Opinion
No. CV 04-4000207
November 7, 2005
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT #123
On February 17, 2005, the plaintiff Halina Drozdzal, administratrix of the estate of Marek J. Drozdzal, filed an amended, four-count complaint against defendants, Richard Griffith, Ann Griffith, Kimberly Rodriguez, and Safeco Insurance Co. of America. This action arises from an accident involving an automobile. On March 20, 2004 the decedent was a pedestrian crossing Allen Street in New Britain, Connecticut, when Richard Griffith, allegedly while under the influence of alcohol and/or drugs, caused the automobile he was operating to strike the decedent, Marek J. Drozdzal, causing his death.
In count two, the plaintiff alleges that the defendant, Ann Griffith, under the theory of negligent entrustment, is legally responsible for the death of the decedent because she knew and/or should have known that her husband, Richard Griffith, often drove vehicles under the influence of drugs and/or alcohol, and that Ann Griffith negligently entrusted her vehicle to Richard Griffith despite knowledge of his incompetence. Ann Griffith admits she was the legal owner of the vehicle, and that Richard Griffith drove the vehicle with her knowledge and consent. (See defendant, Ann Griffith's memorandum of law dated July 18, 2005, p. 1).
On July 19, 2005 the defendant, Ann Griffith, filed a motion for summary judgment as to the second count with a memorandum of law in support of the motion. On October 13, 2005, the plaintiff filed a memorandum in opposition to the defendant's motion.
"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.) Larobina v. McDonald, 274 Conn. 394, 399, CT Page 14064-eh 876 A.2d 522 (2005). "[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . ." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn 431, 434, 362 A.2d 857 (1975).
The defendant moves for summary judgment based on two grounds. First, that the plaintiff fails to allege that defendant, Ann Griffith, had exclusive control over the vehicle Richard Griffith was driving when the accident occurred. Second, that the defendant did not have the ability or legal duty to control her husband.
The plaintiffs counter that the jury should determine whether the defendant, Ann Griffith, knew or should have known Richard Griffith was incompetent to drive because he often unlawfully operated motor vehicles while under the influence of alcohol and/or drugs. They assert that Ann Griffith knew or should have known that Richard Griffith was under the influence of alcohol and/or drugs prior to and at the time of this accident and therefore was not competent to operate her truck upon a road or highway. The plaintiffs also contend that the common law imposes a duty on Ann Griffith to protect society from Richard Griffith if she knows he is not competent to drive.
Generally, "[t]here is no duty to control the conduct of a third person as to prevent him from causing . . . harm to another unless . . . a special relation exists." 2 Restatement (Second), Torts, § 315, p. 122 (1965). The "special relations" that are recognized by the Restatement are those between parent and child (§ 316), master and servant (§ 317), landowner and licensee (§ 318), warden and ward (§§ 319 320). "The spousal relationship does not by itself give rise to a special relation within the meaning of § 315." Nuzzo v. Hitchcock, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 99-0428801S (February 26, 2001, Zoarski, J.). However, the existence of a spousal relationship between Ann and Richard Griffith is not necessary to allege a factual basis for violation of the duty of care owed to third persons under the "negligent entrustment" cause of action alleged by the plaintiffs in the second count of the complaint.
In Greely v. Cunningham, 116 Conn. 515, 520, 165 A. 678 (1933), our Supreme Court held that recovery may rest upon the negligence of the CT Page 14064-ei owner of a vehicle in entrusting it to use by an incompetent driver. "When . . . the owner of an automobile 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 reasonably to anticipate the likelihood of injury to others by reason of that incompetence, and such incompetence does result in such injury . . . recovery rests primarily upon the negligence of the owner in intrusting the automobile to the incompetent driver."
"It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others." 2 Restatement (Second) of Torts, § 308, p. 100. The words "under the control of the actor" are used to indicate that the third person is entitled to possess or use the thing . . . only by the consent of the actor, and that the actor has reasons to believe that by withholding consent [she] can prevent the third person from using the thing or engaging in the activity. Id., cmt. a., p. 101. This rule may apply in this instance, since Ann Griffith admits Richard Griffith used a vehicle she owned with her knowledge and consent.
The Restatement (Second) of Torts § 390, p. 314 defines the tort of negligent entrustment as occurring when "[o]ne 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." The rule stated in § 390 is a special application of the rule stated in § 308, and it deals with the supplying of the instrumentality to a person incompetent to use it, whether the instrumentality is to be used for the supplier's purposes or for the purpose of him to who it is supplied. Id., cmt. b., p. 315.
"To hold one liable for negligent entrustment of a vehicle to another who is intoxicated or is likely to become so, it must be shown that the person entrusting the vehicle had either actual or constructive knowledge of the intoxication or habitual drunkenness." 91 ALR 5th 20. The person who is ordinarily liable for negligent entrusting of a vehicle to another is ordinarily the owner of the vehicle. A number of states have held family members, including spouses and patents of adult children, liable for negligently entrusting a vehicle to someone they knew had a habit of driving intoxicated. See, e.g., McManus v. Gourd, 1994 OK CIV APP 23, 873 P.2d 1060 (Okla.Ct.App.Div. 1 (1994) (Parents held liable for entrusting CT Page 14064-ej their jointly-owned van to adult son with a twenty-year history of alcohol abuse); Cameron v. Downs, 32 Wash.App. 875, 650 P.2d 260 (Div. 1 1982) (Sister who didn't own van was in control of it for purposes of negligent entrustment when she left keys on counter in presence of habitually intoxicated brother who used keys to drive van); Powell v. Langford, 58 Ariz. 281, 119 P.2d 230 (1941) (Wife as legal owner of vehicle liable for negligent entrustment when only interest husband had was that vehicle was intended to be used for his benefit); Chaney v. Duncan, 194 Ark. 1076, 110 S.W.2d 21 (1937) (father permitted his adult son with history of reckless driving to use father's vehicle).
There are several material factual issues in dispute that must be determined by the fact finder, including whether Ann Griffith knew or should have known that Richard Griffith often unlawfully operated motor vehicles while under the influence, and specifically, whether she knew or should have know Richard Griffith was under the influence of alcohol and/or drugs prior to and at the time of the accident in question. It is an issue of fact whether or not Ann Griffith knew or should have known her husband was incompetent to drive. While some of Ann Griffith's potential may implicate the marital communications privilege, the court cannot conclude at this point that all of her relevant testimony would be inadmissible due to the invocation of that privilege.
For the foregoing reasons, the defendant, Ann Griffith's motion for summary judgment as to the Second Count is DENIED. CT Page 14064-ek