Opinion
No. FSTCV10-5013455S
May 24, 2011
Memorandum of Decision on Motion to Strike (No. 143)
PROCEDURAL AND FACTUAL BACKGROUND
The plaintiff, Brenda Snell, commenced this negligence action against the defendants, Johnley Sainval and Norwalk Yellow Cab, Inc., by filing a writ of attachment and a complaint on June 29, 2010. On November 5, 2010, the defendants brought an apportionment complaint, seeking to apportion liability to Deondre Bowden and Shaquille Johnson. On November 24, 2010, the plaintiff filed a revised complaint which is opposed by the defendant. This court heard oral argument at short calendar on January 31, 2011.
In the revised complaint, the plaintiff alleges as follows. On December 3, 2009, at about 5:15 p.m., defendant Sainval, a taxi driver for defendant Norwalk Yellow Cab, Inc., dropped off a passenger at Carlton Court, a public housing complex located in a high-crime area of Norwalk, Connecticut. Sainval left the taxicab in park with the keys in the ignition and accompanied his passenger into her apartment at Carlton Court. The cab was left unlocked and unattended. Two teenagers got inside the taxi and drove it from Norwalk to Stamford. One of those teenagers, Bowden, was behind the wheel of the taxicab when he drove southbound on Stillwater Avenue toward its intersection with West Main Street in Stamford. Coming upon a line of cars stopped at the traffic signal, Bowden tried to get around the cars and crashed into a Toyota Camry waiting at the light. Thereafter, Bowden put the cab in reverse, backed up, returned the cab into drive and drove over a curb. He crashed into a fire hydrant and then into the plaintiff, dragging her under the cab before abandoning the taxi and fleeing on foot. The taxi rolled down West Main Street and collided with another vehicle before stopping. The plaintiff suffered various injuries and was treated in various hospitals before being admitted to a rehabilitation center, where she remained as of the time the revised complaint was filed.
The revised complaint is substantially the same as the original complaint. The original complaint contained a total of one count of negligence against both Sainval and Norwalk Yellow Cab, Inc., while the revised complaint consists of two counts, one for each defendant. Furthermore, two paragraphs that appear in the original complaint do not appear in the revised complaint: "Thieves driving stolen vehicles often collide with third parties, causing injury and death" and, "The accident rate for stolen vehicles is much higher than the accident rate for the general public." Thus, although the revised complaint was filed subsequent in time to the apportionment complaint, the underlying factual allegations remain essentially the same and the court will treat the revised complaint as the operative complaint for the purposes of this motion to strike.
The revised complaint is in two counts. The first count is a negligence claim against defendant Sainval. The plaintiff alleges that it was negligent for defendant Sainval to leave the unlocked taxicab in an unguarded public parking lot in a high-crime area with the keys in the ignition. According to the revised complaint, Sainval's actions created a reasonable foreseeability of the taxicab being stolen by a thief who would drive in a hazardous manner and cause injury to people and property. The second count is a respondeat superior negligence claim against Sainval's employer, defendant Norwalk Yellow Cab, Inc., and alleges that Sainval's negligent conduct occurred within the scope of his employment.
In the apportionment complaint, the defendants incorporate all the allegations of the plaintiffs' underlying complaint including the allegations of Bowden's operation of the stolen taxi at the intersection of Stillwater Avenue and West Main Street in Stamford which led to the plaintiff pedestrian's serious injuries, and further allege one count of negligence against Bowden (count one) and one count of negligent entrustment against Johnson (count two). At oral argument, the defendants explained that Johnson was at the wheel of the taxicab after he and Bowden stole it in Norwalk. At some point after the theft and before the collision in Stamford, Bowden replaced Johnson at the wheel, according to the defendants' counsel. Accordingly, count two of the apportionment complaint alleges that Johnson "allowed the vehicle in his possession and control to be operated by an individual whom the apportionment defendant knew or should have known would operate said vehicle in a negligent manner, thereby endangering others, including the plaintiff." Count one of the apportionment complaint alleges that Bowden, in turn, negligently drove the taxicab at the time that it struck the plaintiff.
STANDARD OF REVIEW
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "[I]n determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010). "An apportionment complaint cannot defeat a motion to strike by alleging clearly intentional or reckless conduct and recharacterizing it as `negligent.'" Higgs v. White, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. CV 05 4002669 (July 26, 2005, Dooley, J.)
DISCUSSION
A. Count One — Negligence against Bowden
The plaintiff moves to strike count one of the apportionment complaint, a negligence claim against Bowden, on the ground that it sounds in recklessness and that a reckless defendant cannot be apportioned pursuant to General Statutes § 52-572h(o) which became law as part Public Act 1999, No. 99-69, which added subsection (o) to General Statutes § 52-572h. See Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 801, 756 A.2d 237 (2000). General Statutes § 52-572h(o) provides in relevant part that "there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct . . ."
In her brief, the plaintiff summarizes her argument as follows: "A car thief, who in the course of committing an intentional tort crashes a stolen car into another vehicle; intentionally attempts to flee the scene by jumping a curb and traveling at a high rate of speed down a sidewalk; crashes into a fire hydrant; continues driving on the sidewalk; strikes a woman; drags her under his vehicle as he continues to drive forward; and then abandons the stolen vehicle in gear and flees the scene is not acting negligently." The defendants respond that "[t]he panic and confusion of an inexperienced driver cannot automatically be classified as recklessness merely because the driver was not authorized to use the vehicle in question." The defendants also argue that to rule for the plaintiff would require the court to engage in fact finding. Furthermore, the defendants argue that granting the motion to strike would cause prejudice — were the plaintiff to bring subsequent claims against the apportionment defendants, the defendants would be denied the opportunity to seek apportionment against Bowden.
"There is a wide difference between negligence and reckless or wanton misconduct." Sheiman v. Lafayette Bank Trust Co., 4 Conn.App. 39, 45, 492 A.2d 219 (1985). "Negligence has been defined as the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar cicumstances . . ." (Internal quotation marks omitted.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 220 n. 6, 520 A.2d 217 (1987). "Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [R]eckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).
In support of their motion to strike, the defendants cite Heuberger v. Holcomb, Superior Court, Judicial District of Middlesex, Docket No. 57898 (February 26, 1992, Arena, J.) ( 6 Conn. L. Rptr. 144; 1992 Ct.Sup. 1185; 1992 LEXIS 466), a case in which a thirteen-year-old girl was sued for negligence after she took a motor vehicle without permission of the owner and repeatedly struck another girl in front of the car while attempting to back the car up. While there are some factual similarities between this decision and the present case, the Heuberger case did not involve any issue of apportionment or recklessness. The defendant owner was granted summary judgment because the court held that her alleged conduct in leaving the keys to her vehicle in her home where both girls had been guests of her son could not have been the proximate cause of the plaintiff's injuries. The Heuberger case is totally off point and not helpful.
Since the enactment of Section 52-572h(o) it is established that "[t]he general effect of Public Act 99-69, § 1(o) [adding subsection (o) to § 52-572h] was to make clear that the apportionment principles § 52-572h do not apply where the purported apportionment complaint rests `on any basis other than negligence' and that these other bases include, without limitation, `intentional, wanton or reckless misconduct . . .' " Allard v. Liberty Oil Equipment Co., supra, 258 Conn. at 802. As the Supreme Court in Allard explained, the legislative history of P.A. 99-69, § 1(o) makes clear that the principal purpose of the enactment was to overrule legislatively a portion of the Court's earlier holding in Bhinder v. Sun Company, 246 Conn. 223, 717 A.2d 202 (1998), which had permitted the defendant in a wrongful death action based on negligence to apportion its liability to an apportionment defendant whose conduct was not negligent, but intentional, reckless, wilful, and wanton. "The legislature made clear its intent that apportionment principles would not apply where the basis of liability of the purported apportionment defendant was based on conduct `other than negligence' including but not limited to intentional, wanton or reckless misconduct." (Emphasis added) Allard at 802. "The defendant, the court stated, "cannot convert its apportionment claim [against a product manufacturer] into something other than a product liability claim simply by alleging only negligent misconduct," Id., 800. In determining the "basis" of the alleged liability of the purported apportionment defendant, the court deciding the motion to strike may infer mental state ". . . from the nature of the act and the accompanying reasonable foreseeability of harm." Lowe v. Italian Society of Middletown, Inc., Superior Court, Docket No. CV 01-0096700S (July 10, 2002, Shapiro, J.) ( 32 Conn. L. Rptr. 506, 508) (granting a motion to strike an apportionment complaint after determining that intentional conduct was improperly alleged to be negligent). In making this analysis, it is clear that "a defendant cannot . . . apportion liability to an intentional tortfeasor simply by recharacterizing the tortfeasor's conduct as negligent." Lowe, supra, at 8396, citing Calore v. Town of Stratford, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No CV98-0357147S, (January 8, 2001, Melville, J.) ( 28 Conn. L. Rptr. 653; 2001 Ct.Sup. 152) Calore also stands for the proposition that a defendant seeking to recharacterize non-negligent conduct as negligent conduct for purposes of an apportionment claim "must include sufficient factual allegations in their apportionment complaint to support their conclusory allegation that [the apportionment defendant] acted negligently [as opposed to intentionally]." Id. 156.
Because the underlying complaint has been incorporated into the apportionment complaint, the court will examine both in order to determine whether the alleged conduct of the apportionment defendant is based on negligence or based on reckless or intentional conduct. The court's construction of the conduct of Bowden, as alleged, compels an inference that he was not just failing to act as a reasonable person would act under the circumstances, but was acting in reckless disregard of the just rights or safety of others or of the consequences of the actions, and that his actions took on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care in a situation where a high degree of danger was apparent. The basis of the underlying conduct alleged in plaintiff's revised complaint, then, was recklessness, not mere negligence. The apportionment complaint incorporates those allegations of the plaintiff's revised complaint and then makes mostly allegations of driving misconduct of Bowden clothed in language of negligence: speeding, inattention, failure to control, failure to drive in the proper lane, failure to stop before striking the vehicle in front of him, failure to turn left or right, failure to sound his horn, failure to grant right of way, and failure to brake, in an effort to state a claim of mere negligence. But none of those allegations, even taking them as true and construing them most favorably to the defendants, contributed in any way to the injuries sustained by the plaintiff, standing on the sidewalk. They all go exclusively to the collision between the taxi and the Toyota Camry stopped at the traffic light. The underlying complaint, however, alleges crucial facts conveniently and selectively ignored by the defendants, namely that: after hitting the Camry, Bowden "put the taxi in reverse and backed up" ¶ 27. At that exact point a negligent driver would have and should have stopped and shut down the taxi and gotten out to check if anyone in the Camry was injured. But, the revised complaint continues, Bowden instead "placed the car back into drive and attempted to flee the scene in the taxi" ( id.); accelerated quickly over the curb and mounted the sidewalk at a high rate of speed, crashed into a fire hydrant and then directly into Brenda Snell (¶ 28); after crashing into Brenda Snell, continued driving forward dragging her under the vehicle causing life threatening injuries (¶ 29); and finally abandoned the taxi while it was still in gear and fled on foot (¶ 30). From the moment Bowden, after hitting the Camry and backing up, put the taxi into drive, hit the accelerator and proceeded at a high rate of speed toward the curb in attempted flight, there is no aspect whatsoever of mere negligence to his conduct which can only be characterized as reckless, willful and wanton, if not outright intentional, and defendant's apportionment complaint has not alleged a single fact which detracts from that conclusion. In fact the apportionment complaint is drawn as if the plaintiff in this case had been a passenger in the back seat of the Camry. Despite a wholly conclusory allegation that plaintiff's injuries were a "direct and proximate result" of Bowden's negligence, not one fact is alleged as to Bowden's conduct after the moment he put the taxi in drive while Brenda Snell was standing uninjured on the sidewalk. The apportionment complaint is improper under the rule of Conn. Gen Stat. § 52-575h(o) and must be stricken.
In reaching this conclusion the court has not engaged in improper fact-finding as defendants have claimed. The facts have all been taken from the underlying complaint and the apportionment complaint and have been accepted as true and construed most favorably to the validity of the apportionment complaint. The court has — as it must under Allard v. Liberty Oil Equipment Co., supra and other binding authority — analyzed those facts to determine whether or not the true basis of the apportionment complaint is really negligence, or a non-negligence cause of action mischaracterized as negligence.
Defendants also claim they would be prejudiced by the granting of this motion to strike if plaintiffs were now to amend their complaint and bring claims against Bowden and Johnson as impleaded defendants. But, if that were to happen, the current defendants could ask the trial court for an instruction on apportionment under Conn. Gen. Stat. § 52-572h(c) which applies "if the damages are determined to be proximately caused by the negligence of more than one party." The trial court would then have to make an analysis of whether there was evidence of negligence or non-negligence of all defendants, similar to the analysis made herein, but at a later time and with the benefit of having heard all the evidence at trial. See Wilson v. BRP, LLC, Docket No. CV03-0083863S, Superior Court, Judicial District of Milford July 28, 2005, Stevens, J.) ( 2005 Ct.Sup. 11785) (where the court declined to give an apportionment charge for, inter alia, `lack of any evidence from the defendant that the driver was negligent"). Defendants would therefore not be prejudiced in the event plaintiff Snell later determines to assert claims against Bowden and/or Johnson. In any event this court has a duty to decide the motion to strike the apportionment complaint now before the court without speculating as to possible future events in the litigation.
B. Count Two — Negligent Enrustment Against Johnson
The plaintiff also moves to strike count two of the apportionment complaint, arguing that car thieves cannot negligently entrust a stolen car to each other. The plaintiff argues that the Connecticut Supreme Court has only recognized liability for negligent entrustment against the owner of the motor vehicle and that some Superior Court judges have extended liability to individuals who controlled motor vehicles with the owner's consent, but no Connecticut court has extended liability to a car thief. The defendants agree that Connecticut courts have yet to apply the negligent entrustment doctrine in this type of situation. While this is an issue of first impression in Connecticut, the defendants urge this court to adopt the decision of the Massachusetts Appeals Court in Salamone v. Riczker, 32 Mass.App.Ct. 429, 431, 590 N.E.2d 698 (1992), premising negligent entrustment liability on "physical dominion" rather than a defendant's ownership of the car. The defendants also argue that a ruling in the plaintiff's favor would result in a car thief being held to a lesser standard of care than an individual authorized to possess the vehicle, a result the defendants deem absurd.
The question thus posed to this court is whether an individual in unlawful possession of an automobile is capable of negligent entrustment. Negligent entrustment of a motor vehicle was first recognized as a cause of action in Connecticut in 1933, when the Connecticut Supreme Court considered the case of a car owner who allowed a woman to drive his car despite her lack of a driver's license. Greeley v. Cunningham, 116 Conn. 515, 517-18, 165 A. 678 (1933). The Supreme Court ruled that the trial court erred in declining to set aside the verdict against the car owner because the unlicensed driver's operation of the car was not in violation of state law and there was no proof that she was so incompetent as to not be allowed on the roads. Id., 521. At the same time, however, the Court recognized that such a claim against the owner could succeed in certain situations:
When the evidence proves that the owner of an automobile knows or ought reasonably to know that one to whom he intrusts it is so incompetent to operate it upon the highways that the former ought reasonably to anticipate the likelihood of injury to others by reason of that incompetence, and such incompetence does result in such injury, a basis of recovery by the person injured is established. That recovery rests primarily upon the negligence of the owner in intrusting the automobile to the incompetent driver. Id., 520.
On the appellate level, the doctrine of negligent entrustment has not developed beyond that which was announced in Greeley. In Hughes v. Titterton, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 292024 (July 13, 1987, Wagner, J.) ( 2 C.S.C.R. 845, 845), Judge Wagner noted that the Supreme Court's decision in Greeley "virtually adopted" the position subsequently taken by Restatement (Second) of Torts, which provides as follows: "One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them." 2 Restatement (Second), Torts § 390, p. 314 (1965). The distinction between the Restatement's position and that of the Connecticut Supreme Court is that whereas the Restatement affixes liability on "suppliers," the Court specifically used the word "owner," a term that has a narrower meaning than "supplier" in this context. Connecticut's trial courts, however, have held that an individual need not be the owner of the motor vehicle in order to be liable for negligent entrustment. Thus, in 1989, one Superior Court decision held that "[t]he principal features of the tort of negligent entrustment lie in the knowledge of the supplier concerning the dangerous propensities of the entrustee and in the foreseeability of harm . . . Liability can arise when any person . . . who has a vehicle under his control permits another to use the vehicle if he knows or should know that the other is unable to manage the vehicle and therefore injury to others is likely to result." (Citation omitted; emphasis added.) McKee v. Robinson, Superior Court, judicial district of New London at Norwich, Docket No. 091410 (November 30, 1989, Austin, J.) ( 1 Conn. L. Rptr. 68, 69). The McKee decision, which relies on the Restatement (Second) of Torts, suggests that control rather than ownership of the motor vehicle is a prerequisite to negligent entrustment liability. The claim of negligent entrustment was brought against the son of the vehicle's owner, id., 68, and there was no suggestion that the son was in unlawful control of the car at the time of the alleged entrustment.
In Morin v. Keddy, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 90 0701113 (October 25, 1993, Hennessey, J.) ( 10 Conn. L. Rptr. 281, 281-83), a designated driver was sued under a negligent entrustment theory for returning the vehicle to its intoxicated owner, who subsequently caused a highway collision by driving into oncoming traffic. The court noted that Section 390 of the Restatement (Second) of Torts is a special application of Section 308, which provides as follows: "It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others." (Emphasis in Morin.) Id., 284 (quoting 2 Restatement (Second), Torts § 308, p. 100 (1965)). Quoting the comments to Section 308, the court noted that "[t]he words `under the control of the actor' are used to indicate that the third person is entitled to possess or use the thing or engage in the activity only by the consent of the actor, and that the actor has reason to believe that by withholding consent he can prevent the third person from using the thing or engaging in the activity." Id. (quoting 2 Restatement (Second), Torts § 308, comment (a) (1965)). The court concluded that "(l)iability for negligent entrustment is not based on a defendant's ownership status, but instead, the dispositive issue in the present case is whether a designated driver, by virtue of this status, has sufficient control over the vehicle of the owner to give rise to an action for negligent entrustment." (Emphasis in original.) Id., 283. Though Judge Hennessey in Morin did not rule on whether the legality of this control is relevant to the issue of liability, she cited a Montana Supreme Court opinion, Bahm v. Dormanen, 168 Mont. 408, 543 P.2d 379 (1975), for the proposition that "the defendant's mere physical control over the vehicle [is] an insufficient level of control to render him liable for negligent entrustment." Id., 284. In that decision, the Montana Supreme Court, after examining Sections 308 and 390 of the Restatement (Second) of Torts and the comments thereto, announced that "it is clear that the basis of negligent entrustment is founded on control which is greater than physical power to prevent. A superior if not exclusive legal right to the object is a precondition to the imposition of the legal duty." Bahm v. Dormanen, supra, 168 Mont. 412.
Superior Court decisions "have consistently held that ownership is not a necessary element of the tort" of negligent entrustment. Prior v. Lang, Superior Court, judicial district of Tolland, Docket No. CV 07 5001248 (May 7, 2009, Bright, J.) (collecting cases). This court has not found any Superior Court cases where a thief was held liable in tort for negligently entrusting the stolen motor vehicle. In Massachusetts, however, the Appeals Court had opportunity to consider whether liability could attach against a teenaged boy who was accused of "through an act of usurpation, filching the keys" of his father's car and negligently entrusting the car to a friend who proceeded to strike a jogger with the car. Salamone v. Riczker, supra, 32 Mass.App.Ct. 429, 430-31. The question upon review, as framed by the Appeals Court, was "[w]hat constitutes control of property sufficient to make a negligent entrustment . . ." (Emphasis in original.) Id., 430. The Court answered as follows: "[T]he better view is to think of control for purposes of negligent entrustment in terms of the ability to determine whether another may use the potentially dangerous instrumentality . . . To hold otherwise would produce the paradox that a person who comes into unauthorized physical control of a car, such as a car thief, would be less subject to civil liability for negligent entrustment than someone authorized to have physical control, such as an owner." (Citation omitted.) Id., 431. The Massachusetts court did not discuss or cite the Restatement (Second) of Torts in its decision.
The Indiana Court of Appeals for the Second District considered a similar question where two defendants, who were friends of the owner of the car, were accused of negligently entrusting the car keys to the owner after they obtained the keys without the owner's permission. Lather v. Berg, 519 N.E.2d 755, 758, 764 (Ind.App. 2 Dist. 1988). The issue as framed by the court was "[c]an either [defendant] be liable for negligent entrustment of a motor vehicle that they neither owned nor had a right to control?" Id., 764. After quoting and discussing Section 308 of the Restatement (Second) of Torts and, supra, 168 Mont. 408, among other authorities, the Indiana court held that, "[the defendants] had no legal right to deny [the owner] control of his car because they neither owned it nor had a right to control it. Therefore, the trial court properly entered summary judgment for [the defendants] on the theory of negligent entrustment." Id., 765.
Furthermore, numerous courts in other jurisdictions have held that in a bailor-bailee relationship, a bailee (such as a parking lot attendant) cannot be held liable in negligent entrustment for returning the car to its rightful owner, particularly because the continued possession of the car by the bailee could lead to liability for conversion. See Umble v. Sandy McKie Sons, Inc., 294 Ill.App.3d 449, 454, 690 N.E.2d 157, cert. denied, 178 Ill.2d 596, 699 N.E.2d 1038 (Ill.App. 2 Dist. 1998) (collecting cases).
The Supreme Court of Illinois reached a similar result in Zedella v. Gibson, 165 Ill.2d 181, 650 N.E.2d 1000 (1995), where a father was accused of negligently entrusting a car to his son. The father argued that he could not be liable for negligent entrustment because he and the son were co-owners of the car and accordingly, the father did "not have a superior right to the possession or control of the vehicle." Id., 187. After examining Section 308 of Restatement (Second) of Torts and comment (a), the Illinois court concluded that "entrustment must be defined with reference to the right of control of the subject property. In essence, if the actor does not have an exclusive or superior right of control, no entrustment of the property can occur." Id. See also Snodgrass v. Baumgart, 25 Kan.App.2d 812, 816, 974 P.2d 604, cert. denied, 267 Kan. 890 (1999) (pursuant to Section 308 of Restatement (Second) of Torts, a husband is not liable for negligently entrusting a car to his wife when the wife "shared an equal right to use and to possess the car with her husband" and the husband "lacked a superior or exclusive right of control over the car").
Accordingly, this court decides that the result reached by the Massachusetts Appeals Court in Salamone v. Riczker, supra, 32 Mass.App.Ct. 431, is inconsistent with the Restatement (Second) of Torts, which has guided Connecticut's trial courts in determining the scope of the negligent entrustment doctrine. Connecticut courts have held that the defendant's ownership of the car is not an element of the tort but they have not gone so far as to rule that mere physical dominion over the car without the lawful right of possession can lead to liability. Accordingly, the court grants the motion to strike count two of the apportionment complaint.
CONCLUSION
For these reasons the plaintiff's motion to strike the apportionment complaint is granted in all respects.
SO ORDERED: