Morillo v. Georges

Full title: Antonio Morillo, Administrator of the Estate of Brian Morillo et al. PPA…

Court: Superior Court of Connecticut

Date published: Dec 31, 2015

HHDCV156058761S (Conn. Super. Ct. Dec. 31, 2015)

Opinion

HHDCV156058761S

12-31-2015

Antonio Morillo, Administrator of the Estate of Brian Morillo et al. PPA Adisa Dunic v. Alsem Georges et al

A. Susan Peck, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO STRIKE

A. Susan Peck, J.

On April 16, 2015, the plaintiffs, Antonio Morillo, as administrator of Brian Morillo, and Arianna Morillo, PPA Adisa Dunic, filed a six-count complaint against the defendants, Alsem Georges and Yellow Cab Company (Yellow Cab). In count one of the complaint, the plaintiffs allege the following facts. On or about June 3, 2013, the plaintiffs' decedent, Brian Morillo, was operating a motorcycle in a southerly direction on Main Street in Hartford, Connecticut, when the defendant, Georges who was operating the taxi-cab as a servant, agent and/or employee of Yellow Cab, attempted a U-turn from a parked position and collided with Brian Morillo's motorcycle. Due to Georges' negligence, Brian Morillo suffered multiple injuries that ultimately resulted in his death. In count two, which is labeled " Loss of Parental Consortium as to Alsem Georges, " the plaintiff further alleges that at the time of the accident Adisa Dunic was expecting the decedent's child, Arianna, and, as a result of the negligence and carelessness of Georges, she was deprived of ever meeting and knowing her father. Count three, labeled " Negligence as to the Yellow Cab Company, " alleges that Yellow Cab was negligent in that it failed to require Georges to participate in a driving test to properly evaluate his ability to operate a taxi-cab, it failed to conduct an adequate background check on Georges to determine his fitness to operate a taxi-cab, and it failed to properly investigate and consider other accidents involving Georges but instead allowed him to continue to operate one or more taxi-cabs owned by Yellow Cab. Count three further alleges that as a result of Yellow Cab's negligence, Georges was allowed to operate the taxi-cab which was a substantial factor in causing the collision which killed Brian Morillo. Count four, labeled " Negligent Entrustment as to Yellow Cab Company, " incorporates the allegations in counts one and three and further alleges that on said date and time, Yellow Cab negligently entrusted said motor vehicle to Georges and Yellow Cab knew or should have known that Georges was incompetent to operate said motor vehicle. Count five, labeled " Vicarious Liability as to the Yellow Cab Company, " alleges the following. On June 3, 2015, Georges was operating the Yellow Cab, owned and maintained by Yellow Cab, to perform all duties and assignments for his employer and/or principal, Yellow Cab, and in furtherance of their joint venture. Georges was under the direction and control of Yellow Cab and Georges was able to offer services as a result of Yellow Cab's advertising and markings on its vehicles. At the time of the collision, Georges was acting within the scope of his employment and/or agency with Yellow Cab and/or in furtherance of said joint venture. Count six, labeled " Loss of Parental Consortium as to the Yellow Cab Company, " incorporates count one and five and further alleges that at the time of the accident Adisa Dunic was expecting a child and as a result of the negligence and carelessness of the defendants, the child was deprived of ever meeting or knowing her father.

On May 28, 2015, the defendants filed a motion to strike counts two and six on the ground that they are legally insufficient to state a claim of loss of parental consortium because Connecticut does not recognize such a claim. The defendants also moved to strike counts three and four on the ground that the plaintiff has failed to allege facts sufficient to establish these claims. In opposition to the defendants' motion to strike counts two and six, the plaintiffs argue that these counts should not be stricken because a majority of states recognize the rights of children under a loss of parental consortium claim. The plaintiffs also argue that counts three and four are sufficient because they properly allege facts to support claims of negligent hiring and negligent entrustment and had Yellow Cab conducted a proper background check and driving evaluation, it would have been readily discernible that Georges was an incompetent driver and unfit to operate a taxi-cab.

" 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).

I

Loss of Parental Consortium

The defendants argue that the plaintiffs' claims for loss of parental consortium, counts two and six, should be stricken because a claim for loss of parental consortium is not recognized in Connecticut. The plaintiffs argue that a majority of states recognize the rights of children and afford them the right to seek redress in a loss of parental consortium claim. Subsequent to the filing of this suit, in Campos v. Coleman, 319 Conn. 36, 123 A.3d 854 (2015), the Connecticut Supreme Court recognized a cause of action for loss of parental consortium. In light of Campos, the defendants argue that the loss of parental consortium claim should be stricken because at the time of the accident the infant was in utero and loss of parental consortium claims are limited to minors and to claims resulting from a parent's injury during the parent's life.

" A cause of action for loss of parental consortium arises when a tortfeasor causes injuries to the parent of a minor child, and those injuries result in the loss [to the child] of [the] parent's love; care, companionship and guidance . . ." (Internal quotation marks omitted.) Id., 38 n.1. The court has imposed the following restrictions on loss of parental consortium claims. " First, loss of parental consortium claims must be joined with the parent's negligence claim whenever possible, and the jury must be instructed that only the child raising the claim can recover the pecuniary value of the parent's services . . . Second, and relatedly, because a loss of parental consortium action is derivative of the injured [parent's] cause of action, the consortium claim would be barred when the [action] brought by the injured [parent] has been terminated by settlement or by an adverse judgment on the merits . . . Third, a loss of parental consortium claim may be raised only by a person who was a minor on the date that the parent was injured, and damages may be awarded only for the period between the date of the parent's injury and the date that the child reaches the age of majority." (Citations omitted; internal quotation marks omitted; footnotes omitted.) Id., 57-58. Liability is limited " to damages arising from injury to the parent during the parent's life and thereby preclude[s] damages arising from the parent's death." Id., 58.

In the present case, Arianna Morillo was in utero at the time of her father's accident and death. As set forth in Campos, a loss of parental consortium claim can only be raised by a person who was a minor child on the date that the parent was injured. A minor is defined as " a person under the age of 18 who has not been legally emancipated." (Emphasis added.) Id., 58 n.18. Although there is no case precisely on point in Connecticut, our Supreme Court has found in analogous cases, that a child in utero has no assertible legal rights until birth.¹ Thus, it follows that an unborn child at the time her father sustained injury is not a minor child under the law for purposes of asserting a loss of parental consortium claim. Further, damages in parental consortium cases are only available to compensate a minor child for the loss of a parent's love, care, companionship and guidance during the life of the injured parent. Since Arianna was in utero at the time of her father's death she cannot establish that she has been harmed by the injury to her father during his lifetime. In a footnote to the Campos opinion, the court states that it does " not suggest that the mere fact that a child's biological or adoptive parent has been injured automatically results in a compensable injury to the child. When the injured parent provided no affection, care, concern, guidance or services to the child prior to the injury, the child cannot establish that he or she was harmed by the injury, which is a required element of any tort claim." Id., 44 n.6. For these reasons, the plaintiff has failed to state a claim in counts two and six for loss of parental consortium.

1 See In re Valerie D., 223 Conn. 492, 517, 613 A.2d 748 (1992) (a fetus is not a person within the context of juvenile law because the Court held that General Statutes § 46b-120 defining a child implicitly required a child to be born); State v. Courchesne, 296 Conn. 622, 998 A.2d 1 (2010) (in the criminal context, Connecticut follows the " born alive rule" which states that an infant who is born alive and who subsequently dies of injuries that he or she had sustained in utero is " person"). See also Crook v. Academy Drywall Co., 219 Conn. 28, 591 A.2d 429 (1991) (Although under the Workers' Compensation Act, an employee is entitled to a dependency allowance for a child conceived before but born after the date of the employee's injury, the right to the compensation does not commence until the child is born).

II

Negligent Hiring

The defendants also move to strike count three of the plaintiffs' complaint because it fails to allege facts sufficient to support a claim of negligent hiring by Yellow Cab. In support of their motion as to this count, the defendants argue that the complaint fails to allege that Yellow Cab hired an employee who was not fit or competent to perform the services of his employment. Also, in their reply memorandum, the defendants further argue that the plaintiffs have failed to allege that Georges' incompetency as a driver pre-existed his hiring by Yellow Cab. The plaintiffs counter that they have properly alleged facts demonstrating that Yellow Cab negligently hired Georges.

Our Appellate Court has stated: " employers may be directly liable for the negligent hiring, retention or supervision of an employee who, through a tortious act, injures a third party." Seguro v. Cummiskey, 82 Conn.App. 186, 196, 844 A.2d 224 (2004). " A common-law claim in negligent hiring exists in any situation where a third party is injured by an employer's own negligence in failing to select an employee fit or competent to perform the services of employment." (Internal quotation marks omitted.) Maisano v. Congregation Or Shalom, Superior Court, judicial district of New Haven, Docket No. CV-07-4027175-S (January 26, 2009, Holden, J.) (47 Conn. L. Rptr. 152, 155); see also Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982).

" [I]n the context of negligent hiring, courts generally rule that an employer cannot be held liable for the conduct of its employees that injure a third party if the employer could not have foreseen that the employee would engage in such conduct." (Internal quotation marks omitted.) Hearn v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV-02-0466339-S (April 2, 2007, Licari, J.). " Our Superior Court has interpreted this foreseeability requirement as one in which the employer knew or should have known of the employee's propensity to engage in the alleged harmful conduct." (Internal quotation marks omitted.) Bertocki v. Williams, Superior Court, judicial district of New London, Docket No. CV-09-6000929-S (August 16, 2010, Devine, J.).

In the present case, the plaintiffs allege that Yellow Cab was negligent in hiring Georges because they failed to require Georges to participate in a driving test " to evaluate his ability to properly operate a taxi-cab, " failed to conduct " an adequate background check to determine his fitness to operate a taxi-cab, " and failed " to properly investigate and consider other accidents involving Georges" and " instead allowed him to continue operating one or more taxi-cabs" owned by Yellow Cab. Construing these allegations in a light most favorable to the plaintiffs, including those facts necessarily implied therefrom, the plaintiff has sufficiently alleged that Yellow Cab knew or should have known that its driver Georges was not fit or competent to operate a taxi-cab that pre-existed his hiring by Yellow Cab. See Coppola Construction Co. v Hoffman Enterprises Ltd. Partnership, supra, 309 Conn. 350; see also Bertocki v. Williams, Superior Court, judicial district of New London, Docket No. CV-09-6000929-S (August 16, 2010, Devine, J.) (motion to strike negligent hiring claim denied when plaintiff alleged that defendant allowed Williams to operate its motor vehicle for the purpose of collecting and delivering laundry when it knew or should have known that he was incompetent to operate a motor vehicle safely on the highway; allowed Williams to operate its motor vehicle without first conducting diligent background check or check on his driving history and without first adequately inquiring into his qualifications as a truck driver; and, allowed Williams to operate its motor vehicle when it knew or should have known that he did not possess requisite skill and competence of truck driver and would therefore likely cause injury or harm to others traveling along public highway, including plaintiff's decedent).

III

Negligent Entrustment

The defendants move to strike count four of the complaint on the ground that it fails to allege facts sufficient to support a claim of negligent entrustment on the part of Yellow Cab. In support of their motion as to this count, the defendants argue that the complaint fails to allege any facts that suggest or imply that Georges had a history of incompetent driving or dangerous propensities, and the plaintiffs fail to allege facts showing that Yellow Cab had actual or constructive knowledge that Georges was incompetent to operate a motor vehicle when it entrusted him to operate a Yellow Cab. The plaintiff's counter by arguing that by alleging that Yellow Cab failed to administer a background check or to evaluate Georges' ability to operate a taxi-cab, by implication, they have sufficiently alleged that had Yellow Cab done so, it would have discovered Georges had a history of incompetent driving and had dangerous propensities that made him unfit to perform his assigned duties as a taxi-cab driver.

In Greeley v. Cunningham, 116 Conn. 515, 165 A. 678 (1933), our 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 intrusts 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). " 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 or readily discernible." Delprete v. Senibaldi, supra, Superior Court, Docket No. CV-l11-6024795-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.) .

As previously stated, in the present case, the plaintiffs allege that Yellow Cab was negligent in hiring Georges because they failed to require Georges to participate in a driving test " to evaluate his ability to properly operate a taxi-cab, " failed to conduct " an adequate background check to determine his fitness to operate a taxi-cab, " and failed " to properly investigate and consider other accidents involving Georges" and " instead allowed him to continue operating one or more taxi-cabs" owned by Yellow Cab. The plaintiffs further allege that as a result of the negligence of Yellow Cab, Georges was allowed to negligently operate the taxi-cab which was a substantial factor in causing the injury and death suffered by the decedent. Construing these allegations in a light most favorable to the plaintiffs, including those facts necessarily implied therefrom, the plaintiffs have sufficiently alleged that Yellow Cab had constructive knowledge of Georges' incompetence to be entrusted with the operation of a taxicab. See Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, supra, 309 Conn. 350; see also Ellis v. Jarmin, Superior Court, judicial district of New London, Docket No. CV-90-5010839 (December 17, 2009, Cosgrove, J.) (49 Conn. L. Rptr. 1) (Motion to strike negligent entrustment claim denied when facts alleged implied constructive notice of unfitness of driver noting that while complaint does not specifically allege defendant's manner of constructive notice of driver's outstanding warrants, allegation that defendant should have known that driver was wanted by police and likely to flee from pursuit of police thus endangering members of the public sufficient to imply that driver's status was readily discoverable and should have put defendant on notice that driver was incompetent to operate motor vehicle).

As the court recognized in Ellis v. Jarmin, while a mere allegation that the defendant should have known of the driver's outstanding arrest warrants may be sufficient to imply constructive notice at the motion to strike phase, at some point the plaintiff will undoubtedly be called upon to present a more concrete factual basis as to what steps the defendant should have taken to ascertain the outstanding arrest warrants, and thus, the fitness and/or competence of the driver. By the same token, in the present case, although their bare bones factual allegations are sufficient by implication to survive a motion to strike, at some point in the course of this litigation the plaintiffs herein will undoubtedly be required to present a more specific evidentiary foundation for their allegations of negligent hiring and negligent entrustment by the defendant Yellow Cab.

CONCLUSION

Accordingly, for the foregoing reasons, the defendants' motion to strike counts two and six is hereby granted and their motion to strike counts three and four is hereby denied.