Opinion
X07HHDCV165042908S
07-09-2018
Dawn WILSON v. Donald HOPKINS
UNPUBLISHED OPINION
OPINION
Moukawsher, J.
James A. Hawkins, III was helping his boss Donald Hopkins move a train, but something went wrong, and Hawkins ended up being struck and killed by the train. His estate and family are suing Hopkins, who was driving the train, along with Hopkins’ company, the owner of the locomotive, the company that had leased the locomotive and the owner of the tracks the train travelled on.
On September 15, 2017, this court struck many of the allegations. The plaintiffs have repleaded. The defendants move to strike again. Some of the repleaded claims have to be stricken and some don’t.
The court must strike the negligence counts (4, 26, 48, 70, 92 and 114) and the negligent supervision counts (19, 41, 63, 85, 107 and 129 as well as counts 11, 33, 55, 77, 99 and 121) against Strategic Commercial Realty, Inc. d/b/a Rawson Materials, Inc.- the company that leased the train from GATX.
The court must strike these counts to the extent they rely on vicarious liability stemming from the bare allegation that the train operator Hopkins was the "agent, servant, and/or employee" of Rawson.
As the Appellate Court held in 2008 in Hollister v. Thomas, pleading vicarious liability stemming from an employment or agency relationship requires pleading "the facts necessary to prove the existence of [an agency] relationship" and not merely use of "the labels." Because the plaintiffs have done no more than plead the labels, any claim in the complaint based on vicarious liability with the exception of defendant Hopkins Fabrication is stricken. (Counts 4, 5, 11, 13, 19, 26, 27, 33, 35, 41, 48, 49, 55, 57, 63, 70, 71, 77, 79, 85, 92, 93, 99, 101, 107, 114, 115, 121, 123 and 129.)
110 Conn.App . 692, 706, cert. denied, 289 Conn. 956.
The negligence and negligent supervision claims don’t properly assert any other kind of duty besides that of master and servant either. The plaintiffs allege that Rawson allowed Hopkins to use the train and that Rawson owned the premises. They don’t say how this leads to liability in ordinary negligence for Hopkins’ errors. As the Restatement (Second) of Torts makes clear: "[t]here is no duty so to control the conduct of a third person as to prevent him from causing ... harm to another unless ... a special relationship exists ..."
§ 315.
Because the plaintiffs have alleged no relationship giving rise to a duty, the court strikes the negligence and negligent supervision claims against Rawson. (Counts 4, 11, 19, 26, 33, 41, 48, 55, 63, 70, 77, 85, 92, 99, 107, 114, 121 and 129.) Because these claims are re-alleged against Rawson’s parent O & G these claims are stricken too. (Counts 12, 20, 34, 42, 56, 64, 78, 86, 100, 108, 122 and 130.)
This is equally true of the same negligence and negligent supervision allegations made against GATX, the company that leased Rawson the locomotive. Therefore, counts 5, 27, 49, 71, 93, 115, 13, 35, 57, 79, 101 and 123 are stricken.
The same is true of the negligent training claim against the owner of the nearby railroad tracks, Providence & Worcester Railroad. (Count 14.) No special relationship has been alleged between Hopkins and the Providence & Worcester. Neither has any other basis that would create a duty flowing from the railroad to Hawkins. The alleged duty to train floats in midair. It attaches to no one in particular and the plaintiffs allege no reason for it to land on Providence & Worcester. As the Appellate Court in Hollister v. Thomas said in 2008, "[t]he existence of a duty of care is a prerequisite to a finding of negligence." With no basis alleged for a duty by Providence & Worcester to Hawkins, the negligent training count is stricken.
The court must also strike the claims for premises liability against O & G (counts 16, 38, 60, 82, 104, and 126 and 17, 39, 61, 83, 105 and 127) and the similar claims about the defective condition of the railroad against O & G, and Providence & Worcester. (Counts 21, 43, 65, 87, 109 and 131.) In 2013 in Santorso v. Bristol Hospital, our Supreme Court reaffirmed that conclusory allegations must be stricken. As Practice Book § 10-1 demands, "the material facts" that support a claim must be in the complaint. There are facts alleged about the condition of the locomotive and personal property related to its operation but the complaint alleges no material facts about defects in the premises- on the physical railroad line- that the plaintiffs allege proximately caused this accident. It does, however, allege premises defects on the land Rawson owns near the track. The complaint alleges Rawson owned and controlled this area. It alleges that Hawkins was an invitee because he was there assisting Hopkins moving trains along this property as he is alleged to have had a right to do. It alleges a lack of signals, signs, and communication equipment necessary to make the property safe for invitees and alleges the absence of these caused Hawkins’ death. With this exception there aren’t allegations against the other defendants sufficient to support a premises liability claim or a claim about the tracks has been stated. The court strikes the premises or track liability claims against O & G, and Providence & Worcester. (Counts 16, 17, 38, 39, 60, 61, 61, 82, 83, 104, 105, 126 and 127.)
Many of the plaintiffs’ loss of consortium and bystander emotional distress claims depend on the stricken claims being properly pled. Those linked to the stricken claims are themselves stricken (Counts 26, 27, 33, 34, 35, 38, 39, 41, 42, 48, 49, 55, 56, 57, 60, 61, 63, 64, 70, 71, 77, 78, 79, 82, 83, 85, 86, 92, 93, 99, 100, 101, 104, 105, 107, 108, 114, 115, 121, 122, 123, 126, 127, 129 and 130.)
Finally, the court denies Rawson’s motion to strike the negligent entrustment claims. (Counts 7, 29, 51, 73, 95 and 117.) The plaintiffs allege Rawson had "physical control and possession" and "authority to determine who would be authorized to operate the locomotive." These are new claims and unlike the prior complaint allege how Rawson would know what was happening with the train and Hopkins’ use of it. These counts also claim Rawson knew of a long list of reasons why Hopkins couldn’t be trusted with the locomotive without creating an unreasonable risk of harm to others. It alleges the accident was proximately caused by Rawson ignoring this risk. The Restatement (Second) of Torts provides the standard:
§ 308 Permitting Improper Persons to Use Things or Engage in Activities
It 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.
Comment:
a. 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.
§ 390 Chattel for Use by Person Known to be Incompetent
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.
Neither the Restatement nor any controlling Connecticut authority agrees with imposing the additional requirement urged by defendants that any allegation of control must allege exclusive control. Control under the Restatement must be seen as the power to exclude use of the chattel by another, but it doesn’t automatically mean that the power can’t be shared with others. If two parties have the right to veto the use of a chattel both parties may make judgment calls that- under some circumstances- might logically lead to liability. If one party with a veto right knows of some risk the other party doesn’t, can easily prevent a foreseeable harm from occurring because of it, yet simply ignores the risk and causes the harm, there is no good reason to make the party immune from negligent entrustment liability merely because the party had control but not exclusive control.
The second amended complaint alleges Rawson possessed and controlled the train at the time of the accident, knew specific reasons why Hopkins was incompetent, and could have- but did not- stop him from using the train. This is sufficient to state a cause of action for negligent entrustment. The same result is mandated as to the negligent entrustment claims against O & G. (Counts 8, 30, 52, 74, 96 and 118.)
The second amended complaint provides even more detail about GATX’s alleged control of the locomotive, claiming it retained actual, not theoretical, control over the locomotive, its agents met with Hopkins to discuss his use of the train and from its site visits and reviews knew or should have known Hopkins was incompetent to operate the train. The complaint alleges the accident was proximately caused by GATX ignoring this risk. Therefore, the negligent entrustment claims against GATX survive the motion to strike. (Counts 9, 31, 53, 75, 97 and 119.)
Equal detail throughout the complaint supports the pleading of a negligent entrustment claim against Hopkins Fabrication. Therefore, the negligent entrustment claims against Hopkins Fabrication survive the motion to strike. (Counts 6, 28, 50, 72, 94 and 116.)
The court strikes the following counts: 4, 5, 11, 12, 13, 14, 16 (except as to Rawson), 17, 19, 20, 21, 26, 27, 33, 34, 35, 38, 39, 41, 42, 43, 48, 49, 55, 56, 57, 60, 61, 63, 64, 65, 70, 71, 77, 78, 79, 82, 83, 85, 86, 87, 92, 93, 99, 100, 101, 104, 105, 107, 108, 109, 114, 115, 121, 122, 123, 126, 127, 129, 130 and 131.