Opinion
No. CV 04 5000007
September 23, 2005
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #108
This action arises out of an automobile accident in which the plaintiff, Ibrahim Ghazel, claims to have sustained losses as a result of property damage to his vehicle. The plaintiff alleges in his complaint that on February 21, 2004, he was involved in a collision with a vehicle operated by defendant Richard Cassin (Cassin) and owned by defendant Jaime Ellis. The plaintiff further alleges that Ellis had brought her vehicle for brake repairs to defendant Robin Cassin d/b/a RTC Enterprises (RTC), a motor vehicle repair service. At the time of the accident, Cassin was allegedly employed by RTC.
In the third count of the complaint, the plaintiff alleges that Cassin was operating the vehicle with permission and consent of the Ellis, and as her agent. He also alleges that Ellis is liable pursuant to General Statutes § 14-154a for the damages and losses sustained by him.
In the fourth count, the plaintiff alleges that Ellis was negligent in entrusting her vehicle to Cassin when she knew or should have known that he would drive negligently on public roads without first ensuring that the vehicle was road-worthy in all respects.
The court now has before it Ellis's motion for summary judgment. She claims that there is no genuine issue as to any material fact and that she is entitled to judgment as a matter of law. In support of her motion, Ellis filed a memorandum and an affidavit. In opposition, the plaintiff filed an Objection together with a memorandum of law. The plaintiff did not file a counter affidavit contravening the evidentiary facts submitted by Ellis, but he did file a certified copy of the deposition of Cassin upon which he relies.
On November 9, 2004, Ellis filed a motion for summary judgment. After the defendant had been granted a final extension to submit documents in opposition to the motion for summary judgment, the motion was heard and considered by this court at short calendar on January 18, 2005. The defendant failed to present opposition at that time. The motion for summary judgment was granted. Thereafter, the plaintiff moved for re-argument. After hearing, the court granted the motion to reargue on May 31, 2005. The court now has before it for decision Ellis's motion for summary judgment.
Summary judgment is appropriate when 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. Gurliacci v. Mayer, 218 Conn. 531, 562, 590 A.2d 914 (1991). The function of the trial court in summary judgment proceedings is not to decide issues of material fact but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue. Bartha v. Waterbury House Wrecking Co., Inc. et al., 190 Conn. 8, 11-12 (1983). 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 Section [17-44]." Bartha v. Waterbury House Wrecking Co., supra, 12.
The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06, 639 A.2d 507 (1994). "In Connecticut a directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the non-movant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969).
DISCUSSION COUNT THREE:
The plaintiff claims that Ellis is liable pursuant to General Statutes § 14-154a which provides in pertinent part, as follows: "Any person renting or leasing to another any motor vehicle owned by him shall be liable for any damage to any person or property caused by the operation of such motor vehicle while so rented or leased, to the same extent as the operator would have been liable if he had also been the owner."
Ellis states in her affidavit that at no time did she lease or rent her vehicle to Cassin or RTC, and there is no dispute as to that. Accordingly, insofar as the claim in the third count is based on General Statutes § 14-154a, Ellis is entitled to summary judgment.
The plaintiff also claims in the third count that Ellis is liable, as owner, for the negligent operation of her vehicle because Cassin was operating the vehicle with her consent, permission and as her agent. Cassin testified at his deposition that Ellis brought her car to him to be repaired, about 6 to 12 times for oil changes and tune-ups, over a two-year period. He charged her for the work, and she paid him. On February 21, 2004, Ellis brought her car to Cassin because her brakes were making noise. She dropped the vehicle off for repairs at the home of Cassin's father, Robin Cassin d/b/a RTC. Ellis gave Cassin the keys and told him to fix her car. Cassin in his deposition testified that he needed to test drive the car to find out what was making the noise. He took the car for a test drive during which the collision with the plaintiff occurred. After the accident, Cassin went to get parts, changed the brakes, replaced the filters, and then returned the vehicle to Ellis. Cassin was paid by Ellis.
In his complaint, the plaintiff alleges that Cassin was an employee of RTC, and in her affidavit, Ellis states that she brought her car to RTC for repair. Cassin denies that he was an employee of RTC. The dispute as to whether Cassin was an employee of RTC when the accident occurred, however, is not material for the purpose of this summary judgment motion. What is material is whether there are disputed facts as to Cassin's status, an agent, servant or employee of Ellis or an independent contractor.
The facts of this case are analogous to those in Siegel v. Howell, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 98-0409394, (October 13, 1999, Alander, J.) ( 25 Conn. L. Rptr. 484), and this court finds the reasoning persuasive. In Siegel, the defendant left his car for repairs at an automobile repair shop. An employee of the repair shop negligently operated the vehicle injuring a third party. In that case, the plaintiff had plead and relied on the presumption of agency pursuant to Connecticut General Statutes § 52-183. Judge Alander in granting summary judgment for the defendant owner found the repair shop an independent contractor because it had the authority to direct the work, when it should be done and how it should be done. The owner of the vehicle left his car at the garage and exercised no control over the details of the work. See also, McCarter v. Smith, Superior Court judicial district of Tolland at Rockville, Docket No. CV 01-0076240 (February 14, 2003, Klaczak, JTR.) ( 34 Conn. L. Rptr. 81). The undisputed factual situation in the case at hand is very similar to those in Siegel and McCarter. Ellis left her vehicle with Cassin for repair. She did not exercise control over the details of the work; it was Cassin who had control over when it should be done and how it should be done. Although the question of control is often one of fact, there are circumstances when the status of an individual is clear as a matter of law. See, Spring v. Constantino, 168 Conn. 563, 574, 362 A.2d 871, 1975.
"As a general rule, `an employer is not liable for the negligence of its independent contractors . . . The explanation for [this rule] most commonly given is that, since the employer has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise, and [the contractor], rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it." (Citations omitted; internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517-18, 825 A.2d 72 (2003)." Infinity Ins. Co. v. Worcester Ins. Co., Superior Court, judicial district of Hartford at Hartford, Docket No. CV 02-0817023 (March 18, 2005, Langenbach, J) ( 72 Conn. L. Rptr. 2).
The undisputed facts of this case establish that Cassin was an independent contractor and was not acting as the agent, servant or employee of Ellis. As such, Ellis is entitled to summary judgment on the third count.
COUNT FOUR:
The plaintiff claims that Ellis negligently entrusted her vehicle to Cassin. "When the evidence proves that 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, a basis of recovery by the person injured is established. That recovery rests primarily upon the negligence of the owner in intrusting the automobile to the incompetent driver." Greeley v. Cunningham, 116 Conn. 525, 520, 165 A. 678 (1933).
In her affidavit, Ellis states, "I did not know, or have reason to know, that Richard Cassin would operate any vehicle in a manner that would put others in danger." The plaintiff has not contravened by affidavit or by Cassin's deposition testimony, the averments of Ellis. "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 Section [17-44]." Bartha v. Waterbury House Wrecking Co., supra, 12. In light of the above, the defendant has shown that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law as to the fourth count.
CONCLUSION
The defendant's motion for summary judgment is hereby granted.
BY THE COURT
Tanzer, J.
September 19, 2005