Opinion
CV156026424S
01-13-2016
Luis Rivera v. Deion George Wilson et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #116
Andrew W. Roraback, J.
I
BACKGROUND
On February 18, 2015, the plaintiff, Luis Rivera, filed a complaint against the defendant, Family Auto Center, LLC, alleging the following facts. The defendant owned, controlled, and/or possessed a 2004 Jeep Grand Cherokee that was located on its premises at 1485 North Main Street in Waterbury, Connecticut. On or before October 3, 2014, the Jeep was stolen from the defendant's premises when the vehicle's doors were unlocked and the keys were inside. On or about October 3, 2014, the plaintiff was a passenger in a motor vehicle that was hit by the stolen Jeep. As a result of the collision, the plaintiff sustained serious injuries. The plaintiff alleges the defendant failed to take reasonable measures to ensure that vehicles on its premises would not be stolen. More specifically, the plaintiff claims the defendant was negligent in failing to remove the key from the vehicle and leaving it unattended and unlocked in an area with previous criminal and suspicious activity.
The complaint also included two counts against another defendant, Deion Wilson. Only Family Auto Center, LLC is moving for summary judgment. For the purposes of this memorandum, the term " defendant" will be used in reference to Family Auto Center, LLC only.
On May 13, 2015, the defendant filed a motion for summary judgment as to counts three, four, and five of the complaint and a supporting memorandum with various exhibits. The plaintiff submitted a memorandum of law in opposition to the defendant's motion on July 2, 2015, with supporting exhibits, including affidavits and police reports. On July 2, 2015, the plaintiff withdrew counts three and four from his complaint, leaving only the negligent security claim against the defendant. In response, on September 2, 2015, the defendant filed a supplemental memorandum in support of its motion for summary judgment as to count five of the complaint and included two supplemental affidavits as supporting exhibits. The matter was heard at short calendar on September 21, 2015.
II
DISCUSSION
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " 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 . . . 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 § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
" In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact . . . but rather to determine whether any such issues exist." (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011). " Summary judgment is particularly ill-adapted to negligence cases, where, as here, 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.) Busque v. Oakwood Farms Sports Center, Inc., 80 Conn.App. 603, 607, 836 A.2d 463 (2003), cert. denied, 267 Conn. 919, 841 A.2d 1190 (2004).
In its memorandum, the defendant argues that there is no genuine issue of material fact that it met any duty of care which it might have owed to the plaintiff. First, the defendant argues that there is no question of fact that the keys were not left in the stolen vehicle and that it therefore satisfied any duty which it might have had not to leave an unattended vehicle with the keys inside. In addition, the defendant claims that there is no question of fact that special circumstances did not exist to impose upon it a duty of care to insure that vehicles in its custody were locked and secure at all times. The plaintiff argues in opposition that the defendant has not met its burden in demonstrating that there is no question of fact that the keys were not in the vehicle, because there is conflicting evidence of this assertion. Furthermore, the plaintiff argues that since the area where the theft occurred had been a location where criminal activity had occurred in the past, the defendant should have been aware that theft of the vehicle was possible and taken steps to make sure the vehicle was locked.
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). " The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).
" The ultimate test of the existence of a duty to use care, the nonperformance of which constitutes negligence, is to be found in the reasonable foreseeability of harm resulting from a failure to exercise that care." Smith v. Leuthner, 156 Conn. 422, 425, 242 A.2d 728 (1968). The test of the existence of a duty to use care is: " Would the ordinarily prudent person, in the position of the defendant, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result from his failure to remove the key from the ignition switch?" Id. " [T]here can be no actionable negligence . . . unless there exists a cognizable duty of care." (Internal quotation marks omitted.) Ryan Transportation, Inc. v. M& G Associates, 266 Conn. 520, 525, 832 A.2d 1180 (2003). " The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 594, 945 A.2d 388 (2008).
The owner of a motor vehicle has a duty to use reasonable care to protect persons from the unauthorized use and negligent operation of a stolen vehicle. Smith v. Leuthner, supra, 156 Conn. 426; Anderson v. Gengras Motors, Inc., 141 Conn. 688, 691, 109 A.2d 502 (1954); Burns v. Gleason Plant Security, Inc., 10 Conn.App. 480, 486, 523 A.2d 940 (1987). The act of leaving a car unattended on the street with the key in the ignition or in a place where a thief could easily gain access to it, which results in theft that subsequently that causes injury, can possibly constitute negligence. Anderson v. Gengras Motors, Inc., supra, 141 Conn. 691; Burns v. Gleason Plant Security, Inc., supra, 10 Conn.App. 486. See also Block v. Pascucci, 111 Conn. 58, 60, 149 A. 210 (1930). " [I]t is . . . clear that . . . the mere leaving of the key in the ignition, without something more, would not constitute negligence." (Emphasis added.) Barnett v. Rosenthal, 40 Conn.Supp. 149, 150, 483 A.2d 1111 (1984) (citing Smith v. Leuthner, supra, 156 Conn. 424, 426). Therefore, in order to find that there has been a breach of a duty of care, there are two required elements: (1) the keys must be in a location easily accessible to a thief; and (2) special circumstances must be present.
The Connecticut Supreme Court has held that time of day and location of the theft are significant factors in determining whether there has been a breach of duty. Smith v. Leuthner, supra, 156 Conn. 425-26. There are not appellate court decisions describing what else may constitute " something more, " however several trial courts have cited Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252, 1254-55 (Utah 1996), a case from the Supreme Court of Utah, for factors that constitute special circumstances in motor vehicle theft cases. Cumberland Farms v. Dubois, Superior Court, judicial district of New Britain, Docket No. CV-12-6018222, (July 31, 2015, Abrams, J.); Shanks v. de Renzo, Superior Court, judicial district of New Haven, Docket No. CV 94-0364625 (November 19, 1998, Blue, J.) (23 Conn. L. Rptr. 411, 411-12). These circumstances include " (1) significant criminal activity in the area in which the vehicle was left . . . (2) prior theft of the defendant's vehicles . . . (3) irresponsible or reckless nature of people frequenting the area . . . (4) lack of surveillance of the vehicle . . . (5) vehicle left for extended period of time . . . and (6) type and size of vehicle uniquely attractive or capable of inflicting serious damages." Id. While the Cruz case is not binding on this court, the factors discussed by that court provide guidance in assessing whether " something more" than merely leaving the keys inside the vehicle was present to constitute negligence.
A. Whether the Jeep's Keys Were Inside the Vehicle at the Time of Theft
In support of the argument that there is no genuine dispute over whether the keys were in the Jeep at the time it was stolen, the defendant offers the May 7, 2015 affidavit of its office manager, Lisa Peterson. In her affidavit, Peterson states that when she completed the Waterbury Police Department Stolen Vehicle Affidavit stating that the keys were in the vehicle, she was not aware that the keys were actually in the possession of the defendant's owner, George Bierce, at the time of the theft. The stolen vehicle affidavit is also submitted in support of the defendant's motion. Additionally, the defendant provides the May 7, 2015 affidavit of Bierce, which states that he had the keys to the Jeep in his pocket at the time the vehicle was stolen. The defendant also provides supplemental affidavits from Bierce and Peterson, taken on August 26, 2015, stating that the only two keys to the Jeep were in the defendant's possession at the time the vehicle was stolen. Additionally, the defendant presents the police report from the plaintiff's accident and the affidavit of the tow truck driver who arrived at the scene of the accident as evidence that the Jeep's ignition was tampered with and that a key was not used to start the vehicle.
The plaintiff counters by providing a copy of the same stolen vehicle affidavit the defendant submitted. The plaintiff points to the conflict between this document and Peterson's later statements in her May and August affidavits for the proposition that a genuine issue of material fact exists as to whether the keys were left in the Jeep.
The " question of credibility . . . raises an issue of fact which the trial court cannot resolve on a motion for summary judgment." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 107, 639 A.2d 507 (1994). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). " [I]f there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Internal quotation marks omitted.) Kumah v. Brown, 130 Conn.App. 343, 349, 23 A.3d 758 (2011).
In the present case, there is a question of fact as to whether the keys were left in the Jeep at the time of theft. Peterson's statements in the stolen vehicle affidavit conflict with those made in her May and August affidavits. The defendants argue there is no proof that the key was left in the vehicle, because Peterson's affidavit explains her mistaken belief about the location of the keys. The stolen vehicle report is, however, evidence of the keys being left in the vehicle. Determining which of these two pieces of evidence is more reliable is a question of credibility, reserved for the finder of fact. " None of this is to say that a jury ultimately will be persuaded by the evidence . . . But . . . [i]t is the [trier] [of fact's] exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness' testimony . . ." (Citations omitted; internal quotation marks omitted.) Tyler v. Tyler, 151 Conn.App. 98, 108, 93 A.3d 1179 (2014). Therefore, a genuine issue of material fact exists regarding whether the defendant left the keys in the unlocked Jeep.
B. Whether Special Circumstances Existed
The defendant argues that even if there is a genuine issue of material fact about the keys being in the Jeep, there is no genuine issue that special circumstances, the second element needed to establish a duty of care, were not present. The defendant offers the May 2015 Peterson and Bierce affidavits, stating that car thefts during the day were not expected and that it was customary for the defendant to park cars in front of its premises during business hours, sometimes unlocked with the keys inside the vehicles. Both affidavits state that the car was stolen during daytime hours directly in front of its building, and that the defendant's business is not located in a high crime area. Bierce's August 2015 affidavit states that in the 38 years he has been in business, only one vehicle was ever stolen from the premises by an unknown thief, and that incident occurred at night.
The plaintiff responds that the defendant failed to properly and adequately provide security for its premises, despite actual and constructive knowledge of previous criminal and suspicious activity onsite or nearby. To refute the affidavits offered by the defendant, the plaintiff offers police records of four vehicle thefts occurring at the defendant's business, police reports of other crimes at the defendant's premises, and police reports for stolen vehicles from " Sector 1, " a section of the city the plaintiff claims is in close proximity to the defendant's business. The plaintiff asserts that this evidence creates a question of fact as to whether special circumstances were present because they demonstrate that the defendant's business was located in an area with a history of criminal activity.
In response to the plaintiff's exhibits, the defendant offers the August 2015 affidavits of Bierce and Peterson, which state that the Jeep was stolen directly in front of its building during daylight hours. The affidavits explain that the instances presented by the plaintiff of prior thefts and/or missing vehicles involve known parties or occurred after business hours. The defendant further argues that the other instances of non-car thefts involve situations where the identity of the thief was known or the thefts occurred after business hours. In response to the list of crimes reported in the " Sector 1" referenced by the plaintiff, the defendant argues that this sector is undefined and that general crime in a city does not create a duty of care for stolen car owners.
In the present case, there is a question of fact as to whether special circumstances exist, because there is evidence demonstrating that the defendant's business was located in an area where motor vehicle thefts occurred. The defendant has not met its burden of establishing there is no issue of fact merely by claiming that prior instances of theft were committed by either family members of Bierce or known associates of the defendant. A similar scenario of unauthorized motor vehicle use was presented in Castro v. K-Mart Corp., Superior Court, judicial district of Waterbury, Docket No CV 90-0097007, (January 12, 1995, Flynn, J.). In that case, the court concluded that " [b]ecause the defendant knew that keys to the motor vehicles in its possession . . . were sometimes taken by its employees overnight by inadvertence or otherwise, the court cannot determine as a matter of law that it was not foreseeable that an accident could result from the unauthorized and negligent use of the motor vehicle stolen by the defendant's employees or by one gaining possession of the keys from the defendant's employee." Id. Similarly, the defendant here was aware that its employees, family members, or associates had stolen from it in the past, and whether the defendant could have foreseen a theft similar to the one in this case is a question of fact.
Furthermore, the plaintiff has presented evidence of other motor vehicle thefts in the surrounding area, as well as thefts involving motor vehicle parts at the defendant's premises. This evidence raises a question of fact as to whether the defendant's business is located in a high crime area, and whether the previous thefts at the premises rise to the level of special circumstances. Whether the evidence presented by the plaintiffs is sufficient to constitute special circumstances is a factual question, and it is for the fact finder to determine whether leaving the key in the Jeep under the facts and circumstances of this case constituted negligence.
III
CONCLUSION
Based on the foregoing, the defendant has not met its burden of showing the absence of any genuine issue of material regarding both the keys being in the vehicle at the time of theft and special circumstances not existing. The defendant's motion for summary judgment is therefore denied.