Kurisoo’s Harley Davidson v. Ziegler’s 1925 Stearns Knight

KURISOO’S HARLEY DAVIDSON v. ZIEGLER’S 1925 STEARNS KNIGHT

No. CV146020484S

Superior Court of Connecticut, Judicial District of New London, New London

February 21, 2018

UNPUBLISHED OPINION

OPINION

Calmar, J.

The defendant Mystic Seaport Museum (Mystic Seaport) moves for summary judgment on count two, negligence, on the ground that public policy considerations weigh against imposing a legal duty, and on count three, agency, on the ground that the Mystic Seaport cannot be liable for an actual agency relationship because it owed no duty of care to the plaintiff.

The underlying facts surrounding this accident between the plaintiff Kurisoo’s Harley Davidson and the defendant Ziegler’s 1925 Stearns Knight in the Town of Stonington, are not in dispute and are well summarized in Kurisoo v Ziegler, 174 Conn.App. 462, 464-66, 166 A.3d 75 (2017). Additional facts are set forth in the discussion section of this memorandum. The plaintiff, Eric Kurisoo, filed a two-count complaint in this action on March 20, 2014 alleging negligence against Harry Ziegler^[1] in count one of the complaint and negligence against the defendant, Mystic Seaport, in count two of the complaint.^[2] On January 21, 2015 the plaintiff filed a request for leave to file an amended complaint that added a third count, alleging Ziegler was the agent of the Mystic Seaport. Neither Ziegler and the Mystic Seaport objected, and the amended complaint became operative.

On May 22, 2015, the Superior Court (Zemetis, J.) granted the defendant’s motion for summary judgment as to count two of the plaintiff’s complaint on the ground that the defendant owed no duty to the plaintiff for public policy reasons. On November 20, 2015, the Superior Court (Vacchelli, J.) granted the defendant’s motion for summary judgment as to count three of the plaintiff’s complaint on the ground that the defendant owed no duty to the plaintiff. The plaintiff appealed both decisions, and, on July 4, 2017, the Appellate Court reversed, holding that the trial court erred in granting the motions because the defendant had not briefed the public policy ground in its motion for summary judgment, and remanded the case to deny both motions " and for further proceedings according to law." Kurisoo v. Ziegler, supra, 174 Conn.App. 471.

On July 24, 2017, the defendant filed this motion for summary judgment, adopting the " factual findings, reasoning and case law cited by the [trial] courts ... as set forth in their respective memoranda of decisions ..." On September 6, 2017, Ziegler filed a memorandum of law in opposition to the defendant’s motion, accompanied by exhibits. On September 7, 2017, the plaintiff filed his objection to the defendant’s motion, accompanied by a memorandum of law. On October 4, 2017, the defendant filed its reply. On October 30, 2017, the court heard oral argument at short calendar.

DISCUSSION

" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grenier v Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ..." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). " [O]nly [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [does] the burden [shift] to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ... Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case." (Citations omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). " [C]ase law [has] sanctioned the use of a motion for summary judgment to test the legal sufficiency of a pleading [if a party has waived its right to file a motion to strike by filing a responsive pleading]." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, supra, 306 Conn. 535 n.10.

A. Count Two

The defendant first argues that the court should grant its motion for summary judgment on count two, negligence, of the plaintiff’s complaint on the ground that public policy considerations weigh against imposing a legal duty on the defendant.^[3] Ziegler^[4] and the plaintiff argue that public policy weighs in favor of imposing a legal duty on the defendant.^[5]

" [T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law ... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Citation omitted; internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290-91, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). " [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Marsala v. Yale-New Haven Hospital, Inc., 166 Conn.App. 432, 447, 142 A.3d 316 (2016). " The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Id. " [D]uty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." (Internal quotation marks omitted.) Id., 488. " While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world." (Internal quotation marks omitted.) Id.

In the present case, the defendant, in its motion for summary judgment, concedes that there are genuine issues of material fact regarding the first part of the duty test, reasonable foreseeability.^[6] Nevertheless, the defendant argues that a duty cannot be imposed on it because the second part of the duty test, public policy, does not favor imposing a duty. Specifically, the defendant argues that public policy precludes the imposition of a duty based on the mere providing of directions to drivers. Ziegler and the plaintiff argue that public policy favors imposing a duty on organizations, such as the defendant, that sponsor and organize events that cause injury.

" [I]n considering whether public policy suggests the imposition of a duty, [the court considers] ... the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 118, 869 A.2d 179 (2005). The court reviews each of these factors and concludes public policy does not favor imposing a duty on the defendant.

The first factor, the normal expectations of the participants in the activity, does not favor the imposition of a duty. The plaintiff, as a driver of a motorcycle not involved in the event, would not expect the defendant, the organizer of the scenic tour, to exercise reasonable care to prevent injuries when it lacked sufficient control over the drivers or a special relationship with them. See Cannizzaro v. Marinyak, 312 Conn. 361, 367, 93 A.3d 584 (2014) (no duty to control third parties absent special relationship). Rather, the plaintiff would expect each driver to be responsible for the safe operation of his or her own automobile on a public highway. See Sic v. Nunan, 307 Conn. 399, 408, 54 A.3d 553 (2012) (" a driver is entitled to assume that other users of the highway will obey the law, including lawful traffic regulations, and observe reasonable care, until he knows or in the exercise of reasonable care should have known that the assumption has become unwarranted" [internal quotation marks omitted] ). The defendant, as the organizer of the tour, would expect that the plaintiff, a motorcyclist operating on a public highway, and Ziegler, the owner and operator of his vehicle, to use reasonable care to avoid reasonably foreseeable injuries with other drivers on the road. See Dunn v. MacDonald, 110 Conn. 68, 78, 147 A. 26 (1929) (" [r]easonable safety is the universal standard prescribed for our public highways" ). Thus, the first factor does not favor imposing a duty.

The second factor, the public policy of encouraging participation in the activity, while weighing the safety of the participants, does not favor the imposition of a duty. The public policy of organizing events that exhibit operating classic cars to the public should be encouraged for community, cultural,...