Opinion
FSTCV166029274S
10-10-2018
Jeffrey HOFFKINS v. Roger PINEDAQUIJADA
UNPUBLISHED OPINION
POVODATOR, JTR.
Background/Nature of the Proceeding
This is an action based on a motor vehicle accident, with a level of party-complexity that almost requires a scorecard or a flowchart to keep track of the relationships among the parties, and who is/was suing whom. There are other lawsuits pending, arising from this same incident, and at least one of those other matters suggest uncertainty as to the proper identity of one of the claimed parties.
In simplest terms, the named plaintiff was injured in a motor vehicle accident, in which the named defendant (non-appearing) is claimed to have been the operator of the vehicle (owned by defendant Miller) that struck the named plaintiff’s vehicle. The "backstory" is the source of most of the controversy. The owner of the vehicle operated by the defendant operator had been invited to a party hosted by the Nolan defendants. The hosts had hired a company to plan and manage the party, and the party planner, in turn, had hired a valet company
There are different valet companies identified in this and one of the companion matters. The precise identity is not an issue for purposes of this motion, but it reflects a layer of uncertainty that is a factor in the discussion below. (The valet companies are non-appearing parties in the respective cases.)
The plaintiffs’ claims against Miller are predicated on application of General Statutes § 52-183, creating a statutory presumption of agency of a permissive user of a vehicle. The owner (Miller) has moved for summary judgment, claiming that he cannot be responsible for the claimed negligence of the driver because there was a bailment relationship which precludes vicarious liability of the owner, and because the owner cannot be liable for the negligent conduct of an independent contractor.
Hereafter, the court generally will refer to the defendant owner (Miller) as the defendant.
Discussion
The court will not recite the well-established standards applicable to summary judgment; see, e.g., Dubinsky v. Black, 185 Conn.App. 53, 59-60 (2018). The court will start with something of a procedural concern relating to quantum of proof needed, and then focus on the sufficiency of the factual and legal presentations of the defendant in support of his motion for summary judgment.
The defendant seems to assume that a factual rebuttal of the presumption set forth in General Statutes § 52-183 (as set forth in the owner’s affidavit) is sufficient to negate the statutory presumption of agency to the required standard of no material issue of fact, at least on a prima facie basis. However, unlike the type of presumption discussed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), where once rebutted, the presumption drops out of the case, in Koops v. Gregg, 130 Conn. 185, 32 A.2d 653 (1943), the Supreme Court stated that even if evidence is offered that rebuts the statutory presumption of agency arising from permissive use of a motor vehicle, the relationship between owner and operator remains an issue of fact, as a fact finder is free to reject the rebuttal evidence:
The presumption ceases to be operative when the trier finds proven facts which fairly put in issue the question, and the burden of proving that the car was a family car or was operated by an agent of the owner, as the case may be, then rests upon the plaintiff; if no evidence relevant to the issue is produced, or, if 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.
(Emphasis added.) Id. at 188.
The court then recognized that there might be situations where there was (could be) no real issue as to the absence of any agency-type relationship such that the court might be compelled to override a fact finder’s decision to reject a rebuttal of the presumption:
Ordinarily it is the exclusive function of a jury to determine whether they will believe or disbelieve the testimony of witnesses, and, however mistaken a court may think they are, it cannot override their conclusion, and this rule applies under statutes like the one before us, as regards a conclusion by a jury that facts sufficient to rebut the presumption have been proved. But that conclusion may be so unreasonable that it will constitute an error in law, and where such a situation exists it is the duty of the court to interfere.
(Citations, omitted.) Id. at 191.
The defendant is asking this court to weigh the evidence, an impermissible function at this juncture. Alternatively, to the extent that the defendant implicitly is suggesting that no rational fact finder could reject his rebuttal, that is not an argument actually made, and the court is limited to the issues actually raised and presented in a motion for summary judgment. Greene v. Keating, 156 Conn.App. 854 (2015). The defendant simply relied on the existence of his rebuttal, as if the presumption automatically disappeared so as to allow a claim (on a prima facie basis) of no material issue of fact.
Koops appears to remain good law insofar as it recently was cited and distinguished in a recent Appellate Court decision relating to a similar- but found to be distinguishable- statute, General Statutes § 52-182. Cima v. Sciaretta, 140 Conn.App. 167, 178 n.7, 58 A.3d 345, 352 (2013). (A comparison of the current statute and the language applicable in Koops as recited in footnote 1 of that decision reflects trivial changes and nothing of substance.)
The changes in statutory language: "such motor vehicle" changed to "the motor vehicle" (three times); "if he be other" changed to "if he is other"; "the same" changed to "it"; and the final clause of the original statute ("and the defendant shall have the burden of rebutting such presumption") changed to a separate and minimally modified sentence. ("The defendant shall have the burden of rebutting the presumption.")
More directly, the plaintiffs have cited Engram v. Kraft, 83 Conn.App. 782 (2004), in which the Appellate Court reversed the granting of summary judgment by the trial court in favor of a defendant who had submitted an affidavit negating consent to allow the operator to drive the vehicle (in an effort to negate the statutory presumption), evidence that the trial court had concluded "could not ‘be rationally disbelieved.’ " 83 Conn.App. at 787. Although this is not a case in which the absence of consent is claimed to be determinative, the decision makes it clear that the threshold for proof that, as a matter of law, the evidence could not be disbelieved (so as to allow summary judgment to be considered) is high, and the defendant has not provided any analysis as to why the hurdle has been surmounted in this case.
A complementary problem is that the defendant has assumed that there was a bailment relationship, and argues from that predicate, but, as observed by the plaintiff, has provided no information as to the relationship (presumably contractual) between the social hosts of the party and the company managing the event and, in turn, its relationship with the company providing valet service (and see footnote 1 identifying some question as to the identity of that company). The court notes that all of the cases cited by the defendant in support of his motion involve a commercial entity either directly or indirectly providing valet service, or otherwise exerting control over a vehicle, for a business purpose. Here, there is no commercial relationship between the valet company and the vehicle owner, and no commercial relationship between the host who had (indirectly) hired the valet company and the vehicle owner. (Baptista v. Enterprise Leasing Co., 707 So.2d 397 (Fla.Dist.Ct.App. 1998), cited by the defendant, is especially inapt, as it is based on a judicially-recognized doctrine (dangerous instrumentality) that is the Florida analog to our statute, with the court applying a judicially-recognized exception to that judicially-created doctrine.)
There is no evidence as to whether the valet company did anything other than provide a convenience to guests of not having to find parking on the nearby streets (and then having to walk (perhaps without sidewalks) to the hosts’ home)- the valet company may have done nothing more than park cars on nearby streets, and retrieve them as needed. For example, did the valet company disclaim responsibility for the vehicles while parked, to the extent that it lacked any control over the premises where the vehicles were parked (public streets), thereby possibly undercutting a principal aspect of a bailment relationship? By analogy, if the hosts had asked their (hypothetical) son (and his friends) to park the vehicles for guests, would that implicate a bailment situation so as to immunize the vehicle owner?
The situation as described by the defendant may give rise to an inference of bailment, but summary judgment jurisprudence requires the non-moving party to be given the benefit of favorable inferences, not the moving party, such that only if a bailment were the only permissible inference, could the inference be drawn against the non-moving party. There is no explanation given as to why the inference claimed by the defendant is a mandatory one.
Perhaps the moving defendant believed that the issue was straightforward, but there are significant gaps in the analysis presented by the defendant, in support of the claimed entitlement to judgment as a matter of law. As identified above, there is no evidence before the court as to the scope of the undertaking of the valet company. The defendant asserts that the principle of non-liability for the negligence of an independent contractor somehow immunizes the owner, but fails to explain how that concept might be applicable to a stranger to any contractual relationship that might exist. Thus, on the 10th page of the memorandum, the defendant states: "In the current case, if Miller is considered the employer of [the party planner], [the valet company], or [the defendant operator] instead of just a third-party beneficiary to the [hosts’] contract with [the party planner] as their invited party[,] their relationship is an employer/independent contractor relationship ..." but gives no proffered explanation as to why Miller- the defendant owner- could or should be considered the employer (possible employer) of any of those parties. A theoretical proposition, without any attempt at linkage to the actual facts of the case, serves no real purpose. An if-then argument requires, at a minimum, a reason to believe that the "if" component might have some potential applicability or validity, before there is any possible relevance to the "then" component.
Most importantly, the defendant does not explain how his bailment and independent contractor theories can co-exist with the statute- virtually every situation facially coming within the scope of the statute would appear also to satisfy (at least facially/superficially) the requirements for a bailment- entrustment of possession and control over the vehicle. To the extent that the defendant has relied on Am.Jur.2d as legal authority for his arguments, the court will quote appropriate language from that source:
A bailment is created by the delivery of personal property by one person to another in trust for a specific purpose, pursuant to an express or implied contract to fulfill that trust. Inherent in the bailment relationship is the requirement that the property be returned to the bailor, or duly accounted for by the bailee, when the purpose of the bailment is accomplished, or that it be kept until it is reclaimed by the bailor. A bailment may be for the sole benefit of the bailor, for the sole benefit of the bailee, or for the mutual benefit of both.
A bailment does not necessarily depend upon a contractual relation; it is the element of lawful possession, however created, and the duty to account for the thing as the property of another that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not. Although a bailment is ordinarily created by the agreement of the parties, resulting in a consensual delivery and acceptance of the property, such a relationship may also result from the actions and conduct of the parties in dealing with the property in question. A bailment relationship can be implied by law whenever the personal property of one person is acquired by another and held under circumstances in which principles of justice require the recipient to keep the property safely and return it to the owner.
The bailment relationship generally does not create a formal, fiduciary relationship between a bailee and a bailor, absent an express agreement.
(Footnotes omitted.) 8A Am.Jur.2d Bailments § 1.
One of the essential elements of a bailment is that the property be taken into the possession of the bailee. It is the element of lawful possession, however created, and the duty to account for the thing as the property of another that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not.
(Footnotes omitted.) 8A Am.Jur.2d Bailments § 4.
The operative statute, § 52-183, is premised on the existence of permissive entrustment of a motor vehicle by the owner to a third party, with the implication of authorization to operate the vehicle during the term of possession, with the expectation (duty) that the vehicle will be returned to the owner when the period of authorized use ends, seemingly satisfying the definition of a bailment, e.g., as set forth in the first paragraph quoted from 8A Am.Jur.2d Bailments § 1. See, also, Hartmann v. Black & Decker Mfg. Co., 16 Conn.App. 1, 6, 547 A.2d 38, 41 (1988): "A bailment is a consensual relation and it includes, in its broadest sense, any delivery of personal property in trust for a lawful purpose." (Internal quotation marks omitted.) Given the breadth of characterization of entrustment as creating a bailment, the failure to explain how the statute can have a meaningful scope of applicability is a further impediment to any ruling in favor of the defendant.
As noted above, the court has quoted from Am.Jur.2d Bailments because that was the authority cited by the defendant in his submission. The Restatement (Second) of Agency § 238 (1958), however, recognizes that statutes, seemingly including a statute such as the one currently before the court, can alter that outcome:
d. Under some modern statutes, the bailor of an automobile is made responsible for harm caused by the negligence of a bailee acting within the agreed limits of the bailment. Under such statutes, a master who permits his servant to use his automobile becomes responsible for harm done by the servant’s negligent act, although not in the scope of employment. By the interpretation of some of these statutes, a bailor, although subject to liability for the negligence of the bailee, is not barred by the contributory negligence of the bailee in actions brought by the bailor for harm to the vehicle.
This passage seems to align with the concerns expressed above. The defendant has not discussed how the bailment characterization of the valet-type service rendered in this case can be reconciled with § 52-183, and how the concept of bailment, as proposed to be applied by the defendant, would not effectively nullify the application of the statute. Absent any attempt to address the issue by the defendant, in turn providing the plaintiffs with notice and an opportunity to respond, the court cannot attempt to resolve this necessary predicate to judgment in favor of the defendant on his motion.
Conclusion
The defendant has argued that by turning over control and possession of his vehicle to a valet, he was exonerated from any liability arising from the valet’s alleged negligence in operation of his motor vehicle. The defendant has not addressed the persistence of the statutory presumption notwithstanding factual evidence refuting the presumption, and has not addressed how the bailment approach can be reconciled with the statute without effectively eviscerating the statute. The defendant also has not removed the existence of a bailment relationship wholly from the realm of material issue of fact; he has inferred such a relationship without evidence as to the nature of the undertaking of the valet service, and while that characterization may be highly likely to be accurate, any level of uncertainty is fatal to summary judgment. Under the circumstances, the defendant has failed to satisfy the burden of "showing that it is quite clear what the truth is" (Ferri v. Powell-Ferri, 317 Conn. 223, 228 (2015) ).
Summary judgment is not an issue-resolution procedure but rather an issue spotting or issue identification process. If there is a material factual issue that is unresolved by the moving party’s submission, or a failure to address all necessarily implicated or invoked legal issues, then the moving party has failed to satisfy its burden. The court has identified a number of issues that were not resolved (or not addressed) and particularly the interaction between the concept of bailment and § 52-183 and the persistence of the statutory presumption. Having identified these issues, summary judgment is not warranted.
For all of these reasons, the motion for summary judgment is denied.