Opinion
NNHCV186076540S
11-20-2019
Anthony ALESSIE v. The STOP AND SHOP SUPERMARKET
UNPUBLISHED OPINION
Wahla, J.
ISSUE
Pending before the court is the defendant’s motion to strike paragraphs 6, 8(i), 8(k), 8(m), 8(n), 8(o), 9(i), 9(k), 9(m), 9(n), and 9(o) of the plaintiff’s complaint on the grounds that these allegations are legally insufficient because (1) vicarious liability does not exist because there is no agency relationship between a supermarket and its customer; (2) the mode of operation allegations are not applicable as the present action neither involves a sufficiently unique mode of operation nor a regularly occurring hazard causing injury within a limited zone of risk; (3) the negligent training allegations fail to allege the necessary elements of a negligent training cause of action with respect to the employees, and there is no duty for a store to train its customers in the use of motorized shopping carts; and (4) the negligent entrustment allegations fail to allege the defendant knew or should have known of the unnamed customer’s incompetence at operating the motorized shopping cart. For the reasons set forth below, the court grants the defendant’s motion to strike, specifically, the plaintiff has not sufficiently pleaded that the unnamed customer was an agent of the defendant; that the mode of operation applies to these facts; that the defendant failed to train or supervise its employees; and that the defendant had or should have had knowledge of the unnamed customer’s incompetence.
FACTS
This action arises out of an alleged collision between an unnamed customer, who is not a party to this action, and the plaintiff, Anthony Alessie, in a store owned, leased, controlled managed, and or maintained by the defendant, Stop & Shop Supermarket Co., LLC, on or about December 23, 2015. The plaintiff alleges the following facts in his complaint. The defendant offered motorized shopping carts ("shopping scooter") for customers to use while shopping in the defendant’s store. On or about December 23, 2015, the plaintiff was a customer in the defendant’s store when an unnamed customer operating a "shopping scooter" struck the plaintiff in an aisle causing the plaintiff injuries. The unnamed customer was an agent of the defendant because the unnamed customer collected merchandise owned by the defendant and transported it to the checkout register for transfer of ownership upon payment by the unnamed customer.
The defendant filed this motion to strike on August 23, 2018. The plaintiff filed his memorandum in opposition to the motion to strike on April 1, 2019. The defendant filed their reply to the plaintiff’s memorandum in opposition on November 4, 2019.
DISCUSSION
"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580.
A motion to strike may attack individual paragraphs of a single-count complaint. In Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011), the court cited Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) (17 Conn.L.Rptr. 296, 298 n.1) and quoted parenthetically the following language from that case: "Under prior case law and earlier versions of the Practice Book, it was generally improper to [move to strike] a paragraph of a complaint unless the paragraph purported to state a separate cause of action ... Since 1978, however, the Practice Book has not contained such a constraint." (Internal quotation marks omitted.). The court in Coe v. Board of Education, also cited Cook v. Stender, Superior Court, judicial district of Middlesex, Docket No. CV- 04-0104110-S (December 22, 2004, Silbert, J.) (38 Conn.L.Rptr. 439, 440), and quoted parenthetically the following language from that case: "Prior case law ‘ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury,- just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint ... the proper course for the court is to strike those allegations only ...’ " Id. ; see also Weingarden v. Milford Anesthesia Associates, P.C., Superior Court, judicial district of New Haven Docket No. CV-11-6016353-S (May 30, 2013, Wilson, J.) ("[O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph [or paragraphs] embodies an entire cause of action or defense" [internal quotation marks omitted] ).
Furthermore, in Donovan v. Davis, 85 Conn. 394, 397-98, 82 A.1025 (1912), the court stated: "A single paragraph or paragraphs can only be attacked for insufficiency when a cause of action is therein attempted to be stated, and then only by [a motion to strike]. The only remedy ‘by which to test the sufficiency of a cause of action or defense, whether stated in one pleading, count or defense, or in a paragraph or paragraphs thereof,’ is a [motion to strike]." See, e.g., Tiplady v. Maryles, 158 Conn.App. 680, 701-02 and n.9, 120 A.3d 528, cert. denied, 319 Conn. 946, 125 A.3d 527 (2015).
A. Vicarious Liability
The defendant argues that the plaintiff’s vicarious liability allegations in paragraph 6 is legally insufficient because vicarious liability does not exist as there is no agency relationship between the defendant and the unnamed customer. The plaintiff counters that the unnamed customer’s use of the "shopping scooter" in the defendant’s store to collect the defendant’s goods for purchase creates an agency relationship.
"Three elements are required to show the existence of an agency relationship: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking ... In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal." (Citations omitted; internal quotation marks omitted.) Gagliano v. Advanced Specialty Care, P.C., 329 Conn. 745, 755, 189 A.3d 587 (2018).
Here, in paragraph six of the complaint the plaintiff alleges that the unnamed customer "was acting as an agent for the [d]efendant, collecting merchandise owned by the [d]efendant, and transporting it to the checkout register for ownership transfer upon payment by the [unnamed] customer." This allegation does not sufficiently plead the elements of an agency relationship as the complaint does not allege any facts: (1) that any manifestation of agency existed between the unnamed customer or the defendant; (2) that the unnamed customer accepted an agreement to act for the defendant, and (3) that the defendant demonstrated any control over the unnamed customer at the time of the alleged incident. There are no pleaded facts that the defendant had any contract with the unnamed customer, or that the defendant controlled what items the unnamed customer transported within the store or may have purchased from the defendant. Therefore, it is submitted that the plaintiff’s allegations that this unnamed customer is an agent of the defendant are legally insufficient. Accordingly, it is submitted that the defendant’s motion to strike should be granted as to paragraph 6 of the plaintiff’s complaint.
B. Mode of Operation
The defendant argues that the mode of operation allegations in paragraphs 8(k) and 9(k) are legally insufficient because the present action neither involves a sufficiently unique mode of operation nor a regularly occurring hazard causing injury within a limited zone of risk. The plaintiff counters that narrowed shopping aisles created an unsafe condition that did not allow enough space for customers and "shopping scooters" to shop.
"[There are] three overarching requirements for the mode of operation rule to apply: (1) the defendant must have a particular mode of operation distinct from the ordinary operation of a related business; (2) that mode of operation must create a regularly occurring or inherently foreseeable hazard; and (3) the injury must happen within a limited zone of risk." Porto v. Petco Animal Supplies Stores, Inc., 167 Conn.App. 573, 581, 145 A.3d 283 (2016). "[T]he mode of operation rule, as adopted in Connecticut, does not apply generally to all accidents caused by transitory hazards in self-service retail establishments, but rather, only to those accidents that result from particular hazards that occur regularly, or are inherently foreseeable, due to some specific method of operation employed on the premises." Fisher v. Big Y Foods, Inc., 298 Conn. 414, 423, 3 A.3d 919 (2010).
Here, the plaintiff alleges that the defendant utilized a mode of operation that created a foreseeable risk by having narrowed shopping aisles which the defendant’s provided "shopping scooters" operated by customers could collide with other customers within the aisles. The complaint does not allege any specific facts as to how a unique zone of risk existed that created foreseeable injury to customers by having narrowed aisles where the alleged collision occurred in the defendant’s store. There is additionally no pleaded facts as to how the narrowed aisle is distinct from the ordinary operation from a related business, nor how the narrowed aisle caused the collision between the unnamed customer and the plaintiff. Therefore, it is submitted that the plaintiff’s allegations that the defendant created a unique zone of risk with its mode of operation are legally insufficient. Accordingly, it is submitted that the defendant’s motion to strike should be granted as to paragraphs 8(k) and 9(k) of the plaintiff’s complaint.
C. Negligent Training & Negligent Supervision
The defendant argues that the plaintiff’s negligent training allegations in paragraphs 8(i), 8(n), 9(i), and 9(n) are legally insufficient because (1) the complaint fails to allege the necessary elements of a negligent training cause of action with respect to the employees, and (2) there is no duty for a store to train its customers in the use of "shopping scooters."
"It is unclear whether Connecticut law recognizes a claim for negligent training distinct from one for negligent supervision ... As a result of this uncertainty, Superior Court decisions dealing with negligent training claims have applied the standard applicable to a claim for negligent supervision." (Citations omitted.) Dumas v. Price Chopper, Inc., Superior Court, judicial district of Windham, Docket No. CV-09-5004896-S (March 31, 2010). "Under Connecticut law, an employer may be liable for the negligent supervision of employees ... In order to plead a cause of action sounding in negligent supervision, a plaintiff must plead injury by an employee whom the defendant had a duty to supervise, failed to supervise and whom the defendant knew or should have known would cause the injury." Andreoni v. Forest Enterprises, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-07-6000743-S (April 21, 2010).
Here, the plaintiff alleges that the defendant failed to train its employees for hazardous conditions. The complaint does not plead facts as to how plaintiff’s injuries were caused by an employee of the defendant, only alleging that the unnamed customer collided with the plaintiff caused the injuries. As there is no pleaded facts that the unnamed customer was an agent of the defendant at the time of the alleged collision, the defendant did not have to train or supervise the unnamed customer in operating a "shopping scooter."
The plaintiff further alleges that the defendant should know the dangers of permitting customers in using "shopping scooters." The Superior Court has ruled that un-motorized shopping carts are not inherently dangerous, which is instructive in the present case. "It is a common practice for stores to provide its customers with a shopping cart that can be utilized to gather the goods they intend to purchase. There is nothing inherently dangerous about a shopping cart located in the store or for that matter outside of the store if used by customers to carry their purchases to their car ... Additionally, a shopping cart is not a small discrete item which is not clearly present and visible to shoppers. [Prior case law] supports the position that the shopping cart is not a dangerous instrumentality." (Citation omitted.) Stevenson v. Family Dollar Stores of Connecticut, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-16-6032179-S (October 30, 2017) .
Therefore, it is submitted that the plaintiff’s allegations that the defendant negligently trained and or negligently supervised their employees or the unnamed customer are legally insufficient. Accordingly, it is submitted that the defendant’s motion to strike should be granted as to paragraphs 8(i), 8(n), 9(i), and 9(n) of the plaintiff’s complaint.
D. Negligent Entrustment
The defendant argues that the negligent entrustment allegations in paragraphs 8(m), 8(o), 9(m), and 9(o) are legally insufficient because they fail to adequately allege the defendant had knowledge of its customer’s incompetence at operating the "shopping scooter" and that said incompetence caused his injures.
"[I]n order to prove negligent entrustment, a plaintiff must demonstrate that (1) the defendant has entrusted a potentially dangerous instrumentality to a third person, (2) whom the entrustor knows or should know intends or is likely to use the instrumentality in a manner that involves unreasonable risk of physical harm, and (3) such use does in fact cause harm to the entrustee or others." Soto v. Bushmaster Firearms International, LLC, 331 Conn. 53, 80-81, 202 A.3d 262 (2019), cert. denied, United States Supreme Court, Docket No. 19-168 (November 12, 2019).
Here, the complaint does not allege facts that the defendant knew or should know that the unnamed customer would be dangerous to third parties. There is no allegation that the unnamed customer had any history of dangerous operation of "shopping scooters," or that the defendant would have any knowledge of the unnamed customer’s abilities to operate "shopping scooters." The element of knowledge for the defendant as to the unnamed customer is absent from the facts of the complaint. Therefore, it is submitted that the plaintiff’s allegations that the defendant negligently entrusted a "shopping scooter" to an unnamed customer are legally insufficient. Accordingly, it is submitted that the defendant’s motion to strike should be granted as to paragraphs 8(m), 8(o), 9(m), and 9(o) of the plaintiff’s complaint.
CONCLUSION
For the foregoing reasons, the court grants the defendant’s motion to strike, as requested.