Opinion
No. CV 05-5001371
August 23, 2007
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#136, 137)
BACKGROUND
This decision concerns separate lawsuits filed by two plaintiffs, Monique Little (Little) and Charelle Martin (Martin), resulting from a car accident in Hartford, Connecticut. The two lawsuits, consolidated on February 6, 2006, allege the following facts. On or about March 18, 2004, Martin was driving a 2003 Toyota she had leased from one of the defendants, CAMRAC, Inc. d/b/a Enterprise Rent a Car (CAMRAC). Martin's daughter, Tiaira Lawrence (Lawrence), and Little were passengers in the Toyota. At approximately 9:45 p.m. the Toyota was struck by a 1996 Buick owned by another one of the defendants, Pamela Pinney (the owner), but being driven by an unknown operator (the operator) who subsequently fled the scene.
The procedural history of Little v. Pinney, Docket No. 05-5001371 is as follows. On October 31, 2005, Little filed a three-count complaint alleging: (1) negligence and agency against the owner, (2) an uninsured motorist claim against CAMRAC, and (3) an uninsured motorist claim against the insurer of the Buick, Progressive Northern Insurance Company (Progressive). Little's first theory of liability in the first count is set forth in paragraph seven: "The [owner], prior to the above accident, had parked her car after dark, unattended with the doors unlocked and with the keys in the ignition under circumstances where she knew or should have known or foreseen that her car might be taken by an unknown person with resulting injury to innocent third persons."
In paragraphs five and six of the first count, Little alleges agency as a second theory of liability: "The injuries and losses suffered were caused by the carelessness and negligence of the unknown operator . . . At all times herein mentioned, the unknown driver was operating the vehicle owned by the [owner], as the agent, servant and/or employee and with the permission or consent of the [owner] pursuant to [§ 52-183]."
Section 52-183 states that, "[i]n 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 rebutting the presumption."
The owner has moved for summary judgment as to this count on the ground that there is no genuine issue of material fact with respect to the issue of liability and the owner is entitled to judgment as a matter of law. The owner argues she has no legal liability because the car was stolen by an unknown operator, and further, that she owes no duty to the plaintiffs. Little counters the owner is negligent for leaving her keys in the car. Little also contends the presumption of agency under § 52-183 cannot be rebutted by a contrary affidavit because the trier of fact must decide the issue of agency.
The procedural history of Martin v. Pinney, Docket No. 06-5001829 is similar to that of Little. Martin filed a six-count complaint. Counts one and two of Martin's lawsuit allege the owner is negligent because she knew or should have known that leaving the keys in the ignition with the doors unlocked, in a high crime area, could result in a person stealing the car and causing damage to innocent people. Unlike the complaint in Little, counts one and two of Martin's lawsuit do not allege that the owner is liable under § 52-183 for the negligence of the operator.
Martin alleges (1) negligence against the owner as to Martin; (2) negligence against the owner as to Martin on behalf of Lawrence; (3) an uninsured motorist claim against CAMRAC as to Martin; (4) an uninsured motorist claim against CAMRAC as to Martin on behalf of Lawrence; (5) an uninsured motorist claim against Progressive as to Martin; (6) an uninsured motorist claim against Progressive as to Martin on behalf of Lawrence.
The owner has moved for summary judgment as to counts one and two. The grounds for the motion are that no genuine issues of material fact exist with respect to the issues of duty and proximate cause, and that the owner is entitled to judgment as a matter of law. In her memorandum of law, the owner argues that no legal duty exists because she did not leave the key in the ignition and merely leaving the vehicle unlocked is not enough to constitute negligence. Moreover, the owner argues that causation cannot be established because it is not reasonably foreseeable that (1) had the unknown driver not stolen the vehicle, he would not have stolen another vehicle and caused the same accident, and (2) an unknown driver would steal the vehicle from a private lot and cause an accident that resulted in injuries. Martin and Lawrence counter that whether leaving keys in an unlocked vehicle where a thief may look constitutes negligence is a question for the trier of fact.
DISCUSSION
Practice Book § 17-49 provides that summary judgment shall be granted "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." (Internal quotation marks omitted.) Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). "[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405-06, 848 A.2d 1165 (2004).
A. The Owner's Alleged Negligence in Parking the Vehicle
In count one of Little, and counts one and two of Martin, the respective plaintiffs allege the owner was negligent for parking her car and leaving her keys somewhere in or around the vehicle, with the doors unlocked, while in an area with a high crime rate. With respect to these allegations, the evidence before the court provides an insufficient basis for summary judgment because of the factual issue of where the owner left her keys and the legal issue of whether she was negligent in the way she parked her vehicle. See Michaund v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975) (holding that summary judgment is particularly "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"); see also Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 502 (1984) ("[i]ssues of negligence are ordinarily not susceptible of summary application but should be resolved by trial in the ordinary manner").
Based on the owner's affidavit and her deposition testimony, the court can determine that she left the doors to the motor vehicle unlocked and the keys somewhere in or around the car, although not in the ignition. The court cannot determine, however, (1) whether the owner is credible as to where she left the keys, and (2) whether the owner's actions were negligent such that they breached the standard of care owed to foreseeable victims. Thus, because genuine issues of material fact exist for the jury to determine, the owner's motions for summary judgment based on the owner's negligence in count one of CT Page 14329 Little and in counts one and two of Martin are denied.
There is contradiction in the owner's affidavit, her deposition and in her Affidavit of Vehicle Theft as to whether she had removed the keys from the ignition.
B. The Owner's Liability under § 52-183 in Little v. Pinney
In light of the court's denial of the owner's motion for summary judgment with respect to the owner's negligence in count one, the question becomes the need to even address the motion for summary judgment as to the paragraphs within the same count alleging the owner's liability for the unknown operator's negligence under an agency theory and the possibility of entering partial summary judgment. Of course, that question would not arise had the defendant requested a revision of count one to separate the distinct theories of liability. See Practice Book Section 10-35(3). In any event, the controlling law is that the presumption of agency under § 52-183 may not be rebutted on a motion for summary judgment. See Engram v. Kraft, 83 Conn.App. 782, 788, 851 A.2d 363 (2004) citing Bogart v. Tucker, 164 Conn. 277, 282, 320 A.2d 803 (1973) (holding that motor vehicle cases that implicate § 52-183 are best decided by the trier of fact unless the rebuttal evidence "could not rationally be disbelieved"). The motion for summary judgment as to the owner's vicarious liability under an agency theory pursuant to § 52-183 is also denied.
The possibility of entering partial summary judgment in such circumstances was addressed in Snodgrass v. Mulhearn, Superior Court, judicial district of New Britain, Docket No. CV 03 00523029 (May 18, 2006, Shaban, J.). "There does not appear to be any appellate authority on whether a court can permit summary judgment against a party relative to individual allegations within a single count of a complaint. At the trial court level there is a split of authority on the issue. A review of the decisions finds that the majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment . . . In most cases allowing a partial summary judgment within a single count, the court was asked to remove a legal theory from a count which had improperly joined multiple causes of action." (Emphasis added.) Snodgrass v. Mulhearn, supra, Superior Court, Docket No. CV 03 00523029. Specifically, in Electrical Contractors, Inc. v. Hartford, Superior Court, judicial district of Hartford, Docket No. CV 04 00831259 (March 17, 2006, Scholl, J.) [40 Conn. L. Rptr. 878], the court recognized that "Practice Book § 17-51 . . . authorizes the entry of summary judgment on part of a claim within a single count provided final judgment can be entered with respect to that part of the claim and it can be severed from the remainder of the claim." In the present case, the claim of agency liability is a legal theory and not a mere factual allegation. Moreover, such a claim is severable and would not impede Little from pursuing the first theory of liability in count one. Accordingly, partial summary judgment would be a viable option.
CONCLUSION
The motions for summary judgment in the consolidated cases of Martin v. Pinney and Little v. Pinney are denied.