Opinion
No. FST CV08-5006850S
October 6, 2011
Memorandum of Decision on Renewed Motion for Summary Judgment (No. 156)
PROCEDURAL/FACTUAL BACKGROUND
On March 12, 2008, the plaintiffs, Anthony Angione, III and Kim Wheeler, commenced this action by service of process on the defendants, Shannon Bloom and V.W. Credit, Inc. ("V.W. (Credit"). In the operative pleading, which is the plaintiffs' Amended Complaint dated January 26, 2009, the plaintiff's allege the following facts that are relevant to the disposition of the motion that is currently before the court. On January 20, 2006, Norman Bloom leased a 2006 Audi automobile from "VW Credit, LTD and/or its agents, servants or affiliates UAG Fairfield CA, LLC d/b/a Audi of Fairfield." These entities are collectively referred to as the defendant V.W. Credit in the plaintiffs' complaint. On July 21, 2007, Norman Bloom's niece, the minor defendant Shannon Bloom, was driving this vehicle. The plaintiffs allege that Shannon Bloom "was operating the 2006 Audi with permission, and/or was otherwise operating it as a family car within the general scope of her authority." On that date, the plaintiff Angione was operating a motorcycle on Cove Avenue in Norwalk when he was hit by the vehicle driven by Shannon Bloom. As a result of this traffic accident, Angione has suffered numerous extreme physical injuries that have rendered him paralyzed. The plaintiffs contend that this accident was caused by the negligence and carelessness of Shannon Bloom in that she was traveling at too fast of a speed and inattentive as a result of using her cell phone. Consequently, the plaintiffs allege the following causes of action against Shannon Bloom: (1) count one — negligence; (2) count two — recklessness and (3) count three statutory damages pursuant to General Statutes § 14-295.
Wheeler is a plaintiff in this case based on the fact that she has been appointed as Angione's conservatrix.
Following the filing of this case, on June 17, 2008, V.W. Credit filed a motion to strike count four of the plaintiffs' complaint. Count four comprised the only count alleged against V.W. Credit in the original complaint. Before the court ruled on this motion to strike, the plaintiffs filed a request for leave to amend their complaint, with a proposed amended complaint attached on October 22, 2008. This proposed amended complaint purportedly fixed the infirmities of the original complaint. Despite this fact, the court, Pavia, J., granted V.W. Credit's motion to strike the original complaint on October 27, 2008. As the plaintiffs failed to plead over in the time frame allowed by Practice Book § 10-44, V.W. Credit then filed a motion for judgment as to the stricken count. The plaintiffs objected to this motion for judgment because they claimed that they had never received notice of the court's granting of the motion to strike. Then, on January 26, 2009, the plaintiffs re-filed the same amended complaint that had been previously filed on October 22, 2008. The court, Pavia, J., subsequently denied V.W. Credit's motion for judgment on February 10, 2009, on the basis that there was an existing complaint in the case.
In counts four through six, the plaintiffs bring the following claims against V.W. Credit:(1) count four — vicarious liability under General Statutes § 14-154a; (2) count five — negligence and (3) count six — negligent entrustment. The plaintiffs allege that at all relevant times, V.W. Credit "created, utilized and otherwise adheres to policies and procedures relating to its conduct, as well as its agents and/or dealers, concerning the conditions and requirements relating but not limited to leasing of its vehicles." In counts four through six, the plaintiffs allege that V.W. Credit was negligent in the following manner: (1) that it failed to verify that either Norman Bloom or Shannon Bloom had adequate or sufficient insurance as of the date that Norman Bloom entered into the lease agreement with V.W. Credit and (2) it knew or should have known that Shannon Bloom was not qualified or was too inexperienced to drive the subject vehicle. Count six further alleges that V.W. Credit knew or should have known that the 2006 Audi was being leased for the use and benefit of Shannon Bloom and that it should have reasonably anticipated the likelihood that Shannon Bloom's operation of this vehicle would have caused injuries to individuals traveling the roadways such as Angione.
On May 10, 2011, V.W. Credit filed a renewed motion for summary judgment and a memorandum of law in support of its motion. V.W. Credit's motion attaches: (1) the notarized affidavit of Melanie Campbell, who is a senior insurance specialist for V.W. Credit; (2) a copy of the subject lease agreement that was signed by Norman Bloom on January 20, 2006; (3) a copy of Norman Bloom and Deborah Bloom's automobile policy declarations with Covenant Insurance Company that were in effect from January 20, 2006 to January 20, 2008; (4) certified excerpts from the deposition transcript of Norman Bloom dated November 12, 2008 and (5) answers to interrogatories and requests for production served on Shannon Bloom on April 29, 2008.
Practice Book § 17-44 provides in relevant part: "any party may move for a summary judgment at any time, except that a party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial." When V.W. Credit filed its motion for summary judgment on May 10, 2011, this case had already been assigned a trial date of June 12, 2012. V.W. Credit did not file a motion for permission to file its summary judgment motion. Nevertheless, pursuant to the scheduling order that was approved by the court, D'Andrea, J.T.R., on December 9, 2010, the parties were given until August 15, 2011, to file any motions for summary judgment. Therefore, V.W. Credit did receive permission of the judicial authority to file this motion for summary judgment.
The parties also refer to this entity as Arbella Insurance throughout the pleadings and supporting documentation.
On June 16, 2011, the plaintiffs filed a memorandum of law in opposition to V.W. Credit's summary judgment motion. The plaintiffs' memorandum of law in opposition attaches: (1) the sworn Practice Book § 17-47 affidavit of the plaintiffs' counsel, Attorney Kevin M. Greco; (2) a copy of a motion for order of compliance filed in this case dated May 24, 2011; (3) a copy of Judge Adams' order dated January 29, 2010, on a previous motion for summary judgment filed by V.W. Credit in this case; (4) a copy of non-standard interrogatories and requests for production dated February 17, 2010 directed to V.W. Credit; (5) a copy of V.W. Credit's responses to those interrogatories and requests for production dated April 17, 2010; (6) a sworn affidavit executed by the plaintiffs' Attorney Susan R. Briggs on May 24, 2011; (7) an exchange of two letters between the parties' respective counsel; (8) a copy of V.W. Credit's supplemental discovery responses dated October 1, 2010; (9) a copy of Norman and Deborah Bloom's automobile insurance policies for the subject automobile; (10) another copy of the relevant lease agreement between Norman Bloom and V.W. Credit; (11) uncertified excerpts from the deposition transcript of Norman Bloom; (12) uncertified excerpts from the deposition transcript of Mark Earico, an employee of Norman Bloom's and (13) a copy of the V.W. Credit's answers to the plaintiffs' interrogatories and requests for production dated June 22, 2009. The court heard argument on this matter at the June 21, 2011 short calendar. At that hearing, the court allowed V.W. Credit the opportunity to file a reply memorandum, which it did on June 27, 2011. With the court's permission the defendant V.W. Credit also filed a supplemental brief on August 11, 2011. The plaintiff was given an opportunity to respond to the supplemental brief, but did not do so.
Both of the parties have attached some uncertified exhibits. Under Connecticut law, "before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Despite this rule, a court has discretion to consider unauthenticated documentary evidence when no objection has been raised by the opposing party. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Neither side has raised any objection to the uncertified attachments offered by the opposing party. Consequently, the court has discretion to consider all of the evidence when ruling on this motion for summary judgment, and shall do so in this case.
DISCUSSION
"Practice Book § 17-49 provides that 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and "[t]o 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 . . . 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).
I. Procedural Issue: Prior Motion for Summary Judgment
Before addressing the substantive issues found in V.W. Credit's renewed motion for summary judgment, it is necessary to summarize some of the procedural history of this case. The motion for summary judgment that is presently before the court is the second such motion that has been filed by V.W. Credit. On August 28, 2008, V.W. Credit filed its first motion for summary judgment. That motion raised substantially the same grounds as those in V.W. Credit's current motion. In opposition to the August 28, 2008 summary judgment motion, the plaintiffs argued that they needed additional time to conduct discovery in order to find evidence that could support a claim of direct negligence against V.W. Credit. Pursuant to Practice Book § 17-47, the plaintiffs attached the affidavit of their counsel, Attorney Greco, in support of this position. On January 29, 2010, the court, Adams, J., denied V.W. Credit's motion for summary judgment and issued the following order: "The motion for summary judgment is denied without prejudice to renewal at a later date. The plaintiff's objection contains the necessary affidavit pursuant to PB 17-47 to justify further discovery. Since an earlier motion by plaintiff was denied for failure to comply with PB 17-47 (see Dkt. Entry 138.00) the plaintiffs are allowed to serve additional discovery as attached to their earlier motion. While it is certainly possible that the discovery may not lead to evidence to defeat the summary judgment motion the plaintiffs are entitled to try."
Practice Book § 17-47 provides: "Should it appear from the affidavits of a party opposing the motion [for summary judgment] that such party cannot, for reasons stated, present facts essential to justify opposition, the judicial authority may deny the motion for judgment or may order a continuance to permits affidavits to be obtained or discovery to be had or may make such other order as is just."
On October 14, 2009, the plaintiffs had filed a motion for permission to serve non-standard discovery requests on V.W. Credit (Docket Entry Number 138). These non-standard discovery requests are those that Judge Adams was referencing in his January 29, 2010 order regarding V.W. Credit's initial motion for summary judgment. The plaintiffs' October 14, 2009 motion was denied by the court, Mottolese, J.T.R., on October 26, 2009. When denying the plaintiffs' motion, Judge Mottolese noted that "[a] prerequisite to discovery in connection with a motion for Summary Judgment which is opposed is compliance with P.B. § 17-4[7]."
Following Judge Adams' denial without prejudice of V.W. Credit's August 28, 2008 summary judgment motion, there has been a great deal of motion practice regarding the completeness of V.W. Credit's responses to the plaintiffs' non-standard discovery requests. Most recently, on May 24, 2011, the plaintiffs filed a motion for order of compliance regarding interrogatories and requests for production dated April 17, 2010. One of the plaintiffs' principal arguments against V.W. Credit's renewed motion for summary judgment is that the motion is premature because the court had not ruled on whether the plaintiffs would be entitled to obtain this additional discovery. After this court heard argument on this matter at the June 21, 2011 short calendar, the court, Mottolese, J.T.R., has sustained V.W. Credit's objection to the non-standard discovery requests. In his July 14, 2011 order (copy attached to V.W. Credit's Supplemental Brief in Support of Motion for Summary Judgment dated August 11, 2011), Judge Mottolese stated: "It appears that the motion to compel is premature since there remain unadjudicated objections to both interrogs and requests for prod. The court is now in a position to adjudicate the objections as follows. All objections are sustained as Plaintiff has failed to show why the interrogs and requests are not rendered immaterial pursuant to Rodriguez v. Testa, 296 Conn. 1 (2010). Judge Adams' order re: discovery does not preauthorize discovery which is not material or reasonably calculated to lead to admissible evidence." The plaintiffs did not file a motion to reargue Judge Mottolese's decision regarding their discovery requests, and, as a result, there is now a binding court order that V.W. Credit has no further discovery obligations to respond further to plaintiffs' non-standard discovery requests. This court therefore rejects the arguments raised in Attorney Greco's § 17-47 affidavit attached to the plaintiffs' opposition to the present summary judgment motion. There is no further information to be supplied by V.W. Credit which might assist the plaintiff in opposing this motion for summary judgment. Accordingly V.W. Credit's renewed motion for summary judgment is now to be addressed on the merits.
II. The Graves Amendment
V.W. Credit's first argument is that it is entitled to summary judgment because all of the plaintiffs' claims are preempted by 49 U.S.C. § 30106 (the "Graves Amendment"). The Graves Amendment provides in relevant part: "(a) An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if . . . (1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and . . . (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner)." Part (b) of § 30106 saves from the operation of part (a) ". . . the law of any state . . . (1) imposing financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle; or (2) imposing liabilities on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law." "The Graves Amendment was enacted by Congress on August 10, 2005, as part of a comprehensive transportation bill entitled the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (act), Pub.L. No. 109-59, 119 Stat. 1144 (2005). The [a]ct deals generally with motor vehicle safety, primarily providing billions of dollars in funding allocations for transportation projects . . . The Amendment was included in the act as a tort reform measure intended to bar recovery against car rental and leasing companies on the basis of vicarious liability." (Citation omitted; internal quotation marks omitted.) CT Page 21556 Rodriguez v. Testa, 296 Conn. 1, 9, 993 A.2d 955 (2010). Before Congress passed the Graves Amendment, General Statutes § 14-154a(a) had provided that "[a]ny person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner." Subsection (b) however, gave the lessor an opportunity to avoid vicarious liability under part (a): ". . . if, at the time damages are incurred, the leased vehicle is insured for bodily injury in amounts of not less than one hundred thousand dollars per person and three hundred thousand dollars per occurrence . . ."
In Rodriguez v. Testa, supra, 296 Conn. 1, the Connecticut Supreme Court examined the preemptive effect of the Graves Amendment with respect to § 14-154a. The Supreme Court held (1) that the Graves Amendment did indeed preempt § 14-154a(a); (2) that the incentive to avoid vicarious liability under § 14-154a(b) by making sure that the leased vehicle was covered by $100,000/$300,000 liability insurance did not save § 14-154a from federal preemption under the saving clause § 30106(b) because it did not require financial responsibility or liability insurance on leased vehicles for the privilege of registering the vehicle, but only offered a financial inducement to avoid liability; and (3) the Graves Amendment was constitutional as a valid exercise of Congressional authority under the commerce clause.
As explained by multiple Superior Court judges, "[t]here are three requirements that trigger the applicability of the Graves Amendment . . . namely; (1) the action must have commenced on or after August 10, 2005; (2) the owner of the vehicle must be engaged in the trade or business of renting or leasing motor vehicles; and (3) there is no negligence or criminal wrongdoing on the part of the vehicle owner." Lester v. Patinkin, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 10 6002769 (May 25, 2011, Arnold, J.). "While Connecticut can no longer impose vicarious liability on the owner of a rented or leased vehicle, § 30106 (Graves Amendment) does not prevent an owner of a rented or leased vehicle from being liable for its own negligent conduct . . . [T]he plain language of the statute states that its protection is unavailable where the rental car company commits independent acts of negligence that lead to the eventual injury at the heart of the litigation." (Citation omitted; internal quotation marks omitted.) Id.; see also Peterson v. Swain, Superior Court, judicial district of New Haven, Docket No. CV 05 5001192 (April 6, 2010, Wilson, J.) (same).
Although the parties do not dispute that the subject accident occurred after August 10, 2005, and that V.W. Credit is in the business or trade of leasing motor vehicles, the plaintiffs have made allegations of direct negligence against V.W. Credit. Therefore, V.W. Credit cannot demonstrate that it is entitled to judgment as a matter of law solely by citing the Graves Amendment. Rather, the court must first determine whether there are any genuine issues of material fact as to the legal viability of the negligence claims that the plaintiffs have alleged against V.W. Credit. If the court decides that there are outstanding issues of fact as to the negligence claims, then V.W. Credit will not be entitled to summary judgment. On the other hand, if the negligence counts are not cognizable under the facts of this case, then V.W. Credit cannot be held vicariously liable for the actions of the co-defendant Shannon Bloom.
III. Negligence: Counts Four and Five
Counts Four and Five of the Amended Complaint are virtually identical. Count Four is entitled "Liability Under § 14-154a or Vicarious Liability — Defendant V.W. Credit." Count Five is entitled "Negligence against VW Credit." Contrary to its title, Count Four makes no allegation or even reference to Conn. Gen. Stat. § 14-154a, (which is void by federal preemption under Testa, in any event), and no claim of any vicarious liability. Count Four alleges, as does Count Five in virtually identical language, claims of direct negligence against V.W.Credit. The allegations are that VW Credit "failed to verify that either the lessee, Norman Bloom, or defendant, Shannon Bloom had adequate or sufficient insurance in force on that date of the lease in violation of its own policy and procedures and such failure constituted negligence on the part of VW Credit." (¶ 23) or ". . . in violation of Connecticut General Statutes §§ 14-15, 14-112, and or 38-335, and such failure constituted negligence on the part of V.W. Credit." (¶ 24); and that V.W. Credit "knew or in the exercise of reasonable care should have known that minor defendant Shannon Bloom was not qualified and/or was otherwise so inexperienced as to drive a car under the circumstances." The court will address these issues separately.
A. Negligent Failure to Verify Adequate or Sufficient Insurance.
Plaintiff has made no allegation, and has submitted no evidence of V.W. Credit's "own policy and procedures" allegedly violated by the insurance maintained by Norman Bloom on the leased Audi. The only evidence of V.W. Credit's policy and procedure of insurance to be maintained on this teased vehicle is contained in ¶ 15 of the lease (copy attached to the Melanie Campbell affidavit), which requires Norman Bloom to maintain on the vehicle during the term of the lease and demonstrate to V.W. Credit: ". . . automobile liability insurance with minimum limits for bodily injury or death of $100,000 for any one person and $300,000 for any one accident and $50,000 for property damage, or $300,000 combined single limit." Plaintiff has submitted no contrary evidence. The insurance policy obtained by Norman Bloom on January 20, 2006, the day he signed the lease, and in effect on July 21, 2007, the day of the accident, as verified by V.W. Credit, not only satisfied, but exceeded those limits. The Covenant or Arabella Insurance Company policy (copy also attached to the Campbell affidavit) affords liability coverage of $250,000 per person or $500,000 per accident and property damage of $100,000. Not only does the Bloom insurance satisfy the V.W. Credit requirements, it clearly satisfies and exceeds the Connecticut statutory requirements alleged in the complaint by the plaintiff: $20,000 per person and $40,000 per event (Conn. Gen Stat. § 14-112(a) as incorporated in § 14-15 and § 38-335). And, if Conn. Gen. Stat. § 14-154a had not been voided by federal preemption, the Bloom insurance limits would also have exceeded the former $100,000/ $300,000 limits of subsection (b) of that statute which would have exempted V.W. Credit from vicarious liability under subsection (a). Accordingly, the court finds that there is no contested issue of fact as to the adequacy or sufficiency of the liability insurance in force on the leased Audi on the day of the accident by any relevant standard, or as to V.W. Credit having verified that coverage at the time it entered into the lease, and that the insurance on the leased car, and the verification thereof by defendant V.W. Credit, was therefore adequate as a matter of law.
Additionally, it should be noted that even if the plaintiffs could somehow raise an issue of fact regarding whether V.W. Credit was negligent in determining if Norman Bloom had sufficient automobile insurance on the vehicle, the plaintiffs would still not be able to demonstrate by any evidence that this negligent act proximately caused their injuries. On this issue, the case of Escaleria v. Powell, Superior Court, Judicial District of Fairfield, Docket No. CV 06 5004566 November 6, 2007, Matasavage, J.) ( 44 Conn. L. Rptr. 468) is instructive. In Escaleria, the plaintiff brought suit against Choice Automobile Rental, LLC (Choice) for injuries that the plaintiff allegedly sustained during an automobile collision caused by the driver of a vehicle rented from Choice. In his complaint, the plaintiff alleged that his "injuries and damages were caused by Choice's negligence and carelessness because it failed to ensure that [the driver] maintained adequate automobile insurance coverage for the duration of all rental agreement periods." Id., 468. When granting the defendant Choice's motion to strike, Judge Matasavage noted that "[t]he court agrees with this defendant, that the motor vehicle accident and the resulting injuries and damages was caused, if at all, by the negligent operation of a third party ([the driver] Powell), not by virtue of Choice's negligence in failing to assure that the third party had insurance coverage. The necessary relationship between Choice's negligence in assuring insurance coverage, and the direct cause, i.e. the alleged negligence of [the driver's] operation of a motor vehicle, is lacking. Imposing liability on Choice in this situation would hold it accountable for limitless unforeseen consequences of a third party's actions. Therefore, even if an alleged duty existed and construing the complaint in favor of [the plaintiff], the lack of proximate cause renders her negligence claim insufficient." Id., 470.
Similarly, in the present case, the record is devoid of any evidence indicating how V.W. Credit's alleged negligence in checking on the sufficiency of Norman Bloom's insurance could have caused the injuries that they suffered because of Shannon Bloom's negligent driving. The traffic accident would have occurred regardless of whether or not V.W. Credit had verified the adequacy or sufficiency of Norman Bloom's insurance coverage. Accordingly the lack of any evidence of proximate causation provides an additional reason for determining that the plaintiffs cannot succeed on their allegation that V.W. Credit was negligent for its alleged failure to verify that there was adequate insurance on the subject automobile.
B. Knowledge of Shannon Bloom's Alleged Lack of Driver Qualification or Experience
Next, the court will address the plaintiffs' allegation that V.W. Credit was negligent because it knew or should have known that Shannon Bloom was not qualified to drive a car under the circumstances presented. V.W. Credit argues that the court should grant summary judgment on the plaintiffs' negligence claims because there is no genuine issue of material fact that the plaintiffs' damages were not foreseeable to it. Simply put, V.W. Credit, which denies any duty to the plaintiff, contends that the plaintiffs cannot establish that it could have known that Shannon Bloom would drive this vehicle more than a year and a half after it leased it to Norman Bloom. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Contained within the first element, duty, there are two distinct considerations . . . First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty . . . The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 593, 945 A.2d 388 (2008). "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised." (Internal quotation marks omitted.) Id., 593-94.
All of the evidence before the court indicates that at the time that Norman Bloom leased the subject automobile from V.W. Credit, there is no way that V.W. Credit could have anticipated that Shannon Bloom would eventually drive this vehicle. Indeed, as Shannon Bloom's answers to interrogatories indicate that her date of birth is December 21, 1990, she was too young (fifteen years and one month of age) to have been able to drive on January 20, 2006. Although Shannon Bloom is a reasonably close relative to Norman Bloom in that she is his niece, she was never listed as a driver of the vehicle on the insurance policies that Norman Bloom maintained on the vehicle. Furthermore, there is no evidence indicating that Norman Bloom had any continuing relationship with V.W. Credit following the commencement of the lease such that they would have been on notice that Shannon Bloom would be driving the automobile on the date in question. Paragraph 16 of the lease expressly prohibits the lessee from letting an unlicensed, uninsured, or excluded driver operate the leased vehicle. The plaintiffs have failed to raise any genuine issues of material fact that could subject V.W. Credit to liability under an ordinary negligence theory, and, as a result, summary judgment is appropriate on counts Four and Five.
Connecticut law requires a person to be at least sixteen years of age in order to apply for the issuance of a motor vehicle operator's license. Conn. Gen. Stat. § 14-36(e). An applicant who is sixteen or seventeen years of age must first obtain a learner's permit and complete an accredited course of study in motor vehicle operation, to include not less than 40 clock hours of behind the wheel on the road driving instruction. § 14-36(c).
Although some of the arguments raised in the plaintiffs' memorandum of law in opposition suggest that it is the plaintiffs' position that V.W. Credit could have been negligent regarding its maintenance of the vehicle after the commencement of the lease agreement, it is important to note that there are no such allegations made in the operative complaint, and there is no evidence at all of maintenance issues before the court. Counts four and five only allege that V.W. Credit was negligent because it failed to ensure that Norman Bloom had an appropriate level of automobile insurance and that V.W. Credit should have known that Shannon Bloom was too inexperienced to drive the subject automobile.
IV. Negligent Entrustment
Next, V.W. Credit moves for summary judgment on count six, in which the plaintiffs allege a negligent entrustment cause of action. V.W. Credit argues that there are no genuine issues of fact with respect to its liability for negligent entrustment because it is clear beyond any genuine issue of fact that it did not entrust the subject automobile to Shannon Bloom. Additionally, V.W. Credit contends that it was impossible for it to have known that Shannon Bloom would have been driving the car on the date of the accident because she did not even have a drivers' license when it leased the automobile to Norman Bloom. Consequently, V.W. Credit contends that it was not legally foreseeable that when it leased the car to Norman Bloom in January 2006, that another individual would negligently drive it in July 2007. In its memorandum of law in opposition, the plaintiffs do not directly address V.W. Credit's precise arguments as to the negligent entrustment count. The plaintiffs simply argue that there are outstanding issues of fact regarding this claim and that negligence claims are factual in nature and usually cannot be resolved via a motion for summary judgment. Furthermore, the plaintiffs once again argue that they need to conduct additional discovery in order to determine whether V.W. Credit breached any duty owed to the plaintiffs.
The Connecticut Supreme Court first recognized a cause of action for negligent entrustment of an automobile in 1933. As stated by our Supreme Court, "[i]t is . . . coming to be generally held that the owner may be liable for injury resulting from the operation of an automobile he loans to another, when he knows or ought reasonably to know that the one to whom he intrusts it is so incompetent to operate it, by reason of inexperience or other cause, that the owner ought reasonably to anticipate the likelihood that in its operation injury will be done to others." Greeley v. Cunningham, 116 Conn. 515, 518, 165 A. 678 (1933). This court recently observed that, "on the appellate level, the doctrine of negligent entrustment has not developed beyond that which was announced in Greeley . . . [Nevertheless], the Supreme Court's decision in Greeley `virtually adopted' the position subsequently taken by Restatement (Second) of Torts, which provides as follows: `One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.' 2 Restatement (Second), Torts § 390, p. 314 (1965)." Snell v. Norwalk Yellow Cab, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 10013455 (May 24, 2011, Jennings, J.T.R.) [ 52 Conn. L. Rptr. 43].
"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 resulted from that incompetence." (Internal quotation marks omitted.) Mesner v. Cheap Auto Rental, LLC, Superior Court, judicial district of New Haven, Docket No. CV 07 5009039 (February 13, 2008, Bellis, J.). "[A] principle feature of a cause of action for negligent entrustment is the knowledge of the entrustor with respect to the dangerous propensities and incompetency of the entrustee." Id. Additionally, "Connecticut law is clear that liability can only be imposed if the defendant entrusts the vehicle to the driver." Id.
The undisputed evidence attached to V.W. Credit's motion is that Norman Bloom leased the 2006 Audi from V.W. Credit on January 20, 2006. According to the automobile insurance declaration pages from Covenant Insurance Company that were in effect with regard to this vehicle, the listed drivers were Norman C. Bloom, Deborah L. Bloom and their daughter Jeanne L. Bloom. There is no evidence before the court indicating that V.W. Credit knew or should have known that Shannon Bloom was an anticipated driver of this automobile on the date that V.W. Credit leased it to Norman Bloom. Moreover, as previously noted, Shannon Bloom was too young to have a driver's license when the subject lease was signed.
When Connecticut courts have been faced with situations where there were no allegations or evidence indicating that the defendant had knowledge that a tortfeasor with dangerous propensities would eventually drive a vehicle, the courts have not allowed a negligent entrustment claim to proceed. See, e.g., Donati v. Sullivan, Superior Court, judicial district of Hartford, Docket No. CV 03 0828572 (August 7, 2007, Stengel, J.) (granting motion for summary judgment when the "allegations [did] not allege facts [bearing] on the issue of incompetency of the person to whom the car is loaned"); Dervil v. Perez, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 044001545 (September 12, 2005, Lewis, J.T.R.) (court granted motion to strike because the plaintiff "has not alleged any facts suggesting that the defendant owner had actual or constructive knowledge of the defendant driver's dangerous propensities"); Griffin v. Larson, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 02 0079364 (August 18, 2004, Lager, J.) (granting summary judgment because the plaintiff "failed to provide an evidential basis to support the essential element of negligent entrustment that [the defendant] knew or should have known that [the driver] was incompetent to operate . . . [the] motor vehicle"); Chung v. Place Motors, Inc., Superior Court, judicial district of New London, Docket No. 560074 (February 11, 2003, Hurley, J.T.R.) [ 34 Conn. L. Rptr. 140] (court granted motion to strike when "there is no allegation that the defendant-lessor . . . had any knowledge or reasonably ought to have known of the `dangerous propensities' of [the driver]"); Czulewicz v. Raymond, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 89 0100248 (November 20, 1990, Cioffi, J.) [ 3 Conn. L. Rptr. 531] (stating that "[a]lthough there are no reported Connecticut decisions describing the elements of a negligent entrustment action, entrustment plainly means permitting another to do something or to use something . . . The negligent entrustment theory requires showing that the entrustor knew or should have known some reason why entrusting the item to another was foolish or negligent"). As the defendant has disclaimed any transfer or entrusting of the 2006 Audi to Shannon Bloom or any knowledge that Shannon Bloom would eventually drive the vehicle, and plaintiffs have brought forth no evidence indicting that V.W. Credit knew or should have known that Shannon Bloom would drive the automobile in question or that V.W. Credit actually entrusted the vehicle to Shannon Bloom, the court also grants summary judgment to defendant V.W. Credit on count six.
These Superior Court cases have been cited from Judge Bellis's decision in Mesner v. Cheap Auto Rental, LLC, supra, Superior Court, Docket No. CV 07 5009039.
CONCLUSION
For all of the reasons stated above, the court finds that there are no genuine issues of material fact supporting the negligence causes of action alleged against V.W. Credit. Having made this determination, all of the claims brought by the plaintiffs against V.W. Credit are preempted by the Graves Amendment. The Renewed Motion for Summary Judgment is therefore granted in its entirety in favor of defendant V.W. Credit Leasing, LTD.