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Connecticut Law Tribune

May 26, 2003

Personal Injuries as a Result of the Negligence, Claim with Driver's Employer

Albano v. Cheshire ILMR-LLCWaterbury J.D., at Waterbury [Doc. No. CV01-0167537S]Gallagher, J.
TORTS

CASE-INFO: Batchelor v. Veliz
Evans v. Testa Development Assoc.
Farr v. Sard Realty Co. LLC
Pires v. Town of Litchfield
Joseph v. Russo
Robinson v. Yankee Energy Services Co.
Viera v. Walgreen Eastern Co.

The plaintiffs, Jessica Batchelor and Joanne Gabriele, alleged that they sustained personal injuries as a result of the negligence and recklessness of the defendant driver, Jose Veliz. The fourth, fifth and sixth counts are directed against Veliz's employer, Camsan Inc. Three counts are against the owner of the vehicle that Veliz was operating, Ford Motor Credit Co. Defendants Veliz and Camsan Inc. moved to strike counts that claimed Veliz's alleged recklessness could be imputed to his employer, Camsan Inc., so as to permit recovery of multiple damages under C.G.S. §[14-295. Recognizing a split among the Connecticut Superior Courts as to whether a plaintiff can recover multiple damages from a driver's employer for the reckless conduct of the operator, the court granted the motion to strike claims for double or treble damages based on common-law vicarious liability.

Stamford/Norwalk J.D., at Stamford

[Doc. No. CV01-0185583]

Lewis, J.T.R. §* March 31, 2003 §* 8 pages.

Summary judgment was denied to the defendant, Testa Development Associates, but granted to the defendant, Sebastian Testa, who was not liable in his individual capacity for actions taken in his official capacity as manager of the company. The plaintiffs alleged statutory and common-law vexatious litigation claims against the defendants and their attorney following a prior action brought by Testa Development. Testa alleged negligence, vexatious litigation and tortious interference with a business relationship for the plaintiffs' appeal of a decision of the Glastonbury Planning and Zoning Commission. The appeal was ultimately successful. Testa indicated at deposition that the end result of the suit was that the plaintiffs withdrew their zoning appeal so that he could build houses. Questions of fact remained on the company's defense of good faith reliance upon advice of counsel. There was a genuine issued about whether legal consultation with an attorney was based on a full and fair disclosure by Sebastian Testa of all the facts he knew or was charged with knowing concerning the basis for the contemplated suit. Also in dispute was whether he relied in good faith on the advice of counsel in commencing the prior action. The defendant's argument that it had probable cause to bring the suit, because of the plaintiffs' purposeful and deliberate decision to interfere with its application, was previously determined against them. The Noerr-Pennington doctrine didn't apply and didn't entitle the company to summary judgment. It did not establish that the prior suit against the plaintiffs was linked to an exercise of First Amendment rights or how it constituted petitioning the government.

Hartford J.D., at Hartford [Doc. No. CV01-0806425]

Booth, J. §* April 24, 2003 §* 16 pages.

The plaintiff alleged that he fell on ice in a parking lot controlled by the defendant, Sard Realty Co. Sard filed an apportionment complaint, which alleged that a third party, D.W. Burr, was engaged by Sard to remove snow from the premises. A court granted the plaintiff's motion to strike the apportionment complaint. The duty to keep premises reasonably safe is nondelegable. An owner is vicariously liable to the plaintiff for alleged negligence by a third-party and might be liable to the plaintiff vicariously and because of the owner's "own" negligence. The court theorized that an apportionment complaint ought to be viable when the owner asserts negligence on the part of the contractor that is outside of the duty to keep premises reasonably safe, and clearly beyond the allegations of the plaintiff against the owner. Noting that scenario was not alleged, the court struck the apportionment complaint.

Hartford J.D., at Hartford [Doc. No. CV02-0820814S]

Beach, J. §* April 24, 2003 §* 3 pages.

The plaintiff alleged he was driving his pick-up truck on a dirt road at the Litchfield town landfill when his truck left the roadway and fell six feet into a dumpster that was located adjacent to the roadway, but below the road's surface. In his suit against the Town of Litchfield, the plaintiff claimed the road "ended in a cliff" above the dumpster, without any warnings or barriers to protect travelers. The complaint sought damages pursuant to C.G.S. §[52-557, claiming the dumpster site was inherently dangerous and a nuisance. The court granted the town's motion to strike. C.G.S. §[13a-149, the defective highway statute, was the plaintiff's exclusive remedy. His injuries allegedly result from a condition in a public roadway that made travel unsafe.

New Britain J.D., at New Britain

[Doc. No. CV00-0502703S]

Bryant, J. §* April 4, 2003 §* 5 pages.

Defendant Marc Russo allegedly collided with a vehicle operated by the plaintiff driver. Russo claimed his view was obstructed by a parked delivery truck owned by defendant Federal Express Corp. and operated by its employee. The plaintiffs amended their complaint to include the Federal Express employee. The defendants filed a special defense, claiming contributory negligence by the plaintiff driver. Federal Express and its driver filed a counterclaim seeking indemnification from the plaintiff driver on the theory that he controlled the operation of his motor vehicle, whereas they were "passive" parties. The plaintiff driver sought to strike the counterclaim, arguing it didn't sufficiently allege he was in control of the scene of the accident to the exclusion of the counterclaim plaintiffs. He also argued that the counterclaim only alleged legal conclusions, not facts. The court noted that the counterclaim alleged the plaintiff driver "exercised exclusive control of the manner, means and frequency by which he operated his motor vehicle." However, the court granted the motion to strike the counterclaim, because it did not sufficiently allege active negligence and tortious conduct by the plaintiff driver.

Stamford/Norwalk J.D., at Stamford

[Doc. No. CV01-0185770]

Lewis, J.T.R. §* March 31, 2003 §* 6 pages.

The plaintiff allegedly was electrocuted while was working in a boiler room in a building in Plainville. The plaintiff alleged Bristol Spring Manufacturing Co. owned, controlled and maintained the boiler room and was negligent in failing to maintain safe premises for the plaintiff, a business invitee. Defendant Bristol Spring Manufacturing Co. moved for summary judgment, claiming that as a lessee, it owed no duty to the plaintiff, and that the plaintiff's own negligence caused the accident. The court articulated its earlier decision denying summary judgment. Whether the defendant had possession and control of the premises and owed the plaintiff a duty of care as a business invitee were questions of material fact. The "nonliability rule" protects employers of independent contractors only from vicarious liability for the contractor's negligence. In this case, the plaintiff alleged the defendant was directly liable. There were genuine issues of fact concerning contributory negligence and whether the defendant was involved with or controlled the plaintiff's work. Based on the evidence, a factfinder could conclude that the defendant's failure to inform the plaintiff about an unknown electrical power source constituted a breach of the duty to warn the plaintiff and protect him from dangers about which he could not reasonably be expected to know. A factfinder could conclude that the plaintiff's accident resulted from the defendant's breach of duty.

New Britain J.D., at New Britain [Doc. No. CV00-0500037S]

Bryant, J. §* April 14, 2003 §* 19 pages.

A motion to strike the special defense of contributory negligence as to a negligence count was denied in an action arising out of a pharmacist allegedly dispensing the wrong medication. The pharmacist allegedly provided the plaintiff with Prozac instead of Prilosec. The word "Prozac" was written on the container, and the medication itself. The complaint made no reference to the plaintiff having difficulty understanding English. Whether there is a duty on the part of the customer who requests a prescription to notice whether it has been filled correctly is a question for the factfinder to decide. The motion to strike the special defense of contributory negligence was denied as to recklessness. A special defense alleging assumption of the risk was stricken.

Hartford J.D., at Hartford [Doc. No. CV02-0815389]

Hennessey, J. §* April 22, 2003 §* 3 pages.