Opinion
No. CV 05 5000697S
November 15, 2007
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
This is an action in negligence arising out of a car accident that occurred on November 5, 2003, at approximately 12:13 p.m. at or near the intersection of Academy Hill Road and Ridge Road in the City of Derby. At the time of the accident, John Wargo was operating a vehicle, owned by Donna DosSantos, which collided with a vehicle operated by Angela M. DeNitto.
Donna DosSantos had permitted Barbara Wargo to borrow her vehicle. Barbara Wargo is the mother of John Wargo, age 16 at the time of this car accident.
John Wargo had a learners permit to drive. Donna DosSantos has now moved for summary judgment on the grounds that there is no genuine issue of material fact that she is not liable for the accident that occurred while John Wargo was driving the vehicle.
The party opposing summary judgment argues that summary judgment is not appropriate in a case where there is a presumption of agency between the owner and operator of a car pursuant to Conn. Gen. Stat. § 52-182 the family law doctrine.
Summary judgment is an appropriate remedy when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. The procedure of summary judgment is designed to expedite a litigation proceeding and eliminate delay and expense where there is no real issue to be tried. See Wilson v. New Haven, 213 Conn. 277 (1989). Both the moving party and the party in opposition may rely on pleadings, affidavits and discovery materials, and the moving party shall, and the opposing party may, file appropriate memoranda of law. See Practice Book §§ 11-19, 17-45 and 17-46. The party seeking summary judgment has the burden of showing that no issue of material fact exists, and the party opposing the motion must substantiate its claim that a material fact issue exists. See Home Insurance Co. v. Aetna Life Casualty, 235 Conn. 185 (1995).
In O'Dea v. Amodeo, 118 Conn. 58 (1934) the Connecticut Supreme Court discussed various types of presumptions and their different effects. Focusing on the so-called statutory "family car doctrine" now found at General Statutes § 59-182 and discussing the presumption included therein, the Court concluded that where information involving an issue was particularly within the knowledge of one person, a presumption would require placing the burden on that party not only to produce countervailing evidence but of proving the validity of that evidence. Id., 63. Thus, unless it were proven otherwise, the presumption was not rebutted, and if evidence was presented to rebut the presumption but such evidence was not believed, then the presumption would prevail even if the plaintiff presented no evidence in support of the presumption. Id., 66.
Several decisions have concluded that the existence of the presumption precludes the granting of summary judgment in favor of a vehicle owner. See Masse v. Jonah, 27 Conn.Sup. 206 (1967) (owner's affidavit insufficient to prove facts stated, therefore, presumption not rebutted); Laydon v. Agency Rent-A-Car, Docket Nos. CV92-024200 CV92-021216, judicial district of New Haven (November 17, 1994) (Silbert, J.) (strong probability that there was no agency not sufficient to find there was no fact in dispute); Torres v. Dellagheif, Docket No. 125808, judicial district of Waterbury (March 10, 1996) (Pellegrino, J.) (mere offer of affidavit rebutting presumption does nothing more than create an issue of fact); Doonan v. Clark, supra (relying on Laydon and Torres).
On the other hand, several decisions have concluded that summary judgment was appropriate despite the statutory presumption. Curran v. Duncan, 28 Conn. L. Rptr. 640 (October 25, 2000) See e.g., Hannah v. Buick, Docket No. CV98 0548002, judicial district of New London (May 14, 1999) (Mihalakos, J.) (detailed affidavit and documents sufficient to shift burden back to plaintiff, summary judgment for vehicle owner granted); Palmer v. Enterprise, Docket No. 154434, judicial district of Stamford/Norwalk (April 16, 1997) (D'Andrea, J.) (evidence that plaintiff was not an authorized driver and not an employee, agent or servant of defendant sufficient to defeat presumption and support summary judgment); Bevel v. Anneeta, Docket No. CV97 0344223, judicial district of Fairfield (February 3, 1998) (Skolnick, J.). In support of their motion, DosSantos states in deposition taken on October 23, 2006 of Barbara Wargo, Barbara Wargo stated that her friend, Donna DosSantos loaned her Donna's car. Ms. Wargo stated that she never gave her son permission to drive the DosSantos car. Ms. Wargo stated that her son, John Wargo, took the keys from the table, that he was going for a quick ride and did not expect to get into an accident (see Transcript pages 6-9). Ms. Wargo further stated that until the police called her, she had no knowledge that her son had taken the car since she was sleeping at the time.
John Wargo had his deposition taken on October 23, 2006. He stated he had a learner's permit to drive, that he had not asked his mother for permission to drive the car.
There was no evidence submitted by the parties opposing summary judgment that contradicts that Ms. Wargo had no knowledge that John would be taking the car and that she never gave him permission to do so.
Accordingly, DosSantos has submitted more than a simple denial of the agency/family relationship to rebut the presumption. She has also submitted unrefuted evidence that John Wargo was driving the vehicle without her permission.
In contrast, the parties opposing summary judgment have offered no facts to support an agency relationship and rely solely on the presumption created by General Statutes § 52-182, the family doctrine law.
General Statutes § 52-182 provides as follows:
Proof that the operator of a motor vehicle . . . was the husband, wife, father, mother, son, or daughter of the owner shall raise a presumption that such motor vehicle . . . was being operated as a family car . . . within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption.
Our courts have held that the statute goes further than merely establishing a presumption "in that it expressly places upon the defendant the burden of introducing evidence to rebut the presumption created by the statute. Moreover, the presumption is not ousted simply by the introduction of any evidence to the contrary. Indeed, . . . [t]he presumption ceases to be operative [only] when the trier finds proven facts which fairly put in issue the question . . . if no evidence relevant to the issue is produced, or, if the countervailing evidence is produced but the trier does not believe it, the presumption applies and the plaintiff is entitled to have the issue found in his favor." (Citation omitted; internal quotation marks omitted.) Jancura v. Szwed, 176 Conn. 285, 290, 407 A.2d 961 (1978). Thus, not only must there be evidence which rebuts the presumption, but such evidence must be credited by the trier of fact. Dunbar v. Mutone, Docket No. CV000377051S, judicial district of Fairfield at Bridgeport (October 24, 2002, Rush, J.).
In considering a motion for summary judgment, it is not the court's function to decide material facts or determine the credibility of evidence. See Nolan v. Borkowski, 206 Conn. 495 (1988). However, summary judgment is appropriate "if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751 (1995), and the proper test has often been described as whether the evidence is such as to require a directed verdict. Id., 752. A verdict may be directed when the evidence, even when viewed in the light most favorable to the party opposing the motion, can only lead to the "conclusion . . ., embodied in the verdict as directed." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380 (1969).
This court is aware of the language of the Supreme Court decisions cited earlier to the effect that the facts rebutting the presumption of agency must be "proven." Nevertheless, when credibility is not at issue and the proof contravening the presumption is such that a jury could not find otherwise, summary judgment is appropriate. The Supreme Court explicitly recognized that there was a basis for a directed verdict when there was rebuttal evidence of such a nature that it could not rationally be disbelieved See Fletcher v. Stoleson, Docket No. CV000177740S, judicial district of Stamford/Norwalk at Stamford (March 11, 2002, Rogers, J.) [ 31 Conn. L. Rptr. 518]. No rational jury could disbelieve the unchallenged and overwhelming evidence that there was no agency and/or family doctrine relationship between John Wargo and DosSantos at the time of the accident. Therefore, there is no genuine issue of material fact regarding the lack of an agency relationship. In the absence of such a relationship there is no basis for holding DosSantos liable for the accident.
Accordingly, DosSantos's motion for summary judgment is granted.