Opinion
No. CV05 4003173-S
October 5, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #130
FACTS
This action arises out of an altercation between opposing players at a youth soccer match. On September 26, 2005, the plaintiff, Jay Sullivan, filed a second revised complaint containing the following five counts: (1) intentional assault against Luis Quiceno; (2) negligence against Quiceno; (3) excessive self-defense against Quiceno; (4) negligence against the Connecticut Junior Soccer Association, Inc. (CJSA); and (5) negligence against the Stamford Youth Soccer League, Inc. (SYSL). The plaintiff alleges the following facts in the complaint. On June 20, 2004, the plaintiff was playing in a soccer game for the Middletown Football Club (MFC) and Quiceno was playing for the opposing team, SYSE. Both teams are members of CJSA. An altercation broke out between the teams and Quiceno, suddenly and without any warning, negligently and carelessly assaulted and severely injured the plaintiff.
In May 2007, this court granted Quiceno's motion to strike count three.
On September 6, 2005, Quiceno filed an apportionment complaint against Thomas Sullivan, the plaintiff's father, which is premised on his conduct during the altercation.
The motion before the court concerns only the fourth and fifth counts. In count four, the plaintiff alleges that he expressed his concern to a referee that Quiceno was violent and likely to harm the plaintiff. The referee, who was an employee, agent or servant of the CJSA, did not act to control Quiceno. The plaintiff alleges that CJSA was negligent in that it failed to provide adequate personnel to monitor and control the game, failed to adequately train its personnel to deal with altercations and failed to provide safeguards to ensure altercations would not occur. The plaintiff was injured as a result. In count five, the plaintiff alleges that SYSL was negligent for the same reasons. He does not repeat his allegations regarding the referee.
On October 10, 2006, CJSA and SYSL filed a motion for summary judgment, together with a memorandum of law, four affidavits and other documentary evidence, including certified deposition testimony. On January 3, 2007, the plaintiff filed an objection to the motion, along with a memorandum of law and documentary evidence, including certified deposition testimony. Both parties subsequently filed additional memoranda and evidence in support of their respective arguments. The matter was heard at the short calendar on May 14, 2007.
Where applicable, CJSA and SYSL are henceforth referred to as "defendants."
The parties have submitted uncertified copies of documentary evidence and some uncertified deposition transcripts, which are generally inadmissable. See New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). Neither party has raised that objection. Therefore, it is submitted that the court, in its discretion, may consider the evidence in deciding the motion. See Barlow v. Palmer, 96 Conn.App. 88, 91-92, 898 A.2d 835 (2006).
DISCUSSION
"[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
The defendants argue that they are entitled to summary judgment as to counts four and five for the following reasons: they cannot be vicariously liable for the alleged negligence of the referees because the referees were independent contractors, and, as such, the defendants had no duty to train them; even if the coaches were their employees, the coaches are immune from liability and the defendants cannot, therefore, be vicariously liable for the coaches' alleged negligence; neither CJSA's nor SYSL's alleged negligence was the proximate cause of the plaintiff's injuries; and neither entity can be held liable to the plaintiff solely on the basis of negligence. The plaintiff counters that genuine issues of material fact exist regarding whether the referees were independent contractors and whether the defendants owed the plaintiff a duty to train their employees and personnel, including SYSL's coach, to prevent such incidents.
I
The court addresses first the defendants' argument that neither CJSA's nor SYSL's alleged negligence was the proximate cause of the plaintiff's injuries. In Vaillancourt v. Latifi, 81 Conn.App. 541, 840 A.2d 1209 (2004), the Appellate Court addressed this issue in a case involving similar factual allegations and relationships. In Vaillancourt, the plaintiff alleged that he sustained injuries while playing softball in a league organized by the Waterbury Young Men's Christian Association (YMCA). During a league game, the plaintiff, the catcher for his team, attempted to tag another player who was running to home plate from third base. The player ran into the plaintiff, causing injury. The plaintiff alleged that the YMCA, in exchange for the fee paid by each participant team, was obligated to "provide competitors with facilities, organization and instruction `to run a safe league.'" Id., 544. Like the plaintiff in this case, the plaintiff in Vaillancourt alleged that "the YMCA breached that duty by failing to select, employ and train its umpires to protect and prevent vicious attacks on competitors." Id., 548. The plaintiff also argued that the YMCA was liable to him because it did not ensure that the umpires told the players of the league's rules. Id., 549.
The YMCA moved for summary judgment on the grounds that the umpire was an independent contractor, YMCA did not owe the plaintiff a duty of care and nothing that it did or did not do was the legal cause of the plaintiff's injuries. The trial court granted YMCA's motion because there was no evidence regarding the scope of the direct or vicarious duty that the YMCA owed to the plaintiff. The Appellate Court affirmed the trial court's decision, but it did so on different grounds, concluding that "[a]s a matter of law, the YMCA did not owe the plaintiff a duty of care, as nothing alleged in the complaint was the legal cause of his injuries." Id., 544.
The court employed the following analysis, which is applicable to the plaintiff's claims against the defendants in this action. "[A] tortfeasor is liable for all damages proximately caused by its negligence . . . The elements of a negligence cause of action are duty, breach, proximate cause and injury . . .
"To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries . . . [L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct . . .
"Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct . . . In negligence cases such as the present one, in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty to the plaintiff . . .
"The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant . . .
"A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed.
. . . A further inquiry must be made, for we recognize that duty 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 . . . 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 . . .
"Our Supreme Court has recognized that the very nature of athletic competition makes it reasonably foreseeable that competitors may be injured during the contest . . . In athletic competitions, the object obviously is to win. In games, particularly those played by teams and involving some degree of physical contact, it is reasonable to assume that the competitive spirit of the participants will result in some rules violations and injuries . . . Some injuries may result from such violations, but such violations are nonetheless an accepted part of any competition. [ Jaworaki v. Kiernan, 241 Conn. 399, 407-08, 696 A.2d 332 (1997)] . . .
"The issue in Jaworski was the duty of care owed by one participant to another to prevent injuries from occurring during competition. Our Supreme Court appreciated the tension between promoting vigorous athletic competition and protecting competitors. As a matter of policy, it concluded that a balance between the two objectives can be achieved by allowing a participant in an athletic contest to maintain an action against a coparticipant only for reckless or intentional conduct and not for merely negligent conduct." (Citations omitted; internal quotation marks omitted.) Vaillancourt v. Latifi, supra, 81 Conn.App. 545-48.
"As a matter of public policy, we acknowledge the tension between promoting competition via athletic leagues and protecting competitors from injury. Here, we need not decide the type of action an injured athlete must allege to prevail against the organizer of an athletic league. Instead, we conclude that the plaintiff failed to allege material facts with respect to the mechanism of his injury that gave rise to a duty owed him by the YMCA. The negligent acts the plaintiff alleged were not the proximate cause of his injury . . .
"The plaintiff alleged that in exchange for a fee, the YMCA owed competitors a duty to operate the league safely. According to the plaintiff, the YMCA breached that duty by failing to select, employ and train its umpires to protect and to prevent vicious attacks on competitors. The essence of the plaintiff's claim is that the umpire failed to prevent Latifi's running into the plaintiff. That claim is predicated on the assumption that Latifi demonstrated unsportsmanlike behavior prior to the collision. The plaintiff concedes, however, that Latifi did nothing prior to the collision to alert anyone that he intended to cause the plaintiff harm or to otherwise require Latifi's removal from the game. Individuals who serve as officials at athletic competitions are not clairvoyant, and we do not presume that they can foresee a malicious and intentional act of bad sportsmanship such as that alleged by the plaintiff. As a matter of law, the umpire's failure to eject Latifi from the game prior to the time he ran into the plaintiff was not the proximate cause of the plaintiff's injuries . . .
* * *
"The plaintiff [also] contends that had the umpire ensured that everyone who participated in the game . . . knew of the slide rule, the plaintiff would not have been injured. We are not persuaded. Highly competitive members of athletic teams often take chances and risks that cause them to forget or to ignore the rules of the game. Their intent is to win, however, not to hurt other competitors . . .
"Furthermore, both this court and our Supreme Court have concluded that even when an actor has been warned or is aware of behavior that creates a risk of injury to others, the actor may fail to take heed . . . We cannot speculate here about what might have happened if the umpire had informed [the tortfeasor] of the slide rule . . .
"We conclude that the court properly granted the YMCA's motion for summary judgment because the complaint failed to allege any acts or omissions of the YMCA that were the legal cause of the plaintiff's injuries. As a matter of law, therefore, the YMCA did not owe the plaintiff a duty of care." (Citations omitted.) Id., 548-50.
See also Ochoa v. California State University, Sacramento, 72 Cal.App. 4th 1300, 85 Cal.Rptr.2d 768 (1999), cert. denied, 1999 Cal.LEXIS 6533, No. S080940 (September 22, 1999), overruled in part on other grounds, Avila v. Citrus Community College District, 38 Cal. 4th 148, 160 n. 5, 131 P.3d 383, 41 Cal.Rptr.3d 299 (2006). In Ochoa, the plaintiff suffered injuries when a player from the opposing team assaulted him during an intramural soccer match hosted by the defendant university. The plaintiff alleged a negligence claim against not only the player and also alleged that the university where the game was held "failed to supervise the game and to instruct the participants therein relative to their conduct." (Internal quotation marks omitted.) Ochoa v. California State University, Sacramento, supra, 72 Cal.App.4th 1303. The plaintiff argued that his injury "was the direct, proximate and foreseeable result of such negligence." Id. The university moved for summary judgment principally on the ground that it had no duty to the plaintiff. The trial court granted summary judgment on this ground. The plaintiff appealed. The appellate court in Ochoa affirmed the trial court's decision, rejecting the plaintiff's argument that, in hosting the game, the university undertook a duty founded on a special relationship theory. Applying a framework parallel to that employed by our courts in Jaworski and Vaillancourt, the court in Ochoa reasoned: "First, it was certain that the plaintiff suffered injury. Second, the harm plaintiff suffered, a punch thrown by a participant in the course of a hotly contested soccer game, was reasonably foreseeable. However, the connection between the defendant's alleged conduct (negligent refereeing) and the plaintiff's harm was not particularly close. The failure to call every foul in a soccer game, even if negligent, is not particularly blameworthy. It is unclear how the policy of preventing future harm would be fostered by finding a special relationship between universities and the participants in their intramural events, since it is unclear how those events could proceed if every injury suffered by a participant might expose the university to liability. The extent of the burden on the defendant created by a requirement that it protect every intramural participant from harm at the hands of every other would be extraordinary, as would be the likely increase in the defendant's insurance premiums (if it could still obtain insurance for intramural events). Finally, the likely consequences to the community would be the abandonment of intramural sports by colleges and universities, which would serve no one's interest." Id., 1306.
In the present case, the plaintiff's negligence claims against these defendants are significantly similar. His claims are premised on his allegations that they failed to provide adequate personnel to monitor and control the game, failed to adequately train its personnel to deal with altercations and failed to provide safeguards to ensure altercations would not occur. Although the plaintiff alleges that he alerted one of the referees that Quiceno was violent, in his deposition, the plaintiff conceded that during the game and before Quiceno allegedly assaulted him, the plaintiff did not tell the referee that the referee should take certain steps to control the game. His testimony is, therefore, inconsistent with his allegation in count four that he "verbally expressed concern to the referee that [Quiceno] was violent and likely to cause harm to the plaintiff or another party."
The analysis of the issue of proximate cause in Vaillancourt leads to the conclusion that the plaintiff in this case has also failed to allege conduct or omissions by the defendants that were the proximate cause of his injuries or to provide evidence thereof. Accordingly, the defendants are entitled to summary judgment on counts four and five as a matter of law.
II
Next the court addresses the defendants' argument that they cannot be vicariously liable for the alleged negligence of the referees or coaches because the referees were independent contractors, and, as such, the defendants had no duty to train them. Initially, it is noted that the plaintiff's claims against CJSA and SYSL are not vicarious liability claims, but rather are claims that these defendants are directly liable to the plaintiff for their failure to adequately train their personnel and to provide other adequate safeguards to control the conduct of the game. Although it is well settled that "the right of a plaintiff to recover is limited to the allegations of his complaint . . . [And] [t]he facts at issue are those alleged in the pleadings"; (internal quotation marks omitted; citation omitted) McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 490-91, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006); it is submitted that the court should address the issue of vicarious liability for the sake of completeness.
"Vicarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of policy that one person should be liable for the act of the other . . . Essentially, aside from the relationship between the parties creating the doctrine of vicarious liability, the principal is not a tortfeasor in the true sense of the word because he is not independently liable based upon his own independent actionable fault." (Citations omitted; internal quotation marks omitted.) Alvarez v. New Haven Register, Inc., supra, 249 Conn. 709, 720-21, 735 A.2d 306 (1999).
"[V]icarious liability is premised upon the general common law notion that one who is in a position to exercise some general control over the situation must exercise it or bear the loss . . . Put differently, a fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee . . . 1 Restatement (Second), Agency . . . § 2, p. 12 [1958] (`[1] A master is a principal who employs an agent to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. [2] A servant is an agent employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.'). It is as a result of this control that the theory of vicarious liability allows employers to be subject to liability for the physical harm caused by the negligent conduct of their employees acting within the scope of employment." (Citations omitted; internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 693 n. 16, 849 A.2d 813 (2004).
In contrast, "[a]s a general rule, an employer is not liable for the negligence of its independent contractors . . . [T]he explanation for [this rule] most commonly given is that, since the employer has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise, and [the contractor], rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it." (Citations omitted; internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517-18, 825 A.2d 72 (2003).
Accordingly, the court must determine whether the defendants have met their burden of establishing that no factual issues remain as to whether the referees were acting as their agents. "[A]gency is defined as the fiduciary relationship which results from 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." (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 893 A.2d 389 (2006).
"Some of the factors [for] assessing whether such a relationship exists include: whether the alleged principal has the right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent . . . In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal . . . Finally, the labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of their agreement or understanding." (Internal quotation marks omitted.) Id., 543-44.
The defendants provided the court with affidavits by SYSL representative Robert Pepi, CJSA referee administrator James Brown and CJSA representative Kathleen Zolad. In their affidavits, these individuals attest that the referees are not certified by the CJSA or SYSL, but by the United States soccer federation; SYSL does not train the referees; CJSA assigned the referees to the game at issue; thereafter, SYSL paid the referees on a "per-game" basis; referees are not required to accept assignments and can decline a game assignment; while they are officiating such games, CJSA's rules state that Federation Internationale de Football Association's (FIFA) laws of the game apply; pursuant to those laws, each game is "controlled by the referee who has full authority to enforce the Laws of the Game"; the laws also provide that the referee's decisions "regarding facts connected with play are final"; and once CJSA assigned the referees to the game, it did not control the referee's conduct. In addition, the defendants submitted copies of the relevant FIFA and CJSA rules, which support Zolad's sworn statements.
The defendants have satisfied their burden of demonstrating the nonexistence of a genuine issue of material fact regarding the absence of an agency relationship between either SYSL or CJSA and the referees for purposes of vicarious liability. The averments of the defendants' representatives, particularly those by Zolad, indicate that the referees are independent contractors because CJSA appears to exercise no control over the referees, beyond assigning them to a particular game, which assignments the referees can decline. The affiants further indicate that CJSA does not pay the referees and that SYSL does so only on a per game basis. The burden thus shifts to the plaintiff to present evidence to raise an issue of fact as to this issue.
The plaintiff's evidence consists of the cover page to the CJSA rules and policies for 2005, an excerpt from a police report of the incident, and excerpts of deposition testimony of SYSL coach Michael Corro and the plaintiff's father, Thomas Sullivan. This evidence does not pertain to the agency issue. The plaintiff also refers to the deposition testimony of MFC coach Paul Barbagallo. That transcript contains the following colloquy:
The plaintiff submitted this page in support of his contention that the rules that Zolad referred to in her affidavit are inapplicable because the game at issue occurred in 2004. The defendants cured this discrepancy by attaching 2003-2004 FIFA rules to their supplemental memorandum; the rules are identical to those referenced by Zolad.
Q. What is CJSA's role in a match such as this?
A. [by Barbagallo] CJSA's role is the governing body, set up the meetings, registers the kids and has insurance for the players. They are never in a supervisory position ever except for final cups. And they were mostly there to give away the trophies.
Viewing this testimony in the light most favorable to the plaintiff, the "governing body" role that Barbagallo attributes to CJSA does not demonstrate the existence of an agency relationship. This is clarified by his statement that CJSA is "never in a supervisory position except for the final cups," which does not indicate that CJSA exercises control over the referees. "To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Internal quotation marks omitted.) Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 841, 888 A.2d 104 (2006).
The evidence demonstrates the absence of a genuine issue regarding whether the referees were agents of either of the defendants. "[T]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006). The plaintiff has offered no such concrete evidence.
CONCLUSION
For the foregoing reasons, the court grants SYSL and CJSA's motion for summary judgment.
SO ORDERED.