Opinion
No. CV05-500 02 17 S
July 17, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE ( Motion #115.00)
This action sounds in negligence and recklessness. The plaintiff, Lydia Richardson, next friend of Cherish Hampton, seeks damages arising out of the alleged negligence of the defendants Good Shepard Christian Church (Good Shepard), Alfred Tirado and Mailegeros Gonzales, as the principal of Tirado pursuant to General Statutes § 52-183. The complaint alleges that on April 19, 2003, Hampton was sitting on a chain link fence, which had incorporated into it a moveable gate that controlled access to the Good Shepard parking lot. It is alleged that Tirado, who was driving a motor vehicle owned by Gonzales, moved the gate in order to exit the premises. In doing so Tirado caused a portion of the gate, which rolled on metal wheels, to cross over Hampton's hand and severely injure her. The plaintiff argues that Tirado got out of his car and moved the gate so that he could remove his car from the lot.
On October 7, 2005, Gonzales filed a motion to strike the third count of the plaintiff's complaint which claims that pursuant to § 52-183, Gonzales is liable for the action of Tirado. Gonzales argues that the plaintiff has failed to state a legal claim, because the statute requires that the operator be in the process of operating the vehicle when the alleged negligence occurs. On October 20, 2005, the plaintiff filed an objection arguing that the alleged conduct constitutes operation of vehicle pursuant to the statute.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. CJM Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
Gonzales argues that § 52-183 does not apply because Tirado was not operating the vehicle when the alleged negligent act occurred. Operation, he argues, can only occur when the operator is in the vehicle and has the ability to manipulate the machinery. The plaintiff argues that there is a presumption of agency under the statute, and, further, even though Tirado stepped out of the vehicle, he was in the course of operating the vehicle.
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 rebutting the presumption."
"In the absence of a relationship between the owner and the operator of a motor vehicle such that the liability of the operator is imputed to the owner, either by statute or at common law, a plaintiff has no recourse against the owner. Section 52-183 does nothing more than create a rebuttable presumption of such a 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 . . ." (Emphasis in original.) Matthiessen v. Vanceh, 266 Conn. 822, 839-40, 836 A.2d 394 (2003).
It is clear that the statute creates a presumption of agency, and, further, that a motion to strike is not the proper vehicle to challenge such a presumption. See Castro v. Altra Auto Rental, Superior Court, judicial district of Waterbury, Docket No. 0100092 (April 16, 1991, Byrne, J.) (stating that if there are other factual matters surrounding the litigation, it is not proper to decide them by way of a motion to strike). The issue, however, is whether Tirado, based on the facts alleged, was negligently operating the vehicle in such a manner that caused injury to Hampton. This fact must be alleged for the presumption to arise.
The statute, as well as case law, are both silent as to what constitutes negligent operation of a motor vehicle pursuant to § 52-183. The court, however, is aided by the definition of operation as it relates to other statutes. In relation to General Statutes § 52-556, a statute abrogating sovereign immunity by imposing liability on the state for injuries caused by a state employee while operating a state vehicle, the Appellate Court in Allison v. Manetta, 84 Conn.App. 535, 854 A.2d 84, cert. denied, 271 Conn. 931, 859 A.2d 582 (2004), found that a state employee was operating a motor vehicle even though he had parked, exited and left the vehicle running. His negligent positioning of the vehicle caused a tractor trailer to cross the double line to pass him. In doing so the tractor trailer collided with another vehicle causing injury. The Appellate Court's holding was based upon the rule that "[the] operation of a motor vehicle occurs when there is a setting in motion of the operative machinery of the vehicle, or there is movement of the vehicle, or there is a circumstance resulting from that movement of the vehicle or an activity incident to the movement of the vehicle from one place to another." (Emphasis in original; internal quotation marks omitted.) Id., 540-41. The court concluded that where the vehicle was parked was the activity incident to the operator's required travel in performing his duties as an employee. Id., 536. This operation of the vehicle was considered negligent because the vehicle's position obstructed a travel lane and caused an accident to occur.
In Rivera v. Fox, 20 Conn.App. 619, 569 A.2d 1137, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990), a motorist struck a department of transportation (department) vehicle that was assisting in the cleanup of a fatal accident. The operator left the vehicle with its engine running and its strobe lights and four way flashers on. The department vehicle was struck two hours after it first arrived on the scene. The court determined that § 52-556 did not apply because both parties had stipulated that the vehicle was being used as a warning signal and not being operated as a motor vehicle. Like in Allison v. Manetta, supra, 84 Conn.App. 535, however, the placement of the vehicle itself was an essential element of the claim.
Both parties referenced the definition of operation as it relates to § 14-227a, a statute dealing with operating a vehicle while under the influence of alcohol. See State v. Haight, 88 Conn.App. 235, 239, 869 A.2d 251, cert. denied, 273 Conn. 939, 875 A.2d 44 (2005); State v. Gracia, 51 Conn.App. 4, 12, 719 A.2d 1196 (1998). In Haight the court stated that "[t]he definition of operation of a motor vehicle is well established. One need not drive a vehicle to operate it . . . Operation occurs when a person in the vehicle intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle." (Emphasis added.) State v. Haight, supra, 88 Conn.App. 239. Though the purpose of § 14-227a is to "protect the general public from drunk drivers;" State v. Innamorato, 76 Conn.App. 716, 722, 821 A.2d 809 (2003); the definition of "operation of a motor vehicle" would leave the plaintiff's allegations lacking because there is no allegation that an act of Tirado set in motion the motive power of the vehicle.
Accordingly, since the plaintiff's complaint fails to allege that Tirado negligently placed the vehicle in such a manner that the vehicle caused an accident, or that Tirado was "operating a motor vehicle," the plaintiff has failed to plead facts sufficient to state a cause of action pursuant to § 52-183.
The motion to strike the third count is granted.