Opinion
CV146020484S
02-21-2018
KURISOO’S HARLEY DAVIDSON v. ZIEGLER’S 1925 STEARNS KNIGHT
UNPUBLISHED OPINION
OPINION
Calmar, J.
The defendant Mystic Seaport Museum (Mystic Seaport) moves for summary judgment on count two, negligence, on the ground that public policy considerations weigh against imposing a legal duty, and on count three, agency, on the ground that the Mystic Seaport cannot be liable for an actual agency relationship because it owed no duty of care to the plaintiff.
The underlying facts surrounding this accident between the plaintiff Kurisoo’s Harley Davidson and the defendant Ziegler’s 1925 Stearns Knight in the Town of Stonington, are not in dispute and are well summarized in Kurisoo v. Ziegler, 174 Conn.App. 462, 464-66, 166 A.3d 75 (2017). Additional facts are set forth in the discussion section of this memorandum. The plaintiff, Eric Kurisoo, filed a two-count complaint in this action on March 20, 2014, alleging negligence against Harry Ziegler in count one of the complaint and negligence against the defendant, Mystic Seaport, in count two of the complaint. On January 21, 2015, the plaintiff filed a request for leave to file an amended complaint that added a third count, alleging Ziegler was the agent of the Mystic Seaport. Neither Ziegler and the Mystic Seaport objected, and the amended complaint became operative.
Although Ziegler is a named defendant, he opposes the defendant’s motion for summary judgment. For purposes of this memorandum, he will be referred to as Ziegler and the defendant Mystic Seaport as the defendant or Mystic Seaport.
The plaintiff filed a revised complaint on May 15, 2014, following a request to revise.
On May 22, 2015, the Superior Court (Zemetis, J.) granted the defendant’s motion for summary judgment as to count two of the plaintiff’s complaint on the ground that the defendant owed no duty to the plaintiff for public policy reasons. On November 20, 2015, the Superior Court (Vacchelli, J.) granted the defendant’s motion for summary judgment as to count three of the plaintiff’s complaint on the ground that the defendant owed no duty to the plaintiff. The plaintiff appealed both decisions, and, on July 4, 2017, the Appellate Court reversed, holding that the trial court erred in granting the motions because the defendant had not briefed the public policy ground in its motion for summary judgment, and remanded the case to deny both motions " and for further proceedings according to law." Kurisoo v. Ziegler, supra, 174 Conn.App. 471.
On July 24, 2017, the defendant filed this motion for summary judgment, adopting the " factual findings, reasoning and case law cited by the [trial] courts ... as set forth in their respective memoranda of decisions ..." On September 6, 2017, Ziegler filed a memorandum of law in opposition to the defendant’s motion, accompanied by exhibits. On September 7, 2017, the plaintiff filed his objection to the defendant’s motion, accompanied by a memorandum of law. On October 4, 2017, the defendant filed its reply. On October 30, 2017, the court heard oral argument at short calendar.
DISCUSSION
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ..." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). " [O]nly [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [does] the burden [shift] to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ... Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case." (Citations omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). " [C]ase law [has] sanctioned the use of a motion for summary judgment to test the legal sufficiency of a pleading [if a party has waived its right to file a motion to strike by filing a responsive pleading]." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, supra, 306 Conn. 535 n.10.
A. Count Two
The defendant first argues that the court should grant its motion for summary judgment on count two, negligence, of the plaintiff’s complaint on the ground that public policy considerations weigh against imposing a legal duty on the defendant. Ziegler and the plaintiff argue that public policy weighs in favor of imposing a legal duty on the defendant.
The defendant also argues that the prior Superior Court decisions are the law of the case. " The law of the case doctrine expresses the practice of judges generally to refuse to reopen what [already] has been decided ... New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored ... Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted.) Testa v. Geressy, 286 Conn. 291, 306-07, 943 A.2d 1075 (2008). In the present case, the Appellate Court reversed the previous trial court decisions, meaning the issue of whether the defendant can be liable for public policy reasons has never been properly decided. Thus, the prior Superior Court decisions are nulities and the law of the case doctrine does not apply.
Ziegler has standing to challenge the defendant’s motion for summary judgment because he may be exposed to greater liability if the court grants the defendant’s motion for summary judgment. See Steele v. Johnson, Superior Court, judicial district of New Britain, Docket No. CV-11-6010212-S (February 5, 2013, Gleeson, J.).
The plaintiff also argues that the court cannot grant the defendant’s motion for summary judgment because the defendant failed to provide any evidence showing the absence of a genuine issue of material fact. Nevertheless, a motion for summary judgment is appropriate to test the legal sufficiency of a complaint when the defendant waives its right to file a motion to strike. Grenier v. Commissioner of Transportation, supra, 306 Conn. 535 n.10. In the present case, the defendant filed an answer to the second revised complaint, waiving its right to file a motion to strike. See Practice Book § 10-7. Thus, a motion for summary judgment is appropriate. Moreover, to the extent that this Court considers evidence, such evidence was submitted by Ziegler in opposition to this motion for summary judgment.
" [T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law ... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Citation omitted; internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290-91, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). " [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Marsala v. Yale-New Haven Hospital, Inc., 166 Conn.App. 432, 447, 142 A.3d 316 (2016). " The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Id. " [D]uty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." (Internal quotation marks omitted.) Id., 488. " While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world." (Internal quotation marks omitted.) Id.
In the present case, the defendant, in its motion for summary judgment, concedes that there are genuine issues of material fact regarding the first part of the duty test, reasonable foreseeability. Nevertheless, the defendant argues that a duty cannot be imposed on it because the second part of the duty test, public policy, does not favor imposing a duty. Specifically, the defendant argues that public policy precludes the imposition of a duty based on the mere providing of directions to drivers. Ziegler and the plaintiff argue that public policy favors imposing a duty on organizations, such as the defendant, that sponsor and organize events that cause injury.
The defendant in its motion states that it " adopts and relies on the factual findings, reasoning, and case law cited by the courts (Zemetis, J. and Vacchelli, J.) as set forth in their respective memoranda of decisions ..." Judge Zemetis, in turn, concluded " reasonable foreseeability in the present case would be a question for the jury." Kurisoo v. Ziegler, Superior Court, judicial district of New London, Docket No. CV-14-6020484-S (May 22, 2015, Zemetis, J.). Thus, the defendant concedes there are genuine issues of material fact under the first part of the duty test. " A party is bound by a judicial admission ..." (Internal quotation marks omitted.) Brown v. Brown, 130 Conn.App. 522, 532, 24 A.3d 1261 (2011).
" [I]n considering whether public policy suggests the imposition of a duty, [the court considers] ... the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 118, 869 A.2d 179 (2005). The court reviews each of these factors and concludes public policy does not favor imposing a duty on the defendant.
The first factor, the normal expectations of the participants in the activity, does not favor the imposition of a duty. The plaintiff, as a driver of a motorcycle not involved in the event, would not expect the defendant, the organizer of the scenic tour, to exercise reasonable care to prevent injuries when it lacked sufficient control over the drivers or a special relationship with them. See Cannizzaro v. Marinyak, 312 Conn. 361, 367, 93 A.3d 584 (2014) (no duty to control third parties absent special relationship). Rather, the plaintiff would expect each driver to be responsible for the safe operation of his or her own automobile on a public highway. See Sic v. Nunan, 307 Conn. 399, 408, 54 A.3d 553 (2012) (" a driver is entitled to assume that other users of the highway will obey the law, including lawful traffic regulations, and observe reasonable care, until he knows or in the exercise of reasonable care should have known that the assumption has become unwarranted" [internal quotation marks omitted] ). The defendant, as the organizer of the tour, would expect that the plaintiff, a motorcyclist operating on a public highway, and Ziegler, the owner and operator of his vehicle, to use reasonable care to avoid reasonably foreseeable injuries with other drivers on the road. See Dunn v. MacDonald, 110 Conn. 68, 78, 147 A. 26 (1929) (" [r]easonable safety is the universal standard prescribed for our public highways" ). Thus, the first factor does not favor imposing a duty.
The second factor, the public policy of encouraging participation in the activity, while weighing the safety of the participants, does not favor the imposition of a duty. The public policy of organizing events that exhibit operating classic cars to the public should be encouraged for community, cultural, historical, and mechanical purposes. Although such events must be held safely, especially when any motor vehicle is in operation; see Dias v. Adams, 189 Conn. 354, 359, 456 A.2d 309 (1983) (" the risk of a motor vehicle accident is a common danger to which the general public is exposed" ); the responsibility for ensuring the safe operation of the vehicles, when they are independently owned and operated, lies with the owner or operator of those vehicles, not with the organizer of the event. See General Statutes § 52-183 (" [i]n any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, 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 and operating it in the course of his employment" ); see also Petrillo v. Big Daddy’s Racing, LLC, Superior Court, judicial district of New Haven, Docket No. CV-10-6009785-S (November 23, 2011, Wilson, J.) (" [a]lthough the Association was the organizer of the expo, and not merely a passive sponsor, there is no evidence that the Association took control away from or even shared control ... so as to give rise to any control over the area where the plaintiff was injured" ). Here, the evidence reflects that the antique cars were registered motor vehicles, operated by licensed drivers lawfully utilizing the public roads and highways over whom the defendants exercised no control or shared control relative to vehicle operation. Accordingly, the second factor does not favor imposing a duty.
The third factor, the avoidance of increased litigation, does not favor the imposition of a duty. " The third factor ... is an admittedly weaker factor ..." Monk v. Temple George Associates, LLC, supra, 273 Conn. 119. It is better described as focusing on " the diminishment of an inappropriate flood of litigation." (Emphasis omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 703, 849 A.2d 813 (2004). In the present case, subjecting the defendant to liability when it did not control the conduct of the drivers would open the floodgates of litigation. Every club and organization that hosts a scenic drive or road tour on a public highway would be potentially liable if one of their participants, lawfully operating his or her own vehicle, was involved in a collision. This would discourage the hosting of such events and chill the benefit those " scenic tours" confer on club members and the public. The law does not impose a duty on the defendant to control third parties absent some special relationship; Cannizzaro v. Marinyak, supra, 312 Conn. 367; and there is nothing in the present case to suggest such a relationship existed. To hold the defendant liable would circumvent that rule and discourage these events. See Previs v. Spano, Superior Court, judicial district of Fairfield, Docket No. CV-95-0327537-S (March 20, 1998, Rush, J.) (21 Conn.L.Rptr. 539) (" [s]ponsorship of an event, without the right to possession and/or control, does not subject the sponsor to liability for action of third parties" ). Further, there is no evidence that the defendants encouraged drivers to race or engage in a timed event, drive unlicensed vehicles, or disregard the rules of the road on the approximately 30-mile tour. Cf. Saari v. State, 203 Misc. 859, 865, 119 N.Y.S.2d 507, aff’d, 282 A.D. 526, 125 N.Y.S.2d 507 (1953) (state owed duty to spectators when it permitted race on public highway that caused injury to spectators). Accordingly, the third factor does not favor imposing a duty.
The defendant argues it cannot be liable because it merely provided directions to drivers. That assertion is a bit limited. The defendant not only provided directions to Ziegler and other drivers, but also gave each tour participant a banner to display on the back of their vehicles if they so desired. The defendant organized the tour as part of its " By Land and by Sea Antique Vehicle Show" a weekend event which required drivers pay a participation fee to display their cars at the Seaport. The participants, however, only drove their cars on a tour if they so desired. Cf. Zarrelli v. Barnum Festival Society, Inc., 6 Conn.App. 322, 329, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986) (parade sponsor had no duty to plaintiff because it only provided financial assistance to construction of dangerous float). Nevertheless, because each driver was responsible for the safe operation of his or her vehicle, imposing liability on the defendant would abrogate the rule that there is no duty to control third parties absent some special relationship. See Cannizzaro v. Marinyak, supra, 312 Conn. 367.
The fourth factor, the decisions of other jurisdictions, does not favor the imposition of a duty ... Other jurisdictions distinguish between groups that control the area in question and its participants, holding they owe a duty, from those that do not exert such control, holding they do not owe a duty. Compare Vogel v. West Mountain Corp., 97 App.Div.2d 46, 47-48, 470 N.Y.S.2d 475 (1983) (mere sponsorship, absent control, does not impose duty on defendant) with Stevenson v. Saratoga Performing Arts Center, Inc., 115 App.Div.3d 1086, 1087, 981 N.Y.S.2d 877 (2014) (defendant has duty when it controls premises); see also Gragg v. Wichita State University, 261 Kan. 1037, 1051, 934 P.2d 121 (1997) (" no liability exists simply because one is a sponsor of a public event, absent some proof the sponsor had direct control over hazardous conditions" ). The case Barkhurst v. Kingsmen of Route 66, Inc., 234 Ariz. 470, 475, 323 P.3d 753 (App. 2014), is particularly instructive. In Barkhurst, a nonprofit volunteer organization sponsored a rodeo where two drunken patrons assaulted the plaintiff in the rodeo’s parking lot over two hours after the rodeo had ended. Id., 472. The plaintiff sued the organization for negligence but the trial court dismissed the claim, concluding the association owed no duty to the plaintiff. Id. The Court of Appeals affirmed the dismissal, holding that the association had no duty to the plaintiff when it neither controlled nor owned the land on which the event occurred. Id., 474. Additionally, the court stated: " As a matter of public policy, imposing a duty on a group which is not a social host but merely a promoter of events ... would chill socially desirable conduct when the group is not controlling, organizing or supervising a specific event ..." Id., 475. Similarly here, although the defendant organized the event, the evidence shows it did not control Ziegler or any of the other drivers. The undisputed evidence shows that the defendant did not require the drivers to adhere to its directions, did not require the drivers to return to a specific location or by a specific time, did not require the drivers to display the banner, and did not encourage the drivers to speed or race. In fact, the undisputed evidence shows that the defendant instructed the drivers to follow the rules of the road and be vigilant at intersections. Accordingly, the fourth factor does not favor imposing a duty.
Two other factually similar cases are distinguishable. In Indlecoffer v. Wadsworth, 282 Ill.App.3d 933, 942-43, 671 N.E.2d 1127, cert. denied, 169 Ill.2d 568 , 675 N.E.2d 633 (1996), the Appellate Court of Illinois held that a church could be negligent for organizing a treasure hunt that required participants to use their cars to find clues, resulting in one participant colliding with nonparticipating vehicle. The court reasoned that, by stating the first participant to solve the scavenger hunt would win, the church encouraged participants to speed and behave recklessly, thus increasing the chances of an accident. Id. Similarly, in Rudolph v. Arizona B.A.S.S. Federation, 182 Ariz. 622, 625, 898 P.2d 1000 (App. 1995), the Court of Appeals of Arizona concluded that a fishing association that sponsored and organized a fishing tournament on a public lake where one of the participants’ boats collided with a nonparticipating jet skier could be negligent. The court reasoned that, by organizing the event and obtaining a permit to hold the tournament on the lake, the association was under a duty to operate the event in a reasonably safe manner to participants and to third parties. Id. In the present case, the evidence shows that the defendant did not encourage the drivers to speed nor behave recklessly. The defendant encouraged drivers to travel in small groups to minimize interference with normal traffic, encouraged drivers to take a passenger with them to read them the directions, and did not require a time that drivers needed to return by. In fact, the defendant allowed drivers to deviate from their directions if they chose to do so. These acts make clear the defendant did not encourage the drivers to speed or act unreasonably. Moreover, the defendant did not secure a permit or license to operate on the highways, further showing lack of control over the drivers.
The parties dispute whether cases involving funeral processions are analogous to the present case. Those cases are not similar to the present one. Funeral processions are often governed by statute, which is not the case here. See General Statutes § 14-240(c) (" [m]otor vehicles being driven upon any highway in a caravan shall be so operated as to allow sufficient space between such vehicles or combination of vehicles to enable any other vehicle to enter and occupy such space without danger. The provisions of this subsection shall not apply to funeral processions or to motor vehicles under official escort or traveling under a special permit" ).
In sum, all of the four public policy factors weigh in favor of not imposing a duty on the defendant. Accordingly, because public policy considerations preclude the imposition of a duty on the defendant, the defendant owed no duty to the plaintiff Because there is no genuine issue of material fact that the defendant did not owe a duty to the plaintiff, the defendant’s motion for summary judgment as to count two of the plaintiff’s complaint is granted.
B. Count Three
The defendant also moves for summary judgment on count three, agency, of the plaintiff’s complaint on the ground that it cannot be liable for an alleged actual agency relationship because the defendant owed no duty of care to the plaintiff Ziegler and the plaintiff argue in opposition that agency law does not depend on the defendant owing a duty to the plaintiff.
" Agency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act ..." (Internal quotation marks omitted.) Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 132, 464 A.2d 6 (1983). " [T]he three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking." (Internal quotation marks omitted.) Id., 133. " The existence of an agency relationship is a question of fact." Id. " Proof of an implied agency is generally found in the acts and conduct of the parties." (Internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 81 Conn.App. 798, 805, 842 A.2d 1134 (2004). " The burden of proving agency is on the party asserting its existence." New England Whalers Hockey Club v. Nair, 1 Conn.App. 680, 683, 474 A.2d 810 (1984). A principal may be vicariously liable for the negligence of its agent. Cefaratti v. Aranow, 321 Conn. 593, 608, 141 A.3d 752 (2016). " Once there has been a finding of agency, vicarious liability attaches to the principal." Gagliano v. Advanced Specialty Care, P.C., 167 Conn.App. 826, 834 n.9, 145 A.3d 331, cert. granted in part, 323 Conn. 926, 150 A.3d 229 (2016). " Vicarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of policy that one person should be liable for the act of the other." (Emphasis added; internal quotation marks omitted.) Alvarez v. New Haven Register Inc., 249 Conn. 709, 720, 735 A.2d 306 (1999). " Thus, an allegation of vicarious liability does not involve the breach of any duty by the party vicariously liable." Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 528 n.12, 825 A.2d 72 (2003).
In the present case, the defendant, in its motion for summary judgment, concedes that there are genuine issues of material fact whether an agency relationship existed between Ziegler and the defendant, but argues that agency law cannot apply when the principal has no duty to the plaintiff. Nevertheless, the law is clear that " an allegation of vicarious liability does not involve the breach of any duty by the party vicariously liable." Id. A principal may be vicariously liable for the negligence of its agent. Cefaratti v. Aranow, supra, 321 Conn. 608. Accordingly, because no duty is necessary for the principal to be liable for the negligence of its agent, and because the defendant concedes that there are genuine issues of material fact whether an agency relationship existed, the defendant’s motion for summary judgment as to count three of the plaintiff’s complaint is denied.
The defendant in its motion states that it " adopts and relies on the factual findings, reasoning, and case law cited by the courts (Zemetis, J. and Vacchelli, J.) as set forth in their respective memoranda of decisions ..." Judge Vacchelli, in turn, concluded " a trier of fact could fairly conclude that Mr. Ziegler was an actual agent for Mystic Seaport during the procession." Kurisoo v. Ziegler, Superior Court, judicial district of New London, Docket No. CV-14-6020484-S (November 20, 2015, Vacchelli, J.). Thus, Judge Vacchelli would have denied the defendant’s motion for summary judgment, absent the duty analysis. Id. " A party is bound by a judicial admission ..." (Internal quotation marks omitted.) Brown v. Brown, supra, 130 Conn.App. 532. This Court respectfully disagrees with Judge Vacchelli’s duty analysis because a principal may be vicariously for the acts of its agent even when it owes no duty to the plaintiff.
CONCLUSION
Because there are no genuine issues of material fact whether the defendant owed a duty due to public policy considerations, the defendant’s motion for summary judgment as to count two of the plaintiff’s complaint is granted. Nevertheless, because there are genuine issues of material fact whether the defendant and Ziegler were in an agency relationship, the defendant’s motion for summary judgment on count three of the plaintiff’s complaint is denied.