Opinion
No. CV04-0183691S
January 9, 2007
MEMORANDUM OF DECISION RE MOTION TO DETERMINE STATUS OF PARTY #121
The plaintiff, Jessica Tata, brings this action against Daniel Frederick and Michael Ross. The following facts are material to consideration of the instant motion. Tata alleges that she was a passenger on a motorcycle owned by Ross and operated by Frederick on May 27, 2002, when it collided with another vehicle. She claims that, as a result of the collision, she sustained multiple injuries. In count one, Tata alleges that Frederick operated the motorcycle with the owner's permission, and that he was negligent in the operation of the vehicle. In count four, Tata alleged that Ross was negligent in entrusting the motorcycle to Frederick.
Counts two and three are brought against the owner and operator of the other vehicle involved in the accident, and they are not material to the court's consideration of this motion.
On March 8, 2006, Ross filed a motion for summary judgment as to count four on the ground that no genuine issue of material fact existed. The motion was granted by the court (Brunetti, J.) on June 27, 2006. On June 20, 2006, Tata filed a request for admissions, requesting that Ross admit he is the owner of the motorcycle in question and that he gave Frederick permission to use the motorcycle. On July 18, 2006, Ross answered Tata's request by stating that since he "is no longer a defendant to this action, no answer is offered." On August 25, 2006, Tata filed a motion to determine the sufficiency of Ross' July 18, 2006 answer. The court (Gallagher, J.) ordered that "[d]efendant Ross must provide answer to the plaintiff's request for admission . . ." To date, there is no compliance with the court's order. On October 23, 2006, Tata filed a motion to determine the status of Ross as a pAtty. The matter was heard on the short calendar on December 18, 2006. At the hearing, the court granted the defendants' attorney's request for additional time to file a memorandum in opposition.
Discussion
The defendants argue that because summary judgment was granted on count four, Ross is no longer a party to the action and is not required to answer the request for admission. They claim that Ross is not a party because the plaintiff does not make any allegations of negligence or vicarious liability against Ross.
General Statutes § 52-183 creates a statutory presumption of an agency relationship between the owner and operator of a motor vehicle. "As a threshold matter, [General Statutes] § 52-183 provides that, in any action for damages brought against the nonoperator owner of a motor vehicle for the negligent or reckless operation of [that] motor vehicle, the operator 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 . . . Section 52-183 . . . provides that the owner of the vehicle bears the burden of rebutting the presumption." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 837, 836 A.2d 394 (2003). "Section 52-183 does nothing more than create a rebuttable presumption of such a relationship between the owner and the operator of a motor vehicle, namely, an employer-employee relationship, which, under the common-law principle of respondeat superior, renders the owner vicariously liable for compensatory damages arising out of the negligent and reckless conduct of the operator . . ." (Emphasis in original.) Id. 840. A plaintiff does not need to expressly allege an agency relationship; rather, allegations of ownership and operation are sufficient to raise the statutory presumption of agency under Connecticut General Statutes § 52-183. See Trichilo v. Trichilo, 190 Conn. 774, 779, 462 A.2d 1048 (1983); see also Blake v. New England Survey Service, Inc., 17 Conn.Sup. 48, 49 (1950). To take advantage of the presumption, the plaintiff need only allege and prove that the defendant owned the vehicle on the date of the accident. See Anderson v. Nedovich, 19 Conn.App. 85, 89, 561 A.2d 948 (1989). Accordingly, although Tata did not expressly state that she was relying on the § 52-183 statutory agency presumption, Ross is implicated in count one because the count alleges that Ross owned the motorcycle at the time of the accident. The burden is on Ross to rebut the presumption of agency created by the allegations in count one.
"[T]he sole purpose of § 52-183 is to shift the burden of adducing evidence regarding an agency relationship between the owner and the operator of a vehicle from the plaintiff to the defendant: unless the defendant introduces persuasive evidence that no agency relationship exists, the plaintiff need not present any evidence to prove it but, instead, may rely entirely on the statutory presumption." (Emphasis in original.) Matthiessen v. Vanceh, supra, 266 Conn. 839. Ross has made no attempt to rebut the presumption. The presumption remains.
Accordingly, Ross is a party to the action.