DocketNumber: No. CV 0311737
Citation Numbers: 1996 Conn. Super. Ct. 3750
Judges: BALLEN, J.
Filed Date: 4/8/1996
Status: Non-Precedential
Modified Date: 4/18/2021
The plaintiffs allege in their complaint that while Stowers was a pedestrian alongside Soundview Avenue, in front of Franklin School in Stratford, Connecticut, Lance Arrington pushed Stowers, causing him to fall into the street, whereupon Stowers was struck by a vehicle being operated by Smith, causing Stowers to suffer injuries. In count five the plaintiffs allege that Stowers was a student at Franklin Elementary School, that at the time of the incident Stowers was walking home after class, that the Board employed a crossing guard to direct pedestrian and vehicular traffic in front of the school, and that the crossing guard, acting on behalf of the board, negligently caused the injuries to Stowers.
On May 22, 1995, the Board filed a motion for summary judgment on the plaintiffs' complaint on the grounds that it had no relationship with the crossing guard upon which to establish vicarious liability, and that Stowers injuries were caused by a intervening third party and not compensable under common law or General Statutes §
"Practice Book § 384 provides that summary judgment shall be rendered forthwith if the 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.)Barrett v. Danbury Hospital,
The Board contends that the crossing guard was not an employee, agent or servant of the Board, therefore, the Board cannot be vicariously negligent for any of the crossing guard's negligence. The plaintiffs argue that it is a question of fact as to whether the crossing guard was an employee, agent or servant of the Board.
"Under the doctrine of respondeat superior, a master is liable for the wilful torts of his servant committed within the scope of the servant's employment and in furtherance of his master's business. . . . `The master is not held on any theory that he personally interferes to cause the injury. It is simply on the ground of public policy, which requires that he shall be held responsible for the acts of those whom he employs, done in and about his business, even though such acts are directly in conflict with the orders which he has given them on the subject.'" (Citation omitted.) Larsen Chelsey Realty Co. v.Larsen,
Nevertheless, the plaintiff's also allege that the crossing guard was acting as an agent for the board. "Agency is defined as the fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. . . . Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking." (Citations omitted; internal quotation marks omitted.) First Charter National Bank v. Ross,
At his deposition, Gerrett Stack, the Principal of Franklin School testified that he thought that the positioning of the crossing guards was by the Traffic Division of the Stratford Police Department in cooperation with the Board. Stack further testified that the school has input with the police department as to the erection of signs and the positioning of crossing guards. Therefore, this evidence presents a genuine issue of material fact as to the control and agency of the crossing guards.
The Board also argues that an intervening third party relieves the Board of liability under common law and General Statutes §
The Board previously raised this issue on a motion to strike filed June 28, 1994. The court, Maiocco, J., determined in its memorandum of decision, dated September 23, 1994, that the fifth count contains allegations of negligent supervision, therefore, §
BALLEN, J.