, January 24, 2012, available at http://www.fairfieldcitizenonline.com/news/article/Cops-Man-chargedafterleaving-illegal-drugs-in-2682745.php. Copies of these news reports are attached to Gromiller’s Objection as Exhibits A-1, A-2, and A-3, respectively. These reports describe an incident where Gromiller allegedly returned a rental vehicle to Hertz; Hertz had the vehicle cleaned; a bag containing powder was supposedly discovered in the vehicle during the cleaning; the employee(s) reported the matter to police; and police had the contents tested, which test results were positive for PCP. The existence of this incident creates a dispute over the significant factual question of what knowledge Hertz had (or should have had) regarding Mr. Gromiller at the time it rented him the vehicle in question here.
Somewhat unusually, the defendant driver also has filed an objection to the motion for summary judgment, claiming that he is an adverse party entitled to oppose the motion for summary judgment. He has filed an extensive brief, as well as his own affidavit, along with attached newspaper articles relating to the PCP incident described above (which articles appear to have been adopted by the plaintiff in his subsequent objection).
Actually, to be more accurate, his objection was filed prior to the plaintiff’s.
Defendant Hertz, in support of its motion, has submitted an affidavit (discussed above), negating any knowledge of facts suggesting incompetence of the defendant operator, at the time the vehicle was rented to him. The issue distills to whether the limited facts claimed to be known by Hertz, as augmented by the facts submitted by the defendant operator and the plaintiff, create a material issue of fact relating to Hertz’s knowledge of the possible incompetency of the defendant operator, sufficient to preclude summary judgment.
Discussion
The generally-applicable standards for summary judgment are sufficiently well-established that they do not need to be recited in detail. See, e.g., Windsor Federal Savings & Loan Assn. v. Reliable Mechanical Contractors, LLC, 175 Conn.App. 651, 658-59 (2017). At its most basic or simplified level, summary judgment may be granted if the moving party can establish "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." (Internal quotation marks and citation, omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228 (2015). This court sometimes refers to that lack of issue as to any material issue of fact as summary judgment certainty.
The parties generally are in agreement that the controlling appellate authority relating to negligent entrustment is set forth in 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 intrusting the automobile to the incompetent driver. 116 Conn. 520.
The plaintiff and the defendant driver do not dispute that current law prohibits vicarious liability based on Hertz’s having rented the vehicle to the defendant driver, based on the so-called Graves amendment, 49 U.S.C. § 30106. Therefore, only to the extent that Hertz can be found to have been negligent in its own conduct, might liability for this accident attach. Here, the negligence claimed is the rental of a vehicle (entrustment of a vehicle) to an incompetent operator/driver.
There are a number of issues that do not directly address that central issue- was Hertz negligent- but need to be addressed, so as to allow a clearer focus on that central issue. One such key issue is the extent to which there is or may be an obligation to investigate competence of a driver to whom a vehicle is about to be entrusted. Many, probably most, cases explicitly state that there is no such duty to investigate, but at least in some respects, there is a blurring of that distinction. To the extent that there is a "knew or should have known" standard, the issue of constructive knowledge often implicitly encompasses a duty to investigate, or something analogous to such a duty. For example, in a premises liability case, liability can be premised on the existence of an allegedly-defective condition for an extended period of time, based on a claim of constructive notice/knowledge, which in turn is premised on the theory that a reasonable owner or other person in control would have discovered the condition, if reasonable inspections, etc., had been performed, and would have had an opportunity to remedy it in time to avoid the accident. In essence, that is almost indistinguishable from a claimed breach of the duty to investigate. See, e.g., Fisher v. Big Y Foods, Inc., 298 Conn. 414, 434 n.26, 3 A.3d 919, 932 (2010).
Given the oft-repeated statement that for negligent entrustment, particularly of a motor vehicle in this type of scenario, liability cannot be premised on a failure to investigate, the court will adopt a somewhat narrower interpretation of constructive knowledge. As will be discussed below, there are certain facts that were either known or presumed to be known by Hertz, without any requirement of investigation, and the issue is whether those facts create a material issue of fact as to whether Hertz had actual or constructive knowledge that the defendant driver was incompetent.
Another sub-issue focuses on the objection to summary judgment by the defendant operator. Assuming that the defendant operator properly could join with the plaintiff in opposing the motion for summary judgment filed by Hertz, walking a tightrope between not admitting fault (or incompetence) but suggesting in the alternative that Hertz was on notice that it should not have rented a vehicle to him, and especially given the plaintiff’s reliance on the factual submission by the defendant operator, the actual submission by the defendant operator requires careful scrutiny.
Pursuant to Practice Book § 17-46, affidavits and other submitted materials must present evidence that would be admissible at trial (substituting an affidavit for presentation of sworn oral testimony). Given that baseline, the admissibility of a newspaper article would seem to depend upon the purpose for which it is proffered. Here, it seems to be an effort to present to the court facts set forth in those articles, facts otherwise generally set forth in the defendant operator’s affidavit- when he had returned a rented motor vehicle in or around 2012, a Hertz employee had found an illegal substance in the vehicle, and had called the police, leading to the arrest of the defendant operator. Other than adding a notion that the arrest was widely reported (at least locally), it is not at all clear how this supposedly adds to the information known or knowable to Hertz, for purposes of determining whether it should have known that the defendant operator was sufficiently incompetent that the vehicle should not have been rented to him.
In this regard, the court must note that both the affidavit of the defendant operator as well as newspaper articles, fail to address what would have been a more significant fact, and to a degree actually tend to negate such a fact. The plaintiff and defendant operator appear to be suggesting that drug possession (PCP) is somehow indicative of incompetence in driving (at least as a matter of historical incompetence). There is no indication, however, of use of PCP at the time, and the newspaper articles seem to indicate that there was a sufficient quantity (or there were other items found) indicative of possession with intent to distribute if not outright manufacturing of the substance. It would appear to be speculative to claim to infer that someone with sufficient quantity of drugs as to be arrested for such a charge, or in possession of other paraphernalia suggestive of distribution or manufacture, would also be a user, and a user while operating a vehicle. The defendant operator, who is (would have been) in a unique position to have addressed this issue, is silent as to whether he had been under the influence of PCP or any other substance, at the time of his operation of the motor vehicle in 2012. (He also is silent as to being under the influence of alcohol or any drug at the time of this incident.)
Similarly, there also is evidence of the defendant operator having been in two prior accidents while operating Hertz vehicles. There is no indication as to the period of time during which those two accidents had occurred (relative to the subject rental), and more importantly, there is no indication that the defendant operator had been at fault for either or both of those accidents. (There also is no indication of severity.) Again, the defendant operator would seem to be in a particularly unique position to have addressed these questions, but there is no suggestion in his affidavit as to whether he was (or had been found to be) at fault for either or both of those prior accidents or whether there was any severity to the damage that might have been caused or sustained. The fact that he reported the accidents to the company, in a timely manner, presumably means nothing more than that he had acted responsibly, presumably in compliance with the requirements of his rental agreement to do so. Further, even if the defendant operator had been at fault for either or both of those accidents, neither the plaintiff nor defendant operator has submitted any convincing authority that having been in two accidents (again, of unknown severity), over the course of an indeterminate period of time, is a measure of incompetence, such that Hertz was on actual or constructive notice of the defendant operator’s incompetence on that basis.
Before addressing the various trial court decisions relied upon by the parties, there is something of a dichotomy that needs to be recognized. Some of the decisions cited by the parties reflect decisions on motions to strike, while other decisions are based on motions for summary judgment. For purposes of this decision- a decision on a motion for summary judgment- the court must recognize the limited usefulness of a decision denying a motion to strike. A motion to strike generally is framed in terms of testing the legal sufficiency of a cause of action, but for purposes of this proceeding, it is helpful to look at it from a different perspective. To the extent that a motion to strike is concerned with facts, a motion to strike requires the court to interpret the allegations in a manner most favorable to the nonmoving party, and if facts provable under the allegation would constitute a cause of action, the motion to strike must be denied. Stone v. Pattis, 144 Conn.App. 79, 89, 72 A.3d 1138 (2013). For example, if a complaint contained a declarative statement that the defendant knew that a driver was incompetent to drive, the court would be required to accept that allegation for purposes of a motion to strike (unless it were challenged as somehow conclusory in nature). For purposes of summary judgment, however, a simple declaration would be insufficient; assuming that the moving party were to negate such knowledge by way of an evidentiary submission, the burden would be on the nonmoving party to submit facts sufficient to create a material issue of fact on that point. Therefore, to the extent that decisions relied upon by the plaintiff (and defendant driver) arose in the context of a motion to strike, those cases would simply stand for the proposition that it would be possible (at least theoretically) to prove such a contention, not that there actually is a factual/evidentiary issue on that point. For summary judgment, the actual evidence available is the framework for a decision.
Finally, the court must recognize that it must give the non-moving party the benefit of favorable inferences capable of being drawn from the facts as presented by the parties, but the inferences must be reasonable. The court cannot speculate under the guise of drawing favorable inferences. As something of a corollary, the court must apply some level of common sense.
It may be helpful for the court to start with Donnelly v. Rental Car Finance Corp., J.D. Hartford, No. CV106016545S as it is illustrative of one of the points identified above. The parties have cited to two different decisions in that case. In the first decision, 2011 WL 2417317 (Conn.Super.Ct. May 17, 2011) , the court denied a motion to strike stating, for example, that
[W]hile [the plaintiff’s] complaint does not specifically claim what [the defendant’s] constructive notice of [the driver’s] outstanding warrants, her complaint’s allegation that [the defendant] should have known that [the driver] was wanted by the police implies the allegation that [the driver’s] status as a wanted man was readily discoverable and should have put [the defendant] on notice that [the driver] was incompetent to operate a motor vehicle.
(Even in denying the motion to strike, the court had recognized some measure of burden on the plaintiff: "However, in addition to checking a renter’s driver’s license, other superior court decisions have held that a negligent entrustment suit may be maintained if information that would demonstrate the unfitness of the driver was ‘readily apparent’ to the rental company.")
Two years later, however, the court granted summary judgment in favor of the defendant:
This evidence does not show negligent entrustment of the vehicle to Santousse. The evidence that New Britain Thrifty vehicles became involved in Hartford police incidents does not at all address whether Santousse was fit to drive. Nor is it evidence, without indulging in gross and unfair stereotyping of Hartford residents, that Santousse had engaged in or intended to engage in criminal activity. The same is true with regard to the allegedly missing information in Santousse’s rental contract. Initially, it is not clear from a review of the contract that Thrifty had any obligation to record this information. Further, some of the information in question refers to Santousse’s financial circumstances, which are irrelevant. The possibility that Santousse did not have insurance, for example, could result simply from the fact that he did not own a car. None of this evidence sheds light on Santousse’s competence to drive a motor vehicle.
In the absence of any additional evidence that the defendants knew or should have known that Santousse was an incompetent driver or a likely to commit a crime, the defendants’ compliance with § 14-153 suffices to discharge their responsibility in entrusting the vehicle to him. Accord Hollis v. Alamo Financing, LP, Superior Court, judicial district of Hartford, Docket No. HHD CV08-5024043 (February 4, 2011, Robaina, J.) . Thus, Vaccaro is entitled to judgment as a matter of law. See Practice Book § 17-44." (Footnote omitted.) 2013 WL 2501974, at *2 (Conn.Super.Ct. May 20, 2013).
Before leaving Donnelly, the court notes that in the decision on the motion to strike, the court had cited an earlier case, which also implicates one of the points identified above:
In Peterson v. Swain, Superior Court, judicial district of New Haven, Docket No.: CV 05-5001192 (April 6, 2010, Wilson, J.), the court went slightly further to find that a plaintiff could survive a motion for summary judgment because he "demonstrated genuine issues of material fact exist regarding whether the defendants engaged in independent negligent conduct by failing to put into effect safeguards to properly screen [the driver] prior to leasing him the vehicle or by ignoring the red flags posed by the driver’s license, temporary insurance card and business credit application." The court, in that case, does not specifically define what the company should have done to "screen" the driver, but notes that obvious irregularities were missed when the twenty-five-year-old driver presented a driver’s license that indicated a date of birth of May 11, 1937 and a credit application that indicated that he had practiced dentistry for four years.
In noting that "obvious irregularities were missed," the court noted that there is nothing relating to incompetence inherent in those irregularities themselves. The identified irregularities presumably put the defendants on notice that further inquiry might be needed, one of the concerns/sub-issues identified above. The fact that the driver’s license itself was suspect, however, implicates whether there was reasonable compliance with General Statutes § 14-153. Further, with such glaring inconsistencies, even if they were not a presumptive statutory violation, this would not be simply a matter of putting a renting party on notice of the need to investigate, but rather would constitute a basis on which any reasonable party to doubt, in an affirmative sense, the bona fide quality of everything being submitted.
Also cited in opposition to the motion for summary judgment is Short v. Ross, J.D. New Haven, No. NNHCV 126028521S, 2013 WL 1111820 (Conn.Super.Ct. Feb. 26, 2013) . This was a ruling on a motion to strike, and as suggested above, a broader focus- what might be provable, based on allegations- was the focus:
It is not clear from the complaint precisely how or why U-Haul knew or ought reasonably to have known of Ross’ proposed usage of the truck. Nevertheless, the present motion is a motion to strike, and our Supreme Court has stated 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 ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks and citations, omitted.)
Another case cited is Prior v. Lang, No. TTDCV 075001248S, 2009 WL 1532526 (Conn.Super.Ct. May 7, 2009). In Prior, the defendant operator and the party entrusting the vehicle to the defendant operator were family members, such that there was an actual evidentiary basis for assuming knowledge of incompetence:
First, unlike in Griffin and Donati, here the plaintiff has presented evidence sufficient to create an issue of fact as to whether the defendant knew that the person to whom he was entrusting the vehicle was incompetent to drive. Viewing the facts in a light most favorable to the plaintiff, at the time Edward rented the vehicle and entrusted it to Samantha on March 12, 2005 he knew the following facts:
1. On March 16, 2002 Samantha was arrested for driving under the influence;
2. In August 2004 Samantha was admitted to a six-week alcohol treatment program at Silver Hills after she had been drinking heavily at the defendant’s residence in the summer of 2004;
3. On February 7, 2005 the Middlefield police found Samantha intoxicated while in possession of a motor vehicle; she was hospitalized as a result of that incident; the Aftercare Instructions signed by the defendant on February 8, 2005 in connection with Samantha’s release from the hospital make explicit reference to substance abuse;
*6 4. On March 5, 2007 Samantha was asked to leave her Middletown apartment because of drunk and disorderly behavior.
Based on these facts, the fact finder could reasonably conclude that the defendant knew that Samantha had a serious problem with alcohol, and as recently as one month earlier had been behind the wheel of a car while intoxicated. Further, the fact finder could conclude that just one week prior to when the defendant rented the vehicle for her, Samantha was so intoxicated and disruptive that she was thrown out of her apartment. Based on these facts, the fact finder could reasonably conclude that on March 12, 2005 the defendant had knowledge that Samantha was not competent to drive.
The above facts also distinguish this case from Shah and Butova. In Shah, there was no evidence that the defendant knew of the driver’s history. Nor was that history as troubling as the history presented by the plaintiff here. Samantha’s history of at least two times driving while intoxicated, including once just one month prior to the defendant renting her a vehicle, along with the evidence of her repeated abuse of alcohol is a far cry from an accident on an icy road and a speeding ticket. Further, here, given what he knew of Samantha’s behavior, the defendant had reason to question his daughter’s competence despite her valid driver’s license.
This case is also materially different from Butova. There, the court relied upon the fact that the defendant had placed restrictions on his son’s right to use the vehicle in question. Here, there is no evidence of any restrictions. Unlike the driver in Butova, the evidence here suggests that Samantha had carte blanche over operation of the vehicle from the time it was rented on March 12, 2005. Further, the court noted in Butova that there was no history or prior incidents. Here, the plaintiff has presented such evidence. Id. at *5-6 (footnote omitted).
Clearly, there were facts known to the entrusting party, indicative of ongoing problems relating to alcohol consumption, and the knowledge was not on a corporate but very personal level. There is no counterpart to such precise knowledge in the record before this court.
Ellis v. Jarmin, J.D. New London, No. CV 095010839, 2009 WL 5511268 (Conn.Super.Ct. Dec. 17, 2009) is another case that was decided on a motion to strike. Although the court denied the motion, the court identified, at the end of the passage quoted below, the difference between what is sufficient to pass a test based on sufficiency of allegations, and the quantum of proof that would be needed to survive summary judgment and or prevail at trial:
In the present case, in Count Five of her complaint, Ellis has alleged that CAMRAC was negligent in entrusting a vehicle to Jarmin because they knew, or should have known, that he was the subject of outstanding criminal warrants and was therefore likely to flee from the police and cause harm to members of the public. While the plaintiff’s complaint does not allege the method by which CAMRAC should have become aware of Jarmin’s outstanding arrest warrants, our Supreme Court has noted 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 ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). With that directive in mind, while Ellis’ complaint does not specifically claim the source of CAMRAC’s constructive notice of Jarmin’s outstanding warrants, her complaint’s allegation that CAMRAC should have known that Ellis was wanted by the police implies the allegation that Jarmin’s status as a wanted man was readily discoverable and should have put CAMRAC on notice that Jarmin was incompetent to operate a motor vehicle.° It is worth noting, however, that while the mere allegation that CAMRAC should have known of Jarmin’s outstanding arrest warrants is sufficient to imply such constructive notice at the motion to strike phase, the court is concerned by the complete lack of factual allegations regarding just what additional steps CAMRAC should have taken to ascertain whether Jarmin was competent to drive. At some point, Ellis will have to formulate a more concrete factual basis for alleging that CAMRAC was negligent in failing to discover that Jarmin was the subject of outstanding arrest warrants.(This court must also note that a problem with this analysis is the extent to which there is effectively a duty to investigate, implicit in the claimed failure to discover that the driver "was the subject of outstanding arrest warrants.")
The defendant, in turn, in pursuing its motion for summary judgment, cites cases supporting its position:
Our legislature has already enacted a statutory scheme governing the requirements of rental car companies. General Statutes § 14-153 provides, in relevant part, that "[a]ny person, firm or corporation which rents a motor vehicle without a driver ... shall inspect or cause to be inspected the motor vehicle operator’s license of the person initially operating such motor vehicle, [and] shall compare the signature on such license with that of the alleged licensee written in his presence ... Under this statute, a rental car company is not required to investigate a potential renter’s driving record; rather, the rental car company must only assess the facial validity of a driver’s license before renting to that driver. The legislature could have mandated that rental car companies run driving record reports if it intended that such a duty would exist. Chapman v. Herren, J.D. New London, No. CV 075005067, 2010 WL 2927377, at *7 (Conn.Super.Ct. June 24, 2010) .
Although facially this passage may seem to go "too far" in not recognizing an obligation not to rent to an incompetent driver, the focus appears to have been on negating any obligation to undertake any investigation. Elsewhere, the decision does recognize the controlling nature of Greeley, which clearly addresses the issue of incompetence. The court also engaged in a survey of cases (not limited to Connecticut), trying to address the interrelationship among the Graves amendment, § 14-153, and the common-law requirements expressed in such cases as Greeley.
Another case cited in support of the motion for summary judgment is quite recent, Lazuk v. First Student, Inc., J. D. Hartford, No. HHDCV 156059825S, 2017 WL 961676, at *3 (Conn.Super.Ct. Jan. 30, 2017). In that case, the court focused more directly on the evidence that had been presented by/on behalf of the plaintiff, in an effort to demonstrate the existence of a material issue of fact relating to competency to operate 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). 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.
The facts rejected in this cited case should be compared to the facts claimed to support the claimed existence of a material issue of fact as to the incompetence of the defendant operator in this case. As identified earlier, the claim is that the defendant operator had been involved in two prior motor vehicle accidents that have been reported to Hertz, and had been involved in a situation involving possession of PCP in a vehicle that had been rented from Hertz a few years prior to the subject incident. In Lazuk, the operator had received one (or more?) warnings for motor vehicle violations, and had been involved in a prior collision. the operator in Lazuk also had a "prior felony conviction for tax fraud." the court does not believe there is any material distinction between the two sets of facts- both operators had two motor vehicle "incidents" but in Lazuk there had been an effort to attribute fault, in the form of a warning, where there is no comparable indication here. Here, instead, there simply is a recitation of two prior accidents with no indications as default. Both operators had prior criminal involvement and although this defendant’s involvement had involved a car there was no direct nexus between the crime and operation of a motor vehicle. Again, as had been noted earlier, the defendant operator has submitted an affidavit, which makes no mention of any connection between the PCP found in the motor vehicle that had been returned to Hertz, and the operation of the motor vehicle, and there is nothing that gives rise to a plausible inference that he had been operating under the influence of PCP or some other substance. (If prior possession or use of an illegal drug/substance were presumptively a disqualifier for renting a motor vehicle, a huge proportion of the population would never be able to rent a motor vehicle.)
The decision recites that the operator "was previously cited for motor vehicle violations." Whether it was one warning for multiple violations, or multiple warnings, is not clear from the decision.
An NBC survey last year indicated that more than half of the adult population has tried marijuana (https://www.nbcnews.com/news/us-news/new-poll-finds-majority-americans-have-smoked-pot-n747476) and across different age brackets, there is significant ongoing usage of marijuana according to other sources (https://www.washingtonpost.com/news/wonk/wp/2018/04/25/older-people-are-smoking-way-more-marijuana/?noredirect=on&utm_term=.69c5e9a9e537).
Lazuk contains a reference to Shah v. Brooks, J.D. Hartford, No. PJR 0591221S, 1999 WL 818631 (Conn.Super.Ct. Sept. 27, 1999). Shah did not involve a commercial renter of motor vehicles, but rather was a situation in which the owner had permitted the defendant operator to drive his vehicle, because his own vehicle had become inoperable. The facts giving rise to the claim of negligent entrustment liability of the owner were described as follows:
Mr. Brooks testified that he was properly licensed to drive on the date of the incident, having received his license in 1989, at age 16. He testified that in the past, his license had been suspended due to the failure to pay a ticket after he had "rolled through a stop sign." In 1995, he stated, he had gotten a speeding ticket. Approximately four years prior to the incident, he said, he had "totaled" his car in a one-car accident after sliding on ice. Mr. Brooks also testified to the fact that he has cerebral palsy. He stated that this does not affect his ability to drive and that he has no problem using his right arm. The last time he took a driving test was in 1989. He stated that the cerebral palsy, which is controlled by medication, does not get worse over time.
Given the date of the accident (1999), the facts as set forth above reflected a 10-year history of the defendant operator’s experience with motor vehicles. The history reflects two moving violations and a one-car accident allegedly due to sliding on ice (with the vagaries of fault associated with such an accident). He also had a physical condition that he claimed was controlled by medication and did not impair his ability to drive. These facts were deemed inadequate, as a matter of law, to support a prejudgment remedy against the owner, notwithstanding the minimal burden of proof associated with such a proceeding (probable cause). While probable cause is a higher burden than establishing the existence of a material issue of fact, it is suggestive of the inadequacy of such facts, even for a purpose such as this.
While some subset of such accidents might be deemed unavoidable, an indeterminate fraction of such accidents are simply a matter of driving without due regard for the existing conditions.
Synthesizing all of the foregoing, the court believes that the plaintiff and the defendant driver have failed to establish the existence of a material issue of fact.
There often is a fine line between the limits of inferences that may be drawn from evidence and speculation, but the court believes that in this case, the plaintiff has not offered sufficient evidence to move the issue from the realm of speculation to a material issue of fact. There is nothing that would allow an inference of incompetence as an operator of a motor vehicle from the fact that there had been two prior accidents, especially given the lack of timeframe and the lack of any attribution of fault or measure of severity. Even if there had been some level of attribution of fault, that would not necessarily allow an inference of incompetence as a driver of a motor vehicle. Possession of significant quantities of a controlled substance such as PCP and or paraphernalia suggestive of manufacture or distribution may signify a lack of eligibility for a man of the year award, but it does not inherently invoke concerns about competency as a driver. The defendant operator may have had faults, but none that related to competency as an operator of a motor vehicle, when the sole underlying facts were 2 prior accidents and possession of PCP.
Indeed, in State v. Martin. 285 Conn. 135, 141 (2008), the court observed that persons involved in drug transactions might engage in what were characterized as "counter surveillance techniques" whereby they would be especially careful to obey all laws and rules of the road- the observation was that after picking up a package known to contain marijuana, "two vehicles maintained a consistent distance from each other, remain primarily in the right lane and traveled within the speed limit; the vehicles did not make any quick lane changes or do anything else to attract attention." It was the innocuous manner in which the vehicles were driven that was deemed to confirm the illicit nature of the trip.
Conclusion
The defendant operator is claimed to have been responsible for serious injuries sustained by the plaintiff, and the mechanics of a head-on collision makes serious injuries likely. To the extent that intoxication may have played a role, the conduct (if accurately characterized and proved) might be highly blameworthy.
The proper focus now, however, is on what Hertz knew, or constructively knew, at the time it rented a vehicle to the defendant operator. The court rejects that the analysis is one step further removed- what would it have discovered if it had made further inquiries. Even then, it is not clear what the plaintiff believes it should have discovered- that the defendant operator had been arrested on drug possession/distribution/manufacturing charges? How does that inform an analysis of his competence to operate a vehicle?
When the plaintiff states (with respect to the PCP incident) that "[t]he existence of this incident creates a dispute over the significant factual question of what knowledge Hertz had (or should have had) regarding Mr. Gromiller at the time it rented him the vehicle in question here," there is no stated nexus to competence to drive. Is the defendant rental car company chargeable with a duty, after it had notified the police of the presence of a suspected illegal substance, to follow up to determine whether its then-former and possibly-future customer had been charged with a crime? And chargeable with a duty to follow up as to the outcome of such charges? And to make a determination of whether the defendant operator had been a user or a distributor (or a user who did not use while driving)?
Given the defendant operator’s desire to be helpful at this stage, the absence of any evidence that might have moved the situation closer to a material issue of fact is notable. There is no admission that he was operating under the influence (of anything) on the prior occasion, and no admission that he was operating under the influence (of anything) at the time of this incident. The defendant operator explicitly has disclaimed the existence of a claimed duty to investigate, essentially saying that Hertz was culpable in renting the vehicle to him based on what it already knew. The plaintiff is not as clear as to position, but the court cannot find such a duty to exist, and the facts provided do not allow a reasonable favorable inference that Hertz had sufficient information to know (or that it should have known, based on that knowledge) that the defendant operator was incompetent to drive.
The court can only conclude that there is no evidence from either party resisting the motion for summary judgment, creating a material issue of fact as to what was known by Hertz, either actually known or constructively known. Knowledge of prior accidents (especially without any indication of fault or severity) and knowledge of a drug possession charge (especially without indication that it knew or should have known of the disposition) do not raise a material issue of fact as to competency to drive, years later.
The court notes that discovery of drugs in a motor vehicle does not necessarily indicate possession of the drugs by any particular occupant; see, e.g., State v. Stephenson, 181 Conn.App. 614, 634 (2018).
For all of these reasons, the motion for summary judgment filed by Hertz is granted.