Opinion
No. CV-02-0079364S
August 18, 2004
RULING ON MOTION FOR SUMMARY JUDGMENT (#122)
This case comes before the court with a tortured procedural history. The original complaint was filed on September 6, 2002 with a return date of September 17, 2002. An intervening complaint was filed on October 28, 2002. In the original complaint, the plaintiff Daniel Griffin (Griffin) alleged that he was injured as a result of the negligence of the defendant Mark Larson (Larson) who was alleged to have been operating a motor vehicle owned by the defendant Gary Delaney. On April 4, 2003, Larson filed an answer, denying Griffin's allegations, and special defense.
On October 17, 2003, Larson filed a motion for permission to file a motion for summary judgment which was granted by the court (Ronan, J.T.R.) on November 24, 2003. Prior to that ruling, however, Griffin filed a document captioned "Motion for Extension of Time to Respond to Motion for Summary Judgment," on November 7, 2003, in which he objected to Larson's motion for permission to file a motion for summary judgment and asked for a thirty-day extension from the date of Larson's discovery compliance to respond to the motion for summary judgment. This motion was denied by the court (Moran, J.) on November 17, 2003.
Thereafter, the motion for summary judgment was set down on the December 8, 2003 short calendar and marked "ready" by Larson's counsel. On that date, the court (Lager, J.) granted the motion on the ground that there was no genuine issue of material fact that Larson was not operating the motor vehicle at the time of the accident as alleged in the original complaint. On January 5, 2004, Larson's counsel filed a motion to set aside the entry of summary judgment and to reargue, representing that he had erroneously claimed the motion for summary judgment as ready for argument on December 8, 2003 and that both parties wanted the matter to be heard with the benefit of Griffin's objection. The motion to reargue was granted by the court (Lager, J.) on January 7, 2004 with a notation that the original motion should be reclaimed upon the filing of the objection or that when the objection appeared on the calendar it should be marked ready.
On February 9, 2004, Griffin filed a motion for permission to amend his original complaint. Larson did not file any objection to the request for leave to amend. In the amended complaint, Griffin alleged that one Marquis Suggs (Suggs), who is not a party to this suit, was operating the vehicle with Larson's "permission and direction." On April 12, 2004, more than two months after the amended complaint was deemed filed, Practice Book § 10-60(a)(3), and more than three months after the court had granted the motion to reargue the motion for summary judgment, Griffin filed his objection to the motion for summary judgment. On April 28, 2004, Larson filed a reply to Griffin's objection. The matter was marked "ready" by Larson's counsel for the short calendar scheduled on August 9, 2004, approximately one month before the scheduled trial date for this case of September 14, 2004. By letter to the court dated August 6, 2004, Griffin's counsel waived his presence at the hearing on the motion for summary judgment.
In his objection to the motion for summary judgment, Griffin makes two claims. First, he maintains that the filing of the amended complaint has made the motion moot because it addresses the allegations of the original complaint. He also claims that there are genuine issues of material fact which preclude summary judgment. The court disagrees with Griffin's claim that the motion for summary judgment is moot. Larson filed a timely reply addressing the issues raised in Griffin's objection. The original motion for summary judgment was brought on the ground that Larson owed no duty to Griffin. The same ground applies to the allegations of the amended complaint. Moreover, given the procedural history recited at length above and the imminent trial date, the court exercises its discretion to consider the motion for summary judgment on its merits.
"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.' A `material fact' is a fact that will make a difference in the result of a case. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). `The test is whether a party would be entitled to a directed verdict on the same facts.' Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982)." River Dock Pile, Inc. v. Insurance Co. of North America, 57 Conn.App. 227, 231, 747 A.2d 1060 (2000). "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.) Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). The moving party has the burden of demonstrating the absence of a genuine issue of material fact, but the party opposing the motion must provide evidence to demonstrate the existence of such an issue. Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000); Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 554-55, 707 A.2d 15 (1998).
There is no dispute as to the following facts: Larson had borrowed the vehicle from its owner Delaney. Larson was not operating the motor vehicle and he was not in the motor vehicle at the time of the accident in which Griffin alleges he sustained injury. The vehicle was being operated by Suggs, who was going to buy coffee for some softball players. (Larson Affidavit, ¶¶ 4, 5, 7, 8.) Griffin maintains, however, that there is a genuine issue of material fact as to whether Larson negligently entrusted Delaney's motor vehicle to Suggs.
Both parties agree that the Superior Court has recognized a cause of action for negligent entrustment of a motor vehicle by a non-owner. See, e.g., Jordan v. Sabourin, Judicial District of New London, docket no. 537041 (Nov. 22, 1996, Hurley, J.T.R.) ( 18 Conn. L. Rptr. 269), and cases cited therein. 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 entrusts it 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." Greeley v. Cunningham, 116 Conn. 515, 520, 165 A.2d 678 (1933). Liability cannot be imposed on a defendant under a theory of negligent entrustment simply because the defendant permitted another person to operate the motor vehicle. Id., 116 Conn. 518. Liability can only be imposed if (1) there is actual or constructive knowledge that the person to whom the automobile is loaned is incompetent to operate the motor vehicle and (2) the injury resulted from that incompetence. Id. The mere fact that an accident occurred is insufficient to establish the second essential element.
In this case, Griffin has failed to provide an evidential basis to support the essential element of negligent entrustment that Larson knew or should have known that Suggs was incompetent to operate Delaney's motor vehicle. Indeed, there appears to be no evidence to support that element. It is undisputed that Larson knew Suggs' father for many years and through him knew Suggs. Suggs was 19 or 20 years old at the time and a licensed driver. Larson testified at his deposition that he did not know anything about Suggs that would have led him to believe he should not have loaned him the vehicle. (Deposition transcript p. 38). Unlike such cases as Jordan v. Sabourin, supra, where there was evidence that the entrustee had been drinking before he was given permission to use the vehicle, here there was nothing about the circumstances which reasonably should have caused Larson to inquire further. It was early in the morning, there was a softball game in progress and Suggs was going to use the car to go a few blocks to buy coffee for some of the players. (Deposition, p. 26.) Thus, this case more closely resembles Shea v. Brown, 146 Conn. 631, 633, 153 A.2d 419 (1959), in which the Supreme Court determined that a car dealer's salesman did not negligently entrust a motor vehicle when he permitted an 18-year-old customer, whose license was suspended, to test drive a vehicle without inquiring about the status of his driver's license. See also Shah v. Brooks, Superior Court, Judicial District of Hartford, docket no. 591221 (Sept. 27, 1999, Lavine, J.) ( 25 Conn. L. Rptr. 554) (evidence that licensed driver had cerebral palsy and had previously totalled a car insufficient to establish negligent entrustment; entrustor has no duty to inquire about the entrustee's driving history).
Based on the foregoing, the court finds that there is no genuine issue of material fact and that Larson is entitled to judgment as a matter of law. Larson's motion for summary judgment is granted. Judgment shall enter in favor of the defendant Larson only and against the plaintiff on the complaint.
LINDA K. LAGER, JUDGE