DocketNumber: No. CV 94-054077S
Citation Numbers: 1996 Conn. Super. Ct. 5261-PPPP
Judges: AURIGEMMA, J.
Filed Date: 8/5/1996
Status: Non-Precedential
Modified Date: 4/17/2021
Combined Insurance Company of America has alleged in its special defense:
The defendant Procopio was acting as the agent, servant or employee of the plaintiff at the time and place alleged. Accordingly, if he was negligent, as the plaintiff claims, such negligence is imputed to the plaintiff and her claims herein are barred.
The plaintiff was the owner of the vehicle being operated by the defendant Joseph Procopio at the time and place alleged. Accordingly, if he was negligent as plaintiff claims, such negligence is imputed to the plaintiff under C.G.S. §
52-183 .The plaintiff retained control over the operation of the vehicle by the defendant Joseph Procopio, and accordingly, Mr. Procopio's negligence is imputed to the plaintiff.
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book 152; Ferryman v. Groton,
The first paragraph of the special defense attempts to invoke the doctrine of respondeat superior. Under that doctrine an employer may be liable for the negligence of his servant or employee. Pelletier v Bilbiles,
The doctrine of respondeat superior only imputes the negligence of the employee to the employer when such negligence results in injury to a third person, not when such negligence injures the employer.
The second paragraph of the special defense claims that Procopio's negligence should be imputed to the plaintiff pursuant to Connecticut General Statutes §
Sec.
52-183 . Presumption of agency in motor vehicle operation. 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 in the course of his employment. The defendant shall have the burden of rebutting the presumption.
Emphasis added.
Section
The final paragraph of the special defense alleges that Procopio's negligence should be imputed to bar the plaintiff's recovery because she retained control of the vehicle. In order for the owner's negligence to be imputed to another occupant of the vehicle, the owner must retain control over the operation of the vehicle. See e.g. Reetz v. Mansfield,
In Reetz there was evidence at trial that the defendant-owner of the vehicle was sitting in the passenger seat and steering the vehicle at the time of the accident. Nowak involved a student driver. The complaint contains no facts to support the special defense's legal conclusion that the plaintiff controlled the operation of the vehicle at the time of the accident. The court is bound to consider factual allegations as being true for the purpose of a motion to strike, but is not so bound with respect to legal conclusions.
For the reasons set forth above, the Motion to Strike the special defense is granted.
By the court,
Aurigemma, J.