Opinion
LLICV166014081S
12-11-2017
Richard M. RICCI v. Abigail STEINBERG et al.
UNPUBLISHED OPINION
OPINION
Bentivegna, J.
This action arises from a motor vehicle accident. The operative complaint is dated April 24, 2017, and alleges that the plaintiff, Richard Ricci, sustained personal injuries when he was struck by a motor vehicle that was operated by the defendant, Abigail Steinberg (heretofore, " Ms. Steinberg"). On May 26, 2017, the defendant, Suzanne Steinberg (heretofore, " Mrs. Steinberg"), moved for summary judgment (# 132) as to counts seven (family car doctrine), eight (respondeat superior) and nine (negligent entrustment) because there is no genuine issue of material fact that she cannot be legally responsible for the motor vehicle accident of September 7, 2015, and she is entitled to judgment as a matter of law. On August 1, 2017, the plaintiff objected to Mrs. Steinberg’s motion for summary judgment (# 138) on the basis that there are clearly questions of material fact. The matter was heard at short calendar on September 18, 2017.
These issues were recently addressed in a case arising from the same motor vehicle accident, Benevides v. Steinberg, Superior Court, judicial district of Stamford, Docket No. CV-16-6029849-S (November 7, 2017, Jacobs, J.). The plaintiff in that action, Mary Baldini Benevides, was a passenger in the vehicle operated by Ms. Steinberg. The court, Jacobs, J., in a comprehensive and well-reasoned decision, denied the defendant, Robert Steinberg’s (heretofore, " Mr. Steinberg") motion for summary judgment as to claims arising from the family car doctrine, respondeat superior, and negligent entrustment. Mr. Steinberg is also a defendant in the present case. This court adopts the reasoning in that decision and sets forth part of that discussion here.
" In any action, including administrative appeals which are enumerated in Section 14-7, any party may move for a summary judgment as to any claim or defense as a matter of right at any time ... These rules shall be applicable to counterclaims and cross complaints, so that any party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action. The pendency of a motion for summary judgment shall delay trial only at the discretion of the trial judge." Practice Book § 17-44.
" Practice Book § 17-49 provides that summary 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.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). " The courts hold the movant to a strict standard. 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 non-moving 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]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
This motion raises issue regarding vicarious liability. " [V]icarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another]. Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another." (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n.16, 849 A.2d 813 (2004). " [C]ommentators have noted that vicarious 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." (Internal quotation marks omitted.) Id., 693 n.16.
The basis for the plaintiff’s claims of vicarious liability is that Mr. and/or Mrs. Steinberg maintained, furnished and exercised control over the vehicle being operated by Ms. Steinberg at the time of the collision that allegedly caused the plaintiff’s injuries. Mrs. Steinberg argues that there is no basis upon which she can be held vicariously liable for Ms. Steinberg’s operation of the vehicle.
Count Seven: Family Car Doctrine
" The family car doctrine is a common-law rule providing that, when a motor-car is maintained by the paterfamilias for the general use and convenience of his family, he is liable for the negligence of a member of the family having general authority to drive it, while the car is being used as a family car ... [T]he family car doctrine is grounded in the principle that every man who prefers to manage his affairs through others ... remains bound to so manage them that third persons are not injured by any breach of legal duty on the part of such others while they are engaged upon his business and within the scope of their authority." (Citations omitted; internal quotation marks omitted.) Cogan v. Chase Manhattan Auto Financial Corp., 276 Conn. 1, 9, 882 A.2d 597 (2005). The doctrine requires " that the driver has received general authority from the owner to use the car for a family purpose, that is, for the pleasure or convenience of the family or a member of it." Cook v. Nye, 9 Conn.App. 221, 228, 518 A.2d 77 (1986).
" Applicability of the family car doctrine is dependent upon the connection that the member of the household has with the car. He or she must own, maintain, or furnish the car, and have or exercise some degree of control over its use ... Usually, liability under the doctrine is sought to be imposed on a member of a household who owns the car. It is not necessary to fit both of these roles, however. Generally, control over the use of the car rather than legal title is dispositive ... although ownership is significant." (Citations omitted; emphasis omitted.) Cook v. Nye, supra, 9 Conn.App. 226 (where defendant’s daughter freely used vehicle owned by defendant, use was for her pleasure and convenience under grant of general authority); see also Chen v. Bernadel, 101 Conn.App. 658, 665, 922 A.2d 1142 (2007) (defendant, registered owner of vehicle, exercised some control over son’s use of vehicle by granting son general authority and providing assistance necessary for son to get vehicle).
Ownership of a motor vehicle as it applies to the family car doctrine is referenced in General Statutes § 52-182, which provides in relevant part: " Proof that the operator of a motor vehicle ... was the ... daughter of the owner shall raise a presumption that such motor vehicle ... was being operated as a family car ... within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption." " ‘The purpose and effect of the enactment of § 52-182 was not to affect or create substantive rights; its purpose was merely to govern procedure.’ Hunt v. Richter, 163 Conn. 84, 89-90, 302 A.2d 117 (1972). Section 52-182 ‘was enacted as an " implementation" to aid a plaintiff in his proof, where the operator and owner are of a certain designated relationship.’ Id., 90. A plaintiff who is not able to use the presumption afforded by § 52-182 continues to have a viable claim if the ‘facts, without regard to the provisions of [§ 52-182], afford a sufficient basis for finding that the vehicle is a family car.’ Id. It is not necessary for a plaintiff attempting to establish liability under the common-law doctrine to satisfy § 52-182 because the statute merely raises a presumption that the motor vehicle in question was being used as a family car." Auth v. Wesley, Superior Court, judicial district of Hartford, Docket No. CV-03-0822570-S (June 14, 2007, Graham, J.) (43 Conn.L.Rptr. 608).
In determining who is an " owner" under § 52-182, the control an individual exerts over a vehicle is a relevant consideration. See Molnar v. Ligi, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-06-5005261-S (November 6, 2008, Ronan, J.) (46 Conn.L.Rptr. 592). In Molnar, the question before the court was " whether the definition of the word ‘owner, ’ as used in General Statutes § 52-182, is broad enough to encompass a parent whose only imprimatur of vehicle ownership is to have her daughter’s automobile listed on their automobile insurance policy." (Emphasis added.) Id. The court acknowledged the " [t]he word ‘owner’ has no fixed meaning but must be interpreted in its context and according to the circumstances in which it is used ..." (Internal quotation marks omitted.) Id., quoting Bauer v. Pounds, 61 Conn.App. 29, 43, 762 A.2d 499 (2000). " Thus, " the court determined, " the term ‘owner’ in a motor vehicle statute is properly informed by knowledge of the vehicle’s registered and titled owner, by other legal or equitable interests in the vehicle, and by considering who has possession and control over the vehicle." Molnar v. Ligi, supra . " [C]ontrol over the use of the car rather than legal title is dispositive ..." Cook v. Nye, supra, 9 Conn.App. 226.
Mrs. Steinberg asserts that she is not liable pursuant to the family car doctrine because Ms. Steinberg maintained, owned, and controlled the vehicle. As to maintenance of the vehicle, although Mrs. Steinberg offered evidence that Ms. Steinberg used the vehicle, she failed to offer evidence to support her assertion that Ms. Steinberg maintained the vehicle. As to ownership, although it is undisputed that Mrs. Steinberg was not the registered owner of the vehicle, this does not render the family car doctrine inapplicable. Thus, the court turns its attention to whether there is a genuine issue of material fact as to whether Mrs. Steinberg exercised some degree of control over the vehicle.
In support of her motion for summary judgment, Mrs. Steinberg offers, inter alia, Mr. Steinberg’s affidavit and an affidavit from Ms. Steinberg. Mr. Steinberg’s affidavit states: " The vehicle that Abigail was driving was her vehicle. The title and registration were in her name. I exercised no control over the operation of her vehicle. The vehicle that Abigail was driving was not a family car, for the benefit of the Steinberg family, but was her car and her car alone ... Abigail never needed my permission to operate her vehicle because this vehicle was her car, not mine." Ms. Steinberg’s affidavit states: " I did not require anyone else’s permission ... to operate [the] vehicle, and I could operate it any time that I wanted. My father did not exercise any control over the operation of this vehicle. I and I alone could decide when and whether to operate this car."
In support of her motion for summary judgment, Mrs. Steinberg also offers, inter alia, her affidavit, which states: " In 2015, prior to and in the timeframe of the September 7, 2015 accident, Mary Baldini Benevides was employed by my husband and I as a housekeeper, working at our Greenwich home ... and our home in Lenox, Massachusetts. My husband, daughter and I spent the Labor Day weekend at our Lenox ... home ... Benevides spent that weekend at our Lenox ... home, and worked that weekend in her capacity as a housekeeper ... We were planning on driving [Benevides] home from Lenox ... back to Greenwich. Abigail decided to leave earlier than we were planning on leaving so [Benevides] asked Abigail if she could go with her, rather than wait for us to leave, and Abigail agreed. When Mary left Lenox ... she had completed her work for the week and was paid for the week ... The vehicle that Abigail was driving was her vehicle. The title and registration were in her name. I exercised no control over the operation of her vehicle. The vehicle that Abigail was driving was not a family car, for the benefit of the Steinberg family, but was her car and her car alone. At the time of the subject accident, Abigail was not operating her car for my benefit or at my request. Abigail never needed my permission to operate her vehicle because this vehicle was her car, not mine."
Affidavits submitted in support of Mrs. Steinberg’s motion indicate that Ms. Steinberg could drive the car whenever she desired, without requesting Mrs. Steinberg’s permission. However, Ms. Steinberg’s status as the registered owner of the vehicle and her ability to operate it at will for her own pleasure do not completely sever Mr. and/or Mrs. Steinberg’s connection to the vehicle, particularly in light of Mr. Steinberg’s deposition testimony concerning his continuing financial involvement with the vehicle, which- unlike the parent in Molnar - extended beyond merely paying for the vehicle’s insurance. In his deposition, Mr. Steinberg testified that he bought Ms. Steinberg the vehicle so that she could drive to her doctors and seek employment. He testified that he secured and paid for the vehicle’s insurance, that he would pay for gas if Ms. Steinberg was unable to do so, and that he would have paid a tax bill for the car. He testified that after the collision, he received a check from the insurance company, which he kept for himself.
This court concludes that Mrs. Steinberg has not met the burden of establishing that there is no genuine issue as to her liability under the family car doctrine. Mrs. Steinberg has not clearly demonstrated that the vehicle operated by Ms. Steinberg was owned and maintained by Ms. Steinberg, with no control whatsoever reserved to Mr. and/or Mrs. Steinberg. Ms. Steinberg was transporting Benevides, who was an employee of Mr. and Mrs. Steinberg. Mrs. Steinberg issued the pay check to Benevides on a joint checking account with her husband. There is a genuine issue of material fact regarding whether Mrs. Steinberg exercised control of the vehicle within the meaning of the family car doctrine.
Count Eight: Respondeat Superior
General Statutes § 52-183 states: " In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption." " Section 52-183 does nothing more than create a rebuttable presumption of ... an employer-employee relationship, which, under the common-law principle of respondeat superior, renders the owner vicariously liable for compensatory damages arising out of the negligent and reckless conduct of the operator ..." (Emphasis omitted.) Matthiessen v. Vanech, 266 Conn. 822, 840, 836 A.2d 394 (2003).
In the present case, Mrs. Steinberg argues that she is not liable under § 52-183 because Ms. Steinberg owned the vehicle that Ms. Steinberg was operating. As discussed in the previous section, § 52-183, like § 52-182, merely creates a presumption in favor of the plaintiff. Accordingly, the question is whether summary judgment should be granted pursuant to the common law, and the relevant inquiry concerns Mrs. Steinberg’s argument that she is not liable because Ms. Steinberg was not acting in furtherance of Mr. and/or Mrs. Steinberg’s business.
" [T]he fundamental principles of the doctrine of respondeat superior are well established in Connecticut. Under the doctrine of respondeat superior, a master is liable for the wilful torts of his servant committed within the scope of the servant’s employment and in furtherance of his master’s business ... [l]t 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." (Internal quotations marks omitted.) 2 National Place, LLC v. Reiner, 152 Conn.App. 544, 557-58, 99 A.3d 1171, cert. denied, 314 Conn. 939, 102 A.3d 1112 (2014). " [W]hile a servant may be acting within the scope of his employment when his conduct is negligent ... that does not end the inquiry. Rather, the vital inquiry ... 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." (internal quotation marks omitted.) 2 National Place, LLC v. Reiner, supra, 152 Conn.App. 558; see also A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 210, 579 A.2d 69 (1990) (same).
In Reiner, the Appellate Court affirmed the trial court’s determination that there was no genuine issue of material fact as to whether the agent acted in furtherance of the defendant’s business where there was no evidence that the defendant had benefited from the agent’s actions and the plaintiff did not " identify any particular interests that would be advanced by [the agent’s actions]." 2 National Place, LLC v. Reiner, supra, 152 Conn.App. 559. Furthermore, the court noted, " [t]he plaintiff produced no evidence that ... [the agent] was ‘motivated’ or ‘actuated’ by a purpose to serve or benefit the [principal]." Id. In the absence of evidence that the agent intended to or did in fact advance the principal’s interests, " there was no evidence before the court from which it could conclude that [the agent] was motivated by a purpose to advance the [principal’s] interests ..." Id., 560. Similarly, in A-G Foods, the court determined that " there was no evidence to indicate that [the agent] ... intended to serve [the principal’s] interests at all." A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 210. Although the court acknowledged that the agent’s actions did convey an incidental benefit to the principal, because the benefit was unintentional and there was no evidence to indicate that the principal was aware of the agent’s actions, " the trial court did not abuse its discretion in determining that the jury could not reasonably and logically have found ... that [the agent] was acting within the scope of his employment and in furtherance of [the principal’s] business." Id.
Mrs. Steinberg argues that the claim for respondeat superior must fail for one of two reasons: first, because she was not the owner of the vehicle, and therefore she is not liable under the agency statute, and in the alternative, because she is not liable under a common-law theory of agency, as Ms. Steinberg was not acting in furtherance of Mrs. Steinberg’s business. Affidavits submitted by Mr. and Mrs. Steinberg indicate that Benevides asked for, and Ms. Steinberg agreed to provide, a ride from the Steinberg family’s home in Lenox, Massachusetts, back to Greenwich. Mrs. Steinberg’s affidavit states that Ms. Steinberg was not operating the vehicle for Mrs. Steinberg’s benefit or at her request.
Mrs. Steinberg has not provided sufficient evidence to indicate that there is no genuine issue of material fact as to whether Ms. Steinberg was acting to further Mrs. Steinberg’s interests. Mrs. Steinberg’s affidavit states that Benevides was employed by Mr. and Mrs. Steinberg as a housekeeper, working at their homes in Greenwich and Lennox. Regardless of how the ride was arranged, there is no evidence concerning the motivating force behind Ms. Steinberg’s decision to drive Benevides. Ms. Steinberg’s affidavit merely states that she agreed to drive Benevides; Mrs. Steinberg’s affidavit provides that he did not request that Ms. Steinberg operate the vehicle. The evidence in support of the motion for summary judgment does not resolve whether Ms. Steinberg agreed to drive Benevides as a favor to, or in order to benefit, Mr. and/or Mrs. Steinberg, who might otherwise have needed to arrange transportation for Benevides. It remains disputed whether Ms. Steinberg’s operation of the vehicle was motivated or actuated by some intent to benefit Mrs. Steinberg- and whether Mrs. Steinberg did benefit from Ms. Steinberg’s actions.
This court concludes that Mrs. Steinberg has not met the burden of establishing that there is no genuine issue as to her liability under the theory of respondeat superior. There is a genuine issue of material fact regarding whether Ms. Steinberg was acting as an agent of Mr. and/or Mrs. Steinberg and in furtherance of their interests at the time of the collision.
Count Nine: Negligent Entrustment
" As noted by several Superior Court decisions ... there is no appellate authority regarding the doctrine of negligent entrustment of an automobile beyond the first decision that recognized the cause of action as cognizable in Connecticut- Greeley v. Cunningham, 116 Conn. 515, 165 A. 678 (1933) ... [T]he court concluded that [w]hen 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 entrusting the automobile to the incompetent driver." (Citations omitted; internal quotation marks omitted.) Short v. Ross, Superior Court, judicial district of New Haven, Docket No. CV-12-6028521-S (February 26, 2013, Wilson, J.) (55 Conn.L.Rptr. 668). " [In Greeley, ] the Supreme Court discussed [negligent entrustment] as applied to the owner of the vehicle. It is true ... that no Connecticut appellate court has discussed whether the tort could be extended to non-owners. However, numerous decisions of the Superior Court applying Greeley, have consistently held that ownership is not a necessary element of the tort." Prior v. Lang, Superior Court, judicial district of Tolland, Docket No. CV-07-5001248-S (May 7, 2009, Bright, J.) (collecting cases).
Essentially, " as long recognized by the decisions of the Superior Court, Greeley ‘virtually adopted’ the approach provided by the Restatement"; Short v. Ross, supra, Superior Court, Docket No. CV-12-6028521-S; which is significant because " [t]he Restatement makes no reference to any requirement that the defendant in a negligent entrustment action be the owner of the instrumentality entrusted ... Liability for negligent entrustment is not based on a defendant’s ownership status but rather is based on whether the entrustor, by virtue of his status, has sufficient control over the vehicle of the owner to give rise to an action for negligent entrustment." (Internal quotation marks omitted.) Johnson v. Amaker, judicial district of New Haven, Docket No. CV-07-5013242-S (January 29, 2008, Bellis, J.). Under the Restatement, " [i]t is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others." Restatement (Second) of Torts, § 308, p. 100 (1965). " The words ‘under the control of the actor’ are used to indicate that the third person is entitled to possess or use the thing or engage in the activity only by the consent of the actor, and that the actor has reason to believe that by withholding consent he can prevent the third person from using the thing or engaging in the activity." Id., comment (a).
Mrs. Steinberg argues that, to the extent that ownership is a condition precedent to negligent entrustment, count nine must fail, and in the alternative, that the vehicle was under Ms. Steinberg’s control and therefore Mrs. Steinberg could not have entrusted it to Ms. Steinberg.
In the present case, Mrs. Steinberg contends that she is not liable for negligent entrustment because she neither owned nor controlled the vehicle Ms. Steinberg was driving. First, in the absence of binding authority to the contrary, the persuasive force of the Superior Court decisions applying negligent entrustment to non-owners is sufficient to overcome Mrs. Steinberg’s argument that ownership is a condition precedent to this tort. Next, although Mr., Mrs. and Ms. Steinberg assert in their respective affidavits that Mr. and Mrs. Steinberg did not exercise any control over Ms. Steinberg’s operation of the vehicle, the plaintiff’s submission of Mr. Steinberg’s deposition testimony establishes the existence of a genuine issue of material fact. At his deposition, Mr. Steinberg testified that he purchased the vehicle for Ms. Steinberg, arranged for its insurance, and paid for the insurance. Indeed, Mr. Steinberg testified that he anticipated paying for the vehicle’s insurance for at least the first year and- critically- if Ms. Steinberg did not pay the insurance, he would not allow her to drive an uninsured vehicle.
Although Ms. Steinberg’s affidavit states that she and she alone could decide when and whether to operate the vehicle, Mr. Steinberg’s testimony indicates that he would not consent to allow Ms. Steinberg to drive the vehicle he purchased if it was not insured. Accordingly, it appears that there is an issue of fact as to whether under certain circumstances- such as the insurance lapsing- Mr. Steinberg would be entitled to prevent Ms. Steinberg from driving the vehicle, and thus whether Ms. Steinberg operated the vehicle with the defendant’s implicit consent. In addition, Mrs. Steinberg’s affidavit states that Benevides was employed by the defendants as a housekeeper working at their homes in Greenwich and Lenox.
This court concludes that Mrs. Steinberg has not met the burden of establishing that there is no genuine issue as to her liability under the negligent entrustment. There is a genuine issue of material fact regarding whether Mr. and Mrs. Steinberg had control over the vehicle when it was entrusted to Ms. Steinberg.
CONCLUSION
For the foregoing reasons, the court denies Mrs. Steinberg’s motion for summary judgment on counts seven, eight and nine.