Opinion
LLICV156011843S
06-01-2017
Mark Albert et al. v. P&A Realty Company, LLC et al
UNPUBLISHED OPINION
OPINION
Carl J. Schuman, Judge, Superior Court.
Ruling on Motions for Summary Judgment
The undisputed facts establish that, in late May or early June 2014, plaintiff Mark Albert (the plaintiff) engaged in a transaction with Raymond Suckley to purchase a load of steel I-beams at 235 East Main Street, Thomaston (the premises). On June 24, 2014, at approximately 6:30 p.m., Suckley, pursuant to this agreement, was operating a forklift and loading I-beams onto the plaintiff's truck at the premises when one of the beams fell off the forklift and injured the plaintiff's feet and left leg. Mark Albert and his wife Julie Albert file suit against Suckley, the Drawn Metal Tube Company (Drawn Metal), which was Suckley's employer, and P& A Realty Company (P& A), which owned the premises. Drawn Metal and P& A Company move for summary judgment based primarily on the claim that they are not vicariously liable for Suckley's actions.
I
The court applies the accepted standards governing summary judgment motions. " Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . .
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . The party opposing a motion for summary judgment must present evidence that demonstrates the existence of some disputed factual issue . . . The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otherwise sufficient, is not rebutted by the bald statement that an issue of fact does exist . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents . . . The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Citation omitted; internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 464-65, 976 A.2d 23 (2009).
II
The court first address the summary judgment motion of Drawn Metal. Drawn Metal moves for summary judgment on count seven of the second revised complaint, which alleges vicarious liability, count eight, which alleges negligent supervision, and count nine, in which plaintiff Julie Albert alleges loss of consortium.
With regard to count seven, there is no genuine dispute that, although Suckley was an employee of Drawn Metal, he was not acting within the scope or time of his employment at the time of the accident and therefore had no actual authority to act as he did. (Erdfarb affidavit, para. 6.) Instead, the plaintiff advances a claim of apparent authority. " The issue of apparent authority is one of fact to be determined based on two criteria . . . First, it must appear from the principal's conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted [the agent] to act as having such authority . . . Second, the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent's action." (Citations omitted; internal quotation marks omitted.) Gordon v. Tobias, 262 Conn. 844, 851, 817 A.2d 683 (2003).
On the first element, the plaintiff relies on the alternative requirement that the principal " knowingly permitted [the agent] to act as having such authority . . ." The plaintiff proffers evidence that Drawn Metal's foreman would tell Suckley to go from his regular work-site on Elm Street in Thomaston to the 235 East Main Street premises to perform maintenance, that Drawn Metal gave him keys to the building and to the forklift, and that Suckley did not have to report to anyone when he gained access to these premises. (Albert affidavit, paras. 7-8; Suckley deposition, pp. 28-29, 31, 43, 70, 95.) Viewing this evidence in a light most favorable to the plaintiff, as the court must at this stage; Gianetti v. Health Net of Connecticut, Inc., supra, 116 Conn.App. 464; this evidence minimally suffices to create at least a factual issue as to whether Drawn Metal, particularly by giving Suckley keys to the building and the forklift, knowingly permitted Suckley to act as if he had his employer's approval in using the forklift incident at the off-site location.
In view of this conclusion, it is not absolutely necessary to consider the second element of apparent authority. The court would observe, however, that the plaintiff's affidavit and deposition, viewed in light most favorable to him, provide sufficient evidence that the plaintiff, " acting in good faith, reasonably believed, under all the circumstances, that [Suckley] . . . had the necessary authority to bind [Drawn Metal] to [Suckley's] action." (Albert affidavit, paras. 17-19.) (Albert Deposition, p. 23, lines 7-17.) Accordingly, the court must deny the summary judgment motion as to count seven. Because the loss of consortium claim in count nine can be derivative of liability on either count seven or count eight; see Jacoby v. Brinckerhoff, 250 Conn. 86, 91-92, 735 A.2d 347 (1999), the court also denies the summary judgment motion on count nine.
Count eight of the complaint alleges that defendant Drawn Metal is liable for negligent supervision of Suckley. To state a cause of action for negligent supervision, a plaintiff must ordinarily plead injury as a result of the defendant's own negligence in failing to properly supervise an employee or agent whom the defendant had a duty to supervise and whom the defendant knew or should have known would cause the injury. See Derrig v. Thomas Regional Directory Co., No. CV 980583548S, 1999 WL 476688, at *3 (Conn.Super.Ct. June 22, 1999); Restatement (Second), Torts § 317 (1965). The affidavit of Martin Erdfarb establishes that Drawn Metal Tube had no notice that one of its employees would engage in any dangerous or unauthorized activities near its workplace. (Erdfarb affidavit, paras. 7-8.) The plaintiff does not present any contrary evidence or argument. Therefore, the court grants summary judgment for Drawn Metal on count eight.
III
The court now turns to P& A's summary judgment motion. This motion seeks judgment on count one (vicarious liability), count two (negligent supervision), and count three (loss of consortium). The situation differs from that involved in Drawn Metal's motion because Suckley was not an employee of P& A. Rather, there is no genuine dispute of the statement in the affidavit of Jay Horowitz, who identifies himself as the former owner of P& A, that Suckley was an independent contractor of P& A. (Horowitz affidavit, paras. 5, 6.) Therefore, the plaintiffs cannot recover in count one on the theory of apparent authority. Instead, they seek recovery on the theory of apparent agency.
Our Supreme Court recently discussed this distinction in Cefaratti v. Aranow, 321 Conn. 593, 141 A.3d 752 (2016). The Court stated: " the plaintiff may establish apparent agency in a tort action by proving the traditional elements of the doctrine of apparent agency, as set forth in our cases involving contract claims, plus detrimental reliance. Specifically, the plaintiff may prevail by establishing that: (1) the principal held the apparent agent or employee out to the public as possessing the authority to engage in the conduct at issue, or knowingly permitted the apparent agent or employee to act as having such authority; (2) the plaintiff knew of these acts by the principal, and actually and reasonably believed that the agent or employee or apparent agent or employee possessed the necessary authority . . . and (3) the plaintiff detrimentally relied on the principal's acts, i.e., the plaintiff would not have dealt with the tortfeasor if the plaintiff had known that the tortfeasor was not the principal's agent or employee. We emphasize that this standard is narrow, and we anticipate that it will be only in the rare tort action that the plaintiff will be able to establish the elements of apparent agency by proving detrimental reliance." (Citations omitted.) Id., 624-25.
The Court identified the following alternative method of establishing apparent agency: " the plaintiff may establish apparent agency by proving that: (1) the principal held itself out as providing certain services; (2) the plaintiff selected the principal on the basis of its representations; and (3) the plaintiff relied on the principal to select the specific person who performed the services that resulted in the harm complained of by the plaintiff." Id., 624. The plaintiff does not rely on this method.
With regard to the first element, the plaintiff again relies on the theory that " the principal . . . knowingly permitted the apparent agent or employee to act as having . . . authority . . ." The wording of this element reveals its focus on the actions of the principal rather than those of the apparent agent. The first element essentially examines what the principal did to create the appearance of agency. In the case of P& A, there was very little. The affidavit of P& A's former owner does admit that P& A owned the premises and that P& A contracted with Suckley to remediate damage from demolition and to repair holes in a wall of the premises. The affidavit also states, however, that P& A did not own or possess the forklift, did not provide Suckley with keys to the forklift, had no knowledge of Suckley's use of the forklift after his work hours, and provided no authorization to Suckley to use the forklift. (Horowitz affidavit, paras. 2, 5-8.) The plaintiff does not contradict this evidence or provide any other evidence of P& A's actions. Based on this recital, P& A has met its summary judgment burden on the first element of showing that it did not " knowingly [permit]" Suckley to use the forklift to engage in anything like the transaction that caused injury to Albert.
Drawn Metal's brief cites the plaintiff's deposition testimony that Suckley had told him that the " owner of that property" gave him permission to sell the beams. (Albert deposition, p. 108.) The plaintiff does not rely on this testimony, but does state in his affidavit that " he believed that [Suckley's] sale of the scrap metal was either for the benefit of the owner of the property, or had been authorized by the owner." (Albert affidavit, para. 9.) Neither of these statements, however, describes any action taken by P& A, and thus they are irrelevant to the inquiry on the first element.
The second element calls for evidence that " the plaintiff knew of these acts by the principal, and actually and reasonably believed that the agent or employee or apparent agent or employee possessed the necessary authority." Based on P& A's affidavit, the only " acts" of P& A of which the plaintiff could have been aware are that P& A owned the building and had contracted with Suckley to do some repair work there. Even if the plaintiff knew of these acts, which is unclear from his affidavit, these acts by themselves are insufficient to lead plaintiff to " actually and reasonably" believe that Suckley had authority to use the forklift and sell the I-beams. That is, P& A's mere status as owner of the property and contractor with Suckley does not fairly justify the inference that P& A authorized Suckley to use the forklift. The plaintiff's affidavit does state that he " relied upon the fact that Suckley apparently worked at the premises, that either his employer or the property owner had given him keys to the building, keys to the forklift, and apparently allowed him to use the forklift to dispose of the scrap metal which was cluttering up the yard." (Albert affidavit, para. 18.) Thus, the plaintiff's affidavit states a general case for his belief that the transaction was proper, but relies on facts such as Suckley's possession of keys to the building and the forklift, matters for which P& A is not responsible. In view of this evidence, the court cannot find that the plaintiff has created a genuine factual issue that, based only on P& A's actions, he actually and reasonably believed that P& A had given Suckley authority to operate the forklift and sell the I-beams.
The third element is that " the plaintiff detrimentally relied on the principal's acts, i.e., the plaintiff would not have dealt with the tortfeasor if the plaintiff had known that the tortfeasor was not the principal's agent or employee." The Supreme Court has cautioned that " it will be only in the rare tort action that the plaintiff will be able to establish the elements of apparent agency by proving detrimental reliance." This case does not fit that narrow mold. The analysis is similar to that for the second element. Some of the critical acts on which the plaintiff relies, such as provision of the building keys and the forklift keys, were not acts of P& A. The evidence that Drawn Metal provided keys to the building and the forklift does not create a genuine factual issue as to whether the plaintiff detrimentally relied on the acts of P& A to engage in the transaction in question. Accordingly, the court grants summary judgment for P& A on the first count.
Count two alleges negligent supervision. As a general rule in Connecticut, an employer is not liable for the negligence of its independent contractors. See Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517-18, 825 A.2d 72 (2003). Because it is undisputed that Suckley was an independent contractor of P& A, P& A cannot be held liable for negligent supervision of P& A. Therefore the court enters summary judgment for P& A on count two.
The Court suggested that the following exceptions would apply: " If the work contracted for be unlawful, or such as may cause a nuisance, or is intrinsically dangerous, or in its nature is calculated to cause injury to others, or if the contractee negligently employ an incompetent or untrustworthy contractor, or if he reserve in his contract general control over the contractor or his servants, or over the manner of doing the work, or if he in the progress of the work assume control or interfere with the work, or if he is under a legal duty to see that the work is properly performed, the contractee will be responsible for resultant injury." (Internal quotation marks omitted.) Id., 518. The plaintiff does not brief this issue or suggest any way in which the general rule should not apply.
Count three alleges loss of consortium based on P& A's liability on either count one or count two. Because the court has ruled that P& A has no such liability, the court also enters summary judgment for P& A on count three.
IV
The court grants the summary judgment motion of P& A in its entirety. The court grants the summary judgment motion of Drawn Metal as to count eight and denies the motion as to counts seven and nine.
It is so ordered.