Opinion
No. CV01-0453550 S
May 28, 2004
MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT
In this case GMAC leased a car to Tammaro and Regan. They apparently had a house guest who took the keys and allegedly stole the car. The theft was immediately reported to the police but sixteen days later, the person who took the car, James Howell, crashed it into a vehicle occupied by the plaintiff. He then filed suit against GMAC, and the lessees Tammaro and Regan. The three defendants have now filed motions for summary judgment. The court will discuss the issues raised and attempt to apply the standards that are required in deciding such a motion.
GMAC MOTION
The first count against GMAC is based on § 14-154a of the general statutes. The second count references that statute and basically appears to base its statutory claim on the alleged negligence of the defendant lessees, cf Ramsay v. Camrac et al., 71 Conn. App. 314 (2002).
(a)
The first count alleges that the driver of the GMAC car was the agent, servant, and/or employee of GMAC and of the lessees of the car from GMAC. A lessee, Tammaro, has submitted an affidavit that the driver Howell stole the GMAC rental vehicle sixteen days before the accident and was driving the vehicle at the time of the accident in his role, therefore, as a thief. The affidavit is not controverted by the plaintiff. Clearly a thief cannot be considered an "authorized driver" under the terms of any rental agreement for the car. Pedevillano v. Bryon, 231 Conn. 265, 269 (1994).
But the plaintiff goes on to argue that pursuant to § 52-183 of the general statutes the thief, Howell, is an agent of the "authorized" drivers. The statute states that the "operator (of a motor vehicle) if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant of the owner of the motor vehicle." The plaintiff cites CT Page 8400 Beckenstein v. Carrier, Inc., 191 Conn. 120, 133 (1983), for the proposition that the "existence of an agency relationship is a question of fact to be determined by the trier of fact." Thus even where no evidence of agency is presented by the plaintiff the questions of fact exists because a jury is entitled to weigh the defendant's credibility and disbelieve the defendant's evidence. However, insofar as the § 52-183 argument is attempted to be tied into a claim under § 14-154a, § 52-183 cannot be taken to contradict the purposes sought to be achieved by the legislature in § 14-154a as interpreted by Pedevillano — that case made clear that a thief cannot be an authorized driver of the rented vehicle and thus an agent in any sense of GMAC. Even standing alone a § 52-183 claim cannot be made at least in the court's opinion. In Bogart v. Tucker, 164 Conn. 277 (1973), the court upheld the action of the trial court in denying a defendant's motion for a directed verdict that claimed liability could not attach to her under § 52-183 for injuries caused by the operator of her car since she had presented testimony denying any agency relationship and the operator himself had done so. The court upheld the denial of directed verdict motion based on the reasoning of cases like Beckenstein, Koops v. Gregg, 130 Conn. 185, 187 (1943); also see Masse v. Jonah, 27 Conn. Sup. 206 (1967). But significantly the Bogart court at page 282 said:
Clearly, the only basis on which the defendant Tucker (car owner) could succeed in her effort to secure a directed verdict, that is, to remove the issue from the jury's consideration, would involve rebuttal evidence of such a nature that it could not rationally be disbelieved.
There does not appear to be a good faith basis for the plaintiff to argue that the evidence presented here by way of affidavit that the operator Howell stole the rental vehicle can rationally be disbelieved. The lessee's affidavit regarding the theft is unopposed and uncontradicted. In the factual portion of the GMAC summary judgment motion it states Howell stole the car sixteen days before the accident. In the memorandum in opposition to the GMAC motion it states: "Plaintiff generally accepts the statement of facts as set forth in GMAC's memorandum of law." By definition Howell, the person who stole the car, could not be the agent of the lessees from whom he stole the car at the time of the theft or while he was operating it as a stolen vehicle which includes the time at which the accident occurred. It is just as clear that he could not be the agent of GMAC.
The court concludes that vicarious liability claims cannot be made against GMAC under § 52-183 or § 14-154a.
The court would also observe that Ramsey v. Camrac, Inc., 71 Conn. App. 314 (2002), does not require a different result as to the § 14-154a claim. To paraphrase the headnote, the plaintiff was injured when the car he was in was struck by a rental car being driven by someone who stole it. The rental company relying on Pedevillano moved for summary judgment claiming that because the rental car was being driven by an unauthorized driver when the plaintiff was injured no liability to it could be established under § 14-154a. The court held summary judgment should not have been granted since the plaintiff "alleged that the authorized driver was negligent in leaving the vehicle with the keys in the ignition, out of her sight, running open and unattended in a high crime area where it was driven away by an unauthorized driver, the complaint clearly alleged negligence by the authorized driver." The allegations of the complaint in that case are not the allegations made here. Section 14-154a and pages 320-21 of the Ramsay case must be read closely. At page 320 the court said:
Moreover, while both Pedevillano and the present case involve factual scenarios in which a party other than the authorized operator was driving the vehicle at the time of the accident, there was no claim in Pedevillano, as there is in the present case, that the lessee negligently operated the vehicle in his capacity as the authorized operator. Therefore, Pedevillano does not control the plaintiff's claim in this case because the allegation here addressed Allen's negligent conduct as the authorized operator of the vehicle during the period of time immediately preceding the alleged theft of the vehicle.
(Emphasis by this court.) (See also reference to Pedevillano at page 321.)
In other words as the statute makes clear the negligence which can be vicariously imputed under § 14-154 must arise out of the operation of the motor vehicle. Ramsay interpreted operation to be operation of the vehicle in its commonly understood sense immediately preceding the theft; in Ramsay that negligent operation caused the theft. Here that is not the case. The alleged negligence had no connection with operation of the car by the lessees but the theft is alleged to have taken place because the vehicle and its keys were not secured by the lessees in their home over two weeks before the accident.
(b) CT Page 8402
In the second count, the plaintiff's purport to advance a straight negligence claim against GMAC in that GMAC did not secure the vehicle in order to prevent it from being stolen nor did it secure the keys. The claim is said to be based on our cases which recognize a cause of action against one who negligently leaves a vehicle unguarded or available when it is reasonably foreseeable that someone may gain access and cause an accident while operating it." Smith v. Leuthner, 156 Conn. 42 (1968). Of course GMAC did not do or fail to do any of the things alleged and in light of the court's view on the imposition of vicarious liability on GMAC under § 14-154a and § 52-183 given the undisputed facts of this case how can liability be imposed on GMAC for the actions or failure to act of its lessees — that would in effect expand liability exposure beyond the ambit the legislature intended under § 14-154a. This may be advantageous for a particular plaintiff but not for the general car renting public to whom the rental companies will pass the cost for judicial legislation of this type.
Nor is there even a claim that GMAC knew or had reason to know that the lessees here would keep the car in such a way as to make it vulnerable to being stolen by thiefs, designing house guests and other malefactors who GMAC knew or had reason to know would be negligent or reckless drivers, cf Restatement (Second) Torts § 390, see also § 308 of the Restatement.
Tammaro, Regan (Lessees) Motion (a)
The third count is ultimately based on an agency theory relying on § 52-183. For the same reasons previously discussed in the GMAC motion that theory is not viable against the lessees.
(b)
The fourth count is based on a straight negligence claim against the lessees in that it is alleged they failed to secure the car or its keys in such a way as to prevent the car from being taken and operated by unauthorized persons. It is also alleged that they invited people into their home whom they knew or should have known had the propensity to steal the 1999 rental Chevrolet. Cases like Smith v. Leuthner, supra, Barnett v. Rosenthal, 40 Conn. Sup. 149 (1984), Relish v. Corney, 23 Conn. Sup. 350 (1962), and Sebarone v. King, 26 Conn. Sup. 98 (1965), are relied upon.
The court agrees with the plaintiff that the claim against the lessees is really not a negligent entrustment claim, cf Restatement sections previously cited, but a simple negligence claim based on the authority previously mentioned. But the court also agrees with the defendant that these cases cannot be given the expansive view of them suggested by the plaintiff — merely leaving a key in the ignition may not be enough to impose liability on the person who does so. See Smith v. Leuthner, 156 Conn. at 425-26. But it is also alleged that the car and keys were left unsecured in the lessees' home and they invited into their home people who would have a propensity to steal the car. The court does not have enough of a factual basis to rule on the motion as it applies to this count.
The court grants the motions for summary judgment as to counts one, two, and three but not as to count four.
Corradino, J.