Opinion
No. CV 02 0821614 S
June 29, 2004
RULING ON MOTION FOR SUMMARY JUDGMENT
The defendant Escobar has moved for summary judgment on the ground that, although he may have owned the car at a relevant time, he was not the operator at the time. He further claims that § 52-183 of the General Statutes does not help the plaintiff, because he (Escobar) did not give permission for the car to be used at the time by the operator and the operator was not acting as an agent in any way. His motion for summary judgment is supported by his affidavit.
Some discovery has taken place; among other events is a deposition, aborted in a sense, of a codefendant which took place in prison. To reduce the context to its essentials, Escobar claims that no facts have been introduced in opposition to his motion, and that summary judgment ought to issue in his favor. The plaintiff, without having filed a request for an extension to gather information with which to oppose the motion, nonetheless seeks more time. The motion has been pending for about six months.
At oral argument on June 28, 2004, I inquired of counsel whether the presumption created by § 52-183 was a "vanishing" or "bursting bubble" presumption; see Tait, Handbook of Connecticut Evidence (3d Ed.) 174-75, § 3.12; or a presumption which continued to have some effect even after evidence to the contrary is introduced. If the latter, summary judgment would appear to be inappropriate, because ownership is apparently not disputed. I received different answers from the two advocates.
The law appears to be reasonably clear, if at times difficult to apply. The rubric seems to be that the presumption continues in effect until evidence which the factfinder credits is introduced. See Jancura v. Szwed, 176 Conn. 285, 290 (1978); Matthiessen v. Vanech 266 Conn. 822, 837-38 (2003); Cook v. Nye, 9 Conn. App. 221, 227 (1986); Wason v. Myer, 2003 Ct. Sup. 425 (2003) (Lewis, J.T.R.). If the presumption continues in effect until evidence which is credited is introduced, then I would be invading the province of the factfinder if I were to conclude, on the record, that the affidavit is necessarily to be believed. There may be a situation where no rational finder of fact could find that the agency relation existed, but that situation is not present here.
The motion for summary judgment is denied.
Beach, J.