Opinion
CV176069576S
11-26-2018
Narisa QUICHIMBO v. Hendricks LUOW et al.
UNPUBLISHED OPINION
Wilson, J.
I
FACTS
The plaintiff, Narisa Quichimbo, initiated this action against the defendants, Hendricks Luow ("Luow"), and H.N.S. Management Company, Inc. d/b/a CT Transit ("CT Transit"), by way of service of process on March 17, 2017. Through her two count amended complaint, filed with the court on August 1, 2018, the plaintiff alleges the following facts. On March 14, 2015, the plaintiff was at the CT Post Mall, performing her duties as a cleaner employed by the Interstate Cleaning Corporation. At that same time, Luow was employed by CT Transit as a bus driver. In preparation to clean a lower level public men’s restroom, the plaintiff placed markers indicating the restroom was closed for cleaning, and would direct any patron from entering the restroom to another available one. Shortly thereafter, Luow entered the restroom, ignored the warning markers, as well as a verbal warning from the plaintiff, and used the facilities. The plaintiff called security, and informed the defendant, asking him to wait for their arrival. The defendant responded by grabbing the plaintiff’s arm, pushing her, and attempting to strike her in the face with his fist. From these facts the plaintiff brings two causes of action.
Although it was filed well after CT Transit’s motion for summary judgment, this amended complaint does not allege a new theory of liability, nor does it affect the disposition of CT Transit’s motion. As such, the court will consider it. The plaintiff filed an amended complaint on May 22, 2018, which eliminated a claim for lost time and wages from the plaintiff’s gainful employment as a result of the alleged assault. That amended pleading, however, only contained a draft complaint displaying proposed deletions as required by Practice Book § 10-60(a)(3)(B). The amendment filed August 1; 2018, is the "clean" version required by § 10-60(a)(3)(A).
In count one of her amended complaint, the plaintiff alleges that because Luow failed to heed her warnings, and because of his physical assault, she was caused to suffer various injuries and damages.
In count two of her amended complaint, the plaintiff alleges that the harm she suffered was caused by the negligence and carelessness of Luow’s employer, CT Transit, because: it failed to adequately train its employees in proper professional public conduct; it should have reasonably known of, and addressed the dangerous propensities of its employee; and, moreover, is vicariously liable for the acts of Luow because the assault occurred while Luow was acting within the scope of his employment.
On August 18, 2017, Luow filed an answer, admitting he was employed by CT transit, but denying that the incident took place. Hence, on September 27, 2017, CT Transit filed an answer, leaving the plaintiff to her proof as to the incident and its details, and denying the negligent and vicarious claims asserted against it.
On December 29, 2017, CT Transit moved for summary judgment on count two of the plaintiff’s amended complaint, contending there is no genuine issue of material fact as to any theory of liability advanced against it. In support of its motion, CT Transit submitted the following evidence: (A) the signed and sworn affidavit of Keyo Goodwin, the Superintendent of Transportation for CT Transit; (B) portions of the Bus Operator Handbook listing various rules and regulations applicable to such employees; and, (C) excerpts of CT Transit’s Training Manual for Bus Operators. On June 21, 2018, Luow filed his objection attached to which was the following evidence: (A) specific pages of the certified deposition transcript of the plaintiff (B) an Incident/Investigation Report by the Milford Police Department as to the incident made by Officer Walsh; and, (C) the signed and sword affidavit of Hendrick Luow. Hence, on July 5, 2018, the plaintiff also filed an objection, appended to which was the following: exhibits (1), (2) and (3) are certain portions of the plaintiff’s deposition; and exhibit (4) is an excerpt from CT Transit’s Bus Operator Handbook. CT transit filed a reply on August 3, 2018, attached to which was: (A) excerpts of the certified deposition transcript of the plaintiff. The motion was heard at short calendar on August 6, 2018.
II
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).
"[I]t is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ... Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case ... Accordingly, the rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment ... [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings ..." (Citations omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320-21, 77 A.3d 726 (2013).
In its memorandum in support of its motion for summary judgment, CT Transit contends that no genuine issue of material fact exists as to the claims against them asserting vicarious liability, negligent training, and negligent supervision. As to vicarious liability, the defendant argues that Luow was neither acting within the scope of his employment, nor in furtherance of CT Transit’s business when he committed the alleged assault. CT Transit contends that it cannot reasonably be inferred that Luow’s alleged assault was connected to its business as a common carrier for hire, nor can it be concluded that the alleged assault was a misguided effort to advance its interest. As to the negligent training and supervision claims, CT Transit asserts that Luow was provided extensive training, and that his alleged behavior was not foreseeable because there is sufficient evidence that CT Transit had no reason to know of any dangerous propensities that Luow may have had. Consequently, CT Transit contends summary judgment should be rendered in its favor.
In his objection, Luow contends that CT Transit’s motion should be denied as genuine issues of material fact exist. As to vicarious liability, Luow contends whether the alleged assault actually occurred presents a genuine issue of material fact, as he explicitly denies the event took place. As to the claims of negligent training and supervision, Luow argues these claims implicate an element of foreseeability that he claims is unsuited to resolution by summary judgment.
In her objection to CT Transit’s motion, the plaintiff argues that issues of fact exist that require resolution by a trier of fact. The plaintiff contends that facts exist from which a jury could infer that Luow was acting within the scope of his employment. Specifically, the plaintiff contends that Luow’s stopping at the mall to use the restroom was permitted by his employer, and, thus, acts undertaken while there could be imputed to be within his scope of employment. Furthermore, the plaintiff argues that Luow’s assault of the plaintiff could be inferred to be an act undertaken within the scope of his employment as it may have occurred in an effort to keep the bus on schedule and avoid delay. Lastly, the plaintiff contends that it is unclear what exactly happened between the plaintiff and Luow, and that, similarly, presents an issue of fact. As to the negligent training and supervision causes of action, the plaintiff asserts that foreseeability remains at issue.
In reply, CT Transit asserts that the plaintiff’s arguments are unavailing. CT Transit contends that Luow’s alleged assault cannot be construed as being in furtherance of its business. The assault, if it occurred, was an intentional act, prohibited by CT Transit, and would not advance its interests in any way. As to the negligent training and supervision claims, CT transit argues that the plaintiff has failed to rebut their evidence that it did not have any reason to anticipate problematic behavior from Luow on the date of the incident. Thus, foreseeability is not at issue.
A
Vicarious Liability
The plaintiff contends that CT Transit is vicariously liable for the acts of its employee. "[V]icarious liability is premised upon the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss ... Put differently, a fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee." (Citations omitted; internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692-93 n.16, 849 A.2d 813, 825 (2004).
"Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant’s employment and was done to further his master’s business ... But there are occasional cases where a servant’s digression from duty is so clear-cut that the disposition of the case becomes a matter of law." (Citation omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207, 579 A.2d 69 (1990).
"We have long adhered to the principle that in order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer’s business ... But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply." (Citation omitted; internal quotation marks omitted.) Id., 208.
"The factual conclusion that [the employee’s tortious conduct] occurred during business hours, however, is not sufficient to support the conclusion that [the employee] was acting within the scope of [their] employment ... A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phrase during the period covered by his employment ... While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful ... that does not end the inquiry. Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master’s business, or was engaged in an abandonment of the master’s business ... Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable. (Citations omitted; internal quotation marks omitted.) Id., 209-10.
Thus, a defendant-employer may be liable for the acts of an employee if it resulted from a misguided effort to serve the principal, and those acts could be inferred to fall within the purview of their responsibilities. See, e.g., Pelletier v. Bilbiles, 154 Conn. 544, 548, 227 A.2d 251 (1967) (issue of fact existed as to employer’s vicarious liability for employee’s beating of patron because his tortious act could have resulted from misguided desire to follow employer’s instruction to prevent disturbances on premises); Gluckman v. Walters, 38 Conn.App. 140, 146, 659 A.2d 1217, cert. denied, 235 Conn. 914, 665 A.2d 608 (1995) (issue of fact existed as to employer’s vicarious liability in light of evidence that assault occurred on employer’s premises and employee was tasked with maintaining order).
Conversely, in cases where an employee commits an intentional tort that is apart from the employer’s premises, and beyond any purview of their responsibilities, vicarious liability may be lacking. See, e.g., Brown v. Housing Authority, 23 Conn.App. 624, 628, 583 A.2d 643 (1990), cert. denied, 217 Conn. 808, 585 A.2d 1233 (1991) (employee was not furthering employer’s business interests during assault as intentional criminal act was not connected in any way to employer’s business despite employee driving between job sites when assault occurred); Doe v. Talabi, Superior Court, judicial district of Hartford, Docket No. CV07-5009974 (May 12, 2008, Bentivegna, J.) (employer not vicariously liable for bus driver’s intentional sexual assault of student because criminal conduct of defendant was in no way connected to employer’s business of providing transportation to special education students); Hawes v. Gartrell, Superior Court, judicial district of Hartford, Docket No. CV96-565933 (July 31, 1997, Aurigemma, J.) (intentional assault did not provide basis for respondeat superior where "plaintiff has merely alleged that the assailant was employed by the defendant. He has not supplied any evidence whatsoever from which it can be concluded that the assailant was acting in furtherance of the defendant’s business when he assaulted the plaintiff.").
In the present case, CT Transit cannot be held vicariously liable for the alleged acts of Luow, as such conduct did not occur while he was acting within the scope of his employment, or in furtherance of his employer’s interest. CT Transit’s business is as a common carrier for hire, and their mission is "to be responsive to the transportation needs of the Community by providing service that is safe, convenient, reliable, environmentally responsible and courteous." Goodwin Aff. 8; CT Transit’s Exh. B, Training Manual, Mission Statement. Luow was employed to provide transportation to the public, his intentional assault of the plaintiff, in a restroom, away from the premises of his bus, is not an act which can be seen as "fairly and reasonably incidental to [his duties], that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of [his] employment." (Internal quotation marks omitted.) Snell v. Norwalk Yellow Cab, Inc., 172 Conn.App. 38, 45 n. 6, 158 A.3d 787, 793, cert. granted, 325 Conn. 927, 169 A.3d 232 (2017). See Brown v. Housing Authority, supra, 23 Conn.App. 628 (defendant was not acting within scope of employment when he committed intentional assault on plaintiff in between driving to work stations after being irritated).
Moreover, Luow’s alleged assault of the plaintiff cannot reasonably be inferred as being in furtherance of any interest or policy of CT Transit, or motivated by a desire for the same. Luow was not authorized to use force, nor does he have any duties from which such conduct could be authorized. Cf. Pelletier v. Bilbiles, supra, 154 Conn. 548 (respondeat superior could exist as to intentional assault where employee was tasked with preventing certain behavior on employer’s premises). Indeed, CT Transit’s employees are instructed on proper conduct and are expressly informed that they are expected to conduct themselves in a respectful, courteous, professional, and civil manner, and that some actions, including physical assault on any person, will result in immediate discharge. See Goodwin Aff. 10-11; CT Transit’s Exh. B, Bus Operator Handbook, § 11.3. In light of this, the court concludes that Luow was not engaged in a slight deviation from CT Transit’s business when he allegedly assaulted the plaintiff, but rather "was engaged in an abandonment of the master’s business." A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 209. Cf. Kish v. Nursing and Home Care, Inc., 248 Conn. 379, 387, 727 A.2d 1253 (1999) (plaintiff was acting within scope of employment in the context of workers’ compensation claim as she was only deviating slightly from job when she stopped to mail letter en route to picking up equipment for patient). See Doe v. Talabi, supra, Superior Court, Docket No. CV07-5009974-S (intentional sexual assault was unconnected to employer’s business of providing transportation to special education students).
Nevertheless, the plaintiff contends that genuine issues of material fact exist. Specifically the plaintiff argues that restrooms at the mall were a common stopping point for bus drivers and Luow’s acts there could be construed as being within the scope of his employment as a result. Moreover, she argues that the assault could be inferred as an attempt to remain timely, also rendering it an act within the scope of employment. Lastly, she contends that what exactly happened in the restroom remains an open question for adjudication. These arguments are unavailing.
The fact that Luow may have been authorized to use the restrooms at the CT Post Mall does not create an inference he was acting within the scope of his employment. Indeed, the mere fact "that [the employee’s tortious conduct] occurred during business hours ... is not sufficient to support the conclusion that [the employee] was acting within the scope of [his] employment." A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 209. As noted, supra, this court has determined that Luow could not have been acting pursuant to his duties, or out of a desire to serve his employer, when he allegedly committed the assault. Thus, this argument must fail.
With regard to the plaintiff’s argument that Luow’s assault on her could be interpreted as an act undertaken to avoid delay, the court finds this contention unpersuasive. The alleged assault did not take place on CT Transit’s property, place of employment, or due to any instruction on its part. Cf. Gluckman v. Walters, supra, 38 Conn.App. 146. Indeed, assault is expressly prohibited by CT Transit, punishable by immediate discharge; see Goodwin Aff. 10-11, CT Transit’s Exh. B. The use of force then, even to remain timely, would not be in furtherance of CT Transit’s interests, nor could it be motivated by a desire to serve said interests. Furthermore, there are no facts alleged, or evidence adduced, that support the plaintiff’s contention that this assault occurred to avoid delay. "[I]t is then incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists." (Internal quotation marks omitted.) Iacurci v. Sax, 313 Conn. 786, 799, 99 A.3d 1145 (2014). In light of this, the plaintiff has not supplied "any evidence whatsoever from which it can be concluded that the assailant was acting in furtherance of the defendant’s business when he assaulted the plaintiff." Hawes v. Gartrell, supra, Superior Court, Docket No. CV96-565933-S.
The facts alleged, and evidence presented, indicate that the plaintiff was not blocking Luow’s way, nor did she prevent him from leaving. See Pl’s Dep. 20:15-21:22. Instead, Luow began to leave, and, after the plaintiff asked for his name he attempted to strike her. Id., 22:20-23:14 Thus, it appears Luow was not acting to avoid delay, but rather was acting on personal impulses, to satisfy his own agenda, when he allegedly stopped and engaged the plaintiff in a physical confrontation.
Lastly, the plaintiff argues that "what actually happened within the men’s restroom is clearly in dispute." Similarly, there was argument at short calendar that something happened within the restroom, not necessarily an assault, the determination of which presents a genuine issue of material fact. These arguments are similarly unsupported by the plaintiff’s complaint and are unpersuasive. The plaintiff has not set forth allegations as to this nebulous "event;" rather, the plaintiff has specifically alleged an intentional assault. "It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of the complaint." (Internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496, 646 A.2d 1289 (1994). In view of this, the plaintiff is limited to her allegations that Luow assaulted her in seeking to hold CT Transit vicariously liable. See Peterson v. Bornhorst, Superior Court, judicial district of Hartford, Docket No. CV11-6019583-S (July 26, 2012, Woods, J.) (54 Conn.L.Rptr. 284, 285) (plaintiff was limited to allegations in complaint to determine basis for liability at motion for summary judgment stage). To hold otherwise, would result in the court improperly considering an alternative theory of liability that was raised for the first time in opposition to CT Transit’s motion for summary judgment. See Lewis v. Board of Education, Superior Court, judicial district of New Haven, Docket No. CV15-6075650-S (May 7, 2018, Wilson, J.) (plaintiff did not allege claimed theory of liability in complaint and "[h]aving failed to do so, the court will not consider the arguments raised by the plaintiff’s asserting [a] new theory of liability"); Moeller v. St. Luke’s Foundation, Inc., Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X08-CV-04-0199334-S (June 27, 2007, Jennings, J.) (same). Accordingly, this argument is likewise unavailing.
Luow’s argument that an issue of fact exists as to whether the event occurred is equally unpersuasive. CT Transit’s liability does not rest on if the event occurred, but rather how it occurred. CT Transit is not liable if the event did not happen. Having determined that the events claimed and alleged cannot give rise to vicarious liability, the court concludes that the potential non-occurrence of the event is not "a fact which will make a difference in the result of the case." Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 556, 791 A.2d 489 (2002).
The occurrence of the assault is a genuine issue of material fact between the plaintiff and Luow.
In light of the foregoing, no genuine issue of material fact exists as to the lack of vicarious liability of CT Transit for the alleged assault on the plaintiff by its employee, Luow.
Negligent Training/Negligent Supervision
The plaintiff alleges that CT Transit negligently trained and supervised Luow. As an initial matter, it should be noted that "[i]t is unclear whether Connecticut law recognizes a claim for negligent training distinct from one for negligent supervision ... As a result of this uncertainty, Superior Court decisions dealing with negligent training claims have applied the standard applicable to a claim for negligent supervision." (Citations omitted.) Dumas v. Price Chopper, Inc., Superior Court, judicial district of Windham, Docket No. CV09-500-4896-S (March 31, 2010, Riley, J.). See, e.g., Seda v. Maxim Healthcare Services, Superior Court, judicial district of Hartford, Docket No. CV 07 5010811 (April 8, 2008, Elgo, J.); Hearn v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 02 0466339 (April 2, 2007, Licari, J.); Faggio v. Brown, Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 05 4003488 (May 17, 2006, Beach, J.).
"Under Connecticut law, an employer may be held liable for the negligent supervision of employees ... [I]n [a] negligent supervision action, [the] plaintiff must plead and prove that she suffered an injury due to the defendant’s failure to supervise an employee whom the defendant had [a] duty to supervise." (Citations omitted; internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 207-08 n.12, 9 A.3d 347 (2010). "Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of [foreseeability]. 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 ... It is well settled that defendants cannot be held liable for their alleged negligent hiring, training, supervision or retention of an employee accused of wrongful conduct unless they had notice of said employee’s propensity for the type of behavior causing the plaintiff’s harm." (Internal quotation marks omitted.) Loglisci v. Stamford Hospital, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-08-5009309-S (February 22, 2011, Jennings, J.T.R.). "By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, 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?" (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008). "The matter of foreseeability is a question of proximate cause ..." Gutierrez v. Thorne, 13 Conn.App. 493, 500, 537 A.2d 527 (1988). "An issue of proximate cause is ordinarily a question of fact for the trier ... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion ..." (Citation omitted; internal quotation marks omitted.) B & D Associates, Inc. v. Russell, 73 Conn.App. 66, 77, 807 A.2d 1001 (2002).
In the present case, CT Transit has met its burden of demonstrating that no genuine issue of fact exists that it did not know, nor should have known, of the alleged dangerous propensities of Luow. CT Transit submitted an affidavit from Keyo Goodwin, the Superintendent of Transportation for CT Transit-a person with supervisory knowledge of Luow-indicating that prior to March 13, 2015, the date of the incident, Luow never demonstrated dangerous propensities, or was involved in any similar incidents; rather, Luow adhered to the courteous and responsible standard of conduct expected of CT Transit’s Bus Drivers since his date of hire in August 19, 2002. Goodwin Aff. 14. There has been no evidence submitted of any prior improper conduct by Luow. Accordingly, "there is no genuine issue of material fact concerning whether the defendants should have anticipated that harm of the general nature of that suffered was likely to result." (Internal quotation marks omitted.) Beach v. Jean, 46 Conn.Supp. 252, 264, 746 A.2d 228 (1999). In other words, it was not reasonably foreseeable to CT Transit that Luow would assault the plaintiff. See Oliver v. Wal-Mart Stores East, LP, Superior Court, judicial district of New London, Docket No. CV16-6027223-S (June 5, 2018, Frechette, J.) (granting summary judgment on negligent supervision claim where assault was unforeseeable and there was no evidence of prior improper conduct by assailant); O’Connell v. Salon Shahin, Inc., Superior Court, judicial district of Fairfield, Docket No. CV10-6003571-S (December 3, 2013, Jennings, J.) (same). Accordingly, CT Transit had no duty to prevent harm to the plaintiff.
To the extent it is even relevant, the record reflects adequate training was provided to Luow, and no evidence has been submitted, either by the plaintiff or Luow, to raise an issue of fact. Luow received extensive training which detailed a driver’s duties, responsibilities and standard of conduct that they must adhere to. Goodwin Aff. 6. Bus drivers, including Luow, are provided a "Bus Operators’ Handbook" delineating appropriate standards of behavior, in which it specifically instructs "[Bus Operators] are expected to conduct themselves in a respectful, courteous, professional, and civil manner at all times when on duty ... or in uniform. Boisterous action, profane language, and other conduct unbecoming a CT Transit Bus Operator will not be tolerated and will result in appropriate disciplinary action up to and including discharge."
III
CONCLUSION
For the foregoing reasons, CT Transit’s motion for summary judgment is granted as to count two of the plaintiff’s complaint.
Goodwin Aff. 10. See CT Transit’s Exh. B. As previously noted, among actionable conduct, "physical assault on a supervisor or o[n] any person" would result in immediate discharge. Goodwin Aff. 11; CT Transit’s Exh. B.