Opinion
No. 03-0567196
August 20, 2007
MEMORANDUM OF DECISION RE RENEWED MOTION FOR SUMMARY JUDGMENT #119
This action arises from an automobile-pedestrian accident resulting in death of Christopher Bollenbach, Jr. The plaintiffs, Michelle Burdick and Johnathan Bourgeois, filed an amended seven-count complaint against the defendants, Alan Causa and Erik's Design-Build Associates, Inc. (Erik's Design), on May 10, 2005.
Burdick brings this action on behalf of the estate of Bollenbach as administratrix of the estate, on behalf of Bourgeois as his guardian and next friend and on her own behalf.
Count one, in negligence, is directed against Causa; count two, in respondeat superior, is directed against Erik's Design; count three, in recklessness, is directed against Causa; counts four and five, for bystander emotional distress as to Bourgeois, are directed against Causa and Erik's Design, respectively; and counts six and seven, for bystander emotional distress as to Burdick, are directed against Causa and Erik's Design, respectively.
In their amended complaint, the plaintiffs allege, inter alia, the following facts. Burdick is the mother of Bollenbach and of his half brother, Bourgeois. On May 28, 2003, Bourgeois was waiting for the school bus on the east side of Glasgo Road in Griswold. As the school bus approached, Bollenbach attempted to cross Glasgo Road from his driveway at 2301 Glasgo Road in order to hand his half brother a keyboard. While he was crossing the road, he was struck and killed by a Ford Explorer driven and owned by Causa. The accident was caused by Causa's negligence and recklessness. As a result of Causa's actions, Bollenbach suffered a loss of his life and ability to enjoy life and lost wages and ability to earn wages. The estate sustained medical and funeral expenses. Bourgeois, who witnessed the death of his half-brother, and Burdik, who witnessed the death of her son, suffered severe emotional distress, anguish, nightmares and impairment of their ability to enjoy life and participate in life's activities. At the time of the accident, Causa was driving to a construction site for his employer, Erik's Design, and was acting for and on behalf of his employer.
On May 1, 2006, Erik's Design filed a motion for summary judgment on the ground that it cannot be held vicariously liable for the alleged negligence of Causa because, at the time of the accident, Causa was not acting as an agent or employee of Erik's Design. Erik's Design filed a memorandum of law in support of the motion, accompanied by uncertified excerpts from the deposition testimony of Erik Kudlis, the owner of Erik's Design. On July 7, 2006 the plaintiffs filed a memorandum of law in opposition, accompanied by affidavits from Causa and Stephen Reck, the plaintiffs' attorney, and by uncertified excerpts from Kudlis' deposition testimony. On July 14, 2006, Erik's Design filed a reply memorandum with Kudlis' affidavit attached. This court denied Erik's Design's motion for summary judgment on October 23, 2006, finding that "[o]n the basis of the evidence before it, the court cannot conclude as a matter of law that Causa was not within the scope of his employment at the time of the accident." Burdick v. Causa, Superior Court, judicial district of New London, Docket No. CV 03 0567196 (October 23, 2006, Hurley, J.T.R.).
On March 14, 2007, Erik's Design filed a renewed motion for summary judgment on the ground that it can not be held vicariously liable for the alleged negligence of Causa because, at the time of the accident, Causa was not acting as an agent or employee of Erik's Design. In support of its motion, Erik's Design filed a memorandum of law accompanied by Kudlis' affidavit and numerous certified exhibits. On April 5, 2007, the plaintiffs filed a memorandum of law in opposition. The motion was heard on the short calendar on May 21, 2007.
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." (Citation omitted; internal quotation marks omitted.) Morris v. Congdon, 277 Conn. 565, 568-69, 893 A.2d 413 (2006). "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[s] him to a judgment as a matter of law . . . 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." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006). "[T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 803, 842 A.2d 1134 (2004).
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
"[S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . . . [Nevertheless,] [e]ven with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." (Internal quotation marks omitted.) Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 539, 906 A.2d 14 (2006).
In its renewed motion for summary judgment, Erik's Design argues that it cannot be held vicariously liable for the alleged negligence of Causa because, at the time of the accident, Causa was not acting as an agent or employee of Erik's Design. Erik's Design contends that the evidence submitted in support of the renewed motion for summary judgment, i.e., Kudlis' affidavit with attached documents, demonstrates that Causa had not purchased any supplies or other materials on behalf of Erik's Design on May 28, 2003, the day of the accident, and that Causa was merely traveling to work and had not yet undertaken any activity under the control of or for the benefit of Erik's Design. Erik's Design argues that because this court denied its previous motion for summary judgment on the ground that it was not clear from the evidence whether or not Causa purchased supplies from one of Erik's Design's suppliers immediately prior to the alleged incident, the evidence submitted in support of renewed motion for summary judgment entitles Erik's Design to a judgment as a matter of law.
In their memorandum in opposition, the plaintiffs counter that there still remains a question of fact as to whether Causa was acting within the scope of his employment and in furtherance of his employer's business. The plaintiffs argue that because, at the time of the accident, Causa was on his way to a construction site of Erik's Design and he was carrying tools and materials in his vehicle to that site, he was performing an act for the benefit of his employer and, therefore, his employer is vicariously liable. The plaintiffs further argue that there is a question of fact whether Causa had stopped at Home Depot to buy supplies for the home construction job immediately prior to the incident.
"[U]nder the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment." Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003). "[V]icarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another]." (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n. 16, 849 A.2d 813 (2004). "[A] fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee . . . It is as a result of this control that the theory of vicarious liability allows employers to be subject to liability for the physical harm caused by the negligent conduct of their employees acting within the scope of employment." (Citations omitted.) Id., 692-93 n. 16.
" `[I]n the course of his employment' means while engaged in the service of the master, and it is not synonymous with the phrase `during the period covered by his employment.' . . . Thus, it must be the affairs of the principal [or master], and not solely the affairs of the agent [or servant], which are being furthered in order for the doctrine to apply." (Citation omitted; internal quotation marks omitted.) Matthiessen v. Vanech, supra, 266 Conn. 839 n. 15. In determining whether an employee was acting within the scope of his employment, "the test is to be found in the nature of the tortious act and its relation or nonrelation to that which the actor was employed to do . . . That the servant disobeyed the orders of the master is never a sufficient defense. It must be shown further that he ceased to act for the master and in the course of his employment." (Citations omitted; internal quotation marks omitted.) Son v. Hartford Ice Cream Co., 102 Conn. 696, 700-01 (1925). "An employee acts within the scope of his employment as long as he is discharging his duties or endeavoring to do his job, no matter how irregularly, or with what disregard of instructions." (Internal quotation marks omitted.) Harp v. King, 266 Conn. 747, 786, 835 A.2d 953 (2003).
"The intent of a [servant] in following a certain course of conduct, even if disobedient, is a material element in determining whether or not his conduct was in the execution of the master's business within the scope of his employment, or was conduct indulged in contrary to his duty and solely for a purpose of his own." (Internal quotation marks omitted.) Branchini v. Florio, 119 Conn. 212, 216, 175 A. 670 (1934). "A deviation from the employment arising either through the negligence, heedlessness or disobedience of the servant, or for his own business, purpose, or pleasure, which is slight and not unusual, while he is still engaged upon his master's employment, will not relieve the master from responsibility." (Internal quotation marks omitted.) Id. "In most cases, it is the function of the jurors to determine from the facts before them whether, under this test, a servant was acting within the scope of his employment." Brown v. Housing Authority, 23 Conn.App. 624, 628, 583 A.2d 643 (1990), cert. denied, 217 Conn. 808, 585 A.2d 1233 (1991).
In support of its motion, Erik's Design submitted Kudlis' affidavit, accompanied by authenticated documentation, in which Kudlis attests, inter alia, to the following facts. Causa did not purchase supplies or any other items from Erik's Design's suppliers on May 28, 2003, or during four days prior to the day of the incident. Erik's Design did not instruct or request Causa to transport supplies, equipment or tools to any of Erik's Design's job sites on May 28, 2003. Erik's Design makes company tools available to employees at job sites so that it is not necessary for employees to transport their own tools.
To demonstrate the existence of a disputed factual issue, the plaintiffs submitted the affidavits from Attorney Reck and from Causa. In his affidavit, Attorney Reck attests that on January 23, 2004, in response to his question whether Causa went to Home Depot to purchase supplies for his employer on the morning of the accident, Causa stated that he could not remember if he went to Home Depot that morning, but he thought that he went to Home Depot either the day before the accident or the morning of the accident. In his affidavit, Causa attests, inter alia, to the following facts. At the time of the accident, Causa was employed by Erik's Design. On May 28, 2003, he was driving to a construction site located in Stonington. He does not remember whether, on May 28, 2003, he went to Home Depot in Lisbon to purchase supplies for the home on which he was working. On the morning of May 28, 2003, he had tools in his Ford Explorer, which he planned to use at the job site in Stonington. He regularly keeps in his Ford Explorer supplies and tools which he use at the job sites. On several occasions during his employment with Erik's Design, Causa would work on one home under construction and then, on the same day, he would work on another home at a different location and, on such occasions, he would drive his Ford Explorer to the various job sites.
In opposing Erik's Design's renewed motion for summary judgment, the plaintiffs relied on the evidence they have previously submitted in support of their memorandum in opposition, filed on July 2006, to Erik's Design's original motion for summary judgment.
The affidavits submitted by the plaintiffs establish the existence of disputed issues of fact as to whether, on the morning of the accident, Causa was acting for the benefit of his employer and in furtherance of his employer's business and as to Causa's intent in following a certain course of conduct, which is a material element in determining whether or not his conduct was in the execution of Erik's Design's business within the scope of his employment. See Branchini v. Florio, supra, 119 Conn. 216. Furthermore, summary judgment is inappropriate where, like here, an individual's intent and state of mind are implicated. See Chadha v. Charlotte Hungerford Hospital, supra, 97 Conn.App. 539.
Accordingly, the court finds that the evidence presented by the plaintiffs demonstrates the existence of disputed factual issues as to whether Causa was acting in the scope of his employment at the time of the accident, on the morning of May 28, 2003.
For the reasons stated above, the renewed motion for summary judgment is denied.