Opinion
No. DBD CV09-5008208 S
October 7, 2010
RULING ON MOTION FOR SUMMARY JUDGMENT (# 115.00)
The plaintiff, Daniel DaSilva, initiated this action against the defendants, Vinicius Silva and Marcos Daconceicao, on August 11, 2009. On October 22, 2009 the plaintiff filed a revised two-count complaint. Count one presents a direct negligence claim against Silva and alleges that Silva negligently operated a vehicle owned by Daconceicao, thereby causing a collision with the plaintiff's vehicle. Count two presents a negligence claim against Daconceicao, premised on the theory of non-operator owner vicarious liability. Specifically, the complaint alleges that, at the time of the accident, the vehicle owned by Daconceicao, and operated by Silva, was traveling in the left-hand, southbound lane on Main Street when Silva, attempting to make a left turn, failed to grant the right-of-way to the plaintiff's vehicle, and crossed into the path of the plaintiff's vehicle, causing a violent collision. The complaint further alleges that the collision with the motor vehicle operated by Silva and the plaintiff's vehicle was caused by the negligence and carelessness of Silva in several respects, all of which are imputed to the defendant owner, Daconceicao. The complaint reiterates the allegations of negligence presented in the first count. The complaint further lists the various injuries, losses and damages allegedly sustained by the plaintiff in connection with this collision.
The defendant, Marcos Daconceicao moves for summary judgment as to the second count of the complaint, as Silva was not a family member, agent, servant or employee of Daconceicao and was not an authorized or permissive operator of Daconceicao's vehicle. The defendant has provided an affidavit in support of his motion. The affidavit provides that Daconceicao was the owner of a 1997 Chevrolet Venture and he left his keys with Gisa Assis. Daconceicao indicated that at no point did he authorize anyone other than Assis to operate his vehicle, specifically stating that he did not authorize Silva to operate the vehicle. He further provided that Silva is not related to him, has never lived in the same house, and was not, and has never been his agent, servant or employee. Finally, Daconceicao provides that Silva took his vehicle without his knowledge or permission, and on February 2, 2008, Silva stole his vehicle. The plaintiff has filed no responsive pleading, affidavits or other documents in response to the motion. This matter was heard at short calendar on October 4, 2010.
Summary judgment is an appropriate remedy when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. The procedure of summary judgment is designed to expedite a litigation proceeding and eliminate delay and expense where there is no real issue to be tried. See Wilson v. New Haven, 213 Conn. 277, 567 A.2d 829 (1989). Both the moving party and the party in opposition may rely on pleadings, affidavits and discovery materials, and the moving party shall, and the opposing party may, file appropriate memoranda of law. See Practice Book §§ 11-19, 17-45 and 17-46. The party seeking summary judgment has the burden of showing that no issue of material fact exists, and the party opposing the motion must substantiate its claim that a material fact issue exists. See Home Insurance Co. v. Aetna Life Casualty, 235 Conn. 185, 663 A.2d 1001 (1995).
In O'Dea v. Amodeo, 118 Conn. 58, 170 A. 486 (1934), the Connecticut Supreme Court discussed various types of presumptions and their different effects. Focusing on the so-called statutory "family car doctrine" now found at General Statutes § 59-182 and discussing the presumption included therein, the Court concluded that where information involving an issue was particularly within the knowledge of one person, a presumption would require placing the burden on that party not only to produce countervailing evidence but of proving the validity of that evidence. Id., at 63. Thus, unless it were proven otherwise, the presumption was not rebutted, and if evidence was presented to rebut the presumption but such evidence was not believed, then the presumption would prevail even if the plaintiff presented no evidence in support of the presumption. Id., at 66.
Several decisions have concluded that the existence of the presumption precludes the granting of summary judgment in favor of a vehicle owner. See Masse v. Jonah, 27 Conn.Sup. 206, 233 A.2d 696 (1967) (owner's affidavit insufficient to prove facts stated, therefore, presumption not rebutted); Layden v. Agency Rent-A-Car, Docket Nos. CV 92 024200 and CV 92 021216, judicial district of New Haven (November 17, 1994, Silbert, J.) (strong probability that there was no agency not sufficient to find there was no fact in dispute); Torres v. Dellagheif Docket No. 125808, judicial district of Waterbury (March 10, 1996, Pellegrino, J.) (mere offer of affidavit rebutting presumption does nothing more than create an issue of fact); CT Page 19316 Doonan v. Clark, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 95 0148729 (October 21, 1997, Nadeau, J.) (relying on Layden and Torres).
On the other hand, several decisions have concluded that summary judgment was appropriate despite the statutory presumption. Curran v. Duncan, Superior Court, judicial district of Danbury, Docket No. CV 98 0333456 (October 25, 2000, Adams, J.), 28 Conn. L. Rptr. 640. See e.g., Hannah v. Buick, Docket No. CV98 0548002, judicial district of New London (May 14, 1999, Mihalakos, J.) (detailed affidavit and documents sufficient to shift burden back to plaintiff, summary judgment for vehicle owner granted); Palmer v. Enterprise, Docket No. 154434, judicial district of Stamford-Norwalk at Stamford (April 16, 1997, D'Andrea, J.) (evidence that plaintiff was not an authorized driver and not an employee, agent or servant of defendant sufficient to defeat presumption and support summary judgment); Bevel v. Annetta, Docket No. CV 97 0344223, judicial district of Fairfield (February 3, 1998, Skolnick, J.). In support of his motion, Daconceicao states in his affidavit that he was the owner of a 1997 Chevrolet Venture and he left his keys with Gisa Assis, that at no point did he authorize anyone other than Assis to operate his vehicle, that he did not authorize Silva to operate the vehicle, that Silva is not related to him and has never lived in the same house, and was not, and has never been his agent, servant or employee. Finally, Daconceicao states that Silva took his vehicle without his knowledge or permission, and on February 2, 2008 Silva, in fact, stole his vehicle. The plaintiff has filed no memorandum in opposition to Daconceicao's motion for summary judgment and has offered no affidavits or documents to controvert any of the assertions contained in Daconceicao's sworn statement.
General Statutes § 52-182 provides as follows: "Proof that the operator of a motor vehicle . . . was the husband, wife, father, mother, son, or daughter of the owner shall raise a presumption that such motor vehicle . . . was being operated as a family car . . . within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption."
Our courts have held that the statute goes further than merely establishing a presumption "in that it expressly places upon the defendant the burden of introducing evidence to rebut the presumption created by the statute. Moreover, the presumption is not ousted simply by the introduction of any evidence to the contrary. Indeed, . . . [t]he presumption ceases to be operative [only] when the trier finds proven facts which fairly put in issue the question . . . if no evidence relevant to the issue is produced, or, if the 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." (Citation omitted; internal quotation marks omitted.) Jancura v. Szwed, 176 Conn. 285, 290, 407 A.2d 961 (1978): Thus, not only must there be evidence which rebuts the presumption, but such evidence must be credited by the trier of fact. Dunbar v. Mutone, Docket No. CV000377051S, judicial district of Fairfield (October 24, 2002, Rush, J.).
In considering a motion for summary judgment, it is not the court's function to decide material facts or determine the credibility of evidence. See Nolan v. Borkowski, 206 Conn. 495, 538 A.2d 1031 (1988). However, summary judgment is appropriate "if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995), and the proper test has often been described as whether the evidence is such as to require a directed verdict. Id., at 752. A verdict may be directed when the evidence, even when viewed in the light most favorable to the party opposing the motion, can only lead to the "conclusion . . ., embodied in the verdict as directed." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969).
This court is aware of the language of the Supreme Court decisions cited earlier to the effect that the facts rebutting the presumption of agency must be "proven." Nevertheless, when credibility is not at issue and the proof contravening the presumption is such that a jury could not find otherwise, summary judgment is appropriate. The Supreme Court explicitly recognized that there was a basis for a directed verdict when there was rebuttal evidence of such a nature that it could not rationally be disbelieved See Fletcher v. Stoleson, Superior Court, complex litigation docket of Stamford-Norwalk at Stamford, Docket No. X 05 CV 000177740 (March 11, 2002, Rogers, J.) ( 31 Conn. L. Rptr. 518). No rational jury could disbelieve the unchallenged evidence that there was no agency and/or family doctrine relationship between Daconceicao and Silva at the time of the accident. Therefore, there is no genuine issue of material fact regarding the lack of an agency relationship. In the absence of such a relationship there is no basis for holding Daconceicao liable for the accident.
Accordingly, Daconceicao's motion for summary judgment as to the second count is granted.