From Casetext: Smarter Legal Research

Toscano v. Corker

Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
Nov 9, 2010
2010 Ct. Sup. 22132 (Conn. Super. Ct. 2010)

Opinion

No. FST CV 09 5012300 S

November 9, 2010


MEMORANDUM OF DECISION RE APPLICATION FOR PREJUDGMENT REMEDY


I. Background

The plaintiff Geraldine Toscano alleges that she was injured in a motor vehicle accident which took place in November 2007 between a car she was driving and a car owned by the defendant Pamela Corker, and driven by her granddaughter, the defendant Karamarie Laviola. The plaintiff's application for a prejudgment remedy raises primarily two questions: (1) whether Pamela Corker can be held liable as the owner of the vehicle which collided with the plaintiff's vehicle and (2) the amount, if any, of a prejudgment remedy.

At a hearing of this matter on October 12, 2010, the evidence presented disclosed the following facts. The vehicle being driven by the defendant Laviola was a Nissan Infiniti purchased by her grandmother Corker in around 2004. The vehicle was registered in Corker's name and she paid for insurance and the personal property taxes assessed by the town of New Canaan where she lived. Laviola lived with Corker most of her life in New Canaan. In March 2007, about eight months before the accident, Laviola moved out of the New Canaan residence to Norwalk to live with her soon-to-be husband, whom she married in October 2007, and their child. Laviola used the Infiniti while living in New Canaan. When she moved to Norwalk, Corker gave her the car for her use, and Laviola used it for her purposes on a full-time basis. Her grandmother testified that after moving out Laviola did not use the vehicle to run errands for Corker, and Laviola was free to use it entirely for her purposes. In addition to the vehicle's insurance and taxes, Corker paid for its major repairs. Laviola paid for gas and oil changes. Corker testified that if Laviola ever did not want the car she would be required to give it back.

II. Agency

The plaintiff contends that at the time of the accident, Laviola was operating the Infiniti with permission and authority of Corker, the owner. Complaint ¶ 5. The presumed basis of the assertion of liability against Corker is on some theory akin to respondeat superior. The defendants contend that Laviola was not the agent of Corker; that the presumption of agency contained in General Statutes § 52-183 has been rebutted, and that the family car doctrine implemented by General Statutes § 52-182 does not apply because the relation of Laviola to Corker does not fall into any of the familial relationships identified in the statute.

General Statutes § 52-183 reads:

In 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 is the course of his employment. The defendant shall have the burden of rebutting the presumption.

General Statutes § 52-182 reads:

Proof that the operator of a motor vehicle or a motorboat, as defined in section 15-127, was the husband, wife, father, mother, son or daughter of the owner shall raise a presumption that such motor vehicle or motorboat was being operated as a family car or boat within the scope of a general authority from the owner, and shall impose upon the defendant the burden of rebutting such presumption.

Section 52-182 establishes certain presumptions applicable to what is known as the "family car doctrine." At its genesis in Connecticut, the doctrine was explained by the Connecticut Supreme Court as follows: "when a motor-car is maintained by the pater-familias for the general use and convenience of his family, he is liable for the negligence of a member of the family having general authority to drive it, while the car is being used as a family car . . ." [Citations omitted.] Wolf v. Sulik, 93 Conn. 431, 436 (1919). "The basis of liability is that one who owns and maintains a car for the general use of his household is held upon grounds of public policy and in analogy to the principles governing agency to make the use of such car a part of his business, so that any member using it for those purposes under general authority to do so become his representative for whose negligence he is responsible." Duro v. A.D. Cozzolino, Inc., 128 Conn. 24 (1941) (holding that wife using a company car made available for family uses, gave rise to company liability under the family care doctrine).

While Section 52-182 statutorily establishes presumptions that the family car doctrine applies when certain specified persons or relationships are involved, the statute does not fully define or limit the applicability in this state of the family car doctrine. In this case, Corker is the head of the family of which Laviola was a part. Arguably, the facts show that while Laviola could use the Infiniti for any of her purposes, it was only Corker's grant of this authority that allowed this to happen. The plaintiff contends that without Corker's assistance, Laviola would never have obtained use of the vehicle. As such, the granddaughter was an agent of Corker's and any use or enjoyment of the vehicle by the former was as the latter's agent. See Chen v. Bernadel, 101 Conn.App. 658, 665-66 (2007) [(citing and quoting Cook v. Nye, 9 Conn.App. 221 (1986)]. To emphasize that it was only by Corker's grant of authority that Laviola enjoyed and used the Infiniti, it should be remembered that, according to Corker's own testimony, Laviola could not sell the car or undertake major repairs to it.

However, at the time of the accident Laviola did not live with Corker or live in the family house in New Canaan. Indeed, she had started her own family and household. The plaintiff asserts that the family car doctrine applies even when the driver did not live with the person seeking to be held responsible. Pl. Memo (Oct. 26, 2010) 13. But the case cited in support of this proposition, Chen v. Bernadel, supra, is not supportive of this position. Chen involved a driver living at home with his father, and Cook v. Nye, supra, involved a daughter living at home with her parents. See 101 Conn.App. 664, 665 and 9 Conn.App. 223.

In Krappatsch v. Thompson, 15 Conn.Sup. 146 (1947), another case cited by the plaintiff, a son was the sole driver of a car registered in his father's name, in spite of a presumption in favor of the applicability of the family car doctrine similar to that found in Section 52-182, a Superior Court held that the doctrine did not apply where the father lived in Massachusetts and the son resided in Connecticut. While the issue is a close one, and Judge Comley noted the substantial distance between the location of the car and the father's residence (much greater than in this case) this court is persuaded that the fact of a separate household and arguably a separate family, is determinative and precludes the applicability of the family car doctrine to hold Corker liable.

The plaintiff also relies on general principles of agency and General Statutes § 52-183 to hold Corker liable. Section 52-183 establishes a presumption that when the operation of a motor vehicle is by someone other than the vehicle owner, the operator is presumed to be the owner's agent, and the vehicle owner — here Pamela Corker — has "the burden of rebutting the presumption." The Connecticut Supreme Court has said the "statute goes further than merely establishing a presumption, in that it expressly places upon the defendant the burden of introducing evidence to rebut the presumption . . . Moreover, the presumption is not ousted simply by the introduction of any evidence to the contrary." Matthiessen v. Vanech, 266 Conn. 822, 837 (2003). "The presumption ceases to be operative when the trier finds proven facts which fairly put in issue the question . . . if countervailing evidence is produced but the trier does not believe it, the presumption applies. Koops v. Gregg, 130 Conn. 185, 188 (1943). In Matthiessen the Connecticut Supreme Court clearly articulated that the "sole purpose" of the statute, § 52-183, was to shift the burden of producing evidence and not to abrogate or subsume the existing common law doctrine of respondeat superior. Matthiessen, supra, 226 Conn. 839. In discussing that doctrine, the Matthiessen court reaffirmed that "it must be the affairs of the principal and not solely the affairs of the agent which are being furthered in order for the doctrine to apply." CT Page 22135 Id., n. 15 [quoting Mitchell v. Resto, 157 Conn. 258, 262 (1968)].

The evidence presented in this case is one sidedly to the effect that Laviola was pursuing solely her own affairs when the accident occurred. Her uncontradicted testimony was that the accident occurred while she was driving from her Norwalk residence to her job at the New Canaan Y. Corker testified that her granddaughter did not run any errands for her after she left the New Canaan residence. The court finds that the presumption of Section 52-183 has been rebutted, and there is no evidence to establish that Laviola was Corker's agent.

III. Damages

In her application the plaintiff is claiming $350,000 in damages, and the insurance on the subject vehicle is $100,000. Therefore, she seeks a prejudgment remedy of $250,000. There is probable cause to find Laviola liable for injuries sustained by the plaintiff in the November 2007 accident. The Infiniti was behind the plaintiff's vehicle which was stopped waiting to make a left hand turn. According to Laviola's testimony she did not anticipate the plaintiff Toscano's vehicle stopping. In these circumstances there is sufficient basis to justify a prejudgment remedy.

The plaintiff has submitted evidence that she has incurred medical expenses of slightly over $75,000 since the November 2007 accident. Over $60,000 of these expenses arise from cervical fusion surgery performed on the plaintiff in January 2008 in Norwalk Hospital ($38,333.96), and services provided by the plaintiff's surgeon, Dr. Scott Sanderson, including the surgery, through May 2008 ($23,734.57).

The testimony and the evidence show that prior to the collision with defendants' vehicle, Ms. Toscano had incurred neck problems in May 2006 and had undergone anterior cervical discectomy and fusion surgery (ACDF) by Dr. Sanderson in January 2007 involving insertion of bone from her hip into her cervical spine secured by screws. According to Dr. Sanderson's communication of November 3, 2009, "Prior to her motor vehicle accident of November 2007 I was proceeding with nonsurgical attempts to manage her pseudoarthrosis and neck pain. As documented in my office notes we were proceeding with a cervical bone stimulator and multiple trigger pont injections under the direction of her pain management physician. My intent was to try to control neck pain and proceed with a fusion nonsurgically. Unfortunately, after her motor vehicle accident of November 19, 2007, her neck pain increased so much and became unmanageable with those techniques. Therefore because of this dramatic increase in neck pain from her accident I felt that we would no longer be successful with nonsurgical treatment and scheduled her for a posterior cervical fusion." Exhibit A, letter to Attorney Savvaides. Plaintiff's naturally point to this statement as proof the accident caused the claimed damages. However, there is additional evidence from the same source. On July 2, 2007, four months prior to the accident, after reviewing X-rays, Dr. Sanderson noted: "it does not appear that she has had a successful fusion at this point." Exhibit A, History and Physical Report #7. On August 6, 2007, after reviewing a CT scan and an MRI, Dr. Sanderson said the images demonstrate "a likely C5-6 pseudoarthrosis" (defined in Steadmans Medical Dictionary, 26th ed., 1449 as "a new, false joint arising at the site of an ununited fracture.") Exhibit A, History and Physical Report #8. On November 26, 2007, several days after the subject accident, Dr. Sanderson noted that Ms. Toscano's neck pain was worse than before the accident. His note continues: "She also has a pseudoarthrosis. However, the options are allowing her to recover from her accident with likely several weeks to months of neck pain and then proceeding with a posterior fusion for a pseudoarthrosis or taking advantage of the time when she will have neck pain anyway from her accident and performing the posterior cervical surgery. I believe that her length of time in pain would be limited by doing the surgery sooner rather than later. After discussing the pros and cons of additional surgery, Dr. Sanderson ordered surgery that day, to take place when Ms. Toscano stopped smoking. Exhibit A, History and Physical Report #10.

The above review of the evidence shows that the original ACDF surgery was not successful in alleviating Mrs. Toscano's neck pain, although it did alleviate other symptoms. It seems likely that the November 2007 accident hastened the second cervical surgery, but may have played only a partial role in necessitating that surgery. The evidence shows Mrs. Toscano has suffered pain, discomfort and medical expenses caused by the accident, and the court determines she is entitled to a prejudgment remedy in the amount of $175,000.00 against the defendant Laviola.


Summaries of

Toscano v. Corker

Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
Nov 9, 2010
2010 Ct. Sup. 22132 (Conn. Super. Ct. 2010)
Case details for

Toscano v. Corker

Case Details

Full title:GERALDINE TOSCANO v. KARAMARIE CORKER ET AL

Court:Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford

Date published: Nov 9, 2010

Citations

2010 Ct. Sup. 22132 (Conn. Super. Ct. 2010)
51 CLR 54