Opinion
HHDCV156060756S
05-03-2016
Estate of Elisabeth Modlesky, by Bernard Modlesky Administrator v. Paul Finklestein et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#106)
Sheila A. Huddleston, Judge.
The plaintiff brought this wrongful death action in nine counts, alleging, among other things, that the defendants, Paul and Lisa Finklestein, supplied alcohol to minors and that Paul Finklestein then negligently entrusted his automobile to three minors, who subsequently caused a crash in which the plaintiff's decedent, Elisabeth Modlesky, died. The defendants subsequently moved to strike the fourth and ninth counts of the complaint as well as the claim for punitive damages. The plaintiff thereafter stated that he would voluntarily withdraw the fourth count and the claim for punitive damages, and the court therefore does not address those issues. Count nine is directed to Paul Finklestein and his daughter Karly Finklestein. The motion to strike is brought only by Paul Finklestein, who asserts that the complaint fails to allege that he knowingly entrusted his vehicle to a person whom he knew to be incompetent to operate it; and further fails to allege the identity of the operator of the vehicle at the time of the accident. For the reasons stated below, the motion to strike is granted.
FACTS
On July 9, 2015, the plaintiff, Bernard Modlesky, Administrator for the Estate of Elisabeth Modlesky, filed a nine-count complaint against the defendants, Paul Finklestein, Lisa Finklestein, and Karly Finklestein. The complaint arises out of a fatal car accident in which the plaintiff's decedent lost her life after leaving a party at the Finklesteins' residence, where she had consumed alcohol, allegedly purveyed or supplied by Lisa and Paul Finklestein. Count nine, which is the subject of the present motion to strike, alleges the following facts against Paul Finklestein and Karly Finklestein. Paul Finklestein is the owner of a Honda Pilot motor vehicle. Prior to and on July 14, 2013, the Honda was a family car, driven and operated by Karly Finklestein, with Paul Finklestein's consent, knowledge, permission or authority. The Honda was also driven by the plaintiff's decedent with the consent, knowledge, permission, or authority of Paul Finklestein and Karly Finklestein. On the evening of July 13, 2013, or in the early morning hours of July 14, 2013, Karly Finklestein, knew, or should have known, that Mark Dalton, Tyler Farley, and the plaintiff's decedent, had become intoxicated by consuming alcoholic beverages at the Finklestein residence, were incompetent to operate a motor vehicle, and as a result of their incompetence, injury was likely to occur. Karly Finklestein entrusted the motor vehicle to Mark Dalton, Tyler Farley, and the plaintiff's decedent, resulting in a collision in which the plaintiff's decedent endured conscious pain and suffering and, subsequently, died. The collision was the result of the negligent entrustment of the vehicle to the minors, Mark Dalton, Tyler Farley, and the plaintiff's decedent.
The original nine-count complaint also asserted claims against Mark E. Dalton, Mark Dalton, Debra De Vries-Dalton, Tyler Farley, Michael Farley, and Amy Farley. On October 9, 2015, the plaintiff withdrew the action as to those particular defendants. When the motion to strike was filed, five counts remained: count one alleging social host liability against Paul and Lisa Finklestein, count two alleging negligent supervision against Paul and Lisa Finklestein, count three alleging social host liability against Karly Finklestein, count four alleging parental liability against Paul and Lisa Finklestein, and count nine alleging negligent entrustment against Paul and Karly Finklestein.
On October 26, 2015, Paul Finklestein moved to strike count nine of the plaintiff's complaint on the grounds that it fails to allege that he had actual or constructive knowledge that the person to whom the automobile was loaned was incompetent to operate the vehicle, it fails to specify which minor was entrusted with the vehicle, and it fails to allege that the injury to the plaintiff's decedent was caused by the operator's incompetence. The plaintiff filed an objection on December 23, 2015, and Paul Finklestein filed a reply brief on December 29, 2015. The matter was heard at short calendar on January 4, 2016.
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). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " 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). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] 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 . . . Moreover, [the court notes] that [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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
Paul Finklestein moved to strike count nine of the plaintiff's complaint on the grounds that it fails to allege that he had actual or constructive knowledge that the person to whom the automobile was loaned was incompetent to operate the vehicle, it fails to specify which minor was entrusted with the vehicle, and it fails to allege that the injury to the plaintiff's decedent was caused by the operator's incompetence. The plaintiff counters that he has alleged that Paul and Lisa Finklestein created an atmosphere of permissive underage drinking by permitting underage drinking in their home on previous occasions. Therefore, Paul Finklestein should have anticipated that intoxicated minors would use his vehicle or that his minor daughter would permit other minors to operate the family vehicle after those minors had become intoxicated and incompetent to realize the dangers of drinking and driving. Furthermore, the plaintiff argues that if Paul Finklestein negligently entrusted his vehicle to his daughter, that negligence was not cut off when his daughter negligently turned the keys over to intoxicated minors.
In Greeley v. Cunningham, 116 Conn. 515, 165 A. 678 (1933), the Connecticut Supreme Court recognized the tort of negligent entrustment of an automobile. There, the court stated 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. It is, however, 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." (Citation omitted.) Id., 518.
" Superior Courts have observed that on the appellate level, the doctrine of negligent entrustment has not developed beyond that which was announced in Greeley ." (Internal quotation marks omitted.) Delprete v. Senibaldi, Superior Court, judicial district of New Haven, Docket No. CV-11-6024795-S, (September 16, 2014, Wilson, J.). Nonetheless, several Superior Court decisions have described the elements of the tort of negligent entrustment 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 reason 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 results from that incompetence." (Internal quotation marks omitted.) Kaminsky v. Scoopo, Superior Court, judicial district of New Haven, Docket No. CV-08-6002084 (July 30, 2008, Bellis, J.) (46 Conn. L. Rptr. 82, 82-83). " Actual knowledge is based on incompetency or a failure to appreciate some visible or demonstrable impairment . . . whereas constructive knowledge . . . is based on facts that are openly apparent and readily discernible." (Internal quotation marks omitted.) Delprete v. Senibaldi, supra, Superior Court, Docket No. CV-11-6024795-S; see also 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.) .
In the present case, the plaintiff failed to allege that Paul Finklestein had actual or constructive knowledge that the person to whom the automobile was loaned was incompetent to operate the motor vehicle. In other counts of the complaint, such as count one alleging social host liability, the plaintiff alleges that Paul Finklestein was a social host of a gathering at his residence at which he purveyed or supplied alcoholic beverages to minors and he " knew or should have known that one or more said minor guest would leave the Finklestein residence in an intoxicated state and operate a motor vehicle in which one or more minor guest . . . were occupants." Although such allegations would be sufficient for the court to infer actual or constructive knowledge, the plaintiff failed to incorporate those alleged facts into the negligent entrustment count, and therefore the court cannot consider such allegations in the present motion to strike. See, e.g., G.A. Washington, LLC v. Kent Horticultural Services, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-11-600491-S, (October 1, 2012, Danaher, III, J.) (motion to strike denied where plaintiff did not incorporate express allegations of breach of contract); Halley v. Village Park Realty Co., Superior Court, judicial district of New Haven, Docket No. CV-01-0451467-S, (December 31, 2001, Zoarski, J.T.R.) (plaintiff made necessary allegations elsewhere in the complaint but did not incorporate those allegations into subsequent counts).
The plaintiff argues that if Paul Finklestein negligently entrusted his vehicle to Karly Finklestein, that negligence was not cut off when Karly negligently turned the keys over to intoxicated minors. Even if the plaintiff's assertion is true, the problem with the complaint lies with the fact that the plaintiff did not allege Paul Finklestein's actual or constructive knowledge of Karly Finklestein's incompetence. See Galloway v. Thomas, Superior Court, judicial district of New Haven, Docket No. 371814 (September 26, 1995, Corradino, J.) (15 Conn. L. Rptr. 143, 144) (granting defendant's motion to strike negligent entrustment claim because " [n]owhere is it explicitly alleged that Bidon's incompetence was of such an apparent type that Elrac knew or should have known that he would in fact give the defendant Thomas or in fact anyone else permission to drive the car " [emphasis added]); see also Williams v. Thomas, Superior Court, judicial district of New Haven, Docket No. 365706 (November 2, 1995, Zoarski, J.) (15 Conn. L. Rptr. 380, 381).
Furthermore, the complaint is devoid of any allegations regarding the identity of the operator to whom the vehicle was entrusted. Based on the allegations as they are, Paul Finklestein could have entrusted the vehicle to Karly Finklestein, Mark Dalton, Tyler Farley, or the plaintiff's decedent. Knowing the identity of the operator to whom the vehicle was entrusted is important because that individual must have been incompetent and the entrustor must have known of the entrustee's incompetence. See Delprete v. Senibaldi, supra, Superior Court, Docket No. CV-11-6024795-S (stating that " 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"). Furthermore, knowing the identity of the individual to whom Paul Finklestein allegedly entrusted the vehicle is important so that he can present a possible defense. See, e.g., Somers v. Chan, 110 Conn.App. 511, 528, 955 A.2d 667 (2008) (" Pleadings have an essential purpose in the judicial process . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried . . . [The] purpose . . . is to frame, present, define, and narrow the issues, and to form the foundation of, and to limit, the proof to be submitted on the trial." [Citations omitted; internal quotation marks omitted.])
Lastly, the court disagrees with Paul Finklestein's assertion that the complaint fails to allege that the injury to the plaintiff's decedent was caused by the incompetence of the operator. Paragraphs 4 and 5 of count nine states in relevant part that " Karly Finklestein, knew, or should have known, that the minor[s] . . . Mark Dalton and Tyler Farley, and the plaintiff's decedent, had become intoxicated by consuming alcoholic beverages at the Finklestein residence, were incompetent to operate said motor vehicle, and that, as a consequence of their incompetence in the operation of said motor vehicle, injury was likely to result . . . Karly Finklestein, did entrust said motor vehicle to minor[s] . . . Mark Dalton and Tyler Farley and/or the plaintiff's decedent, resulting in a motor vehicle collision in which the plaintiff's decedent endured conscious pain and suffering and, subsequently, died." The issue is that those paragraphs are alleged against Karly Finklestein only, and, as with the paragraphs directed to Paul Finklestein, those paragraphs fail to allege which minor was entrusted with the vehicle.
Thus, because the complaint fails to allege actual or constructive knowledge on behalf of Paul Finklestein, and because the complaint fails to allege the identity of the person to whom the vehicle was negligently entrusted, count nine fails to assert a legally sufficient claim for negligent entrustment as to Paul Finklestein.
CONCLUSION
For the foregoing reasons, Paul Finklestein's motion to strike count nine insofar as it is directed toward him is granted.