Opinion
No. C402-0470620-S
May 20, 2005
MEMORANDUM OF DECISION
FACTS
On October 29, 2002, the plaintiffs, Maureen Kelsey, individually, and Maureen Kelsey as administratrix of the estate of Robert Kelsey, filed a ten-count complaint against the defendants, Fredrick Cowern, Joseph DeStefano, Theresa DeStefano and Door Control, Inc. (Door Control). This action arises out of a two-car accident that resulted in Robert Kelsey's death.
Door Control, Inc. is the only defendant who filed the motion for summary judgment presently before the court.
In count one, the plaintiffs allege a negligence claim against Cowern, who was driving the automobile which struck and dragged Robert Kelsey. In count two, the plaintiffs allege recklessness against Cowern based on his intoxication while operating the automobile over the speed limit. In count three, Maureen Kelsey, individually, alleges loss of spousal consortium against Cowern. In counts four and five, the plaintiffs allege negligence and loss of spousal consortium, respectively, against Joseph DeStefano, the operator of the second motor vehicle. In counts six and seven, the plaintiffs allege vicarious liability against Theresa DeStefano, the owner of the second vehicle operated by Joseph DeStefano and which struck Robert Kelsey. Finally, in counts eight through ten, the plaintiffs allege vicarious liability claims against Door Control, the employer of Cowern and owner of the vehicle driven by Cowern.
The plaintiffs subsequently amended their complaint twice, on June 11, 2003 and July 29, 2003. The original ten counts were not changed. The plaintiffs added six defendants: Marlin Controls, Inc., Robert Baltramaitis, Robert Brady, Carlos Duran, Rich Wallace, all municipal employees, and the town of Wallingford, none of whom are a party to this motion. The plaintiffs also added four counts: counts eleven and twelve against Marlin Controls, Inc. for negligence and loss of consortium respectively; counts thirteen and fourteen against the town of Wallingford and its employees pursuant to General Statutes § 52-557n and for loss of consortium, respectively.
On July 13, 2004, Door Control filed a motion for summary judgment as to count nine of the complaint, accompanied by a memorandum of law in support. The plaintiffs filed a memorandum of law in opposition to the motion on September 15, 2004. In support thereof, the plaintiffs submitted the following evidence: (1) an uncertified copy of the deposition of Maureen Kelsey, (2) an uncertified, unauthenticated copy of an anonymous letter from a Door Control employee, and (3) a copy of the deposition of Fredrick Cowern. Door Control filed a reply to the plaintiffs' opposition to the motion on October 20, 2004.
Because the copy of the anonymous letter is uncertified and unauthenticated and "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment"; Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997); this document cannot be considered by the court. Also, "[t]he existence of [a] genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence." (Internal quotation marks omitted.) Kroll v. Sebastian, Superior Court, judicial district of New London, Docket No. 545977 (March 15, 1999, Martin, J.), rev'd on other grounds, 58 Conn.App. 262, 753 A.2d 384 (2000). The court cannot rely on only deposition testimony. Id. "The court declines to consider the deposition transcripts for the additional reason that they do not appear to be certified . . . Uncertified deposition transcripts are not acceptable in support of, or in opposition to, a motion for summary judgment." (Citation omitted; internal quotation marks omitted.) Id. The deposition testimony of Maureen Kelsey should not be considered by the court.
DISCUSSION
A "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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). 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 . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).
Door Control moves for summary judgment on count nine of the plaintiffs' vicarious liability claim against it on the ground that there are no genuine issues of material fact and it is entitled to judgment as a matter of law because an employer/owner cannot be held "vicariously liable for punitive damages stemming from an employee's reckless operation of a motor vehicle . . ." Door Control argues that this court has the authority to reverse the previous decision of the court denying Door Control's motion to strike count nine and the corresponding prayer for relief. It further argues that it cannot be held liable for the reckless conduct of Cowern, a nonowner operator of the motor vehicle pursuant to either General Statutes §§ 52-183 or 14-295. Door Control relies on Matthiessen v. Vanech, 266 Conn. 822, 837, 836 A.2d 394 (2003), a recent Connecticut Supreme Court decision, in which the court disallowed an award for punitive damages against an owner of the car for the recklessness of its employee.
A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings (Internal quotation marks omitted.) Westbrook v. Savin Rock Condominiums Assn., Inc., 50 Conn.App. 236, 239, 717 A.2d 789 (1998). In addition "[t]he court must apply different standards to [motion to strike and motion for summary judgment]. Although both motions may challenge the legal sufficiency of a pleading, a motion to strike requires the court to assume as true all well pleaded facts . . . On the other hand, the court grants a motion for summary [judgment] when there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . Because different standards apply to these two types of motions, the court is not bound by the court's prior decision on the motion to strike." (Citations omitted; internal quotation marks omitted.) Firgeleski v. Hubbell, Inc., Superior Court. judicial district of Fairfield at Bridgeport, Docket No. CV 98 035287 (December 19, 2001, Stevens, J.).
In opposition, the plaintiffs counter that summary judgment is inappropriate because Matthiessen did not address the issue as to whether an employer can be held liable for punitive damages where there is evidence that the employer authorized or ratified the agent's acts or whether punitive damages may be assessed against an employer/owner of a motor vehicle under General Statutes § 14-295. The plaintiffs further argue that public policy demands that owners of vehicles be held responsible when they entrust their vehicle to someone they know is incompetent to drive.
At common law there was no vicarious liability for punitive damages. Matthiessen v. Vanech, supra, 266 Conn. 837. "[U]nder that common-law doctrine, the owner of a motor vehicle is not vicariously liable for punitive damages resulting from the driver's reckless operation of the vehicle." Id.
The plaintiffs argue that §§ 52-183 and 14-295 abrogate this common-law principle that punitive damages may not be assessed against parties who are vicariously liable. The court rejected a similar argument in Matthiessen. Therein, the Supreme Court stated: "the sole purpose of § 52-183 is to shift the burden of adducing evidence regarding an agency relationship between the owner and the operator of a vehicle from the plaintiff to the defendant . . . Section 52-183 does nothing more than create a rebuttable presumption of [an agency] relationship between the owner and the operator of a motor vehicle, namely, an employer-employee relationship, which, under the common-law principle of respondeat superior, renders the owner vicariously liable for compensatory damages arising out of the negligent and reckless conduct of the operator, but not vicariously liable for punitive damages stemming from that conduct. . . .
General Statutes § 52-183 provides: "In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebuffing the presumption."
General Statutes § 14-295 provides: "In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property."
"In light of the language and limited purpose of § 52-183, [the court is] not persuaded that it reasonably can be construed to authorize an award of punitive damages on the basis of vicarious liability . . . Nothing in the statute suggests that the nonoperator owner of a motor vehicle may be held liable for any damages other than those customarily assessed against an employer for the tortious conduct of an employee, namely, compensatory damages . . . Because an employer is not vicariously liable for punitive damages arising out of the conduct of his employee, [this court sees] no reason to conclude that § 52-183 impliedly gives rise to such liability on the part of a nonoperator owner of a motor vehicle." (Citations omitted; emphasis in the original). Matthiessen v. Vanech, supra, 266 Conn. 839-41. The court concludes, "therefore, that § 52-183 does not abrogate the common-law principle that punitive damages may not be assessed against parties whom the law holds vicariously liable for the acts of others." Id., 843.
Similarly, General Statutes § 14-295 does not abrogate the common-law principle either. "On the basis of . . . language used and purpose, this court concludes that § 14-295 does not abrogate the common law prohibition against the imposition of punitive damages predicated on vicarious liability." Allyson v. Durocher, Superior Court, judicial district of New London at Norwich, Docket No. 129183 (September 28, 2004, Devine, J.).
Door Control's motion for summary judgment as to count nine is granted. In count nine, the plaintiffs are seeking to hold Door Control, the owner of the vehicle, vicariously liable for punitive damages resulting from Cowern's reckless operation of a vehicle. According to the Connecticut Supreme Court such a cause of action does not to exist and, thus, the motion for summary judgment is granted.
Martin, J.