Opinion
CV166056915S
01-18-2017
Andrea Ryan et al. v. Shamonie S. Gibson et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Dale W. Radcliffe, J.
FACTS
The Plaintiffs, Andrea Ryan and Tierra Cox, bring this action, following an automobile accident which occurred on July 18, 2015.
On that date, the Plaintiff, Andrea Ryan, was operating a motor vehicle southbound on Reservoir Avenue, a public highway in the City of Bridgeport, at approximately 5:33 p.m. Tierra Cox was a passenger in the vehicle.
As the Plaintiff's vehicle approached the intersection of Reservoir Avenue and Trumbull Avenue, the Defendant, Shamonie Gibson, was operating a 2012 Jeep Compass owned by the Defendant, Charles Blank, Sr., eastbound on Trumbull Avenue.
In the amended Complaint dated December 5, 2016, the Plaintiffs allege that Shamonie Gibson failed to obey a stop sign at the intersection, and struck the motor vehicle being operated by Andrea Ryan, causing both of the occupants to sustain injuries and damages.
In Counts 1 and 2 of the Amended Complaint, the Plaintiffs claim (paragraph 3) that Shamonie Gibson was operating the Jeep as the agent, servant and/or employee of the Defendant, Charles Blank, Sr., and was acting within the scope of the agency or employment.
In Counts 3 and 4, it is argued (paragraph 3) that Charles Blank, Sr. maintained the vehicle as a family car, for the convenience of members of his family. The Plaintiffs contend that Charles Blank, Sr. gave his son, Charles Blank, Jr., general authority to operate the vehicle, and that Charles Blank, Jr. gave Shamonie Gibson authority to operate the vehicle. It is further claimed that Shamonie S. Gibson was operating the automobile as the agency of Charles Blank, Jr.
The Defendant, Charles Blank, Sr. has moved for summary judgment in this matter. He claims that the Defendant, Shamonie S. Gibson, was not operating his vehicle on July 18, 2015 as his agent or employee, and that she never obtained permission to operate the automobile from its owner, Charles Blank, Sr.
STANDARD OF REVIEW--SUMMARY Judgment
Connecticut Practice Book Section 17-49 provides that summary judgment shall be rendered forthwith, if no pleading, affidavits and other documentary proof submitted demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to judgment as a matter of law. Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995).
The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003). A material fact has been defined as one which will make a difference in the result. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990).
The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried. Dowling v. Kielak, 160 Conn. 14, 16, 273 A.2d 716 (1970). The test for granting summary judgment is whether the moving party would be entitled to directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).
GENUINE ISSUE REMAINS AS TO AGENCY RELATIONSHIP
Charles Blank, Sr. submitted an affidavit, in support of his motion for summary judgment.
In the affidavit, he states that the Defendant, Shamonie Gibson, is not related to him by blood or marriage, and is not a member of his household. He further avers that she is not his employee, and was not acting as his agent at the time of the automobile accident.
Although Charles Blank, Sr. admits that his son, Charles Blank, Jr. gave Shamonie Gibson permission to operate his vehicle, he denies that the act conferred any benefit upon him.
Section 52-183 of the General Statutes sets up a presumption of agency. The statute reads:
In any civil action brought against the owner of a motor vehicle to recover damages for negligent or reckless operation of the 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. The defendant shall have the burden of rebutting the presumption.
The statute does not merely establish a presumption. It specifically places the burden of rebutting the presumption on the owner of the vehicle. Therefore, the presumption does not necessarily vanish when evidence contradicting it is offered. Koops v. Gregg, 130 Conn. 185, 187, 32 A.2d 653 (1943). Since the existence and scope of the presumption is a matter peculiarly within the knowledge of the owner of the vehicle, an assertion by the owner than no consent was ever given is not enough to overcome the presumption. Bogart v. Tucker, 164 Conn. 277, 281-82, 320 A.2d 803 (1973); Anderson v. Nedovich, 19 Conn.App. 85, 89-90, 561 A.2d 948 (1989).
Contradictory evidence necessary to rebut the presumption must be sufficient, and persuasive. Katz v. West Hartford, 191 Conn. 594, 603, 469 A.2d 410 (1983). Such evidence, in order to withstand a directed verdict, must consist of more than the owner's testimony. Bogart v. Tucker, supra, 283.
While the trier of fact might choose to credit the testimony of Charles Blank, Sr., the issue of agency cannot be determined by summary judgment.
FAMILY CAR DOCTRINE APPLIES TO THIS CASE
In Counts 3 and 4 of the December 5, 2016 Amended Complaint, the Plaintiffs allege that Charles Blank, Jr. had general authority to operate the 2012 Jeep Compass owned by his father. They further claim that he gave Shamonie Gibson permission to operate the vehicle on the date of the accident, and that she had taken him to work prior to the collision.
The " family car" statute, S. 52-182 of the General Statutes, reads:
Proof that the operator of a motor vehicle . . . was the husband, wife, father, mother, son or daughter or the owner shall raise a presumption that such motor vehicle . . . was being operated as a family car . . . within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption.
It has long been recognized, that the operator of a motor vehicle need not be a member of the owner's household, in order for the family car doctrine to apply.
In Dibble v. Wolff, 135 Conn. 428, 65 A.2d 479 (1949), the defendant owned a vehicle which was negligently operated by his daughter, while her mother was a passenger in the automobile. The daughter, who lived in another town, had driven her mother to visit friends.
The Connecticut Supreme Court determined that the mother, who could not drive herself but had general authority to operate the vehicle, was acting through her daughter at the time of the accident. Therefore, the family car doctrine applied, and the owner of the vehicle was vicariously liable. Dibble v. Wolff, supra, 433-34.
Where the operator of a vehicle is not a blood relative of the owner, the owner is not liable, unless a member of the household has general authority, given by the owner, to use the vehicle for pleasure and convenience. Costanzo v. Sturgill, 145 Conn. 92, 94-95, 139 A.2d 51 (1958); O'Keefe v. Fitzgerald, 106 Conn. 294, 299, 137 A. 858 (1927).
However, nowhere in his affidavit does Charles Blank, Sr. deny that his son, Charles Blank, Jr. had general authority to operate the vehicle. Nor does he deny that the vehicle was being operated on July 18, 2015 for the benefit of Charles Blank, Jr., who had been taken to work prior to the accident.
Nor is this a situation in which the family member was prohibited from allowing non family members to operate the vehicle. Costanzo v. Sturgill, supra, 94.
In Cima v. Sciaretta, 140 Conn.App. 167, 58 A.3d 345 (2013), the Appellate Court applied the family car doctrine, in the context of a motor vehicle, purchased by the owner for the use of his son, who was the primary driver. At the time of the accident, a friend of the son was operating the vehicle. The friend's negligence was attributable to the owner, under the indirect application of the family car doctrine. Cima v. Sciaretta, supra, 178. The negligent third party steps into the shoes of the family member, for purposes of applying the family car doctrine to the owner of the vehicle. Chen v. Bernadel, 101 Conn.App. 658, 667, 922 A.2d 1142 (2007).
Here, there is no indication that Charles Blank, Jr. lacked general authority to operate the vehicle. The parties do not dispute that Shamonie Gibson had driven Charles Blank, Jr. to work, prior to the collision, and that she was lawfully in possession of the automobile on July 18, 2015.
CONCLUSION
The motion for summary judgment is DENIED.