Opinion
FSTCV166029461S
02-06-2019
Jorge AMPARO v. Jose AYALA
UNPUBLISHED OPINION
OPINION
POVODATOR, JTR
This is a lawsuit arising from a motor vehicle collision on I-95, involving a tractor-trailer that rear-ended the plaintiff’s vehicle which, at the time of the collision, allegedly already had come to a stop due to traffic conditions. As this court has noted elsewhere in this matter, the case is being litigated aggressively if not overly-aggressively, with an overlay of occasional personalization, which at times seems to lead to a lack of focus on the core issues that need to be adjudicated.
Currently before the court is the motion for summary judgment filed by the defendants. Defendant Ayala was the operator of the vehicle that struck the plaintiff’s car. The plaintiffs appear to claim that defendant Evans Delivery Company, Inc. was the owner of the truck being operated by the defendant operator (although the defendants contend that D Matos was the owner and there is conflicting evidence as to the identity of the owner, discussed below). Defendants, D Matos Transport Corp., Daniel E. Matos, and originally Mia Transport, LLC, are all claimed to have entered into a contractual arrangement with Evans for use of the subject truck. According to the plaintiff, the defendant operator had an agency-type relationship with all of the other defendants who are claimed to have been "immediate supervisors" of Mr. Ayala and "had the right and authority to direct and control the acts of Defendant, Jose Ayala."
After the motion for summary judgment was filed and argued, the claims directed to Mia were withdrawn (#211.00).
The first count alleges negligence on the part of the defendant operator, and that count is not involved in this motion. The defendants challenge all of the remaining counts (other than the loss of consortium claim). The second count asserts that the defendant operator was reckless in his operation of the motor vehicle, and the defendants challenge the sufficiency of the allegations and facts to support a claim of recklessness, given the essential identity of facts and assertions of negligence and recklessness. The remaining six counts follow a pattern— as to each of the remaining three defendants, there is a claim of vicarious liability and a claim of negligent hiring/entrustment. Each of the defendants claims that there is insufficient evidence to support a theory of vicarious liability or a theory of negligent hiring/entrustment, as to that the defendant.
As the loss of consortium claim is not involved in the pending motion, all references to the plaintiff are intended to refer to the named plaintiff, Jorge Amparo.
The defendants’ reasons for their claim to be entitled to summary judgment are set forth in their motion:
(1) the plaintiffs’ causes of action against D Matos Transport Corp. and Evans Delivery Company, Inc. are derivative of and dependent on the cause of action directed at independent contractor, Jose Ayala; (2) Evans Delivery Company, Inc., Daniel E. Matos, and D Matos Transport Corp. did not commit the acts or omissions as alleged in the plaintiffs’ Amended Complaint; (3) Daniel E. Matos and D Matos Transport Corp. did not owe a legal duty of care to the plaintiffs; (4) Daniel E. Matos and D Matos Corp.’s actions were not the proximate cause of the alleged injuries and damages claimed by the plaintiffs.
The court notes that although the defendants identify in their motion that they are attacking the second count in language preceding this quoted passage, there is no mention of the basis for the challenge to that count recited in the motion itself. Rather, the court must look to the brief in support of the motion to find the basis for the claim of entitlement to judgment on the second count— notwithstanding the claims of recklessness, the defendants contend that there is an inadequate factual basis to support such a claim.
Legal Standards
The general principles guiding the court in deciding a motion for summary judgment are sufficiently well-established as not to require any lengthy recitation. See, e.g., Martinez v. Premier Maintenance, Inc., 185 Conn.App. 425, 434-35 (2018). In simplistic terms, the issue is whether the moving party has established the absence of the existence of any material issue of fact, and that based on undisputed material facts, it is entitled to judgment in its favor.
In evaluating the evidence presented by the parties, the court is required to construe the evidence in a manner most favorable to the nonmoving party, including giving the nonmoving party the benefit of all reasonable favorable inferences. In other words, the burden on the defendants is to establish that, viewing the evidence in a light most adverse to their position, there are no material issues of fact and they are entitled to judgment in their favor. Somewhat more simplistically, the burden on the defendants is to establish that even if the plaintiff is correct in his marshaling of the evidence, the defendants nonetheless will prevail, as a matter of law. Conversely, the burden on the plaintiff is to establish that there is a material issue of fact as to each cause of action being challenged, and with respect to each such cause of action, he only needs to establish a material issue of fact as to one specification of negligence, recklessness, etc., in order for the challenged count to survive. Barrett v. Central Vermont Ry., Inc., 2 Conn.App. 530, 534, 480 A.2d 589, 592 (1984) (plaintiff only needs to prevail on one specification of negligence, to prove claim of negligence).
In their brief, the defendants seem to pay little or no attention to the need to take into account the plaintiff’s version of events. To be sure, the defendants can present a seemingly prima facie case of entitlement to summary judgment by simply reciting the facts most favorable to their position, but that only makes it easier for the plaintiff to identify facts that counter the defendants’ version of events in an effort to establish the existence of a material issue of fact. Conversely, however, in his recitation of facts at the outset of the plaintiff’s brief, there are numerous claims of material issues of fact, but they are identified in something of a vacuum, and the court only is concerned with material issues of fact relating to the contentions asserted by the defendants in their motion. Thus, the plaintiff contends that "[f]urthermore and somehow Defendant Ayala hit the cement median which was never told to Trooper Grabowski and Defendant Ayala never testified to the same at his deposition. Thus, there are serious issues of material fact." It is far from clear as to how the claimed issue of fact as to whether or not the defendants’ vehicle hit the cement median is a material issue of fact with respect to any issue currently before this court. (Given one version of the defendant operator’s explanation of how the accident occurred, there might be relevant to whether he had been trying to hit the median rather than colliding squarely with stopped motor vehicles, but that is distinct from the question of whether he actually had struck the median.)
Facts
Although the defendants repeatedly aver that the facts are basically undisputed, the actual submissions of the parties suggest little agreement other than that a collision occurred at a specific location, at a specific time, involving a vehicle operated by the defendant operator striking the rear of the vehicle occupied by the plaintiff.
At page 3 of their brief, the defendants state that "[t]he truck being operated by defendant Ayala was owned by defendant D Matos Transport Corp. ... and leased to defendant Evans Delivery Company, Inc." At page 5, there is an assertion that the defendant operator "[a]s he rounded [a curve on I-95], coming down from a very slight hill, he saw that the traffic had stopped." On page 6, the defendant operator is quoted as having said "that it had just started to rain just before the accident" and photographs are claimed to show that it was a shower rather than a heavy rain, id. At page 5, the defendants (on but one of many occasions) allude to the defendant operator’s testimony that he had been operating his vehicle at between 45 and 50 miles per hour, before he saw the stopped traffic in front of him.
The plaintiff, however, relies upon a somewhat different subset of the evidence presented by way of documentary records and deposition testimony. The plaintiff points out that the investigating State Trooper, in his report, indicated that the defendant operator had reported skidding on wet pavement. The plaintiff notes that there have been different versions of events recounted by the defendant operator— either he intentionally moved into the left lane (of three) in order to avoid striking the car immediately in front of him, with the intention of minimizing harm by striking the median rather than a motor vehicle, or he had moved into the left lane, also intentionally, in order to avoid a car that had cut him off (a vehicle that was not observed/reported by any other witness) or perhaps he just lost control of his vehicle on the wet pavement when applying the brakes. The plaintiff notes that the internal report relating to the accident included a reference to the defendant operator as having stated that it had been "raining steadily" (and the court notes that elsewhere in the record is a reference to it having been raining hard, and letting up somewhat, shortly before the accident). The plaintiff’s version of traffic conditions was substantially at variance to that of the defendant operator— there had been approximately 1 mile of travel with traffic congestion and that traffic gradually came to a stop.
Even something as basic as ownership of the vehicle, and the relationship among the defendants in that regard, appears to be less than clear. As noted above, in their brief, the defendants cite that D Matos Transport was the owner of the vehicle, but the police report identifies Evans as the owner. Additionally, there is something of a double negative admission of ownership by virtue of interrogatory 1(f), as answered by defendant Evans and submitted by the plaintiff— the question: "if you were not the owner of the subject vehicle, the name and address of the owner or lessor of the subject vehicle on the date of the alleged occurrence" was answered with "not applicable," implying that Evans was the owner. (If Evans were not the owner, it would be expected/required to identify the actual owner.) On the other hand, there is an equipment and hauling agreement between Evans and D Matos which seems to indicate that D Matos was the owner, and other confirmatory documentation of that relationship. As if this were not enough, the plaintiff has submitted a copy of a certificate of title (and related documentation), naming Mr. Matos— seemingly personally— as the owner of the truck.
In fairness, the plaintiff also, at times, loses sight of the proper focus of attention. Thus, the plaintiff spends a full page of his brief trying to demonstrate that the defendant violated General Statutes § 14-296aa by his operation of a cell phone that required him to touch a button in order to enable and disengage hands-free communication (page 7) with additional discussion related to that cell phone usage on the next page. The court need not analyze in detail the question of whether the plaintiff’s analysis of the meaning and application of the statute is correct; the key point is that the plaintiff acknowledges that the call itself, is described elsewhere in the factual submission as being at least a few minutes in duration, and may have ended about a minute before the accident ("Here, Defendant Ayala’s testimony establishes he received two telephone calls from his wife prior to the accident, the last call ended one minute prior to him impacting Plaintiff’s vehicle")— or maybe it hadn’t ended, as the plaintiff asserts on that same page that "at the time of the accident he was talking to his wife on his cellular device." There is no explanation as to how a momentary distraction (pressing a physical or touch-screen-type button) a minute (or minutes, if the call had been commenced but was still in progress) before the collision could have been a factor in causing the collision, without resort to speculation and disregard for proximate causation.
On the next page, seemingly quoting his expert (albeit without quotation marks), the plaintiff recites: "I believe that a reasonable and prudent person would find that Mr. Ayala was talking on his phone to his wife when he came upon stopped, rush hour traffic."
Discussion
I. Recklessness
A. Defendant Ayala
With a qualification, the defendants cite appropriate authority for the standards applicable to a determination of whether conduct was reckless.
"Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater than that which is necessary to make his conduct negligent." Northrup v. Witkowski, 175 Conn.App. 223, 167 A.3d 443 (2017). "Recklessness ...[ ] is more than negligence, more than gross negligence." Doe v. Boy Scouts of America Corporation, 323 Conn. 303, 147 A.3d 104 (2016). In order for the plaintiffs to establish that defendant Ayala was acting recklessly while operating his motor vehicle, they must establish, using admissible evidence, that defendant Ayala made a conscious choice for a particular course of action that involved a serious risk of danger to others, and that risk was one that was substantially greater than what was necessary. It is not enough that plaintiffs’ make these allegations, they must have actual admissible evidence to back up their claim. No such evidence exists. (Defendants’ brief at pp. 4-5.)
The aforementioned qualification relates to the last two sentences, quoted above. The plaintiff has no burden of demonstrating the existence of "admissible evidence" at this stage of the proceeding unless and until the defendants first carry their burden. Romprey v. Safeco Insurance Company of America, 310 Conn. 304, 320-21 (2013). The appropriate initial question is whether the defendants have submitted sufficient evidence to establish the negative proposition— that the facts preclude a finding of recklessness. Only then does the plaintiff have the burden of coming forward with evidence supporting the affirmative proposition.
The plaintiff relies on Meyer v. Hart, 110 Conn. 244, 147 A. 678, 678 (Conn. 1929) as an example of a case in which a vehicle traveling 35 miles per hour was deemed have been driven recklessly. The actual recitation of facts in the case is that the vehicle had crested a hill at that speed, and accelerated as it began going downhill, variously described as "its speed slightly increasing" and "at a speed accelerated from a rate of 35 miles an hour at the crest of the hill to a somewhat greater rate"— on a local road in an era when the Model T was "king." While the legal principles may be the same, attempting to compare the facts, including vehicle speeds, is at best a distraction.
Ford stopped production of the Model T in 1927 (https://www.britannica.com/technology/Model-T) (last visited on 2/4/19); Meyer is an appellate level decision released in 1929 which does not identify the actual date of the necessarily-earlier underlying accident (in turn, with an intervening trial).
In a contextual sense, it may not be accurate. While the identified principles are the same, Meyer was decided in the context of a statute that allowed a guest in a vehicle to sue the driver only if there had been recklessness or the equivalent. That practical consideration may well have impacted how the technically-identical standard was applied in practice.
According to the Britannica article cited above in footnote 4, the top speed of a Model T was in the range of 40-45 mph (using the Model T as an example of a typical car of the era).
The court disagrees with the plaintiff’s characterization of the testimony of the defendant operator at his deposition as constituting an admission of recklessness ("Defendant Ayala further admitted to his own recklessness in his deposition testimony ..."); more prudently and appropriately, the proper question is whether the excerpts extracted from his deposition testimony, following this quoted language, could allow a reasonable juror to conclude that he had been reckless (plaintiff’s position) or whether no reasonable juror could reach such a conclusion (defendants’ position/burden).
Without exhaustively reciting all of the considerations that the defendant operator acknowledged were important, as recited on pages 8-10, he knew the importance of maintaining a reasonable lookout, maintaining a safe distance from other vehicles, the need to adjust speed for wet road conditions, the need to adjust speed and/or separation from other vehicles due to the fact that his trailer was empty, etc. The plaintiff points out the manner in which the actual operation of the vehicle had not comported with the standards/requirements for operation of his vehicle safely, based on the subset of facts upon which he relies. The fact that there is a factual issue as to whether traffic had come to a sudden stop— as the defendant claims— or whether there had been slow traffic for some period of time prior to the accident— as the plaintiff claims— is a further overlay, particularly given the elevated position of a truck driver with respect to view of the road ahead. The extent to which the defendant operator put into practice these considerations, immediately prior to the accident, is in dispute and goes to the existence of possible recklessness.
Attached to his submission in opposition to the motion, the plaintiff has attached opinions from a number of experts, each quoting the model jury instruction relating to recklessness and opining that the defendant operator’s conduct constituted recklessness under that standard. There are two problems immediately apparent— admissibility of the opinions and reliance on a model jury instruction as a benchmark.
With respect to admissibility, there are two immediately-obvious concerns. First, the issue of recklessness appears to be in the nature of an ultimate issue for which an expert opinion typically would not be permissible; see, Connecticut Code of Evidence § 7.3(a). (Even if a jury might benefit from input from an expert, the court needs no assistance from a non-legal professional with respect to application of a legal standard.) Related, assuming that the experts are experts in their stated fields, and even if their opinions do not encroach on the ultimate issue relating to recklessness, the court does not perceive there to be any foundation for these experts to apply their areas of professional expertise to a civil litigation standard. They may know trucking practices and trucking safety, but what is their experience and training that allows them to apply such knowledge, as applied to the facts of this case, to conclude that the operator had been reckless in a civil liability context? To be considered for purposes of summary judgment, the proffered evidence must be admissible (allowing for substitution of affidavits for live testimony).
The application of a civil legal standard appropriately segues into the other area of concern— the use of a model jury instruction as authoritative. Section 3.18.1 of the Connecticut Civil Jury Instructions, General Recklessness, can be found at http://www.jud.ct.gov/JI/civil/Civil.pdf (last visited 2/4/19). Relevant language in Snell v. Norwalk Yellow Cab, Inc., 172 Conn.App. 38, 66-67, 158 A.3d 787, 805; cert. granted, 325 Conn. 927 (2017), is instructive: "As provided on their title page, the model instructions are only meant to provide guidance; their legal sufficiency is not guaranteed." (See, also, in the criminal context, State v. Leandry, 161 Conn.App. 379, 396-97, 127 A.3d 1115, 1127, cert. denied, 320 Conn. 912 (2015) ("This court has noted that [w]hile not dispositive of the adequacy of the [jury] instruction, an instruction’s uniformity with the model instructions is a relevant and persuasive factor in our analysis" (internal quotation marks and citation, omitted)). Thus, the presence of such a charge in the model instructions may be informative but it is not inherently authoritative or dispositive. In a sense, this circles back to the preceding paragraph— the experts are attempting to apply their expertise to a legal standard with which they presumably have no first-hand familiarity, and therefore are using the jury instruction as a benchmark legal standard— because they do not claim any expertise in application of their areas of expertise to tort law.
The fact that the court has rejected the direct utilization of those expert opinions, for the reasons stated, does not render those opinions useless for purposes of this motion. On at least one occasion, above, the court has partially marshalled the evidence in a light favorable to the non-moving party— the appropriate standard for summary judgment— and the expert opinions are especially useful in that respect. The summary judgment standard is generally equivalent to a directed verdict standard, and it requires the court to ask the following question: could a rational fact finder find in favor of the plaintiff on the evidence presented, viewing the evidence in a manner favorable to the plaintiff and giving the plaintiff the benefit of all reasonable favorable inferences? To prevail on summary judgment, the defendants have to establish that there is no material issue of fact, and that based on the undisputed facts, the defendants are entitled to judgment as a matter of law.
The expert opinions, in effect, marshal all of the evidence in the case, and notwithstanding any possible claim of impartiality, appear to do so in a manner favorable to the plaintiff. Further, while each of the opinions appears to reach the conclusion that recklessness was involved, the appropriate standard at this juncture is whether a reasonable fact finder could conclude that there was recklessness. These opinions identify issues relating to speed in adverse weather conditions; speed and traffic conditions; necessary separation between a truck such as being operated by defendant Ayala and vehicles in front; timing and use of cell phones while operating such a vehicle; and various other factors identified in their respective reports.
If, as contended by the plaintiff, the defendant operator had been operating his vehicle at 45-50 mph, despite wet roads and steady rain (that recently had been heavy at times), keeping six car lengths between him and the vehicle in front of him, and seemingly unaware of the gradual rather than abrupt slowing of traffic, while talking for several minutes on a cell phone (even if hands-free in operation), with an overlay of claimed lack of awareness of a company policy against use of cell phones while driving— and recognizing that this is not a full citation of all the factors identified by the plaintiff and his experts— the court cannot conclude that no rational fact finder could rule in favor of the plaintiff with respect to his claim of recklessness.
The defendant attempts to establish the non-recklessness of the defendant driver by pointing to the fact that even the plaintiff’s own expert, in his opinion, acknowledges that the defendant operator was operating the vehicle below the posted speed limit. The statute prohibiting driving at an unreasonable rate of speed, however, specifically negates any automatic inference from the fact that an operator may have been driving his/her vehicle at a lower speed than the posted limit. The first sentence of subsection (a) of General Statutes § 14-218a provides in relevant part: "(a) No person shall operate a motor vehicle upon any public highway of the state ... at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions." The standard is reasonableness under the existing circumstances, including traffic and weather conditions. As if that were not enough, the final sentence of that subsection emphasizes the point: "Any speed in excess of such limits, other than speeding as provided for in section 14-219, shall be prima facie evidence that such speed is not reasonable, but the fact that the speed of a vehicle is lower than such limits shall not relieve the operator from the duty to decrease speed when a special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions." Although not specifically invoking § 14-218a, ¶ 18(e) of the operative complaint invokes the substance of the statute, i.e., that the defendant was "driving at an excessive rate of speed under the circumstances." Thus, the reasonableness of speed is not determined by the speed limit in a vacuum, but rather must also take into account prevailing conditions. Weighing those prevailing conditions as pertains to speed constitutes a material issue of fact.
B. The Other Defendants
The defendants do not address, in their motion or supporting brief, the issue of possible claims of recklessness directed to the other defendants. In his opposition to the motion, however, the plaintiff undertakes a conflict-of-laws analysis in order to support a claim that the non-operator defendants can be held liable for the recklessness of the defendant operator under Pennsylvania law. In the alternative, the argument is that such a claim is available under Connecticut law, without need to rely on a conflict-of-laws analysis. In their reply, the defendants respond to the conflict-of-laws analysis presented by the plaintiff.
In a sense, this might be perceived as more properly addressed in the context of vicarious liability, to be discussed below. For reasons stated immediately below, however, the court chooses to dispose of this claim as quickly as possible rather than having it linger.
Again, this is an issue first raised by the plaintiff in his objection to the motion for summary judgment— it was not raised by the defendants in their motion or supporting brief. For at least two reasons, the court does not believe that the issue properly is before the court at this time.
First, the court is limited to issues raised by the moving parties in their motion, Greene v. Keating, 156 Conn.App. 854 (2015), and this is not an issue they raised. In effect, the plaintiff is seeking something in the nature of a declaratory ruling as to conflict of laws analysis, using the defendants’ motion for that vehicle, even though the defendants’ motion does not raise the predicate issue. While on at least one occasion this court has used a motion for summary judgment for such a purpose— in one recent instance the court specifically recalls, solely for that purpose and critically, by agreement of the parties— the court is not inclined to blend the defendants’ procedurally-proper motion for summary judgment with a non-standard application by the plaintiff for a declaratory-type ruling.
More importantly, the court does not believe that it could (properly) adopt a declaratory-ruling approach for the simple reason that the potential vicarious liability of the non-operator defendants for the defendant operator’s recklessness is not an issue in this case. The court has carefully reviewed the operative version of the complaint (#126.00) and quite simply, there is no allegation of vicarious liability for recklessness set forth in the plaintiff’s complaint, such that the issue cannot be adjudicated by this court, other than in an advisory sense.
The first count sounds in negligence, and is directed to the defendant operator. The second count is also directed to the defendant operator, alleging recklessness. The third, fifth and seventh counts, asserting vicarious liability of the other defendants, each incorporates only the allegations of the first count which sounds solely in negligence (and nothing from the second count sounding in recklessness). Therefore, there is no claim of liability for recklessness in the currently-operative complaint directed to anyone other than the defendant operator, directly or vicariously.
The allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. Nevertheless, pleadings must be construed broadly and realistically, rather than narrowly and technically. (Internal quotation marks and citations, omitted.) Provenzano v. Provenzano, 88 Conn.App. 217, 225, 870 A.2d 1085, 1090 (2005).
The court construes the complaint to assert vicarious liability of the non-operator defendants only with respect to negligence, as the negligence claims are the only ones incorporated into the vicarious liability counts. All of the paragraphs in the first count and none of the paragraphs added to the first count as alleged in the second count are incorporated into subsequent counts. There is no summary judgment issue and no choice of laws issue before the court or that could be before the court relating to vicarious liability for recklessness on the part of the non-operator defendants, as no such vicarious liability (for recklessness) has been alleged.
The court recognizes that the first count contains some language suggestive or indicative of recklessness, but there is no doubt that the first count is intended to assert a claim of liability based on negligence, and that the second count, not incorporated into the vicarious liability counts, is the count asserting liability based on recklessness. As something of a reductio ad absurdum analysis, is the plaintiff suggesting that if the court were to grant the motion for summary judgment as to the second count, there would still be claims of vicarious liability predicated on recklessness, as the allegations of the first count— the allegations incorporated into all of the vicarious liability counts (without incorporation of any of the additional allegations of the second count explicitly claiming recklessness)— would remain untouched? To put it differently: The plaintiff has combined the allegations of the negligence count with a few supplemental allegations attempting to establish vicarious liability, in each of the vicarious liability counts, which the court cannot interpret as asserting vicarious liability for recklessness— as if the allegations of the second count had been incorporated.
Accordingly, the court denies the motion with respect to the recklessness of the defendant operator, but declines to provide what would amount to an advisory opinion as to possible vicarious liability of the other defendants for recklessness, given the absence of any allegations that reasonably could be construed to encompass such claims.
II. Vicarious Liability
The court will discuss the motion’s arguments relating to vicarious liability in general terms, as the arguments are substantially identical. To the extent that there are some factual variations due to differences in the parties to whom the counts are directed and the differences in the relationships between those parties, the court will attempt to be address those distinctions.
Somewhat preliminarily, in connection with vicarious liability for recklessness, the court, above, explained why the issue is not properly before the court. As will be discussed below, while the claim of vicarious liability for the negligence of the defendant operator properly is (or can be) before the court, the court is uncertain as to the extent that the issue needs to be addressed, particularly based on certain statements set forth in the defendants’ reply.
As to the merits of their claim, the defendants do not provide any substantial argument or authority for the proposition that they are not vicariously liable for the claimed negligence of the defendant operator. They emphasize that none of the defendants to whom the third, fifth and seventh counts are directed is claimed to have done anything directly affecting the plaintiff, but even if that were so (the fourth, sixth and eighth counts alleged negligent entrustment and hiring, which implicates conduct of these defendants), the very nature of vicarious liability is that it is not dependent upon acts or omissions of the purported defendant, but rather its relationship to an actively-involved party— here, the defendant operator. There is a mention of the defendant operator being an independent contractor, but there is no proof that has been offered, other than a reference to him being paid as a contractor, receiving a Form 1099 instead of a W-2. There is no discussion of the extent to which any or all of these defendants had control or a right of control over the defendant operator, no discussion of whether the defendant operator was effectively an agent of one or more of these defendants, no discussion of the ABC test or the extent to which the relationship between the defendant operator and these defendants satisfied that test (see, e.g., Kirby of Norwich v. Administrator, Unemployment Compensation Act, 328 Conn. 38, 176 A.3d 1180 (2018)), and no discussion of possible applicability of General Statutes § 52-183. In this last respect, although not cited in the plaintiff’s complaint (Practice Book § 10-3 generally being deemed to be directory in nature), it is discussed in the plaintiff’s opposition. More important, there is no evidence submitted in support of the negation of any employment or other agency-related relationship, other than the reference to a Form 1099 rather than a W-2.
It is not enough for the defendants to say— as they do— that there is no proof, or the plaintiff has provided no proof, of a matter asserted by the plaintiff as a basis for liability. The initial burden, in the context of summary judgment, is not on the plaintiff— the non-moving party but rather on the defendants to establish that, based on the evidence they have produced, there is no material issue of fact. Only after the defendants have met their burden does the burden shift to the plaintiff to establish that there is a material issue of fact. A recent Supreme Court case puts this rather succinctly: the moving party has the burden of establishing "what the truth is"; Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). The defendants have relied upon excerpts from various depositions, and while there is nothing inherently wrong or inherently inadequate about deposition excerpts to satisfy the summary judgment burden of proof, the excerpts provided do not suffice to establish the absence of a requisite relationship between the defendant operator and the other defendants.
This court sometimes refers to this as the asymmetry of summary judgment. At trial, the plaintiff will have the burden of proof (preponderance of evidence) for his claims, but when a defendant moves for summary judgment, he/it must satisfy a substantially higher burden (no material issue of fact), either as to the affirmative of a defense or the negation of the existence of a required element of the plaintiff’s claim.
The court’s reference above, to the question of whether this issue needs to be addressed by the court, arises from certain portions of the defendants’ reply brief. In that reply, they seem to be acknowledging that at least one of the non-operator defendants is vicariously liable for the negligence of the defendant operator, such that there is no need for an adjudication of that responsibility based on one or more of the third, fifth and seventh counts. That, in retrospect, might explain the extent to which the defendants discussed indemnification liability in their initial brief— having assumed vicarious liability for the operator’s negligence, the issue they perceive to survive is allocation of financial responsibility among the other defendants, which in turn may reduce to the indemnification responsibility of one defendant for any tort liability of the other (assuming that the individual non-operator defendant is not part of that discussion).
Specifically, on pages 10-11 of their reply brief (#169.00), after discussing the concept of vicarious liability, the defendants make the following statement:
There is no dispute between the defendants appearing in this action that Evans Delivery would ultimately be liable for any alleged negligence of Mr. Ayala while he was operating a vehicle leased to them. Additional counts against additional parties will not result in a bigger win full for the plaintiffs if substantiated. The inclusion of these additional parties is unnecessary in this action as there are no direct causes of action to be leveled against Evans Delivery, D’Matos Transport or Daniel E. Matos. These defendants have performed no independent act which would make them independently liable to the plaintiffs for any damages proven at trial. Any liability for Defendant Evans Delivery is strictly derived from plaintiffs’ claims against Defendant Ayala.
While the defendants may be arguing that there is no issue of the liability of at least Evans for the negligent conduct of Mr. Ayala as set forth in the reply brief, the court has reviewed the answer to an earlier version of the complaint (the operative answer in the absence of an amended answer; see, Practice Book § 10-61), and there is nothing suggesting an admission of liability for any negligence that might be proven as directed to the defendant operator. Rather, most if not all of the allegations that might support vicarious liability for the negligence of the defendant operator either were denied or were met with assertions of insufficient information upon which to form a belief and therefore leaving the plaintiff to his proof.
To be precise: The court was not looking for any admission of liability to the plaintiff, nor was the court looking for any admission of negligence, but rather something in the nature of a conditional acknowledgment that if the defendant operator were to be proved to have been negligent, then one or more of the non-operator defendants would be vicariously liable to that same extent. There is nothing of that nature in the answer that the court could find.
The court does not know whether a more comprehensive submission of affidavits and evidence might have carried the day, but the court cannot conclude, based on the submission of the defendants as filed in support of this motion, that there is no material issue of fact such that as a matter of law one or more of the non-operator defendants is entitled to summary judgment on this claim. The court cannot weigh evidence in connection with a motion for summary judgment, and simply as to the issue of ownership of the vehicle, which in turn potentially implicates vicarious liability under General Statutes § 52-183, evidence has been submitted supporting the proposition that each of the non-operator defendants might have been the owner of the truck involved in the accident. Similarly, beyond the question of whether a Form 1099 was the proper tax treatment for the defendant operator’s remuneration, there is the question of which non-operator defendant entity was more directly involved in payment and control of the defendant operator (to the extent that he was subject to control). Although the truck appears to have been leased by D Matos to Evans (subject to the uncertainty identified above) such that Evans would appear to be the entity for which Mr. Ayala was providing employee or independent contractor services, there also is evidence that it was D Matos that actually paid him, suggesting a more direct linkage between D Matos and Mr. Ayala. The court cannot resolve these inconsistent indicia of control and employment, particularly against the backdrop of lack of analysis of such matters as the ABC test and other considerations identified earlier.
The deposition excerpts submitted in support of this motion indicate that Evans provided some training to the driver, but paid D Matos for use of the truck-and-driver combination. The fact that Evans provided training suggests that the defendant operator would be driving for Evans for some extended period of time, but no evidence has been presented as to duration of the relationship or the extent to which Evans controlled the manner in which the defendant operator performed his duties.
III. Negligent Hiring/Entrustment
Again, the court is dealing with a sparse evidentiary submission by the defendants. Thus, the submission briefly addresses steps taken to determine the defendant operator’s background, but nothing is set forth in the transcript excerpts provided in support of the motion as to the results of background checks (including motor vehicle driving record). There is a brief reference to training, but with a qualification that the emphasis was on areas other than operation of a vehicle since the operator already was licensed. This is consistent with the court’s earlier observation that the evidence has been selected and presented in a manner most favorable to the defendants, rather than viewing the evidence in the light most favorable to the nonmoving party— as is required in connection with a motion for summary judgment.
The controlling appellate authority relating to negligent entrustment is set forth in Greeley v. Cunningham, 116 Conn. 515 (1933):
When 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 intrusting the automobile to the incompetent driver. 116 Conn. 520.
With respect to the claim of negligent hiring, there does not appear to be any authoritative appellate decisions, but trial courts have addressed the issue:
[S]everal Superior Court decisions have described the elements of the tort of negligent entrustment as follows: "The essential elements of the tort of negligent entrustment of an automobile [are] that the entrustor 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 to reasonably anticipate the likelihood of injury to others by reason of that incompetence, and such incompetence does result in injury ... Liability cannot be imposed on a defendant under a theory of negligent entrustment simply because the defendant permitted another person to operate the motor vehicle ... Liability can only be imposed if (1) there is actual or constructive knowledge that the person to whom the automobile is loaned is incompetent to operate the motor vehicle, and (2) the injury results from that incompetence." (Internal quotation marks omitted.) Kaminsky v. Scoopo, Superior Court, judicial district of New Haven, Docket No. CV-08-6002084 (July 30, 2008, Bellis, J.) (46 Conn. Rptr. 82). "Actual knowledge is based on incompetency or a failure to appreciate some visible or demonstrable impairment ... whereas constructive knowledge ... is based on facts that are openly apparent or readily discernible." Delprete v. Senibaldi, supra, Superior Court, Docket No. CV-11-6024795-S; see also Hall v. CAMRAC, LLC, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV-12-6027530-S (December 10, 2013, Sheridan, J.) . Morillo v. Georges, No. HHDCV 156058761S, 2015 WL 9920782, at *5 (Conn.Super.Ct. Dec. 31, 2015) .
The concept of negligent hiring is closely related to negligent entrustment insofar as negligent hiring also is framed in terms of the competence of the person hired. ("The tort of negligent hiring ‘extends to any situation where a third party is injured by an employer’s own negligence in failing to select an employee fit or competent to perform the services of employment.’" (Citation omitted.) Loglisci v. Stamford Hospital, No. CV 085009309S, 2011 WL 1026821, at *8 (Conn.Super.Ct. Feb. 22, 2011). In a situation such as this, where someone was engaged to drive a motor vehicle and was entrusted with a motor vehicle, the concepts become almost indistinguishable.
In Morillo, the court was discussing the issue in the context of a motion to strike, and observed that while the allegations of the complaint were sufficient to withstand a motion to strike, at some point the plaintiff would be required to come forward with proof to establish a factual predicate for those allegations. Here, the court is dealing with a motion for summary judgment, and again is faced with the limited evidence proffered by the defendants in support of their motion. This court often refers to the asymmetry of summary judgment— at trial, a plaintiff has the burden of proving his allegations by a preponderance of the evidence, but for purposes of the defendants’ motion for summary judgment, the burden is on them— at least initially— to establish the negative, to a no-material-issue-of-fact standard which is far more onerous. The court cannot conclude that the defendants have done so.
Absent a laborious exercise of negating each specification of negligence, the defendants are required to prove some all-encompassing flaw in the plaintiff’s theory of liability. For example, one or more of the defendants could attempt to establish that it/he did not engage the defendant operator to drive this or any other truck, such that that defendant cannot be said to have hired him whether as an employee or independent contractor. Similarly, one more of the defendants could attempt to establish that it played no role in entrusting the vehicle to the defendant operator. Alternatively, the defendants could attempt to establish that the defendant operator was "competent" for purposes of these standards, negating an essential element of one or both of these theories of liability. Any such attempt would require satisfaction of the summary judgment standard of no material issue of fact. Again, the defendants have relied solely upon limited transcript excerpts in support of their motion, and the court finds those excerpts to be inadequate, in the face of the applicable no-material-issue-of-fact standard.
As noted earlier, the defendants identify the steps taken to look into the operator’s background, but have not submitted anything related to results. Conversely, the plaintiff has established that the defendant operator had a far greater history of traffic/vehicular violations then apparently had been known to the defendants at the time the defendant operator first had been engaged (seemingly by Evans). It is not clear whether the defendants were unaware of that more detailed history at the timely filed a motion for summary judgment, or whether they had learned of that history but had chosen not to present it when they filed their motion for summary judgment, but in either event, they have not addressed the question of whether the full extent of the driving history of the defendant operator, coupled with other factors identified by the plaintiff (including the failure to follow up on initially-unanswered inquiries to prior employers about their experiences with the defendant driver (even if follow-up may not have been required), and the question of the extent to which the defendant operator was able to comprehend materials (company policies and prohibitions) written in English, such that he might not have been aware of safety policies or requirements implemented by one or more of the defendants— alleged to be somewhat confirmed by the existence of an unsigned document in the operator’s employment file relating to company policies.
The court must repeat the refrain: until such time as the defendants satisfied their burden of establishing the absence of a material issue of fact, and that the undisputed material facts entitle them to judgment, the plaintiff has no burden of production of evidence. The court does not believe that the defendants sustained their burden, and the plaintiff has established the existence of material issues of fact that were never addressed much less established to be free from doubt (no material issue of fact) by the defendants.
Conclusion
At pages 3-4 of their initial reply (#169.00), the defendants outline what they believe to be the undisputed facts, suggesting that they establish the absence of recklessness, as a matter of law. The last two sentences of the paragraph bridging those two pages, contrary to the defendants’ interpretation, in summary fashion identify the basis for the existence of material issues of fact, rather than precluding their existence. "Mr. Ayala was driving in the center lane, realized he could not stop in time, turned his wheel to the left, entered the far left lane, and made contact with plaintiff’s vehicle. Again, no dispute as to these facts." Perhaps simplistically, the focus of attention is on the question suggested by this quoted passage: why/how did the defendant operator find himself in a position where he "realized he could not stop in time"? Was he operating at an excessive rate of speed for the road conditions— both physical (wet) and traffic (slowing to a stop), even if below the posted speed limit? Was he not leaving an adequate space between his vehicle and the one in front of him? Was he not sufficiently attentive whether by engaging in a telephone conversation (even if a hands-free cell phone call) or for some other reason, despite his elevated view of the road ahead? Were any of the alleged departures from reasonable conduct sufficiently egregious to constitute recklessness? The existence of recklessness is a material issue of fact.
The defendants seem to acknowledge some level of vicarious liability (in a reply brief) but their focus on absence of direct conduct and focus on potential claims of indemnification miss the point. Particularly given the potential applicability of § 52-183 (with the evidentiary uncertainty as to which of the non-operator defendants owned the vehicle), and the uncertainty of status of the defendant operator as employee or contractor of at least one of the non-operator defendants, the court cannot find, on the current record, that any of the defendants is entitled to judgment, as a matter of law.
The plaintiff faces a relatively high hurdle in establishing incompetence of the defendant driver as a predicate for negligent entrustment and negligent hiring, but for purposes of summary judgment, the burden is on the defendants— at least initially— to negate such a claim. Aside from the minimal evidence submitted by the defendants in that regard, the plaintiff has submitted evidence that the defendants were apparently unaware— in turn due to alleged laxity of pre-hiring investigation— of the true extent of the defendant operator’s prior driving record. The defendants have not addressed why the plaintiff’s proffered evidence is insufficient to create a material issue of fact in these respects, assuming that their minimal evidence submitted in support of the motion was sufficient to shift the burden to the plaintiff to establish a material issue of fact. The fact that the defendant operator had a license, and was given some level of training, does not affirmatively and automatically establish competence.
Finally, for the reasons stated, the court cannot address the plaintiff’s claim that the non-operator defendants are or can be vicariously liable for multiple damages under § 14-295 for the simple reason that there is no claim for vicarious liability for recklessness set forth in the complaint.
For all of these reasons, the motion for summary judgment is denied, in all respects.