Opinion
CV186080391S
09-17-2019
Tasha WELLS v. The HERTZ CORPORATION et al.
UNPUBLISHED OPINION
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
On August 10, 2018, the plaintiff, Tasha Wells, filed a two-count revised complaint against the defendants, The Hertz Corporation, Hertz Vehicles, LLC, and Jason Jackson. The first count of the revised complaint sounds in negligence/negligent entrustment against Hertz, and the second count of the revised complaint sounds in recklessness against Jackson. Wells seeks damages arising out of an automobile accident that occurred while Wells was a passenger in the motor vehicle operated by Jackson, which he had rented from Hertz. The revised complaint alleges the following facts. On or about March 3, 2016, Jackson rented a motor vehicle, owned by one or both of the Hertz entities, from the Hertz rental location in New Haven, Connecticut. Prior to this rental, on or about February 4, 2016, Jackson was arrested and charged with violating General Statutes § § 14-227a, and 14-237. As of March 3, 2016, when Jackson rented the motor vehicle from Hertz, the pendency of these charges against Jackson was made readily available to members of the general public. On or about March 22, 2016, Jackson was operating the motor vehicle he had rented from Hertz on Interstate 91, was traveling at an excessive rate of speed and, after suddenly veering to his left and cutting across all three lanes of travel, he lost control of the motor vehicle. Jackson veered back to the right, hit an embankment or other obstruction in the grass median, and caused the motor vehicle to flip multiple times. As a result, Wells, who was a passenger in the motor vehicle being driven by Jackson, was ejected and thrown from the motor vehicle, causing her injuries and losses. At the time of the accident, Jackson was legally impaired, in violation of § 14-227a.
The court will refer to The Hertz Corporation and Hertz Vehicles, LLC collectively as "Hertz."
The second count of the revised complaint is not the subject to the present motion to strike and, therefore, will not be addressed in this decision.
General Statutes § 14-227a provides in relevant part: "No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both."
The first count of the revised complaint further alleges that Wells’ injuries and losses were a direct and proximate result of Hertz’ negligence in one or more ways: "a. in that they rented the Hertz vehicle to defendant Jackson, when they knew, or reasonably should have known, that he posed a substantial and unreasonable risk to others of operation while legally impaired, based on his recent operation history; b. in that they rented the Hertz vehicle to defendant Jackson, when they knew, or reasonably should have known, that he posed a substantial and unreasonable risk to others of reckless operation, based on his recent operation history; c. in that, prior to renting the Hertz vehicle to defendant Jackson, they failed to learn information readily available to them regarding defendant Jackson, which would have disclosed that he was incompetent to drive, and generally posed a substantial and unreasonable risk to others; d. in that, prior to renting the Hertz vehicle to defendant Jackson, they failed to determine whether defendant Jackson was a properly and validly licensed driver, and whether he remained a properly and validly licensed driver during the term of this rental of the Hertz vehicle; e. in that they failed adequately to train their agents, servants, and employees to gather readily available information regarding the driving history of prospective automobile lessees such as defendant Jackson, including but not limited to information freely available on public databases such as the Connecticut Judicial Department website, and failed to implement reasonable policies to ensure that vehicles were not rented to drivers who posed an unreasonable safety risk; and f. in that, during the term of defendant Jackson’s rental of the Hertz vehicle, they failed adequately to monitor information regarding Jackson’s potential dangerousness as a driver, and to terminate the rental agreement upon learning about his recent history of impaired driving and dangerous operation." Revised Compl., ¶12.
On November 5, 2018, Hertz filed a motion to strike the first count of the revised complaint on the ground that it is legally insufficient because Hertz did not have a duty to investigate Jackson’s driving history and, even if Hertz was aware of the pending charges, Hertz could not have concluded that Jackson was incompetent to drive. On May 15, 2019, Wells filed a memorandum of law in opposition to the motion to strike and counters that the revised complaint sufficiently pleads a negligence cause of action. The court heard oral argument on the motion at short calendar on May 20, 2019.
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). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "[The court] take[s] the facts to be those alleged in the complaint ... and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. "The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically ... Although essential allegations may not be supplied by conjecture or remote implication ... the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient ..." (Internal quotation marks omitted.) J.D.C. Enterprises, Inc. v. Sarjac Partners, LLC, 164 Conn.App. 508, 512-13, 137 A.3d 894, cert. denied, 321 Conn. 913, 136 A.3d 1274 (2016).
"If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). Moreover, "[a] [motion to strike] addressed simply to the count [in its entirety] will be overruled if any one theory is supported by the allegations in the count." (Internal quotation marks omitted.) Jolen, Inc. v. Brodie & Stone, PLC, Superior Court, judicial district of Fairfield, Docket No. CV-15-6053151-S (May 13, 2016, Kamp, J.) (62 Conn.L.Rptr. 343, 346 n.2) (where one of plaintiff’s theories is sufficient to allow claim to proceed, motion to strike is denied); see also Aurio v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV-02-0175465-S (November 26, 2003, Gallagher, J.) (36 Conn.L.Rptr. 39, 40-41) (where motion to strike challenges entire count, but any part of plaintiff’s claims therein are legally sufficient, motion will fail); Farago v. Pfizer, Inc., Superior Court, judicial district of New London, Docket No. 524911 (May 18, 1993, Teller, J.) (if part of count is viable, it is not subject to motion to strike). The court will only consider striking paragraphs within a count, rather than an entire count, when the movant has filed a motion to strike those specific paragraphs, argues that such paragraphs concern a separate cause of action within the entire count, and asserts that such a cause of action has been insufficiently pleaded. See Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011); see also Weingarden v. Milford Anesthesia Associates, P.C., Superior Court, judicial district of New Haven, Docket No. CV-11-6016353-S (May 30, 2013, Wilson, J.) ("[o]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph [or paragraphs] embodies an entire cause of action or defense" [internal quotation marks omitted]).
In their motion to strike, Hertz argues that the first count of the revised complaint should be stricken because a rental car company does not have a duty to conduct background checks or research on drivers seeking to rent their vehicles. See Defs.’ Mem. Law Supp. Mot. Strike, p. 7. Furthermore, Hertz argues that, even if they were aware of the pending charges against Jackson, Hertz could not have concluded that Jackson was incompetent to drive at the time when the accident occurred and, thus, this count is legally insufficient. See Defs.’ Mem. Law Supp. Mot. Strike, p. 8. The plaintiff objects and asserts that the elements for negligent entrustment of a motor vehicle have been sufficiently pleaded. See Pl.’s Mem. Law Oppn. Mot. Strike, pp. 1, 5-7.
"Although the federal Graves Amendment, 49 U.S.C. § 30106 [2006], ordinarily bars suits against entities that rent or lease motor vehicles, an exception exists for cases in which the plaintiff can establish the negligence of the rental company." Donnelly v. Rental Car Finance Corp., Superior Court, judicial district of Hartford, Docket No. CV-10-6016545-S (May 20, 2013, Schuman, J.) (56 Conn. L. Rptr . 147, 147). The Graves Amendment does not bar the present action because Wells is alleging negligence on the part of the owner(s) of the vehicle in accordance with the exception to barred suits set forth by subsection (b) of the amendment. See id.; see also 49 U.S.C. § 30106(b).
The Supreme Court first recognized a cause of action for negligent entrustment of an automobile in Greeley v. Cunningham, 116 Conn. 515, 165 A. 678 (1933). In Greeley, the plaintiff brought a claim that the owner of a vehicle was negligent when he entrusted a vehicle to a driver who, turn, was in the process of preparing to take a driver’s licensing examination. Id., 517. First, the court recognized that "[a]n automobile, while capable of doing great injury when not properly operated upon the highways, is not an intrinsically dangerous instrumentality to be classed with ferocious animals or high explosives ... and liability cannot be imposed upon an owner merely because he entrusts it to another to drive upon the highways." (Citation omitted.) Id., 518. The court further stated that "[i]t is ... coming to be generally held that the owner may be liable for injury resulting from the operation of an automobile he loans to another, when he knows or ought reasonably to know that the one to whom he entrusts it is so incompetent to operate it, by reason of inexperience or other cause, that the owner ought reasonably to anticipate the likelihood that in its operation injury will be done to others." Id. As a result, the court concluded that "[w]hen the evidence proves that the owner of an automobile knows or ought reasonably to know that one to whom he entrusts 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 entrusting the automobile to the incompetent driver." Id., 520.
The Superior Court has observed that "[o]n the appellate level, the doctrine of negligent entrustment has not developed beyond that which was announced in Greeley ." (Internal quotation marks omitted.) Marron v. Grala, Superior Court, judicial district of New Britain, Docket No. CV-12-6016399-S (January 2, 2013, Shorthall, J.T.R.). Nevertheless, a number of courts have summarized the law of negligent entrustment of an automobile as follows: "The essential elements of the tort of negligent entrustment of an automobile [are] that the entrustor knows or ought reasonably to know that one to whom he entrusts it is so incompetent to operate it upon the highways that the former ought to reasonably anticipate the likelihood of injury to others by reasons of that incompetence, and such incompetence does result in injury ... Liability cannot be imposed on a defendant under a theory of negligent entrustment simply because the defendant permitted another person to operate the motor vehicle ... Liability can only be imposed if (1) there is actual or constructive knowledge that the person to whom the automobile is loaned is incompetent to operate the motor vehicle; and (2) the injury resulted from that incompetence." (Internal quotation marks omitted.) Ellis v. Jarmin, Superior Court, judicial district of New London, Docket No. CV-09-5010839-S (December 17, 2009, Cosgrove, J.) (49 Conn.L.Rptr. 1, 2).
The Superior Court has opined "that the negligence of the incompetent driver is not the determinative factor in a negligent entrustment action, rather, the core of a negligent entrustment action is whether the entrustor was negligent in supplying a vehicle to the incompetent driver." Estate of Rui H.C. Chung v. Place Motors, Inc., Superior Court, judicial district of New London, Docket No. 560074 (February 11, 2003, Hurley, J.T.R.) (34 Conn.L.Rptr. 140, 142). Thus, "a principal feature of a cause of action for negligent entrustment is the knowledge of the entrustor with respect to the dangerous propensities and incompetency of the entrustee." (Internal quotation marks omitted.) Morin v. Machrone, Superior Court, judicial district of Litchfield, Docket No. CV-10-6003593-S (May 20, 2011, Roche, J.). Knowledge of the entrustor may take the form of "actual" or "constructive" knowledge. "Actual knowledge" is based on incompetency or a failure to appreciate some visible or demonstrable impairment at the time of rental, whereas "constructive knowledge" of a renter’s driving incompetence is based on facts that are openly apparent and readily discernible. See Hall v. CAMRAC, LLC, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV-12-6027530-S (December 10, 2013, Sheridan, J.) (57 Conn.L.Rptr. 258, 261). Accordingly, courts have found negligent entrustment claims to be legally insufficient if the complaint failed to allege any facts as to the knowledge of whether the driver was incompetent.
"While Greeley undoubtedly recognizes the validity of a negligent entrustment cause of action, it cannot be said that the case recognizes or creates a legal duty upon rental car companies to investigate a renter’s driving record." Chapman v. Herren, Superior Court, judicial district of New London, Docket No. CV- 07-5005067-S (June 24, 2010, Cosgrove, J.) (50 Conn.L.Rptr. 228, 232). In Chapman, the court looked to current legislation, specifically § 14-153, and explained: "Our legislature has already enacted a statutory scheme governing the requirements of rental car companies ... Under this statute, a rental car company is not required to investigate a potential renter’s driving record; rather, the rental car company must only assess the facial validity of a driver’s license before renting to that driver. The legislature could have mandated that rental car companies run driving record reports if it intended that such a duty [should] exist." (Citation omitted.) Id. General Statutes § 14-153 provides: "Any person, firm or corporation which rents a motor vehicle without a driver for a period of thirty days or less shall inspect or cause to be inspected the motor vehicle operator’s license of the person initially operating such motor vehicle, shall compare the signature on such license with that of the alleged licensee written in his presence and shall keep and retain for a period of one year a record of the name of such licensee, the number of his license and the date of issue thereof, the registration number of the motor vehicle so rented and the mileage reading displayed by the odometer of such vehicle at the time such vehicle leaves and returns to the lessor’s place of business, which record shall be subject to the inspection of any police officer, any Department of Motor Vehicles inspector or any Department of Motor Vehicles employee designated by the commissioner; provided no person shall rent or lease any motor vehicle without a driver to a minor without the written consent of a parent or guardian of such minor." "Here, legislation exists at both the federal and the state level regulating the rental car industry. This makes for a difficult arena for the court to impose a duty where there is silence in the statutory scheme ... However, given the legislative silence and the absence of case law imposing an obligation on rental car companies to investigate renters’ driving records, this court cannot find that rental car companies have a legal duty to investigate renters’ driving records." (Citation omitted; internal quotation marks omitted.) Chapman v. Herren, supra, 232-33.
Other Superior Court decisions have affirmed that there is no legal duty imposed upon a rental company to investigate a prospective renter’s driving history and at minimum, a rental company is only obligated to check the renter’s driver’s license. See, e.g., Hall v. CAMRAC, LLC, supra, 57 Conn.L.Rptr. 262 (holding no legal duty imposed on rental company to investigate driving record); DeRosa v. Evans, Superior Court, judicial district of New Haven, Docket No. CV-10-6015111-S (October 27, 2011, Gold, J.) (52 Conn.L.Rptr. 803, 804) (same); Donnelly v. Rental Car Finance Corp., Superior Court, judicial district of Hartford, Docket No. CV-10-6016545-S (May 17, 2011, Wagner, J.T.R.) (51 Conn.L.Rptr. 899, 900) (same). As one court stated: "[I]t appears that an action for negligent entrustment may be pursued against a rental car company in some circumstances. A rental company is under a duty to check the potential customer’s driver’s license to ensure that it is facially valid and determine whether facts readily available to them might indicate unfitness to drive. While it does not appear that a rental company is under any obligation to perform more stringent screening procedures, such as requesting driving records or conducting criminal record searches, allegations that a rental company had information readily available to it that would have disclosed that the driver was incompetent to drive may be enough to survive a motion to strike." Donnelly v. Rental Car Finance Corp., supra, 900.
Having determined that a rental car company is under a duty to check the prospective renter’s driver’s license to ensure that it is facially valid, the court must look to Wells’ revised complaint to determine whether she has alleged any allegations as to this duty. The revised complaint sufficiently alleges facts to support the first and third prongs required for negligent entrustment: (1) Hertz was the owner of the motor vehicle rented by Jackson, in which Wells was a passenger, that was involved in an accident, and (3) Hertz’ incompetence in renting the motor vehicle to Jackson resulted in her injuries. As for the second prong required for negligent entrustment, paragraph 12(d) of the revised complaint alleges that "prior to renting the Hertz vehicle to the defendant Jackson, [Hertz] failed to determine whether defendant Jackson was a properly and validly licensed driver, and whether he remained a properly and validly licensed driver during the term of his rental of the Hertz vehicle." Revised Compl., ¶12(d). Although Wells does not specifically articulate that she is alleging a violation of § 14-153, "pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 398. "[W]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in 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.) Id. Furthermore, during oral argument, Hertz’ counsel conceded that paragraph 12(d) of the revised complaint sufficiently pleaded a violation of § 14-153 and should survive this motion to strike. The court therefore construes paragraph 12(d) of the revised complaint to allege a violation of § 14-153, which would support a negligent entrustment cause of action. See Bouchard v. People’s Bank, supra, 219 Conn. 471; Jolen, Inc. v. Brodie & Stone, PLC, supra, 62 Conn.L.Rptr. 346 n.2; Farago v. Pfizer, Inc., supra, Superior Court, Docket No. 524911; see also Davis v. Elrac, LLC, Superior Court, judicial district of New Haven, Docket No. CV-13-6037866-S (September 26, 2014, Wilson, J.) (denying motion to strike negligent entrustment count because plaintiffs set forth allegations that rental car company failed to require or inspect renter’s driver’s license and such alleged deficiencies in documentation pertain to constructive knowledge of potential incompetency, which is enough to survive motion to strike).
Although Hertz’ counsel conceded during oral argument that paragraph 12(d) of the revised complaint sufficiently supports a negligent entrustment cause of action, he argues that the remaining subparagraphs of paragraph 12 should be stricken from the revised complaint as each is based on a mistaken belief that Hertz has a duty to investigate a renter’s driving history. As it is, Hertz did not specifically move to strike only the other subparagraphs of paragraph 12, nor did Hertz suggest that those subparagraphs embody a separate cause of action that was insufficient and should be stricken. Thus, it would be procedurally improper for the court to only strike some subparagraphs of a single count of the revised complaint when it has not been specifically requested, and, when it does not clearly embody a separate cause of action. See Coe v. Board of Education, supra, 301 Conn. 121 n.5; see also Weingarden v. Milford Anesthesia Associates, P.C., supra, Superior Court, Docket No. CV-11-6016353-S. The court will not consider such a request, presented for the first time during oral argument. See Practice Book § 10-39(b). The court denies Hertz’ motion to strike because the first count of the revised complaint sufficiently pleads a negligent entrustment cause of action in light of paragraph 12(d).
CONCLUSION
For the foregoing reasons, Hertz’ motion to strike is denied.
General Statutes § 14-237 provides in relevant part: "When any highway has been divided into two roadways by leaving an intervening space or by a physical barrier ... each vehicle shall be driven only upon the right-hand roadway and no vehicle shall be driven over or across any such dividing space ... except through an opening or at a crossover intersection established by public authority."