No. CV 03-0825248
December 8, 2004
MEMORANDUM OF DECISION
The plaintiff sues the defendants in common-law counts of conversion and wrongful infliction of emotional distress, and for violation of statutes prohibiting the wrongful towing of a vehicle (Conn. Gen. Stat. § 14-145, et. seq.) and unfair trade practices (Conn. Gen. Stat. § 52-110b). The facts are as follows.
On the Saturday evening of September 28, 2002, the plaintiff visited her friend who owned a condominium in defendant Fountain Village Associates, LLC (hereinafter Fountain Village). Finding no spaces available in the area designated as guest parking, plaintiff parked in an area designated as "residential parking only." The sign at the entrance to the condominium complex on Downey Street stated "Tow Away Zone, Unauthorized Vehicles Will Be Towed At Owner's Expense 24 hours a day, seven days a week, Whitey's Towing 246-6871."
The defendant Fountain Village had a contract with defendant Whitey's, Inc. for Whitey's to tow away cars parked in "non-designated spaces or without proper stickers." On the night of September 28, 2002, Whitey's towed plaintiff's car to its lot in Hartford.
When plaintiff left her friend's house, she found her car missing, called the police and was informed that it was at Whitey's. She called Whitey's and was told the towing and storage charges were $497. She went to the lot at about 11:30 p.m. and an employee told her the lot was closed and her car would not be released. There is no evidence that Whitey's employee was discourteous or abusive to the plaintiff. Plaintiff however, testified she was emotionally upset by the experience. She returned to the lot the next day at about 2:00 p.m., gave a Whitey's representative a $100 bill and retrieved her car.
The plaintiff sues in the four causes of action mentioned above.
1. Violation of Conn. Gen. Stat. § 14-145, et. seq. against Whitey's, Inc.
Section 14-145a(a) provides "No vehicle shall be towed or removed from private property except upon express instructions of the owner or lessee or his agent of the property upon which the vehicle is trespassing."
Section 14-145b(b) provides "when a vehicle has been towed or removed . . . it shall be released to its owner . . . upon demand, provided the demand is made between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday or at a reasonable time on Saturday, Sunday or holidays and the owner . . . presents proof of registration, pays the cost of towing or removal and of storage, or signs a declaratory statement that the towed or removed vehicle was taken illegally."
An underlying question to determine a violation of the statute is whether the plaintiff was trespassing when she parked in the visitors only parking area. Oddly, an extensive research of the law reveals no cases holding that parking in an unauthorized area is a trespass. However, the common-law concept of trespass is probably the broadest cause of action in the common law. Trespass is defined in the Restatement of Torts 2nd, Section 158 as an intentional entry on land in the possession of another or remaining on that land. As stated in 75 Am.Jur.2d Trespass at Section 27, one is subject to liability in trespass on real property "if he intentionally enters land in the possession of the other . . . and remains on the land." In the instant case the plaintiff parked in a residence only parking area. By so doing, she deprived the residents of their spaces. As a consequence, under the broad definition of trespass, the court finds the plaintiff was trespassing at the time her car was towed.
Section 14-145(b) provides that the company shall release the car to the owner upon demand made between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday or at a reasonable time on the weekends or holidays and the owner pays the costs of towing and storage charges. In this case the plaintiff went to reclaim her car at or about 11:30 on Saturday night when the facility was closed. There was a towing operator there but she did not offer him the storage charges. She reclaimed the car the next day when she paid her storing charges. Based on these facts, the court finds that defendant Whitey's did not violate the provisions of the above-quoted statute.
2. Conversion Against Both Defendants.
As to defendant Fountain Village, plaintiff alleges that by it authorizing defendant Whitey's to tow away plaintiff's parked car and as to Whitey's, plaintiff alleges that by it retaining possession of plaintiff's car for approximately sixteen hours, and plaintiff claims therefore both defendants are liable for conversion. Conversion is the "unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights." Falker v. Samperi, 190 Conn. 412, 419-20 (1983).
In the instant case, even if by reason of the plaintiff's trespass, Fountain Village had the right to have Whitey's tow plaintiff's car, conversion can occur because of a wrongful detention of a vehicle. Colon v. Francis, 102 Conn. 612, 616 (1925). In Halloran v. Spillane's Service Center, Inc., 41 Conn.Sup. 484, 498, 1 Conn. L. Rptr. 790 (1990); the court found that a towing company has no lien upon the vehicle and its refusal to release the vehicle after demand by the owner constituted a conversion. However, since that case the legislature amended Section 14-145b(b) to provide that the towing company need not release the vehicle until towing and storage charges were paid. That provision supersedes the common-law doctrine of conversion. Since the plaintiff did not offer to pay the storage charges when she appeared at Whitey's on the late evening of September 28th, neither Whitey's nor Fountain Village are liable for conversion.
3. Wrongful Infliction of Emotional Distress Against Both Defendants.
Plaintiff alleges both defendants are liable for the wrongful infliction of emotional distress by reason of their wrongfully taking and retaining the plaintiff's vehicle on September 28th. As indicated above, the court finds that the vehicle was neither wrongfully taken or detained. Moreover, a cause of action in emotional distress must show that her distress is "sufficiently severe, genuine and extreme that no reasonable person should be expected to endure it." Gilman v. Gilman, 46 Conn.Sup. 21, 23 (1999). The Restatement of Torts 2nd at Section 46 provides that a cause of action for emotional distress lies when "one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another." Our courts have long held that for plaintiff to prevail in such an action, he must "allege and prove conduct considerably more egregious than that experienced in the rough and tumble of everyday life . . . [A] line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional actions wholly lacking in social utility." Whelan v. Whelan, 41 Conn.Sup. 519, 522, 3 Conn. L. Rptr. 135 (1991).
In the instant case the plaintiff testified that she was upset and lost sleep as a consequence of not being able to obtain her car. However, she did not testify to such severe emotional distress nor was the defendant's conduct so egregious as to justify her prevailing on this cause of action.
4. Unfair Trade Practices Against Both Defendants
Section 42-110b provides: "No person shall engage in unfair . . . acts or practices in the conduct of any trade or commerce." Our courts have consistently identified the following criteria for determining whether a practice is unfair: "(1) [W]hether the practice necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen]." McLaughlin Ford, Inc. v. Ford Motor Company, 192 Conn. 558, 568 (1984).
In this case the court finds the defendants did not offend public policy by violating either the common law, statutory law or other established concept of fairness because plaintiff has failed to prove conversion or a violation of § 14-145a or § 14-145b; the acts of the defendant were not immoral, unethical, oppressive or unscrupulous, and they did not cause substantial injury to the plaintiff.
In rendering this holding the court distinguishes the instant case from Halloran v. Spillane's Service Center, Inc., supra in which that court found that the towing company committed a conversion by not releasing the car on demand and that the towing company's employees were abusive and even violent to the plaintiffs in that case.
Having concluded that the plaintiff cannot prevail on any of its causes of action, the court renders judgment in favor of the defendants.
BY THE COURT
ROBERT SATTER, JTR