Opinion
No. CV 10 6008976S
August 31, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#110)
FACTS
This action arises out of an alleged automobile collision involving the plaintiff and an unknown individual who was driving a vehicle that allegedly belonged to the defendant. On March 8, 2010, the plaintiff, Albert Sumler, filed a two-count complaint alleging, in the first count, facts supporting a claim of vicarious liability under General Statutes § 52-183 against Travis Galloway, and in the second count, facts supporting an uninsured motorist coverage claim against Geico General Insurance Company. In the first count, which is the only count at issue, the plaintiff alleges the following. On the evening of January 18, 2010, the plaintiff was a passenger in a vehicle that was stopped at Dyer Street at or near its intersection with Fitch Street in New Haven. At that time, another vehicle, owned by the defendant but driven by an unknown individual, made a turn from Fitch Street onto Dyer Street and proceeded into the plaintiff's lane, striking the vehicle carrying the plaintiff and causing him to be injured. The plaintiff alleges that this unknown driver was negligently operating the vehicle at the time of the collision, and seeks money damages against the defendant in compensation for his injuries.
Because the second count is not at issue the term "defendant" will refer to Galloway only.
On April 15, 2010, the defendant filed an answer denying the material allegations of the complaint. On June 16, 2010, the defendant filed a motion for summary judgment pursuant to Practice Book § 17-44, on the ground that there exists no genuine issue of material fact as to the lack of an agency relationship between the defendant and the unknown driver. In support of his motion, the defendant submitted a memorandum of law, a sworn affidavit and certified documents corroborating his affidavit. The matter was heard at short calendar on July 6, 2010. The plaintiff, who did not appear at oral argument, did not submit a memorandum in opposition or produce any evidence in his favor.
DISCUSSION
"In any action, except administrative appeals . . . any party may move for a summary judgment at any time . . ." Practice Book § 17-44. "The judgment sought 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." Practice Book § 17-49. "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "[A] [summary judgment] may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion . . ." (Emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
The defendant acknowledges that under § 52-183, there is a rebuttable presumption that an agency relationship exists between an owner of a motor vehicle and the driver in the context of a civil action to recover damages caused by the negligent operation of the vehicle. The defendant contends, however, that he has rebutted this presumption by producing evidence supporting his contention that he did not know the driver and that his vehicle was in fact stolen from the driveway of his apartment four days prior to the accident. Therefore, the defendant argues, there exists no genuine issue of material fact as to the lack of an agency relationship between the defendant and the unknown driver, and judgment should be granted in his favor as a matter of law.
Section 52-183 provides: "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 . . ." Matthiessen v. Vanech, 266 Conn. 822, 840, 836 A.2d 394 (2003).
In Connecticut, there are three statutory bases upon which an owner of a motor vehicle may be found vicariously liable for injuries caused by the negligence of the driver, if the driver was a different person. See Sandquist v. Shaw, Superior Court, judicial district of New Britain, Docket No. CV 00 0504565 (January 6, 2003, Kocay, J.). Section 52-183 is the only statute that applies here. See General Statutes §§ 52-182 (imposes vicarious liability on owner if driver was immediate family member) and 14-154a (imposed vicarious liability on owner of leased or rented motor vehicle, which has been preempted by the Graves Amendment, U.S.C. § 30106, see also Rodriguez v. Testa, 296 Conn. 1 (2010)).
"[Our Supreme Court] has repeatedly held that [§ 52-183] goes further than merely establishing a presumption [of agency], in that it expressly places upon the defendant the burden of introducing evidence to rebut the presumption created by the statute. Moreover, that presumption is not ousted simply by the introduction of any evidence to the contrary . . . [T]he presumption ceases to be operative [only] when the trier finds proven facts which fairly put in issue the question . . . [I]f no evidence relevant to the issue is produced, or, if countervailing evidence is produced but the trier does not believe it, the presumption applies, and the plaintiff is entitled to have the issue found in his favor." (Citations omitted; internal quotation marks omitted.) Id., 837-38. "The fact that the plaintiff did not produce any evidence to prove an agency relationship is of no consequence." Engram v. Kraft, 83 Conn.App. 782, 788, 851 A.2d 363 (2004).
A defendant's testimony that he or she did not grant a driver permission to use a motor vehicle does not, on its own, permit the court to direct a verdict in the defendant's favor in a § 52-183 action. Bogart v. Tucker, 164 Conn. 277, 281-83, 320 A.2d 803 (1973). Our Supreme Court explained in Bogart: "Since the existence and scope of permission is a matter peculiarly within the knowledge of the defendant, the strict rule that any testimony contra ousts the presumption would seem to operate unfairly, since it may enable the defendant to overcome the effect of the presumption by a simple assertion that no consent was ever given." Id., 281-82. Moreover, testimonial evidence generally requires a determination of credibility, which is the function and exclusive province of the trier of fact. Id., 283 ("[t]his court has never arrogated to itself such a power" "to substitute its own judgment concerning the credibility of witnesses for that of the jury"). Therefore, the bar for granting summary judgment on the basis that the statutory presumption of agency has been rebutted is high. "[T]he only basis on which [a] defendant . . . could succeed in . . . [removing] the issue from the jury's consideration, would involve rebuttal evidence of such a nature that it could not rationally be disbelieved." Id., 282.
If the substance of the evidence amounts to nothing more than mere testimony, a jury's determination of credibility is still required notwithstanding the form taken by the evidence. In Engram v. Kraft, supra, 83 Conn.App. 788, the Appellate Court held that a trial court erroneously granted summary judgment in favor of a defendant owner in a § 52-183 action because, although he "produced several different mediums through which he evinced his denial of consent [as to another person's use of his vehicle] . . . the cumulative force of the evidence resulted in a mere assertion" that consent was never granted. Specifically, the evidence included the defendant's deposition and affidavit testimony and a recorded statement to his insurance company asserting, in sum, that a "former friend" had stolen his vehicle and loaned it to a third person, whom he did not know. Id., 784-85. In addition, the defendant submitted a police report that he filed nine hours after the accident occurred, in which he alleged that his former friend had taken his vehicle without permission. Id., 785. The court concluded that the trial court "improperly drew its own conclusion as to the credibility of the defendant's testimony rather than submitting the issue to the jury." Id., 789.
This person allegedly drove the defendant's vehicle and crashed it into the plaintiff, the circumstances of which formed the basis for the statutory vicarious liability action in that case. Id., 784.
There is a Superior Court opinion that has determined at the summary judgment stage, that the statutory presumption of agency may be overcome if the defendant owner produces more than mere testimony expressing denial of consent. In Dontfraid v. Colony, Superior Court, judicial district of New Haven, Docket No. CV 07 5009746 (December 8, 2008, Robinson, J.) ( 46 Conn. L. Rptr. 759), the defendant produced a stolen vehicle report that was filed with the police two weeks prior to the car accident upon which the § 52-183 action in that case was based. The report corroborated his affidavit and that of his daughter that his vehicle was stolen prior to the accident, and that neither of them knew the driver nor gave the driver permission to use his vehicle. Id., 760. Significantly, the court noted that "[h]ad the [police report] been filed on or after the date of the accident, the report itself would not be sufficient to rebut the statutory presumption of agency, because a question of fact would exist as to whether the report was made in order to defeat liability by the vehicle owner." Id., 761 n. 4. By virtue of the fact that the police report was filed before the occurrence of the accident, the court held that the testimonial evidence, supplemented by the police report, was sufficient to rebut the statutory presumption of agency. Id., 761. Therefore, it granted summary judgment for the defendant. Id.
The facts and evidence submitted in the present case are similar to that in Dontfraid. Here, the defendant produced a sworn affidavit attesting that he did not provide the driver with permission to operate his vehicle, that he did not know this individual and that his vehicle was stolen from the driveway outside his apartment sometime between January 13, 2010 and January 14, 2010, several days prior to the accident. The defendant also submits certified copies of two stolen vehicle reports prepared by the New Haven police department, one prepared on the morning of January 15, 2010, which recorded the defendant's report to the police that his vehicle had been stolen, and the other prepared on January 18, 2010, the day of the accident, which noted that the police had contacted the defendant about their recovery of his vehicle. Unlike Engram, the defendant's evidence constitutes more than mere testimony, because it includes an uncontroverted document that attributes significant credibility to the defendant's testimony that he did not grant the driver consent to operate his vehicle. Moreover, while the facts in Engram linked the defendant to the driver through a third person, there are no facts in the present case that create an issue as to the defendant's credibility. Because no rational jury could disbelieve the defendant's evidence, there is no genuine issue of material fact as to the absence of an agency relationship between the defendant and the unknown driver. Since there is no basis for holding the defendant vicariously liable for the plaintiff's injuries absent such a relationship, the defendant is entitled to judgment as a matter of law.
CONCLUSION
Accordingly, for the foregoing reasons the defendant's motion for summary judgment is granted.