Opinion
No. CV 10-6016545-S
May 17, 2011
MEMORANDUM OF DECISION ON MOTION TO STRIKE
This is an eight-count complaint in which the plaintiff Stephen Donnelly seeks to recover damages sustained in a motor vehicle accident allegedly caused by either defendant Jovan Jordan ("Jordan") or Errol Santousse ("Santousse"), the latter having rented his motor vehicle from defendant Rental Car Finance Corp. ("Rental Car").
The first and third counts are directed to defendant Rental Car and its manager because they negligently entrusted the motor vehicle to Santousse.
The second and fourth counts allege recklessness against these same defendants.
The fifth count is directed to Jordan.
The sixth and eighth counts are directed against Rental Car on an agency theory.
The seventh count is directed against Santousse.
On December 28, 2010, defendants moved to strike the first, second, third, fourth, sixth and eighth counts, claiming that the first counts are insufficient at law and the sixth and eighth counts are barred by the Graves Amendments.
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While the Graves Amendment, 49 U.S.C. § 30106, prohibits vicarious liability against rental and leasing companies for the negligence of those who rent and lease their vehicles thus barring the sixth and eighth counts, a rental company may still be subject to liability for independent negligence or criminal conduct. 49 U.S.C. § 30106(a). Invoking the exception for "independent negligence," the plaintiff in the present case alleges, inter alia, that the defendant is liable for negligent entrustment. Specifically, the plaintiff alleges: "The defendant, Rental Car Finance Corporation, was negligent, careless, and a substantial factor in causing the plaintiff's injuries in that: a) it failed to screen the prospective lessee in order to determine whether he had engaged in criminal activity; b) it knew or should have known that the lessee intended to use the subject vehicle for criminal purposes; and c) it knew or should have known that the lessee was unfit to operate the subject motor vehicle."
Whether the Graves Amendment precludes a negligent entrustment suit entirely has not been addressed by our appellate courts, nor has it come before the United States Court of Appeals for the Second Circuit or the United States District Court for the District of Connecticut. In federal jurisdictions outside of the Second Circuit, there is a split of authority. Our Superior Court, however, has faced the issue several times, finding that under certain circumstances a negligent entrustment claim may be maintained against a rental car company.
"The essential elements of the tort of negligent entrustment of an automobile is that the entrustor `knows or ought reasonably to know that one to whom he entrusted 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.'" Greely v. Cunningham, 116 Conn. 515, 520, 165 A. 678 (1933).
In Chapman v. Herren, Superior Court, judicial district of New London, Docket No., CV 07-5005067 (June 24, 2010, Cosgrove, J.) [ 50 Conn. L. Rptr. 228], the court was asked to apply the Greeley standard to a rental company when ruling on a motion for summary judgment. The court ruled that the legislature has already enacted a statutory scheme governing the requirements of rental car companies; that General Statutes § 14-153 provides, in the relevant part, that "[a]ny person, firm or corporation which rents a motor vehicle without a driver . . . shall inspect or cause to be inspected the motor vehicle operator's license of the person initially operating such motor vehicle, [and] shall compare the signature on such license with that of the alleged licensee written in his presence . . ." The court further noted that, "a rental car company is not required to investigate a potential renter's driving record; rather, the rental car company must only assess the facial validity of a driver's license before renting to that driver." [G]iven the legislative silence and the absence of case law imposing an obligation on rental car companies to investigate renters' driving records, this court cannot find that rental car companies have a legal duty to investigate renters' driving records." That opinion is in accord with Hollis v. Alamo Financing, LP, Superior Court, judicial district of Hartford, Docket No.: CV 08-5024043 (February 4, 2011, Robaina, J.) [ 51 CLR. 434], in which the court found that, "[g]iven the significant degree of regulation of the rental car industry at both the federal and state levels, it is not appropriate that this court should extend the duty of the rental car companies to require anything more than an inspection of a facially valid driver's license."
However, in addition to checking a renter's driver's license, other superior court decisions have held that a negligent entrustment suit may be maintained if information that would demonstrate the unfitness of the driver was "readily apparent" to the rental company. See Ellis v. Jarmin, Superior Court, judicial district of New London, Docket No., CV 09-5010839 (December 17, 2009, Cosgrove, J.) ( 49 Conn. L. Rptr. 1). In that case, the plaintiff alleged that the defendant rental company, "either knew or should have known that [the driver] was the subject of outstanding arrest warrants and was therefore predisposed to fleeing from the police and placing third parties in danger through his driving." The court denied that motion to strike, stating: "[W]hile [the plaintiff's] complaint does not specifically claim what [the defendant's] constructive notice of [the driver's] outstanding warrants, her complaint's allegation that [the defendant] should have known that [the driver] was wanted by the police implies the allegation that [the driver's] status as a wanted man was readily discoverable and should have put [the defendant] on notice that [the driver] was incompetent to operate a motor vehicle."
In Peterson v. Swain, Superior Court, judicial district of New Haven, Docket No.: CV 05-5001192 (April 6, 2010, Wilson, J.), the court went slightly further to find that a plaintiff could survive a motion for summary judgment because he "demonstrated genuine issues of material fact exist regarding whether the defendants engaged in independent negligent conduct by failing to put into effect safeguards to properly screen [the driver] prior to leasing him the vehicle or by ignoring the red flags posed by the drivers license, temporary insurance card and business credit application." The court, in that case, does not specifically define what the company should have done to "screen" the driver, but notes that obvious irregularities were missed when the twenty-five-year-old driver presented a driver's license that indicated a date of birth of May 11, 1937 and a credit application that indicated that he had practiced dentistry for four years.
Based on the limited case law in this area, it appears that an action for negligent entrustment may be pursued against a rental car company in some circumstances. A rental company is under a duty to check the potential customer's driver's license to ensure that it is facially valid and determine whether facts readily available to them might indicate unfitness to drive. While it does not appear that a rental company is under any obligation to perform more stringent screening procedures, such as requesting driving records or conducting criminal record searches, allegations that a rental company had information readily available to it that would have disclosed that the driver was incompetent to drive may be enough to survive a motion to strike. The second and fourth counts alleging recklessness are insufficient.
Motion to strike second, fourth, sixth, and eighth counts is granted. Motion to strike first and third counts is denied.