Opinion
CV186079844S
10-22-2019
Richard Ray v. The Guilford Mooring, LLC
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY (#117)
Wilson, J.
I
FACTS
On February 27, 2019, the plaintiff, Richard Ray, filed a two-count revised complaint against the defendant, The Guilford Mooring, LLC, due to the defendant’s alleged negligence and negligent supervision. The complaint alleges the following facts. On or about June 10, 2016, the plaintiff was a patron at the defendant’s establishment, known as Guilford Mooring. At said time and place, an employee, agent, or servant of the defendant chased the plaintiff through the establishment’s parking lot and attacked the plaintiff, knocking and/or tackling the plaintiff to the ground, which caused the plaintiff to suffer injuries and damages.
In count one of the revised complaint, the plaintiff further alleges that the injuries, damages, and losses he suffered were caused by the negligence and carelessness of the defendant because of its employee’s following actions: failure to act and control himself in a reasonable manner; failure to maintain his emotions and reactions in a reasonable manner; placing his hands and body upon the plaintiff in an unreasonable manner; making contact with the plaintiff in such a manner that he knew or should have known would result in physical harm to the plaintiff; failure to take reasonable precautions to avoid the probability of harm to the plaintiff; and failure to act in a reasonable and prudent manner with regard to the circumstances then and there existing.
In count two of the revised complaint, the plaintiff further alleges that the defendant, its agents, servants, and/or employees failed to exercise reasonable care in the supervision of the employee and were careless and negligent in one or more of the following ways: it failed to implement measures to prevent the employee, who it knew or should have known would cause the plaintiff’s injuries, from causing said injuries; it failed to provide adequate security or institute proper security measures to ensure the safety of its patrons; failed to monitor or properly monitor the actions of its patrons; failed to monitor or properly monitor the actions of its employees, and to properly supervise them; failed to adopt and implement proper procedures and/or have adequate personnel to implement such procedures to prevent and/or address unruly patrons and to prevent improper and dangerous responses to the actions of said patrons; failed to adequately train its agents, servants, and employees as to proper security measures; and failed to use due care as a reasonably prudent person or business entity would under the same or similar circumstances.
On April 15, 2019, the defendant filed a motion for summary judgment as to both counts one and two of the plaintiff’s revised complaint. The defendant filed a memorandum of law in support, to which it attached supporting documents. The defendant argues that there is no genuine issue of material fact that the defendant’s employee who allegedly assaulted the plaintiff was not acting within the scope of his employment, and that the employee’s conduct was not foreseeable.
On June 21, 2019, the plaintiff filed an objection to the defendant’s motion for summary judgment arguing that genuine issues of material fact exist and that the issue of whether the defendant is negligent due to the actions of its employee is a question historically reserved for a jury. On June 24, 2019, the defendant filed a reply brief. On June 28, 2019, the plaintiff filed a surreply brief. The matter was heard at the short calendar on June 24, 2019.
During the June 24, 2019 short calendar, this court provided the plaintiff the opportunity to file a surreply brief to the defendant’s reply brief by the end of the week. Plaintiff’s surreply was filed on June 28, 2019; and therefore, in reaching its decision on this matter, the court will consider said surreply brief.
I
DISCUSSION
"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." (Internal quotation marks omitted.) Graham v. Commissioner of Transportation, 330 Conn. 400, 414-15, 195 A.3d 664 (2018). "[C]ourts 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 ... 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 § 380 [now § 17-45]." (Internal quotation marks omitted.) Fiano v. Old Saybrook Fire Co. No. 1, Inc., 332 Conn. 93, 101, 209 A.3d 629 (2019).
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment procedure is especially 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." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
In the present action, the defendant argues that it is entitled to judgment as a matter of law on both claims contained in the plaintiff’s revised complaint, i.e., negligence and negligent supervision. With regard to the plaintiff’s negligence claim, the defendant argues that its employee, Lance Hosmer, was neither acting within the scope of his employment, nor in furtherance the defendant’s business when he committed the alleged assault. Specifically, the defendant argues that on the date of the alleged incident, Hosmer was employed as a bar back whose job duties included clearing and cleaning dishes, refilling liquor bottles, and changing kegs; his duties did not include providing security, dealing with unruly patrons, or otherwise require substantive interactions with customers. Thus, the defendant argues, Hosmer was not acting within the scope of his employment when he allegedly assaulted the plaintiff. The defendant also argues that the actions taken by Hosmer were not made in furtherance of its business because "[t]here is no way in which assaulting another person can be said to provide any net benefit to a restaurant." See Def.’s Mem. Supp. Mot. Summ. J, p. 9.
Next, with regard to the plaintiff’s negligent supervision claim, the defendant asserts that the plaintiff has not alleged that Hosmer had any propensity for violent action, which would have put the defendant on notice that the type of conduct alleged was foreseeable. The defendant further asserts that it would not have been possible for it to anticipate that a bar back, whose duties did not require him to handle intoxicated, unruly patrons, would leave his post, go outside, and suddenly chase down and tackle a person. In support, the defendant has submitted (1) portions of the certified deposition transcript of the plaintiff taken on January 31, 2019, and (2) portions of the certified deposition transcript of the defendant’s employee, Hosmer, taken on October 16, 2018. See, respectively, Ex. A and Ex. B of Def.’s Mem. Supp. Mot. Summ. J.
In his objection, the plaintiff counters by first noting that the issue of whether a defendant is negligent through the actions of its employee is a question historically reserved for a jury. The plaintiff then argues that issues of fact remain: first, with regard to whether Hosmer was acting within the scope of his employment and with the purpose of furthering or conducting his employer’s business; and second, whether the defendant negligently supervised Hosmer.
As to the negligence claim, the plaintiff argues the following. Even though Hosmer was a bar back, he was, and considered himself to be, an employee of the defendant obligated to find out how his employer’s property had been damaged. Hosmer’s actions clearly reflect an employee motivated to apprehend and detain the individual he believed to be responsible for damaging his employer’s property. Moreover, it is notable that there is no evidence which would suggest that any of the defendant’s employees, including Hosmer’s supervisor or Hosmer’s manager, dissuaded him from participating in this interaction.
As to the defendant’s negligent supervision claim, the plaintiff argues that there is "most certainly" room for reasonable disagreement as to whether Hosmer’s conduct was foreseeable. See Pl.’s Obj. Mot. Summ. J., p. 16. Specifically, the plaintiff argues that despite Hosmer’s title of bar back, he was permitted to go outside along with other Guilford Mooring employees, which likely included his manager, to confront individuals that were believed to have damaged their employer’s property. Moreover, Hosmer was not dissuaded from participating in said confrontation, and he was allowed, along with other Guilford Mooring employees, to surround the plaintiff and threaten that the police would be called and that he would be criminally charged for something that he did not do. In support of his objection, the plaintiff has also submitted (1) portions of the certified deposition transcript of the plaintiff taken on January 31, 2019, and (2) portions of the certified deposition transcript of the defendant’s employee, Hosmer, taken on October 16, 2018. See, respectively, Ex. A and Ex. B of Pl.’s Obj. Mot. Summ. J.
In reply, the defendant contends that the plaintiff’s arguments are unavailing. First, the defendant reinforces that Hosmer’s duties as a bar back were unrelated to security, guest interaction, or administration, but rather consisted of clearing glasses and dishes, washing glasses, refilling liquor bottles, and changing kegs. The defendant then asserts that the standard for determining whether an employee’s actions were foreseeable for purposes of a negligent supervision claim is whether the employer had notice of its employee’s propensity for the type of behavior causing the plaintiff’s harm; and therefore, in the absence of any such evidence, the plaintiff cannot succeed on his claim of negligent supervision.
Lastly, in his surreply, the plaintiff notes that in its reply brief the defendant cites four cases in which an alleged assault by an employee was found to have been in furtherance of their employer’s interest and/or their duties: Pelletier v. Bilbiles, 154 Conn. 544, 227 A.2d 251 (1967); Rappaport v. Rosen Film Delivery System, Inc., 127 Conn. 524, 18 A.2d 362 (1941); Son v. Hartford Ice Cream Co., 102 Conn. 696, 129 A. 778 (1925); and Glucksman v. Walters, 38 Conn.App. 140, 659 A.2d 1217, cert. denied, 235 Conn. 914, 665 A.2d 608 (1995). Furthermore, in focusing on Gluckman, the plaintiff states: "if there is an issue of fact as to whether a part-time YMCA worker who engages in an assault because he was fouled during a pick-up basketball game ... is engaged in his duties, there must be an issue of fact as to whether Hosmer, who was working in the establishment on the night at issue and who attempted to apprehend the [p]laintiff, was acting within the scope of his duties." See Pl.’s Surreply, p. 5.
A
Vicarious Liability
The court will first consider the defendant’s argument that summary judgment should be granted on the plaintiff’s negligence claim contained in count one of the revised complaint. "[V]icarious liability is premised upon the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss ... Put differently, a fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee." (Citations omitted; internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692-93 n.16, 849 A.2d 813, 825 (2004).
"Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant’s employment and was done to further his master’s business ... But there are occasional cases where a servant’s digression from duty is so clear-cut that the disposition of the case becomes a matter of law." (Citation omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 207, 579 A.2d 69 (1990).
"We have long adhered to the principle that in order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer’s business ... But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply." (Citations omitted; internal quotation marks omitted.) Id., 208.
"The factual conclusion that [the employee’s tortious conduct] occurred during business hours, however, is not sufficient to support the conclusion that [the employee] was acting within the scope of [his or her] employment ... A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phrase during the period covered by his employment ... While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful ... that does not end the inquiry. Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master’s business, or was engaged in an abandonment of the master’s business ... Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable." (Citations omitted; internal quotation marks omitted.) Id., 209-10; see also Harp v. King, 266 Conn. 747, 782-83, 835 A.2d 953 (2003) ("[i]n determining whether an employee has acted within the scope of employment, courts look to whether the employee’s conduct: [1] occurs primarily within the employer’s authorized time and space limits; [2] is of the type that the employee is employed to perform; and [3] is motivated, at least in part, by a purpose to serve the employer").
Thus, a defendant-employer may be liable for the acts of an employee if said acts resulted from a misguided effort to serve the principal, and those acts could be inferred to fall within the purview of their responsibilities. See, e.g., Pelletier v. Bilbiles, supra, 154 Conn. 548-49 (issue of fact existed as to employer’s vicarious liability for employee’s beating of patron because his tortious act could have resulted from misguided desire to follow employer’s instruction to prevent mischief on premises); Glucksman v. Walters, supra, 38 Conn.App. 146-48 (issue of fact existed as to employer’s vicarious liability in light of evidence that assault occurred on employer’s premises and employee was tasked with maintaining order).
Indeed, in Glucksman, the defendant was a part-time employee of the co-defendant Young Men’s Christian Association (YMCA), that assaulted and seriously injured the plaintiff after being fouled by him during a pickup basketball game at the YMCA. Glucksman v. Walters, supra, 38 Conn.App. 142-43. The defendant employee was not working his scheduled hours at the time of the incident, but evidence was presented that part-time employees of the YMCA "considered themselves to be on duty, ready to help maintain order in the facility, during work and off hours." Id., 143. The plaintiff brought a negligence action against both the defendant employee and the codefendant YMCA, under the doctrine of respondeat superior. Id., 141. The trial court granted the YMCA’s motion for a directed verdict in its favor. Id. The Appellate Court reversed that ruling on appeal; id., 148; concluding that the evidence would support findings that, "but for his position as an employee, [the defendant employee] would not have been on the basketball court, that [the defendant employee] had been responsible for helping to maintain order on the basketball court, that the YMCA benefited when [the defendant employee] played basketball because it had an employee on the court to help keep order, that the commission of fouls disrupts a basketball game, and that [the defendant employee] attacked [the plaintiff] in a misguided effort to prevent [the plaintiff] from committing fouls and disrupting the game." Id., 145.
Conversely, in cases where an employee commits an intentional tort that is apart from the employer’s premises, and beyond any purview of their responsibilities, vicarious liability may be lacking. See, e.g., Brown v. Housing Authority, 23 Conn.App. 624, 628, 583 A.2d 643 (1990), cert. denied, 217 Conn. 808, 585 A.2d 1233 (1991) (employee was not furthering employer’s business interests during assault as intentional criminal act was not connected in any way to employer’s business despite employee driving between job sites when assault occurred); Doe v. Talabi, Superior Court, judicial district of Hartford, Docket No. CV-07-5009974 (May 12, 2008, Bentivengna, J.) (employer not vicariously liable for bus driver’s intentional sexual assault of student because criminal conduct of defendant was in no way connected to employer’s business of providing transportation to special education students); Hawes v. Gartrell, Superior Court, judicial district of Hartford, Docket No. CV-96-565933 (July 31, 1997, Aurigemma, J.) (intentional assault did not provide basis for respondeat superior where "plaintiff has merely alleged that the assailant was employed by the defendant. He has not supplied any evidence whatsoever from which it can be concluded that the assailant was acting in furtherance of the defendant’s business when he assaulted the plaintiff.").
In the present case, the following facts are relevant to a determination of whether Hosmer, i.e., the defendant’s employee, was acting within the scope of his employment and are not in dispute. On the date of the alleged incident, Hosmer was employed by the defendant and held the position of bar back. See Def.’s Mem. Supp. Mot. Summ. J., Ex. B, Hosmer Dep., 9:5-7. As a bar back, Hosmer’s daily tasks included loading and unloading the dishwasher, polishing glasses, refilling liquor, and changing kegs. See Def.’s Mem. Supp. Mot. Summ. J., Ex. B, Hosmer Dep., 9:10-15. Hosmer had received training for the bar back position from his supervisor, Ralph DeMatteo, which consisted of DeMatteo showing Hosmer how to properly load and unload the dishwasher, where all the kegs were located, how to tap a keg, where the liquor room was located, and which bottles go in which spots. See Def.’s Mem. Supp. Mot. Summ. J., Ex. B, Hosmer Dep., 9:24-25; 11:2-6. Hosmer "was also a busser at the time," such that whenever he finished with his bar back responsibilities, he would then clean off tables and bring the dishes back to the dishes area. See Def.’s Mem. Supp. Mot. Summ. J., Ex. B, Hosmer Dep., 9:11-13.
It is also undisputed that Hosmer, and other Guilford Mooring employees, went outside after hearing the sound of glass breaking and encountered a group of men, which included the plaintiff, that had been asked to leave the restaurant earlier in the evening. See Def.’s Mem. Supp. Mot. Summ. J., Ex. B, Hosmer Dep., 24:3-25:6 ("I’m not sure exactly whom, but it was definitely two or three of us outside"); see also Def.’s Mem. Supp. Mot. Summ. J., Ex. A, Ray Dep., 25:9-12 ("I’m probably not exact on numbers here, but it felt like probably, I don’t know, 5ish or so bouncers/employees, maybe a little bit more kind of had me surrounded on three sides"). Glass covering a menu board had been shattered. See Def.’s Mem. Supp. Mot. Summ. J., Ex. B, Hosmer Dep., 24:6-21.
The group of Guilford Mooring employees, which included Hosmer, and which likely included Hosmer’s supervisor DeMatteo as well as Hosmer’s manager, asked the men whether they broke the shattered glass menu case and informed them that they were going to call the police, which Hosmer’s manager proceeded to do. See Def.’s Mem. Supp. Mot. Summ. J., Ex. B, Hosmer Dep., 26:3-20. At this point the plaintiff ran across the restaurant’s parking lot. See Def.’s Mem. Supp. Mot. Summ. J., Ex. A, Ray Dep., 25:16-26:7. While there are conflicting accounts as to how the plaintiff was injured, it is undisputed that Hosmer, at the very least, followed the plaintiff after he ran. See Def.’s Mem. Supp. Mot. Summ. J., Ex. A, Ray Dep., 26:6-12 (plaintiff testified that Hosmer ran after plaintiff and tackled him to the ground); see also Def.’s Mem. Supp. Mot. Summ. J., Ex. B, Hosmer Dep., 29:3-9 (Hosmer testified that he did not chase plaintiff, instead he simply followed the plaintiff so that he could direct police in the direction plaintiff went, and witnessed him fall very hard).
Noticeably missing from the evidence submitted in this matter is a contract, policy, or procedure indicating what Hosmer’s official job responsibilities included, how and if Hosmer was permitted to assist in responding to unruly patrons, who was ultimately responsible for handling unruly patrons and in what manner, or whether staff received training on how to handle a situation involving unruly patrons. Moreover, the evidence is devoid of any material, deposition, affidavit, or the like, from a person with supervisory knowledge of Hosmer, indicating that Hosmer was inappropriately involved in the situation that transpired. Indeed, there is no indication that: (1) Hosmer thought his involvement was inappropriate; (2) any other employee thought Hosmer’s involvement was inappropriate, told Hosmer that he should not get involved, or that he should head back inside the restaurant; or (3) that Hosmer was trained to act any different. Additionally, the evidence submitted shows that it is likely that Hosmer’s supervisor DeMatteo and Hosmer’s manager- both of whom were employed at the defendant’s establishment as bartenders- were part of the group of employees that encountered the plaintiff and his friends outside the defendant’s establishment. See Def.’s Mem. Supp. Mot. Summ. J., Ex. B, Hosmer Dep., 26:3-20. Lastly, the evidence demonstrates that Hosmer did not know the plaintiff, that Hosmer and the plaintiff did not speak while inside the bar, and that the damage caused was not to Hosmer’s property, but rather his employer’s. See Def.’s Mem. Supp. Mot. Summ. J., Ex. B, Hosmer Dep., 17:6-10; 22:3-4; 24:6-11.
On the basis of the foregoing, and when viewed in a light most favorable to the plaintiff, the employees of the defendant’s establishment, namely Hosmer, may have believed that it was their responsibility to help maintain order in the event patrons became unruly, and that Hosmer’s alleged assault of the plaintiff may have been a misguided effort to apprehend- or at least an attempt to help the police apprehend- the individual he believed to be responsible for damaging his employer’s property. See A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 207 (only in occasional case "where a servant’s digression from duty is so clear-cut that the disposition of the case becomes a matter of law"). Accordingly, the defendant has failed to carry its burden, as there remains a genuine issue of material as to whether Hosmer was acting within the scope of his employment. See Pelletier v. Bilbiles, supra, 154 Conn. 548 (issue of fact existed as to employer’s vicarious liability for employee’s beating of patron because his tortious act could have resulted from misguided desire to follow employer’s instruction to prevent mischief on premises); see also Glucksman v. Walters, supra, 38 Conn.App. 146 (issue of fact existed as to employer’s vicarious liability in light of evidence that assault occurred on employer’s premises and employee was tasked with maintaining order).
B
Negligent Supervision
The court will now consider the defendant’s argument that summary judgment should be granted on the plaintiff’s negligent supervision claim contained in count two of the revised complaint. "Under Connecticut law, an employer may be held liable for the negligent supervision of employees ... [I]n [a] negligent supervision action, [the] plaintiff must plead and prove that she suffered an injury due to the defendant’s failure to supervise an employee whom the defendant had [a] duty to supervise." (Citations omitted; internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 207-08 n.12, 9 A.3d 347 (2010). As this court recently noted in Quichimbo v. Luow, Superior Court, judicial district of New Haven, Docket No. CV-17-6069576-S (November 26, 2018, Wilson, J.), "[w]hether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of [foreseeability]. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised ... It is well settled that defendants cannot be held liable for their alleged negligent hiring, training, supervision or retention of an employee accused of wrongful conduct unless they had notice of said employee’s propensity for the type of behavior causing the plaintiff’s harm." (Internal quotation marks omitted.) Id., quoting Loglisci v. Stamford Hospital, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-08-5009309-S (February 22, 2011, Jennings, J.T.R.) (holding that genuine issue of material fact existed when evidence before court showed during course of employment numerous employees began to view employee defendant with suspicion and distrust and questioned his competence to do his job).
"By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008). "The matter of foreseeability is a question of proximate cause ..." Gutierrez v. Thorne, 13 Conn.App. 493, 500, 537 A.2d 527 (1988). "An issue of proximate cause is ordinarily a question of fact for the trier ... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion ..." (Citation omitted; internal quotation marks omitted.) B&D Associates, Inc. v. Russell, 73 Conn.App. 66, 77, 807 A.2d 1001 (2002).
In the present case, the defendant has failed to meet its burden of demonstrating that it did not know, nor should have known, of the alleged dangerous propensities of Hosmer. In his revised complaint, the plaintiff alleges, in part, that the defendant failed to exercise reasonable care in the supervision of Hosmer, and was careless and negligent, in that it "failed to implement measures to prevent [Hosmer], who it knew or should have known would cause the [p]laintiff’s injuries, from causing said injuries." (Emphasis added.) Compl., Count 2, ¶6(a). The defendant has not submitted any evidence from an individual with supervisory knowledge of Hosmer indicating that prior to June 10, 2016, Hosmer never demonstrated dangerous propensities, or was involved in any similar incidents; rather, the defendant has submitted the deposition testimony of the plaintiff and Hosmer, both of which are unhelpful in resolving the present issue. The court notes that while there may not have been any improper conduct by Hosmer, it is the defendant’s burden to present such evidence. See Fiano v. Old Saybrook Fire Co. No. 1, Inc., supra, 332 Conn. 101 ("[t]o 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"); see also Quichimbo v. Luow, supra, Superior Court, Docket No. CV-17-6069576-S (no genuine issue of material fact concerning whether defendants should have anticipated that harm of general nature of that suffered was likely to result when affidavit was submitted of Superintendent of Transportation for defendant- person with supervisory knowledge of defendant employee- indicating that prior to date of alleged incident, defendant employee never demonstrated dangerous propensities, or was involved in any similar incidents; rather, that defendant employee adhered to courteous and responsible standard of conduct expected since his date of hire). Accordingly, there remains a genuine issue of material fact concerning whether the defendant should have anticipated that harm of the general nature of that suffered was likely to result.
III
CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment is denied.