Opinion
No. CV-02-0465617S
October 28, 2005
MEMORANDUM OF DECISION
On June 17, 2002, the plaintiff, Ricardo Robles, filed a one-count negligence complaint against the defendant, Artisans, Makers of Fine Homes (Artisans), alleging that he sustained injuries on August 12, 1999, when he was struck by a forklift owned by Artisans and operated by Vicki Belotti. The following relevant facts appear undisputed by the parties.
At the time of the accident, Artisans was a general contractor at a residential construction site and retained Limited Partnership Construction (LPC) to do the concrete work. Both Robles and Belotti were employees of LPC. The forklift Belotti was operating had a problem that caused it to stall frequently and need to be jump started. Robles was assisting Belotti in jump starting the forklift when his left big toe was severed by the mechanism at the rear of the forklift.
Robles alleges that his injuries were caused by the negligence of Artisans, the owner of the defective forklift, and Belotti, who operated the forklift as the defendant's agent, servant and/or employee within the scope of her agency. On August 14, 2003, Artisans filed its first motion for summary judgment asserting that, as a general contractor, it is not liable for the negligence of its subcontractor, LPC, and that LPC's employees are not Artisans' agents. Artisans further claimed that General Statutes § 52-183, the presumption of agency in the operation of a motor vehicle, is inapplicable to the present case because the forklift by which the plaintiff was injured is not a "motor vehicle." On October 21, 2003, the court, Licari, J., without reaching the issue of whether there exists an agency relationship between the defendant and Belotti, denied the motion, on the ground that there is a genuine issue of material fact as to whether the forklift was suitable to be registered as a "motor vehicle," thus triggering the presumption of agency pursuant to § 52-183.
General Statutes § 52-183, Presumption of Agency in Motor Vehicle Operation, 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."
On February 25, 2004, Artisans filed its second motion for summary judgment. In support of the motion, Artisans submitted a memorandum of CT Page 13355-bi law, copies of signed, sworn affidavits of Christopher Phillips, Artisans' president, and David Ostafin, Motor Vehicle Division Chief I of the Connecticut department of motor vehicles (DMV), and an uncertified copy of Belotti's deposition transcript. On March 17, 2004, Artisans filed a supplemental memorandum of law, accompanied by an uncertified copy of the deposition transcript of Steven Dick, Belotti's nephew who was present at the accident scene. In opposition to the motion, on July 15, 2005, Robles filed a memorandum of law together with an uncertified copy of Belotti's deposition testimony and a copy of the plaintiff's signed, sworn affidavit. Oral arguments were heard on the short calendar on July 18, 2005.
"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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005).
Initially, the court must determine whether to consider the uncertified copies of deposition testimony submitted by both Artisans and Robles. "[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). "[B]efore a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .' Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." New Haven v. Pantani, supra, 679. "Practice Book § [17-45], although containing the phrase `including but not limited to,' contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] CT Page 13355-bj rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment." (Internal quotation marks omitted.) Id., 678.
Practice Book § 17-45, Proceedings upon Motion for Summary Judgment, provides in relevant part: "A motion for summary judgment shall CT Page 13355-bn be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like."
Furthermore, this court has previously determined that it will not consider uncertified depositions in ruling on a motion for summary judgment. Owen v. Hamden Hills Developers, Superior Court, judicial district of New Haven, Docket No. CV 03 0473264 (August 3, 2004, Zoarski, J.T.R.); Strode v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 99 0432459 (November 8, 2002, Zoarski, J.T.R.). Thus, the court will not consider the uncertified, unauthenticated deposition testimony submitted by either Artisans or Robles.
In its memorandum of law in support of the motion for summary judgment, Artisans claims that Robles' complaint asserts only one cause of action, which is in vicarious liability for the negligence of Belotti, and that since Artisans, as a general contractor, is not liable for the negligence of its independent contractor LPC or LPC's employees, there is no vicarious liability to hold it liable. Artisans further claims that Robles cannot establish an agency relationship because he fails to offer any evidence that Belotti was acting under the direction and control of Artisans at the time of the accident. As to the applicability of the statutory presumption of § 52-183, Artisans asserts that Robles was not injured by a "motor vehicle" within the purview of that statute, and that even if the forklift is construed to be a "motor vehicle," it still was not being "operated" within the meaning of the statute, because the forklift was "not moving along the ground" and "the forklift's tires were not moving" when Robles was injured. Accordingly, Artisans concludes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
In opposition to the motion, Robles asserts first that his complaint does not solely allege vicarious liability of Artisans but also contains an independent allegation of negligence against Artisans for the negligent maintenance of the forklift. Robles further contends that LPC's independent contractor status does not defeat his vicarious liability claim against Artisans because Artisans retained control over the worksite through its ownership of the forklift without which "LPC could not have done any of the work Artisans hired them to perform." To establish Artisan's direction and control, Robles also points to the uncontested fact that Artisans gave LPC permission to use the forklift and that Artisans knew LPC would be using the forklift the day Robles was injured. Finally, Robles argues that Belotti was acting as Artisans' statutory agent when she "operated" a "motor vehicle" within the meaning of § 52-183 at the time of the accident. CT Page 13355-bk
Based on the rules of practice, each count of a complaint must allege sufficient facts to set forth one cause of action. Practice Book 10-26. In the prior decision rendered on October 21, 2003, Judge Licari stated that "[e]ven when read in its broadest light the complaint is one dimensional asserting a cause of action in vicarious liability based upon the alleged negligent operation of a vehicle by an alleged agent or employee of the defendant." "Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case . . ." (Internal quotation marks omitted.) Webster Bank v. Zak, 71 Conn.App. 550, 560, 802 A.2d 916, cert. denied, 261 Conn. 938, 808 A.2d 1135 (2002). Robles had the option to amend his complaint to set forth two separate causes of action, but failed to do so.
The issue before the court is whether at the time of Robles' accident, there exist genuine issues of material fact as to an agency relationship between Belotti and Artisans. To determine this, the court must examine whether the statutory presumption of agency under § 52-183 applies to their relationship.
"Our Supreme Court has stated, [that] § 52-183, our so-called agency statute generally precludes the [granting of summary judgment] for the defendant on the basis of the plaintiff's failure to establish agency . . . The statute creates the presumption that the operator of a [motor vehicle] is the agent of the owner, and it places the burden of rebutting the presumption on the owner. Since the existence and scope of permission is a matter peculiarly within the knowledge of the defendant, the strict rule that any testimony contra ousts the presumption would seem to operate unfairly, since it may enable the defendant to overcome the effect of the presumption by a simple assertion that no consent was ever given. Indeed, . . . the statute goes further than merely establishing a presumption in that it definitely places a burden of rebutting it on the defendant. Thus, the presumption does not necessarily vanish on the introduction of any evidence to the contrary. Rather, [t]he presumption ceases to be operative when the trier finds proven facts which fairly put in issue the question, and the burden of proving that the [motor vehicle] . . . was operated by an agent of the owner . . . then rests upon the plaintiff; if no evidence relevant to the issue is produced; or, if countervailing evidence is produced but the trier does not believe it, the presumption applies, and the plaintiff is entitled to have the issue found in his favor . . . Clearly, the only basis on which the defendant . . . could succeed in her effort . . . to remove the issue from the jury's consideration, would involve rebuttal evidence of such a nature that it could not rationally be disbelieved . . . Bogart v. Tucker, 164 Conn. 277, 281-82, 320 A.2d 803 (1973)." (Internal quotation marks omitted.) Crawford v. Coleman, Superior Court, judicial district of Hartford, Docket No. CV 04 0831039 (February 10, 2005, Shapiro, J.) (38 Conn L. Rptr. 701, 702-03).
"While, to the court's knowledge, no appellate court in our state has addressed whether summary judgment is appropriate when General Statute § 52-183 is asserted, several Superior Court decisions have considered whether the existence of the statutory presumption precludes summary judgment. There is a split of authority within the Superior Court as to this question. See Fletcher v. Stoleson, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. X05 CV 00 017 7740S (March 11, 2002, Rogers, J.) ( 31 Conn. L. Rptr. 518) (collecting cases)." Crawford v. Coleman, supra, 38 Conn. L. Rptr. 703. "It is worth CT Page 13355-bl restating that [i]n 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." Nolan v. Borkowski, [ 206 Conn. 495, 500, 538 A.2d 1031 (1988)] . . . [F]or the limited purpose of summary judgment, which is issue recognition, not issue resolution, if the agency presumption of § 52-183 attaches, it is sufficient to defeat summary judgment." (Internal quotation marks omitted.) DuPerry v. Rodrigues, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 01 0278771 (May 5, 2004, Wiese, J.).
In the present case, to fall within the statutory presumption of agency of § 52-183, the forklift by which Robles was injured must be a "motor vehicle" within the meaning of the statute. In support thereof, Robles attests in his affidavit that the forklift had a license plate when he was injured. Relying upon the affidavits of Phillips, Artisans' president, and Ostafin, the DMV chief, Artisans counters that the evidence indicates that the forklift neither had a license plate nor was registered with the DMV. Whether the forklift was registered with the DMV, however, does not dispose of the issue of whether the forklift is a motor vehicle under § 52-183. Even if the forklift was in fact unregistered with the DMV, there remains the question of whether the forklift could have been registered with the DMV to bring it within the meaning of a "motor vehicle."
Artisans also claims that the Appellate Court in Surprenant v. Burlingham, 64 Conn.App. 409, 780 A.2d 219 (2001), "has already determined that construction vehicles used principally at construction sites are not motor vehicles under § 52-183." The Suprenant court, however, was not concerned with whether construction vehicles are motor vehicles under § 52-183, but rather, whether the defendant operator of a front end loader (payloader), which was pulling a dump truck in an effort to jump start the truck, could be considered to have also operated the truck within the meaning of General Statutes § 31-293a, an exception to the workers' compensation exclusivity provision. Id., 413-14. Unlike the present case, the parties in Suprenant did not dispute whether the payloader was a motor vehicle. Id., 414.
General Statutes § 31-293a, No right against fellow employee; exception, provides in relevant part: "If an employee . . . has a right to benefits or compensation under this chapter on account of injury . . . caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14-1. For purposes of this section, contractors' mobile equipment such as bulldozers, powershovels, rollers, graders or scrapers, farm machinery, cranes, diggers, forklifts, pumps, generators, air compressors, drills or other similar equipment designed for use principally off public roads are not `motor vehicles' . . ."
Next, the court must consider Artisans' contention that, even if the forklift is a motor vehicle, the forklift was not being "operated" within the purview of § 52-183 because neither the forklift itself nor its tires was moving at the time of the accident. Artisans relies on Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 429 A.2d 943 (1980), and Dias v. Adams, 189 Conn. 354, 456 A.2d 309 (1983), for this contention. Those cases, however, discuss the meaning of the word "operation" under General Statutes § 31-293a and not under § 52-183. In the context of § 31-293a, CT Page 13355-bm the Supreme Court in Davey found that "the hoist was controlled not by the truck motor, but by the remote controls which were held by the plaintiff on the ground," and held that "[t]he hoist, therefore, cannot be considered a motor vehicle within the meaning of' General Statutes 14-1(26)." Davey v. Pepperidge Farms, Inc., supra, 472-73. In Dias, the Supreme Court held that "it is clear that, when the mishap took place, the defendant was doing nothing related to driving or moving the vehicle itself, which had been immobilized by switching the power from the treads to the boom. He was engaged only in operating the shovel. His negligence . . . did not occur, therefore, in the operation of a motor vehicle . . ." Dias v. Adams, supra, 358. Moreover, in Dias, "[t]he shovel could not be operated while the backhoe was in motion." Dias v. Adams, supra, 356.
Now General Statutes § 14-1(a)(51).
In the present case, unlike the defendant in Dias, Artisans does not assert either that the forklift itself was immobilized, Belotti was working only with the hydraulic lift on the forklift or that the hydraulic lift could not be operated while the forklift was in motion. Likewise, Artisans does not claim that the forklift was controlled by remote controls on the ground as was the hoist in Davey. In short, neither of these two cases determines authoritatively that Belotti did not "operate" the forklift at the time of the accident.
Artisans has not met its burden to show the absence of a genuine issue of material fact. "The courts hold the movant to a strict standard. To satisfy [its] 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." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004). For the foregoing reasons, there exists a genuine issue of material fact as to whether the forklift can be construed as a "motor vehicle" and whether Belotti "operated" the forklift for the purpose of applying § 52-183. Accordingly, Artisans' motion for summary judgment is denied.