Opinion
No. CV 10 6003123 S
December 20, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#122), MOTION FOR SUMMARY JUDGMENT (#124)
The plaintiff, Michael Molnar, brings this action against the defendants, Kenneth E. Norcross, Labor Ready, Inc., Labor Ready Northeast, Inc., Carmax Auto Superstores, Inc. (Carmax) and Carmax Business Services, LLC. He alleges negligence against Norcross and claims of common law and statutory vicarious liability against the other defendants.
Before the court are two cross motions for summary judgment. In the first motion (#122), the plaintiff seeks summary judgment as to liability only against Norcross, arguing that he prevails on his negligence claim against Norcross as a matter of law. In the second motion (#124), the defendants argue (1) that all of the plaintiff's claims are barred because he signed a release of liability and (2) that Labor Ready and Labor Ready Northeast cannot be vicariously liable for any negligence of Norcross due to the borrowed servant doctrine. For the following reasons, the court hereby denies both motions for summary judgment.
I
BACKGROUND
A
Material Allegations
The plaintiff alleges the following facts in the amended complaint (#117): On October 20, 2008, Labor Ready, Labor Ready Northeast, Carmax and Carmax Business Services each employed Norcross to operate a Cadillac motor vehicle within a parking lot located at 89 Weston Street, Hartford, Connecticut (premises). Carmax and Carmax Business Services were the owners of the Cadillac.
Norcross, in the course of performing his duties, stopped the Cadillac directly behind a stopped Infiniti motor vehicle. While the Cadillac was stopped, the plaintiff, a pedestrian, approached and stood between the Cadillac and the Infiniti. As the plaintiff was standing in front of the Cadillac, Norcross stepped on the accelerator, causing the Cadillac to move forward without warning. The Cadillac struck the plaintiff and crushed his legs against the back of the Infiniti, causing him severe personal injuries. These injuries were caused by the negligence of Norcross in that: (1) he was inattentive and failed to keep a proper lookout; (2) he failed to put the Cadillac into "park" prior to stepping on the accelerator; (3) he failed to depress the brake pedal firmly prior to stepping on the accelerator; (4) he failed to keep the Cadillac under reasonable control; and (5) he failed to stop or slow down in time to avoid striking the plaintiff.
The defendants allege the following by way of special defense: The plaintiff was on the premises for the purpose of attending an automobile auction occurring there. Prior to coming onto the premises for the auction, he signed a release of liability. By signing such document, the plaintiff agreed to assume the risks inherent in attending an automobile auction and agreed to waive any and all claims for personal injury arising out of his attendance at the auction.
B
Procedural History
The plaintiff commenced this action on January 4, 2010. The plaintiff filed the amended complaint on June 4, 2010. The amended complaint contains seven counts. In count one, the plaintiff alleges negligence against Norcross; in counts two through five, he alleges a claim under respondeat superior against Labor Ready, Labor Ready Northeast, Carmax and Carmax business services, respectively; and in counts six and seven, he alleges vicarious liability pursuant to General Statutes § 52-183 against Carmax and Carmax Business Services, respectively. In their amended answer (#119), the defendants allege as a special defense that all of the plaintiff's claims are contractually barred due to his signing of a release of liability.
General Statutes § 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."
The plaintiff filed his motion for summary judgment, which was accompanied by a memorandum of law, on September 2, 2010. The defendants filed a joint objection (#130) on September 24, 2010, to which the plaintiff replied (#133) on October 20, 2010. The defendants filed their motion for summary judgment along with a memorandum of law (#125), on September 17, 2010. The plaintiff filed an objection (#132) on October 12, 2010, and a supplemental objection (#134) on October 20, 2010. The court heard both motions at short calendar on November 8, 2010, after which it allowed the plaintiff another week to file a supplemental memorandum in opposition to the defendants' motion and in support of his own. He filed the supplemental memorandum (#135) on November 10, 2010.
II
DISCUSSION
A
Standard for Summary Judgment
Under Practice Book § 17-49, 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." Furthermore, under Practice Book § 17-44, generally speaking, "any party may move for a summary judgment at any time . . ."
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of 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 nonmoving 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).
Where summary judgment is sought on the basis of a special defense, such a motion "is properly granted if the defendant . . . raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) Serrano v. Burns, 248 Conn. 419, 424, 727 A.2d 1276 (1999).
B
The Defendants' Motion for Summary Judgment
1
Release of Liability
The defendants' principal ground for summary judgment rests on the basis of their special defense alleging that the plaintiff signed a release of liability shielding all defendants from any and all claims arising out of his attendance at the auction. They argue that the release covers all of the plaintiff's claims and shields all defendants. They also argue that the release is valid and enforceable, meeting all applicable requirements under Connecticut law. Specifically, they contend that the language in the release is express and unambiguous and that a person of reasonable intelligence would understand its substance. They also assert that the release does not violate public policy on the basis of the factors articulated in Tunkl v. Regents of the University of California, 60 Cal.2d 92, 383 P.2d 441, 32 Cal. Rptr. 33 (1963).
The plaintiff does not deny that the language of the release covers his claims against all of the defendants. Instead, he argues that the release is not valid and enforceable. He asserts that Connecticut law provides that, for a release of claims of negligence to be valid and enforceable, the language must explicitly and specifically state that the scope of the release includes claims based on negligence. Next, the plaintiff contends that, although the court need not consider whether the release violates public policy because it is otherwise invalid, public policy considerations render it invalid based on the Tunkl factors.
"[T]he law does not favor contract provisions which relieve a person from his own negligence . . ." (Internal quotation marks omitted.) Dow-Westbrook Inc. v. Candlewood Equine Practice, LLC, 119 Conn.App. 703, 712, 989 A.2d 1075 (2010). Therefore, under Connecticut law, "unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts . . . Put another way, it must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility . . .
"Not only does this stringent standard require that the drafter of such an agreement make its terms unambiguous, but it mandates that the terms be understandable as well. Thus, a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon . . . Of course, this does not imply that only simple or monosyllabic language can be used in such clauses. Rather, what the law demands is that such provisions be clear and coherent . . ." (Internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 322, 885 A.2d 734 (2005).
The defendants cite Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 314, as controlling as to the issue of whether the language of a release of liability is valid. In Hanks, the Supreme Court determined that the language of a release of liability signed by a snowtuber at a ski area complied with the standards set forth in Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 829 A.2d 827 (2003). Hanks v. Powder Ridge Restaurant Corp., supra, 326. In Hyson, a case with fact similar to Hanks, the Supreme Court stated that "a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides." Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 643. In other words, the release must make specific reference to "negligence" in order to include claims arising out of the released party's negligence. See id., 644 ("Because the release signed by the plaintiff in the present case did not expressly provide that, by signing it, she released the defendant from liability for damages resulting from its negligence, the trial court improperly granted the defendant's motion for summary judgment.").
In contrast to Hyson and Hanks, the Appellate Court in BD Associates, Inc. v. Russell, 73 Conn.App. 66, 72, 807 A.2d 1001 (2002), stated that, where the parties are sophisticated commercial entities, an explicit reference to "negligence" is unnecessary. The court, quoting Gross v. Sweet, 49 N.Y.2d 102, 107-08, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979), wrote that "[b]y and large, if such is the intention of the parties, the fairest course is to provide explicitly that claims based on negligence are included . . . That does not mean that the word `negligence' must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear . . ." (Internal quotation marks omitted.) Id. The court continued to quote Gross, stating: "When applied to contracts to which the parties are sophisticated business entities, the law, reflecting the economic realities, will recognize an agreement to relieve one party from the consequences of his negligence on the strength of a broadly worded clause framed in less precise language than would normally be required, though even then it must evince the unmistakable intent of the parties . . ." (Internal quotation marks omitted.) Id., 73.
The defendants do not argue that BD Associates applies to this case. Nevertheless, its validity survived Hyson and Hanks. See Roman v. Bristol, 101 Conn.App. 491, 501, 922 A.2d 310 (2007). In Hyson, the court distinguished BD Associates because that case involved a clause in a lease executed by a landlord and a commercial tenant rather than a release of liability signed by a patron in favor of a "recreational facility or service." See Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 640-41, 640 n. 6. It also declined to affirm or reject the holding of BD Associates. See id., 640 n. 6.
In Hanks the court did not address BD Associates, except to cite it for the general proposition that a release of liability not only requires unambiguous terminology but also understandable terminology. Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 322.
In Roman v. Bristol, supra, 101 Conn App. 500-01, the Appellate Court held that, if the parties to a challenged release agreement are "sophisticated business entities" with relatively equal bargaining power, then the more lenient BD Associates rule applies, but if not, then the stricter Hyson rule applies. In Roman, the plaintiff's employer, Community Renewal Team, Inc., challenged the validity of a release it executed in favor of the city of Bristol with respect to a rope challenge course owned by the city and rented by the employer, on which the employee-plaintiff was injured during the course of her duties. See id., 494-95, 494 n. 5. The court held that there was an issue of fact as to the relative bargaining strength of the parties with respect to the release, which did not specifically mention negligence. See id., 494, 501.
The defendants attach, as Exhibit A to their memorandum, a copy of the application that the plaintiff completed, which contained the cited release language. There is no dispute that none of the release language makes explicit reference to a waiver of claims based on the defendants' negligence. Thus, unless the defendants show clearly that BD Associates applies to this case, they will not be entitled to judgment as a matter of law.
This case does not fit nicely into either the Hyson or BD Associates framework. Unlike in Hyson or Hanks, the plaintiff was not on the premises for recreational purposes, nor could it be said that he was clearly unsophisticated. As the defendants' evidence indicates, the plaintiff was the president of an automobile dealership which experience attending automobile auctions.
On the other hand, this situation is not clearly governed by BD Associates. Cases applying that case have not faced the issue of whether less-specific release language is sufficient to be enforced against individuals, but rather such cases involved entities. See, e.g., Dow-Westbrook Inc. v. Candlewood Equine Practice, LLC, supra, 119 Conn.App. 704 (corporate owner of riding stable); Phoenix Ins. Co. v. Vernon, Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 04 4023148 (January 5, 2007) ( 42 Conn. L. Rptr. 564) (corporate commercial lessee); Smith Craft Real Estate Corp. v. Handex of Connecticut, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 082188 (May 19, 2005) (real estate company); Kahl v. United Technologies Corp., Superior Court, judicial district of Hartford, Docket No. CV 01 0808238 (July 8, 2003) ( 35 Conn. L. Rptr. 119) (temp agency). Even Roman involved a release agreement agreed to by a corporate entity. See Roman v. Bristol, 101 Conn.App. 493.
Furthermore, that this is a claim for personal injury rather than for an economic loss suggests that BD Associates should not apply. See Dow-Westbrook Inc. v. Candlewood Equine Practice, LLC, supra, 119 Conn.App. 713 n. 10 (declining to apply Hyson because claim involved commercial loss rather than personal injury). But see Roman v. Bristol, 101 Conn.App. 494-95, 500-01 (holding that BD Associates could apply despite nature of claim as one arising out of personal injury to employee of releasing party on rented rope challenge course).
Thus, the court finds Roman to be applicable to this case. Under Roman, the court finds that the defendants have failed to show that, as a matter of law, the plaintiff was a sophisticated business entity with bargaining power relatively equal to the defendants. There is insufficient evidence submitted by the defendants to show the absence of an issue of fact as to the plaintiff's bargaining power with respect to the application. There was insufficient evidence, for example, as to whether the plaintiff had the power to negotiate the terms of the application with the defendants, or as to whether the defendants gave the plaintiff the opportunity to purchase, for an extra reasonable fee, protection against negligence. See Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 333-34. That the plaintiff could have walked away and attended another car auction does not imply necessarily that he had equal bargaining power with the defendants. See id., 335.
The court therefore finds that the defendant has failed to foreclose a genuine issue of material fact as to whether the language of the release is sufficient to bar the plaintiff's claims. Accordingly, it need not address the issue of whether the release violates public policy.
2
Borrowed Servant Doctrine
The defendants next argue that the borrowed servant doctrine provides that an employer who "borrows" the employee of another is liable for negligence of the employee as long as the borrowing employer exercises control over the employee's work. They contend that, by implication, the lending employer is absolved of liability for the employee's negligence. The defendants argue that this doctrine absolves Labor Ready and Labor Ready Northeast of liability. The defendants assert that, while Labor Ready and Labor Ready Northeast may have provided Norcross to Carmax in order to work at the auction pursuant to a temporary labor agreement, they did not exercise control over Norcross in the performance of his duties. They conclude that, because Carmax exercised exclusive control over Norcross, only Carmax may be liable under the doctrine of respondeat superior.
The defendants contend separately that Labor Ready was not in existence at the time of the injury and thus did not employ Norcross. For purposes of this ground for summary judgment, however, this separate issue is ignored. It will be discussed below.
The plaintiff contends that Connecticut has adopted the "dual employment doctrine," which provides that an employee may have multiple simultaneous employers. He argues that there is an issue of fact as to whether Labor Ready and Labor Ready Northeast exercised control over Norcross in addition to Carmax and Carmax Business Services.
"Under [the borrowed servant] rule, the person to whom the services of another's employee are loaned is responsible for the employee's negligent acts only so long as the temporary master actually exercises supervision and control over the servant." Bria v. St. Joseph's Hospital, 153 Conn. 626, 630, 220 A.2d 29 (1966). "The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired." (Internal quotation marks omitted.) Alswanger v. Smego, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 92 0125294 (April 21, 1999) ( 24 Conn. L. Rptr. 471).
The lending of an employee to another does not necessarily divest the lending employer of any liability for the employee's negligence. See Taylor v. St. Paul's Universalist Church, 109 Conn. 178, 182, 145 A. 887 (1929) (holding that minister injured on trip to Europe during which he worked both as guide for tour company and for his church by gathering materials for lectures he gave on behalf of his church was employee of both tour company and church). As to such employee, "there is an inference that [he] remains in his general employment, so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it." 1 Restatement (second), Agency § 227 cmt. d, p. 501 (1958).
The principle that an employee may have two simultaneous employers is called the "dual employment doctrine." Crespo v. BAGL, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 09 5021661 (December 15, 2009) ( 49 Conn. L. Rptr. 82). Although no Connecticut appellate court has adopted the doctrine definitively, the Superior Court has split as to whether it applies. Id. Nevertheless, because the Supreme Court in Taylor v. St. Paul's Universalist Church, supra, 109 Conn. 182, stated that an employee may have two simultaneous employers, the court holds that the doctrine applies.
The next question is whether the defendants have shown that Norcross could not have been the employee of Labor Ready or Labor Ready Northeast. "The `right to control' test determines the [relationship between a worker and a putative employer] by asking whether the putative employer has the right to control the means and methods used by the worker in the performance of his or her job . . . The test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent . . . (Citations omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 680-81, 748 A.2d 834 (2000). "Whether someone is an employee . . . is a question of fact, absent controlling circumstances." Nationwide Mutual Ins. Co. v. Allen, 83 Conn.App. 526, 533, 850 A.2d 1047, cert. denied, 271 Conn. 907, 859 A.2d 562 (2004).
The defendants have failed to show the absence of a genuine issue of material fact as to whether Norcross was an employee of Labor Ready or Labor Ready Northeast. Carmax or Carmax Business Services did not have unfettered control over Norcross. There is evidence that Labor Ready or Labor Ready Northeast retained some right of control. Under paragraph three of the "Conditions of Service" page of Exhibits 1 and 2 of the affidavit appended to the defendants' memorandum as Exhibit D, Carmax or Carmax Business Services was required to obtain the prior written consent of Labor Ready or Labor Ready Northeast before allowing Norcross to operate a vehicle. Furthermore, as detailed in paragraph four, Labor Ready or Labor Ready Northeast required Carmax or Carmax Business Services to comply with all applicable health and safety laws and to provide all necessary safety equipment and to train employees on how to use safety equipment, among other things. Thus, Labor Ready and Labor Ready Northeast are not entitled to summary judgment on this ground.
3
Labor Ready as an Improper Defendant
The defendants argue on page sixteen of their memorandum that Labor Ready is not liable as a matter of law because (1) it no longer exists, (2) it did not operate in Connecticut at the time of the alleged injury, and (3) it did not employ Norcross. None of these arguments has merit.
As to the first argument, in paragraphs nineteen and twenty of Exhibit D of the defendants' memorandum, the affiant, Garrett Ferencz, general counsel for a company called TrueBlue, Inc. admitted that Labor Ready changed its name to TrueBlue, Inc. in 2007, and thus no longer "existed" in 2008. Nevertheless, "[i]t is well established in corporate law that a change in name does not affect the identity, rights, or liabilities of the corporation." David Caron Chrysler Motors, LLC v. Goodhall's, Inc., 122 Conn.App. 149, 159, 997 A.2d 647 (Dupont, J., dissenting), cert. granted, 298 Conn. 925, 5 A.3d 486 (2010). Thus, Labor Ready is not absolved of any possible liability simply because it changed its name to TrueBlue before the time of the alleged acts.
The second and third arguments can be disposed of together. The plaintiff does not seek to hold Labor Ready liable because of any "operations" occurring in Connecticut, he seeks to hold it vicariously liable for the negligence of Norcross. In paragraph four of Exhibit D, the general counsel admitted that Labor Ready Northeast was a wholly owned subsidiary of TrueBlue, i.e., Labor Ready. There is no evidence showing the absence of any agency relationship between Labor Ready and Labor Ready Northeast with respect to the employment of Norcross such that Labor Ready, as a matter of law, could not be vicariously liable as the plaintiff alleges.
4
Carmax Business Services as an Improper Defendant
The defendants argue that Carmax Business Services is an improper defendant because it did not own the premises where the auction was held, did not operate the premises, did not own the vehicle driven by Norcross and did not employ Norcross. Whether Carmax Business Services owned the premises or operated the business on the premises is irrelevant as this is not a premises liability action. In counts five and seven, the plaintiff alleges that Carmax Business Services is vicariously liable because it employed Norcross and owned the Cadillac that he operated, respectively. On both points, the only evidence in the record to which the defendants cite is the affidavit of Grady Dixon, manager of risk management for Carmax, Inc., attached to the defendants memorandum as Exhibit C. In paragraphs thirteen and fourteen, Dixon simply states that Carmax Business Services did not own the vehicle that Norcross drove and did not employ him.
Averments contained in an affidavit that are merely denials of the allegations in a complaint "are an insufficient basis for the rendition of summary judgment." Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995). Paragraphs thirteen and fourteen are nothing more than denials of the allegations. The defendants have failed to submit evidence sufficient to rule out an issue of fact as to whether Carmax Business Services employed Norcross, through Carmax acting as its agent or otherwise. In fact, Dixon admits in paragraph ten that Carmax Business Services and Carmax are affiliated companies. Furthermore, they have failed to submit sufficient evidence to prove definitively that Carmax Business Services did not own the Cadillac.
C
The Plaintiff's Motion for Summary Judgment
The plaintiff contends that he is entitled to judgment as a matter of law as to liability only on count one of the complaint, in which negligence is alleged against Norcross. Put simply, the issue is whether, as a matter of law, Norcross' conduct fell below the applicable standard of care.
The plaintiff argues that the injury was caused by the sole fault of Norcross who did not realize that the Cadillac needed to be in "park" before he stepped on the accelerator. He also argues that motor vehicle operators have a duty to keep their vehicle under proper control and to "keep an effective look out for other vehicles and persons." (Plaintiff's Memorandum, p. 7.) In opposition to the plaintiff's motion for summary judgment, the defendants repeat the arguments they made in support of their joint motion for summary judgment.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . ." (Internal quotation marks omitted.) Utica Mutual Ins. Co. v. Precision Mechanical Services, Inc., 122 Conn.App. 448, 454, 998 A.2d 1228, cert. denied, 298 Conn. 926, 5 A.3d 487 (2010).
It is important to note that "[s]ummary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
A movant for summary judgment 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." (Internal quotation marks omitted.) Zielinski v. Kotsoris, supra, 279 Conn. 318. In Exhibit B of the plaintiff's memorandum, which is a copy of a police report, Norcross states that the plaintiff asked him to "rev" the engine so that he could hear it and that, with his foot on the brake, he depressed the accelerator, propelling the Cadillac into the plaintiff. By contrast, in Exhibit A, the plaintiff's affidavit, he does not mention asking Norcross to "rev" the engine, and claims that he was in front of the Cadillac, facing away from it and inspecting another vehicle when "without warning" Norcross "drove at" him. The plaintiff's submission of inconsistent evidence falls well below the showing necessary to foreclose any genuine issue of material fact as to whether Norcross met the standard of care required of him.
III
CONCLUSION
The court hereby finds that the defendants have failed to show the absence of a genuine issue of material fact. Therefore, the defendants' motion for summary judgment (#124) is denied. Furthermore, the court hereby finds that the plaintiff has failed to show the absence of a genuine issue of material fact. Therefore, the plaintiff's motion for summary judgment (#122) is also denied.