Opinion
No. CV03-0475250-S
August 9, 2005
MEMORANDUM OF DECISION ON DEFENDANT YALE'S MOTION FOR SUMMARY JUDGMENT
1.
The plaintiff has brought suit for injuries she sustained while operating a golf cart at a charity event at the Yale Golf Course. At the tenth hole she attempted to engage the brakes but they failed to engage and she crashed into a tree.
Yale which owns and operates the golf course has brought a motion for summary judgment. In her response to that motion the plaintiff sets forth her legal claims. She alleges that Yale employees supplied her with a golf cart equipped with defective or inadequate brakes. She claims Yale knew or should have known the brakes were defective but allowed the cart to remain in service. She further maintains that suit against Yale is not barred "simply because she cannot specifically identify the motorized cart that caused her to sustain injury because Yale owned each and every cart that was supplied to sponsors and/or patrons during the June 4, 2001 charity event." The plaintiff also argues that expert testimony is not necessary to prove the cart had inadequate brakes so that failure to provide an expert on her part is not fatal to her action.
The defendant Yale's motion states: (1) there is no admissible evidence the cart was defective, (2) even if there was such evidence there is no evidence that Yale knew of the defect, (3) if anyone was responsible to repair the golf cart it was the codefendant Textron, (4) the subject golf cart cannot be identified by the plaintiff, and (5) this matter requires expert testimony and the plaintiff has not identified an expert.
The foregoing are the legal issues involved, the court will discuss the facts during its decision.
2. CT Page 11961
The standards to be applied in deciding a motion for summary judgment are well known. If there is a genuine issue of material fact the court cannot decide it since the parties have a constitutional right to a jury trial. If no such issue exists and the defendant proves the legal issues are in its favor, the motion should be granted because parties should not have to bear the burden and expense of meritless litigation.
3. (a)
Negligence can only be established if Yale failed to disclose a defect which it knew or perhaps should have known about.
The defendant argues and the plaintiff agrees that the act of Yale permitting the plaintiff to operate the golf cart established a bailor-bailee relationship, Johnson v. Bullard, 95 Conn. 251, 254-55 (1920); "the essential element of bailment is the express or implied control over the property (here the golf cart) by the bailer (the plaintiff)," Lissie v. SNET Co., 33 Conn.Sup. 540, 543 (1976). Connecticut still adheres to the notion that a bailer's duties are determined according to the character of the bailment as one for mutual benefit or a gratuitous bailment. Hartman v. Black Decker Mfg. Co., 16 Conn.App. 1, 7 (1988) (relies on 2d edition of Wright Fitzgerald, Connecticut Law of Torts, § 84, page 181). (But see confusingly enough, Restatement (2d) Torts 388). If the bailment is gratuitous the bailor's duty is only to disclose defects of which it was aware. This is the extent of the duty and a "defendant cannot be made liable for not communicating anything it did not in fact know, whether it ought to have known it or not." A bailment for mutual benefit exists "whenever it appears that both the parties receive a benefit from the transaction," Hartman, supra at 16 Conn.App., page 7. Where a bailment for mutual benefit exists the bailor's under a duty to use reasonable care to ensure that the bailed property (here the golf cart) is reasonably safe for use in the manner and for the purpose reasonably to be anticipated by the bailer (here Yale), id. pages 8-9.
(i)
The defendant assumes this is a gratuitous bailment situation. The criteria for determining whether a bailment is a gratuitous or mutual benefit bailment are set forth at pages 7 and 8 of Hartman but the defendant does not analyze the underlying facts or circumstances of the relationship to allow the court to reach this conclusion. In fact later in its brief it argues that the evidence does not permit a finding that Yale had actual or constructive notice of any defect — the latter observation being more appropriate to ordinary duty of reasonable care criteria under mutual benefit bailments.
(ii)
Similarly the plaintiff does not provide the factual basis for her assertion that the relationship here was a mutual benefit bailment citing Hartman, supra for the definition of that concept. But then the plaintiff appears to concede the gratuitous bailment test of Johnson v. Bullard Co., supra is applicable to the liability issue, citing Johnson and then saying: "Yale, as the bailor in this situation, was obligated to notify the plaintiff of all known defects as related to the subject golf cart provided" (emphasis by this court). In fairness to the plaintiff it should be noted that in its opening remarks in the brief plaintiff did say the knew or should have known test applied which sounds in mutual bailment.
Frankly the court is not convinced it has sufficient facts to determine whether the bailment was gratuitous or for mutual benefit. Therefore it will try to analyze the issue of liability with reference to both tests.
(b)
This court cannot conclude based on the evidence presented that Yale knew (actual notice) or should have known (constructive notice) that the subject cart had the brake defect that led to this plaintiff's accident and resulting injuries.
In arriving at this conclusion the court will refer preliminarily to one issue between the parties that the court does not consider controlling. The court does not believe expert testimony is necessary to prove that, at least at the time of the accident, the cart was defective. A layperson can testify that when she tried to engage the brakes they did not work and therefore the cart she was operating crashed into a tree. See Kroll v. Mazda Motors, 26 Conn. L. Rptr. 472 (Grogins, J. 2000). Woods v. GMC, 16 Conn. L. Rptr. 63 (Wagner, J. 1996), cf. Vaccarelli v. Ford Motor Co., 2001 Ct.Sup. 8920 (Doherty, J. 2001). These are product liability cases but the evidentiary proposition they support regarding reliance on lay testimony in these circumstances is not dependent on the type of case before those courts.
But merely because expert testimony is not required as to whether there was a brake defect does not ipso factor mean negligence is established. Thus in Fabela v. U Haul Co, #3-858/03-0278) (Ct. Of Appeals of Iowa, 2003) the court said that "While the failure of the brakes in the (defendant's) truck is certainly a matter of common understanding, under the record in this case the cause of that failure is not. More to the point in Bennet v. Bridgestone/Firestone Inc., 431 S.E.2d 748, where the plaintiffs were injured when the brakes failed and the vehicle collided with a telephone pole, the court said: "Although the parties stipulated that the accident occurred when the brakes failed, this alone does not establish as a matter of law that the brakes failed due to the defendant's negligence," id. at page 750. (Defendant had repaired car's brakes.)
Or to relate the foregoing to the facts of this case merely because the brakes failed after the plaintiff had driven this golf cart for several holes does not mean that because of this "defect" Yale had actual or constructive notice of the brake problem.
However, the court will have to go beyond this last observation and discuss whether the defendant could be shown to have requisite notice based on other evidence presented in this case.
The plaintiff at one point in her deposition states the cart that was given to her to use had a black ribbon attached to it. She says an employee of the golf course told her that this means something was wrong with the golf cart, that it had a defect of some kind. The defendant points to other sections of the plaintiff's deposition where she indicated she was not sure a Yale employee told her this, at least she was ambivalent. She also relates another employee told her there was nothing wrong with the subject golf cart. Deposition testimony of a former golf course employee indicates a cart that had an operational problem was not identified by a black flag, its seat was turned up so that the repair people would know the particular cart had to be worked upon by them.
The defendant's just mentioned points do nothing more than raise disputed issues of fact. In the court's opinion, the problem with the plaintiff's case lies in another direction. The plaintiff's evidence of actual or constructive notice depends on the statements of Yale employees that there was something wrong with the cart, that it was defective — a black ribbon was attached to it. Giving the evidence presented every favorable inference for the plaintiff, the court will assume that the person who told her the subject cart had a defect because of the attached black ribbon was a Yale employee and thus an agent of Yale.
But the Connecticut Code of Evidence § 8-3(1) and Connecticut case law still follow what is apparently the minority view that for the statement of an agent to be attributable to the employer principal the agent must be acting within the scope of their authority and admissibility "is predicated on a showing that the agent was authorized, expressly or impliedly, to make a statement or statements concerning the subject matter to which the statement pertains," 29 Am.Jur.2d, "Evidence," § 817, page 202, cf. Restatement (2d) Agency, § 286, page 6, Robles v. Lavin, 176 Conn. 281, 284 (1978); "the mere existence of an employment relationship without more does not render statements of an employee admissible against an employer," Liebman v. Society of Our Lady of Mount St. Carmel, 151 Conn. 582, 586 (1964), Chieffalo v. Norden Systems, Inc., 49 Conn.App. 474, 478 (1998), Morse v. Consolidated Ry Co., 81 Conn. 395, 399 (1908). Our rule is inconsistent with Federal Rules of Evidence 801(d)(2)(D), see Tait, Connecticut Evidence § 8.16.7, page 606 and is criticized in McCormick on Evidence rather convincingly, at Section 259 pp. 149 et seq.
Thus in conformity with this rule, statements made by employees to show actual or constructive notice are also explicitly barred as hearsay against the principal unless express or implied authority is shown. Wade v. Yale University, 129 Conn. 615, 617-18 (1943) (there court had noted rule that landlord had duty to keep areas under his/her control in a reasonably safe condition and failure to do so when landlord had actual or constructive notice of a defect is negligence, id. page 617).
There has been no evidence offered to indicate the employee, if he was such, who spoke to the plaintiff about the significance of the black ribbon was expressly authorized to make the statement he or she did make. Implied authority to make binding statement under Connecticut case law seems to involve situations whereby the very nature of his or her job the employee would be assumed to have authority to make statements binding the principal — for example statements made by an attorney which as Tait says are incidental to his or her general authority, Tait at § 8.16.7 page 605, Collens v. New Canaan Water Co., 155 Conn. 477, 496 (1967) or statements made by the general manager of a business usual and/or necessary to conduct a corporation's business, Tierney v. American Urban Corp., 170 Conn. 243, 250-51 (1976). Implied authority cannot be shown here.
There is no basis for the court to consider any alleged statements by Yale employees, assuming they were such, as anything but hearsay. Therefore those statements cannot support a finding of actual or constructive notice.
Furthermore, even if the statements of these putative employees were to be considered it is also true that they never indicated what type of defect the black ribbon was meant to indicate. The plaintiff's deposition indicated she used the cart for several holes without a problem — is the jury to speculate that any defect must have only involved the brakes? What if another defect was the problem, how can it be said that the brake failure excludes any other possibilities or type of defect? What if the cart had been operated for a longer period would another defect manifest itself? The problem of course in this regard is that the actual cart involved in the accident has never been located and thus subject to inspection.
It is also true that the plaintiff in her reply brief says that "there were several brake repairs made to Yale's golf carts both prior to the accident and post accident." That says nothing about a brake defect in the subject cart even assuming the relevance of post-accident brake problems with carts. In this reply brief as exhibit B the plaintiff has attached only six repair work sheets compared to the entire number of worksheets the court examined in the companion case against Textron. They were prepared by Textron mechanics when they worked on a cart. Yale would notify Textron mechanics of the carts to be worked on by Textron. The six worksheets list the following: 5/11/01 "brake cable assy," 5/14/01 "repair stuck brake adjuster," 5/21/01 "brake cable assy," "adj brakes," 6/18/01 "adj brakes," 6/22/01 "adj brakes," 6/25/01 "brake cable assy." No evidence was presented as to what these terms mean or whether they indicate the cart's brakes did not function as opposed for example to responding too quickly to pressure applied to them. Three of the carts which had their brakes adjusted, also had other work done on them — how can the court assume under these circumstances that Yale even brought a brake adjustment request to the mechanics' attention rather than a mechanic noticing a problem while he/she was working on other problems? Seven of the carts required brake work of some kind over a six-week period but according to the plaintiff's brief Yale had "approximately (60) sixty golf carts." From these records the court cannot assume Yale had actual notice or should have had constructive notice that any of the other carts would experience brake failure at any point they were operated — it would be as fair as speculating the brake failure was caused by plaintiff's operation. Neither assumption would be a fair one. But the plaintiff bears the burden of proof on her negligence claim and the court concludes that on the facts submitted to it the defendant's motion should be granted.
Corradino, J.