Opinion
LLICV166013161
03-23-2017
Samantha Palermo v. Terryville Chevrolet, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Honorable John W. Pickard, Judge Trial Referee.
The plaintiff, Samantha Palermo, was injured when her car was struck by a car owned by the defendant, Terryville Chevrolet, LLC (" Terryville"), which was being driven on a test drive by the defendant, Ian Neil Wright (" Wright"). Terryville has moved for summary judgment. The matter has been fully briefed and was argued on February 6, 2017. For the reasons given, the motion for summary judgment is denied.
The plaintiff's complaint is in five counts. In the first count, the plaintiff alleges that Terryville was negligent in causing the plaintiff's injuries because it failed to supervise Wright on his test drive and allowed him to operate negligently in various ways. The plaintiff also alleges that Terryville was negligent in allowing Wright to take the test drive when he was not experienced in operating such a fast car. Finally, the plaintiff alleges that Terryville was negligent in failing to train their employee, who was a passenger on the test drive, to properly supervise Wright. The second and fourth counts only apply to Wright. In the third count, the plaintiff alleges that Terryville was statutorily reckless in causing the plaintiff's injuries because it deliberately allowed Wright to drive in violation of several statutes mentioned in General Statutes § 14-295. In the fifth count, the plaintiff alleges that Wright's negligence should be imputed to Terryville pursuant to General Statutes § § 52-182 or § § 52-183.
Section 14-295 permits double or treble damages in certain circumstances where the operator of a motor vehicle has deliberately or with reckless disregard operated in violation of certain enumerated statutes.
If certain family relationships are proven, Section 52-182 creates a rebuttable presumption that a motor vehicle or motor boat was being operated as a family car within the scope of a general authority from the owner.
Section 52-183 creates a rebuttable presumption that the operator of a motor vehicle is the agent and servant of the owner operating in the course of his employment.
Terryville has moved for summary judgment on two grounds. First, Terryville asserts that there is no genuine material issue of fact that the employee accompanying Wright on the test drive was merely a passenger, and was not negligent. Second, Terryville asserts that there was no " special relationship" between the parties such that Terryville should have any responsibility for Wright's actions. In support of the motion, Terryville has submitted an affidavit from Terryville's employee James O'Connor (" O'Connor"). In his affidavit O'Connor attests that Wright told him he was interested in buying a 2013 Chevrolet Camaro being offered for sale and that he was familiar with and had experience with operating similar cars. O'Connor accompanied Wright on a test drive of that vehicle and had not traveled more than approximately 300 yards and no more that several minutes before the accident occurred. Finally, O'Connor avers that at no time during that short distance or duration did Wright voluntarily surrender his operation of the vehicle to him nor did he attempt to discontinue his operation prior to the accident. The plaintiff has also submitted a copy of the police report of the accident. This police report reflects that Wright told the police officer that he was test driving the 2013 Chevrolet Camaro when he shifted into 3rd gear and the vehicle " stepped out on him" and started going sideways and into the oncoming lane where it struck the plaintiff's car.
The plaintiff has filed a memorandum in opposition to the motion for summary judgment in which he argues that there are genuine issues of material fact about whether O'Connor was negligent in failing to stop Wright from operating in an extremely dangerous manner at a high rate of speed while shifting and simultaneously accelerating, thereby causing the " high powered car" (a 2013 Chevrolet Camaro) to spin out of control into the plaintiff's lane. Further, the plaintiff argues that there is a genuine issue of material fact as to whether O'Connor had wholly abandoned his right to control the operation of the car to Wright.
In support of her opposition to the motion for summary judgment, the plaintiff has submitted the deposition of O'Connor. The plaintiff pointed to page 8 of the deposition to support the claim that: " Mr. O'Connor was in the passenger seat controlling the actions of Defendant Wright as he drove." On page 8 O'Connor testified that he warned Wright before the drive that this was a sports car with a standard shift and that if he was not accustomed to it O'Connor could drive. Wright said that he knew how to drive the car and that it wouldn't be a problem. O'Connor then testified: " So when we started up the street he shifted gears a couple of times, seemed a little, you know, like he was having a little issue with the gears, and I asked him again if he was having trouble, he said no, I'm handling it, it's just a little stronger than I thought it was going to be. And when he hit third gear he spun out and we ended up colliding with the other folks.
" Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
The result of this motion is controlled by a 1939 Connecticut Supreme Court case which is still good law. In Archambault v. Holmes, 125 Conn. 167, 4 A.2d 420 (1939), the Supreme Court reviewed the law regarding test drives by prospective purchasers of automobiles. The court reviewed the holdings in previous Connecticut cases where the prospective purchaser was not accompanied on the test drive by an employee of the dealership. In those cases the court had held that the prospective purchaser was not an agent of the dealership. However, the court contrasted those cases with those in which the prospective purchaser was accompanied by and under the " supervision and control of an agent or employee of the owner." Id., 169. The court stated that: " There may be situations where the seller of a car will not be liable for the negligence of a prospective purchaser when the seller's agent has surrendered to the prospective purchaser the control of its operation." Id., 170. " However, to absolve the seller from liability for the negligence of a prospective purchaser in operating a car while accompanied by an agent or employee of the seller, something more is necessary than the mere fact that the agent or employee failed to exercise control over the operation. In most cases we have cited or referred to where the seller was held liable for the negligence of the purchaser, his agent was not in fact exercising any such control. The seller is absolved only where his agent abandoned his right to control the operation of the car and had surrendered that operation wholly to the purchaser." Id., 171. The court makes clear that the owner cannot escape liability simply by showing that the seller's agent did not actually exercise any control over the vehicle while the purchaser was driving it. There must be an actual finding that the seller's agent has surrendered to the customer the right to control the car's operation. Id. This remains the law of the State of Connecticut and is in accord with the " majority rule" in other states. American Family Mutual Insurance Company v. AN/CF Acquisition Corporation, 361 P.3d 1098, 2015 COA 129 (Colorado Court of Appeals) 2015; Annot., 31 A.L.R.2d 1445 (1953); 8 Am.Jur.2d 266-67, Automobiles § 625 (2007).
The affidavit of O'Connor submitted by the defendant does not address the issue of whether O'Connor surrendered to Wright the right to control the car's operation. The affidavit reverses this issue by stating that: " At no time during that short distance or duration did Wright voluntarily surrender his operation of said vehicle to me . . ." This put things backward. As an agent of the owner, O'Connor had the right to control the operation of the car until he " wholly" surrendered it to the operator. The defendant's affidavit does not show the nonexistence of this issue of fact. In addition, the deposition of O'Connor submitted by the plaintiff contains evidence that O'Connor had not wholly surrendered his operation. O'Connor told Wright where to drive and warned him during the drive about his operation of the standard transmission. O'Connor said that he retained the right to stop the test drive if he felt that Wright was not operating safely. This testimony is inconsistent with complete surrender of control. The motion for summary judgment is denied.