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Beardsley v. Jamark Constr., LLC

Beardsley v. Jamark Constr., LLC
Superior Court of Connecticut, Judicial District of Waterbury At Waterbury
July 24, 2018, Decided; July 24, 2018, Filed
CV176037671S

Reporter
2018 Conn. Super. LEXIS 1498 *
Tara Beardsley, Executrix of the Estate of Ruth Grant v. Jamark Construction, LLC
Notice: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

MEMORANDUM OF DECISION RE MOTION TO STRIKE #109 INTRODUCTION
On December 14, 2017, the plaintiff, Tara Beardsley, Executrix of the Estate of Ruth Grant, commenced a six-count action against the defendant, Jamark Construction, LLC, alleging that the defendant’s dump truck fatally injured Ruth Grant in her vehicle at the intersection of Main Street and Old Waterbury Road in Southbury on May 13, 2016. The complaint contains six counts, count one alleging negligence, count two alleging negligent entrustment, count three alleging negligent hiring, count four alleging negligent supervision, count five alleging negligent training and count six alleging negligent retention.
On February 28, 2018, the defendant filed a motion to strike counts two through six of the complaint on the ground that the counts “fail to allege [facts] with adequate specificity” to state legal recognizable claims and instead “allege only” impermissible “conclusions of law.” On March 28, 2018, the plaintiff filed a memorandum of law in opposition to the motion. Thereafter, on May 14, 2018, the plaintiff filed an amended complaint pursuant to the court’s order to add William [*2] R. Foley III as a defendant to this action. While there is a split of authority in the Superior Court on whether the court may allow the plaintiff to amend the counts of its complaint that are subject to a motion to strike during the pendency of that motion, this court permits the amendment of those counts and applies the defendant’s motion to strike to counts two through six of the amended complaint.1
The plaintiff alleges the following facts to her amended complaint. On May 13, 2016, the defendant, William R. Foley III, an “agent and/or employee” of the defendant, Jamark Construction, LLC, was driving a dump truck north on Main Street in Southbury, but “ran a red Light” and struck and fatally injured Ruth Grant, who was operating her vehicle west on Old Waterbury Road in Southbury going through the green light at this intersection. Count one of the amended complaint alleges negligence against Jamark Construction for its inspection and maintenance of the dump truck and for allowing Mr. Foley to negligently operate that dump truck at the time of the accident. The count alleges the defendant was negligent in its hiring, training, and supervision of Mr. Foley. [*3] It also alleges that the defendant “aid[ed] . . . abbett[ed] and encourage[ed] its agent and/or employee to violates rules of the Federal Motor Vehicle Carrier Safety Regulations.”
Counts two through six incorporate the allegations of the first count into counts. Count two alleges negligent entrustment against Jamark Construction, LLC by additionally alleging that Jamark Construction, LLC negligently entrusted a dump truck to Mr. Foley “when they knew or should have known of Foley’s inexperience and/or incompetence as a truck driver, his background and his negligent driving habits.” The count alleges that the defendant’s negligent entrustment of its vehicle to Mr. Foley was a “substantial factor” in Ms. Grant’s death. Count three through six repeat the allegations that Jamark Construction, LLC “knew or should have known of Foley’s inexperience and/or incompetence as a truck driver, his background and his negligent diving habits,” and alleges that Jamark Construction, LLC negligently hired (count three), supervised (count four), trained (count five), and retained (count six) Mr. Foley. Counts seven and eight are alleged against Mr. Foley and are not subject to the motion to strike. The [*4] plaintiff seeks monetary damages in her prayer for relief.
II. DISCUSSION
“The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). “[T]he moving party admits all facts well pleaded.” RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.
“[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint [*5] challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Internal quotation marks omitted.) Santoroso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
A. Negligent Entrustment
The issue is whether the plaintiff has pleaded sufficient facts to allege a claim of negligent entrustment against Jamark Construction, LLC argues that the plaintiff “fails to allege sufficient supporting facts to establish a viable cause of action” of negligent entrustment in count two. Specifically, the plaintiff “does not identify [facts as to] what [Mr. Foley’s negligent driving] habits” were and that those habits were “known or should have known” that Foley “was incompetent to drive a motor vehicle safely.”
The plaintiff counters that “courts have not required the plaintiff, as the defendant argues, to allege facts that show specific driving habits of the party to whom the vehicle was entrusted.” Instead, [*6] the plaintiff refers to the decision of Morillo v. Georges, Superior Court, judicial district of Hartford, Docket No. CV 15-6058761-S (December 31, 2015, Peck, J.) [61 Conn. L. Rptr. 541, 2015 Conn. Super. LEXIS 3191] for the proposition that allegations that an employer “failed to conduct a background check” into “driving history,” “contact former employers, ” and “failed to require [the employee] perform a “driving test” were sufficient to plead a negligent entrustment cause of action absent specific driving habits on behalf of the employee. The plaintiff contends that she has alleged facts in support of the Morillo factors in count one of the complaint, which was incorporated by reference, into count two. The plaintiff argues the additional allegations about Jamark’s failure to train and the vehicle’s defective condition bolster her negligent entrustment claim. Finally the plaintiff contends that the present case is factually or legally distinguishable from the authority relied upon by Jamark Construction, LLC in support of its motion to strike.
“The Connecticut Supreme Court first recognized a cause of action for negligent entrustment of an automobile in Greeley v. Cunningham, 116 Conn. 515, 165 A. 678 (1913) . . . Superior Court cases applying the negligent entrustment doctrine established in Greely note that Greely [*7] adopted the approach set forth in the Restatement of Torts . . . Section 390 of the Restatement (Second) of Torts provides that [o]ne who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience. Or otherwise to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them . . . More specifically, the Superior Court has determined that an entrustment can be considered negligent only if (1) there is actual or constructive knowledge that the entrustee is incompetent or has a dangerous propensity; and (2) the injury resulted from that incompetence or propensity . . . Actual knowledge is based on incompetency or a failure to appreciate some visible or demonstrable impairment . . . whereas constructive knowledge . . . is based on facts that are openly apparent or readily discernible . . . Whether actual or constructive, knowledge is the essential element of a cause of action for negligent entrustment.” (Citation omitted; internal quotation marks omitted.) Soto v. Bushmaster Firearms International, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-15-6048103-S, 2016 Conn. Super. LEXIS 2626 (October 14, 2016, Bellis, J.). [*8]
“Within Connecticut and other Restatement states, two general lines of negligent entrustment cases have emerged. The first line of cases involves the entrustment of an automobile to an incompetent driver, who then drives the vehicle in a dangerous way and injures another. In the automobile context, it has been stated that Connecticut law is clear that liability can only be imposed if the defendant entrusts the vehicle to the driver . . . [U]nder more attenuated circumstances, there remains the requirement that the original entrustor have knowledge of the entrustee’s propensities that caused harm to the plaintiffs. Other cases further support the conclusion that negligent entrustment claims must fail if the defendant lacked knowledge of the entrustee’s propensities . . . The second line of negligent entrustment decisions involves the entrustment of something other than a vehicle in a circumstance where an entrustor should know that there is cause why a chattel ought not to be entrusted to another.” (Citations omitted, internal quotation marks omitted.) [*9] Id.
In the present case, the plaintiff incorporates paragraphs one through twenty-seven of count one into count two, which alleges negligent entrustment. In paragraph 24 subparagraphs rr of the second count, the plaintiff alleges that Jamark Construction, LLC “fail[ed] to check its employee’s previous three-year driver history check with previous employers within the past 3 years minimum, check medical/physical qualifications, drug screening, continuing obligations with annual reviews/certifications, road test or equivalent and fail[ed] to have its employees demonstrate competence” in violation of 49 C.F.R. Section 391.
The plaintiff is correct that the court in Morillo v. Georges, supra, Superior Court, Docket No. CV-15-6058761, 2015 Conn. Super. LEXIS 3191, found that allegations that the employer failed to conduct adequate background checks and driving tests may be “sufficient to imply that driver’s status was readily discoverable.” By extension, the Morillo court in finding those factually allegations legally sufficient, in essence may be concluding that the plaintiff alleged that the employer had constructive notice of the driver’s propensities but chose to ignore that constructive notice. Nevertheless, the Morillo court found that “although [the] bare [*10] bones factual allegations are sufficient by implication to survive a motion to strike, at some point in the court of this litigation the plaintiffs herein will undoubtedly be required to present a more specific evidentiary foundation for their allegations of . . . negligent entrustment by the defendant . . .” Accordingly, the plaintiff’s allegations in paragraph 24 subparagraph rr are legally sufficient to allege that Jamark Construction, LLC had constructive notice of Foley’s driving propensities but chose to ignore that constructive notice by failing to check the appropriate background and driving history before allowing Foley to drive its vehicle. Such allegations are not conclusory. For these reasons, count two alleging negligent entrustment is legally sufficient under Morillo and the court denies the motion as to count two of the amended complaint.
B. Negligent Hiring, Supervision and Retention
The court next addresses whether the plaintiff has pleaded sufficient facts to state claims against Jamark Construction, LLC of negligent hiring in count three, negligent supervision in count four and negligent retention in count six, of the amended complaint, or whether those claims are [*11] conclusory. Jamark Construction, LLC argues that the plaintiff fails to plead sufficient facts to support claims for negligent hiring in count three, negligent supervision in count four, negligent retention in count six. The corporation argues that the plaintiff “has alleged no facts whatsoever that, if proven, would support a claim for negligent hiring, supervision and/or retention.” “[T]here is nothing in the Complaint that would, if proven, establish that Foley was somehow incompetent to perform the job specified, nor are any facts pleaded to establish that Jamark had the occasion to know of any incompetence on the part of Foley.” “The complete absence of any specific supporting allegations or any allegation of fact that would establish the foreseeability of defendants’ employees’ commission of an injury-causing tort is fatal to the Plaintiff’s claims for negligent hiring and retention.” Jamark Construction, LLC further argues that the pleaded allegations are conclusory.
“Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of (foreseeability). The ultimate test of the existence of the duty [*12] to use care is found in the foreseeability that harm may result if it is not exercised . . . It is well settled that defendants cannot be held liable for their alleged negligent hiring, training, supervision or retention of an employee accused of wrongful conduct unless they had notice of said employee’s propensity for the type of behavior causing the plaintiff’s harm.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Elbert v. Connecticut Yankee Council, Inc., Superior Court, judicial district of New Haven, Docket No. CV-0100456879-S, 2004 Conn. Super. LEXIS 1924 (July 16, 2004, Arnold, J.). “By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant’s position knowing what he knew or should have known anticipate that harm of the general nature of that suffered was likely to result[.]” (Citations omitted; internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008). Beside the element of foreseeability, the additional elements necessary to support the claims of negligent hiring, negligent supervision and negligent retention are addressed [*13] below.
1. Negligent Hiring
“The tort of negligent hiring ‘extends to any situation where a third party is injured by an employer’s own negligence in failing to select an employee fit or competent to perform the services of employment.” Loglisci v. Stamford Hospital, Superior Court, judicial district of Stamford, Docket No. CV-08-5009309-S, 2011 Conn. Super. LEXIS 387 (February 27, 2011, Jennings J.T.R.) (dismissing how negligent hiring, supervision and retention are separate causes of action) citing Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982) (for the elements of negligent hiring). “[On the context of negligent hiring, courts generally rule that an employer cannot be held liable for the conduct of its employees that injure a third party if the employer could not have foreseen that the employee would engage in such conduct.” (Citation omitted, internal quotation marks omitted.) Hearn v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV-0200466339-S, 2007 Conn. Super. LEXIS 2500 (April 2, 2007, Licari, J.). “Our Supreme Court has interpreted this foreseeability requirement as one in which the employee knew or should have known of the employee’s propensity to engage in the alleged harmful conduct.” (Citation omitted, internal quotation marks omitted.) [*14] MoriIlo v. Georges, supra Superior Court, Docket No, CV-15-6058761-S, 2015 Conn. Super. LEXIS 3191.
In the present case, the plaintiff responds that count three is a legally sufficient pleading for negligent hiring against Jamark Construction, LLC. In support of its argument, the plaintiff references some Superior Court decisions which declined to strike negligent hiring counts where the plaintiff had alleged that the employer allowed the employee to operate a vehicle without first having conducted a background check or driving test. Like the negligent entrustment claim, the court in Morillo v. Georges, supra, Superior Court, Docket No. CV-15-0058761-S, 2015 Conn. Super. LEXIS 3191 “[c]onstru[ed] [those] allegations [in the negligent hiring claim] in the light most favorable to [the plaintiff], including those fact necessarily implied therefore,” and concluded that the allegations that the employer performed no driving test or adequate background check on the driver meant “the plaintiff [had] sufficiently alleged that [the employer] knew or should have known that its driver . . . was not fit or competent to operate a taxi-cab that pre-existed his hiring by [the employer].” Accordingly, the current plaintiff’s allegations that in paragraph 24 subparagraph rr that Jamark Construction, LLC failed [*15] to conduct a driving or adequate background checks are legally sufficient to imply that the employer had constructive knowledge of Foley’s fitness but chose to ignore it. Thus, the court finds that count three is legally sufficient in pleading Jamark Construction, LLC’s constructive knowledge of Foley’s fitness and disregard of the same and the motion to strike count three is denied.
2. Negligent Supervision
“Under Connecticut law, an employer may be liable for the negligent supervision of employees.” Seguro v. Cummiskey, 82 Conn. App. 186, 191, 844 A.2d 224 (2004). “In order to plead a cause of action sounding in negligent supervision, a plaintiff must plead injury by an employee whom the defendant had a duty to supervise; failed to supervise and whom the defendant knew or should have known would cause the injury.” (Citation omitted; internal quotation marks omitted.) Andreoni v. Forest Enterprises, Inc., Superior court, judicial district of Stamford, Docket No. CV 07-6000743-S, 2010 Conn. Super. LEXIS 1047 (April 21, 2010, Brazzel-Massaro, J.).
In the present case, the plaintiff responds that count four is legally sufficient in pleading a negligent supervision count against Jamark Construction, LLC. The plaintiff also references Ramirez v. Dietrich, Superior Court, judicial district of Waterbury, Docket No. CV-14-6024621-S, 2017 Conn. Super. LEXIS 378 (March 3, 2017) [*16] for the proposition that factual allegations, according to the plaintiff, in support of allegations that employers failed to advise instruct and/or supervise their respective employees in connection with how and when to operate tractor trailer trucks during snow storms were sufficient to allege a cause of action for negligent supervision. The plaintiff contends that she has alleged sufficient facts, in her negligent supervision count including the factual allegation that Jamark failed to investigate Foley’s background or to train him in the operation of the dump truck and failed to supervise his use of the defective out-of-service vehicle.
The court agrees with the plaintiff that count four is legally sufficient in pleading a negligent supervision count against Jamark Construction because it alleges that Jamark Construction, LLC, had a duty to train and supervise Foley in the operation of a dump truck and that defendant knew or should have known that its failure to train and supervise Foley in his operation of the dump truck could cause an injury. The court also notes that under Morillo v. Georges, supra, Superior Court, Docket No. CV-15-0058761-S, 2015 Conn. Super. LEXIS 3191, [*17] Jamark Construction, LLC had constructive knowledge of Foley’s fitness but chose to ignore it when Jamark Construction failed to conduct a driving or adequate background checks on Foley. Accordingly, the plaintiff has sufficiently alleged a negligent supervision count against Jamark Construction because the count alleges that Jamark’s failure to train and supervise Foley in the operation of a dump truck contributed to the motor vehicle accident and the plaintiff alleges facts that it could be foreseeable to Jamark that by failing to conduct a driving test or adequate background checks on Foley that Foley may not be fit to operate a dump truck, but Jamark Construction chose to ignore those factors.
3. Negligent Retention
“The claim of negligent retention has been recognized by Superior Court, but not by the appellate courts of the state . . . It requires a plaintiff to plead and prove that an employer, during the course of employment, became aware of problems that indicate a lack of fitness for the position and the unfitness was likely to cause the sort of harm incurred by the plaintiff[,] and that the employer failed to take action.” (Citation omitted, internal quotation marks omitted.) [*18] Loglisci v. Stamford Hospital, supra, Superior Court, Docket No. CV-08-5009309-S, 2011 Conn. Super. LEXIS 387.
In Lara v. Legionaries of Christ, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X03-HHD-CV-10-6016974-S, 2011 Conn. Super. LEXIS 2166 (August 30, 2011, Miller, J.), the court declined to strike a negligent retention claim against a parish which employed a priest who was accused of sexually assaulting minors because the plaintiff alleged facts in the complaint that other priests made allegations of other sexual abuse against the priest. Those allegations were sufficient to allege that the parish had knowledge of the priest’s alleged sexual abuse such that a negligent retention claim could survive a motion to strike. Id. See also Doe v. Hartford Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Docket No. CV-11-5035749-S (January 7, 2014, Peck, J.) [58 Conn. L. Rptr. 132, 2014 Conn. Super. LEXIS 1137] (finding the plaintiff alleged the necessary element of foreseeability to withstand a motion to strike a negligent retention claim on that ground where plaintiff alleged “that the defendant Diocese failed to take appropriate steps to investigate and remove Rozini as a priest when [it] learned of his propensity for sexually abusing [minors].” But see, Seda v. Maxim Healthcare Services, Superior Court, judicial district of Hartford, Docket No. CV-07-5010811-S, 2008 Conn. Super. LEXIS 916 (April 8, 2008, Elgo, J.) [*19] (granting motion to strike negligent retention claim because plaintiff did not allege employer “became aware of any problems with [employee] and failed to take steps to remedy the problems or terminate [her] employment”).
In the present case, the plaintiff responds that count six is legally sufficient in pleading a negligent retention claim against Jamark Construction, LLC. The plaintiff argues that her negligent retention claim is legally sufficient because she has alleged numerous deficiencies in Foley’s training and supervision, that he was operating the vehicle while he was unfit and unqualified to do so, that he failed to properly plan and study his routes and that he failed to comply with federal safety regulations and yet Jamark retained him as an employee.
The plaintiff, however, has not alleged in count six that at any time subsequent to Foley’s employment at Jamark Construction, LLC was it actually or constructively aware of problems with Foley that indicated his lack of fitness for his positions as their truck driver. See Clark v. Knochenhauer, Superior Court, judicial district of Middlesex, Docket No. CV-14-6011914-S, 2015 Conn. Super. LEXIS 2816 (November 12, 2015, Aurigemma, J.) [*20] (striking negligent retention claim because “[t]here [was]no reference in the [c]omplaint to [the employee’s] driving during the six years he delivered the paper for the [employer] and therefore, no allegation that [employer] became aware of anything which made [employee] unfit for his position”). Accordingly, the plaintiff has not pleaded sufficient facts to allege the foreseeability element required in a negligent retention claim and the court grants the motion as to count six of the amended complaint alleging negligent retention.
4. Negligent Training
The next issue is whether count five, which includes the caption, negligent training, is legally sufficient cause of action to allege against Jamark Construction, LLC. Jamark Construction, LLC, contends that “negligent training” is not a recognized cause of action upon which relief may be granted and may be a component of a negligent supervision claim. In that case, because the plaintiff failed to state a claim for negligent supervision, count five alleging negligent training, is also legally insufficient. Alternatively, Jamark Construction, LLC argues that negligent training [*21] is already claimed in count one, alleging negligence, and is superfluous. The plaintiff does not address these arguments directly. Instead, the plaintiff references some unreported superior court decisions which declined to strike counts alleging negligent training.
This court agrees with Jamark Construction, LLC that allegations that it negligently trained Foley were alleged in count one, paragraph kk. Because a second allegation that Jamark Construction, LLC negligently trained Foley is duplicative of the negligence allegation in count one, paragraph kk, the court grants the motion to strike count five, captioned negligent training.
CONCLUSION
For the foregoing reasons, the court denies Jamark Construction, LLC’s motion to strike counts two, three, and four of the amended complaint, but the court grants the motion to strike counts five and six of the amended complaint.
THE COURT
Brazzel-Massaro, J.

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