Opinion
No. HHD-CV-07-5009974
May 12, 2008
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
I STATEMENT OF CASE
The defendant, Laidlaw Transit, Inc. (Laidlaw), moves for summary judgment with respect to the fourth count of the plaintiff's complaint, respondeat superior for negligence, dated April 10, 2007.
The plaintiff's ten-count complaint claims assault, recklessness and negligence against Talabi, an employee of Laidlaw (counts one, two and three); vicarious liability and negligence against Laidlaw (counts four and five); negligence and recklessness against Clarence Hendricks (Hendricks), an employee of Logisticare Solutions, LLC (Logisticare) (counts six and seven); and vicarious liability, negligence and recklessness against Logisticare (counts eight, nine and ten).
The plaintiff alleges the following facts. At all relevant times, Jane Doe was a special education student enrolled in the twelfth grade at Hartford High School. Talabi was a bus driver employed by Laidlaw, which was responsible for providing transportation. Hendricks was a bus monitor employed by Logisticare. On April 28, 2005, Jane Doe boarded a Laidlaw school bus driven by Talabi and monitored by Hendricks. Prior to dropping off Jane Doe at her destination, Talabi drove the bus, with Hendricks present, off of its designated route and to his home in Hartford. Talabi had Jane Doe exit the bus and enter his home. Once inside, Talabi sexually assaulted her. After this incident, Jane Doe re-boarded the school bus, and Talabi drove the bus to Jane Doe's destination where he dropped her off.
The fourth count, incorporating by reference the allegations of count three, states that Talabi was an agent, servant and/or employee of Laidlaw acting within the course and scope of his employment. As a direct and proximate result of Talabi's negligence, which occurred within the course and scope of his employment, Jane Doe suffered injury. Therefore, Laidlaw is vicariously liable for Talabi's conduct under the doctrine of respondeat superior.
On December 4, 2007, the defendant Laidlaw filed this motion for summary judgment dated November 30, 2007, and accompanying memorandum of law. Laidlaw moves for summary judgment with regard to the fourth count only on the ground that as a matter of law, the sexual activities of the defendant Talabi fall outside the scope of employment and therefore preclude the plaintiff from invoking respondent superior as a basis of imposing vicarious liability against Laidlaw. The plaintiff, in the objection dated January 25, 2008, argues that Laidlaw may be found liable via respondeat superior, and the issue of foreseeability is one which cannot be determined on a motion for summary judgment. Laidlaw filed a reply to the plaintiff's objection dated February 8, 2008. The matter was scheduled for oral argument on May 5, 2008, and was taken on the papers after oral argument was waived by the parties.
II DISCUSSION A Summary Judgment
"In any action, except administrative appeals which are not enumerated in Section 14-7, any party may move for a summary judgment at any time, except that the party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial." Practice Book § 17-44. "Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). A court may properly grant a defendant's motion for summary judgment "if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issues of fact." Perille v. Raybestos-Manhattan Europe, Inc., 196 Conn. 529, 543, 494 A.2d 555 (1985). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
"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.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). "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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving 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 . . . 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).
B Respondeat Superior
In its memorandum of law, Laidlaw argues that "where the alleged tortfeasor-employee was engaged in any sexual activity with a person whom the employee was otherwise servicing as part of his or her employment, Connecticut courts have found, as a matter of law, that when the alleged tortfeasor-employee's activity with the alleged victim was sexual, the alleged activity constituted an abandonment of the employer's business, and thus, ceased to further the business of the affairs of the alleged employer." (Emphasis in original.) (Laidlaw Mem. of Law, 5.) Laidlaw further argues that "[t]hese alleged actions of Talabi were not in furtherance of any interest of Laidlaw and were so clearly outside the scope of employment or the objectives of employment that as a matter of law no legitimate triable issue exists." Id., 8. In reply to the plaintiff's objections regarding negligence and foreseeability, Laidlaw contends that "[t]here is no dispute Mr. Talabi was `servicing' Ms. Doe as part of his employment by transporting her from school and arguably he was still engaged in Laidlaw's business affairs while he operated the bus, including driving off his designated route, but the moment he removed her from the bus to seek privacy within his home and sexually assaulted her he had by then totally abandoned his job duties as well as any business affairs of Laidlaw." (Laidlaw Reply, 3.)
"[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). "[A]n employer generally is liable for intentional torts committed by his employees to the same extent that he is liable for damages arising out of the negligent or reckless conduct of those employees. See, e.g., Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 500, 656 A.2d 1009 (1995)." Matthiessen v. Vanech, supra, 266 Conn. 840 n. 16.
"[T]he fundamental principles of the doctrine of respondeat superior are well established in Connecticut. Under the doctrine of respondeat superior, a master is liable for the wilful torts of his servant committed within the scope of the servant's employment and in furtherance of his master's business . . . The master is not held on any theory that he personally interferes to cause the injury. It is simply on the ground of public policy, which requires that he shall be held responsible for the acts of those whom he employs, done in and about his business, even though such acts are directly in conflict with the orders which he has given them on the subject . . . [I]n order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer's business . . . But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply." (Internal quotation marks omitted.) Cornelius v. Dept of Banking, 94 Conn.App. 547, 557, 893 A.2d 472, cert. denied, 278 Conn. 913, 899 A.2d 37 (2006).
As we indicated previously, the theory of respondeat superior attaches liability to a principal merely because the agent committed a tort while acting within the scope of his employment. "It refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment." W. Prosser W. Keeton, Torts (5th Ed. 1984) § 70, p. 502. A principal may be directly liable, however, for the acts of its agents that it authorizes or ratifies. Id., pp. 501-02; 1 Restatement (Second), supra, § 212 (principal liable for authorized conduct) and § 218 (principal liable for ratified conduct).
Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 656 A.2d 1009 (1995).
"In determining whether an employee has acted within the scope of employment, courts look to whether the employee's conduct: (1) occurs primarily within the employer's authorized time and space limits; (2) is of the type that the employee is employed to perform; and (3) is motivated, at least in part, by a purpose to serve the employer. See 1 Restatement (Second), Agency § 228, p. 504 (1958)." Harp v. King, 266 Conn. 747, 782-83, 835 A.2d 953 (2003).
"While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful . . . that does not end the inquiry. Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business . . ." (Citations omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 210, 579 A.2d 69 (1990).
"Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant's employment and was done to further his master's business . . . But there are occasional cases where a servant's digression from duty is so clear-cut that the disposition of the case becomes a matter of law . . ." (Citations omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207, 579 A.2d 69 (1990). "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 . . . In some situations, however, the acts of the servant are so clearly without the scope of his authority that the question is one of law . . ." (Citations omitted; internal quotation marks omitted.) 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 Brown, the plaintiff sued the defendant employer under the theory of respondeat superior seeking damages for the assault and battery committed by the defendant's employee. Brown v. Housing Authority, supra, 23 Conn.App. 625. There, the employee was driving a van owned by the defendant to a job site when he got into an argument with the plaintiff who was driving his car. Id. The employee eventually exited the van, grabbed a hammer, chased the plaintiff around the car and struck him with a hammer. Id. The plaintiff suffered a ruptured blood vessel and was hospitalized for several months. Id. In granting the defendant's motion for summary judgment, the trial court found that there was "no support for the suggestion that [the employee] was doing anything in furtherance of the defendant's business when he assaulted the plaintiff." Id., 626. The Appellate Court, in affirming the granting of summary judgment, held that:
The trial court in the present case correctly determined that no genuine issue existed as to whether Jones was acting within the scope of his employment when he assaulted the plaintiff . . .
It is clear in the present case that Jones was not furthering the defendant's business interests when he assaulted the plaintiff. His intentional, criminal acts were in no way connected to the defendant's business. The mere fact that Jones was driving from one job site to another when the assault took place does not change this analysis. "In 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 . . ." As there were no facts before the court from which it could conclude that Jones was furthering the defendant's interests, the defendant's nonliability under the theory of respondeat superior was properly determined as a matter of law.
(Citations omitted; internal quotation marks omitted.) Id., 628.
The Appellate Court in Gutierrez v. Thorne, 13 Conn.App. 493, 494, 537 A.2d 527 (1988), addressed whether a sexual assault by an employee was within the scope of his employment sufficient to attribute his liability to the defendant employer under the doctrine of respondeat superior. In that case, the plaintiff, a client in a community residential program, was sexually assaulted in her home by a program employee who had been given a key to her apartment. Gutierrez v. Thorne, CT Page 7985 supra, 13 Conn.App. 497. In granting the defendant's motion for summary judgment, the trial court concluded that "an intentional tort of the general nature of that suffered by the plaintiff was not foreseeable as a matter of law . . . [and] that the defendant could not be liable to the plaintiff based on the theory of respondeat superior, because Jones' actions which injured the plaintiff were not undertaken within the scope of his employment." Id., 498. The Appellate Court found that the trial court was correct in concluding that the defendant was not liable to the plaintiff based on a theory of respondeat superior. Id., 498. The court held that: "[i]n the present case, it is clear that Jones was not furthering the defendant's business interests when he sexually assaulted the plaintiff. He was engaging in criminal conduct which had no connection to the defendant's business of providing supervision and training to mentally retarded persons regarding daily living skills. Since there were no facts before the court from which it could conclude that Jones was furthering the defendant's interests, the defendant's nonliability under a respondeat superior theory was properly determined as a matter of law." Id., 499.
In Maule v. Sullivan, Superior Court, judicial district of Hartford, Docket No. CV 92 0517623 (August 9, 1993, Wagner, J.) (8 C.S.C.R. 952) [9 Conn. L. Rptr. 542], the plaintiff sued to recover damages for injuries suffered by a patient at a hospital as the result of a sexual assault by a nurse employed at the hospital. Id. The counts of assault and battery and intentional infliction of emotional distress sought to hold the hospital liable based on respondeat superior in that the nurse was employed by the hospital and acting within the scope of employment. Id. In granting the motion to strike these counts, the court found that: "It is manifest that the alleged actions of Sullivan, a nurse, were so clearly outside the scope of his employment and not in furtherance of any interest of the hospital, that the allegations seeking to hold the hospital liable are insufficient as a matter of law. Brown v. Housing Authority, 23 Conn.App. 624, 628 (1990); Gutierrez v. Thorne, 13 Conn.App. 493, 498-500 (1988)." Id.
Viewing the circumstances on summary judgment in the light most favorable to the plaintiff, any injury incurred by the plaintiff in this matter, at least as it pertains to the defendant Laidlaw's alleged culpability, resulted from Talabi acting outside the scope of his employment. There are no facts before the court from which it could conclude that Talabi was furthering Laidlaw's interests. He was not motivated by a purpose to serve the employer. His alleged activities constituted abandonment of Laidlaw's business. As in Gutierrez and Brown, Talabi was not furthering Laidlaw's business interests when he sexually assaulted the plaintiff. He was engaging in criminal conduct that had no connection to the defendant's business of providing transportation to special education students. Like Maule, it is manifest that the alleged actions of Talabi: driving the bus off the designated route to his home, removing Jane Doe from the bus, and sexually assaulting her in the privacy of his home; were so clearly outside the scope of his employment and not in furtherance of any interest of Laidlaw, that the allegations seeking to hold Laidlaw liable on a theory of respondeat superior are insufficient as a matter of law.
The fifth count of the complaint, Laidlaw — Negligence, addresses the issues of negligence and foreseeability raised as objections to summary judgment by the plaintiff. As in Gutierrez, "the fact that the plaintiff failed to produce facts to show that [Talabi] was acting within the scope of employment, would not entitle the defendant to judgment as a matter of law on the plaintiff's claims of negligent acts or omissions of the defendant which proximately resulted in the plaintiff's injuries." Gutierrez v. Thorne, supra, 13 Conn.App. 500.
"Under Connecticut law, an employer may be held liable for the negligent supervision of employees. See Gutierrez v. Thorne, 13 Conn.App. 493, 500, 537 A.2d 527 (1988) (recognizing independent claim of direct negligence against employer who failed to exercise reasonable care in supervising employee) . . ." (Citations omitted.) Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004).
Accordingly, the defendant Laidlaw is entitled to summary judgment on the Fourth Count, respondeat superior for negligence.
III CONCLUSION
For the above-stated reasons, the motion for summary judgment on the Fourth Count of the complaint is granted.
SO ORDERED.