Opinion
No. CV06 5003515
February 23, 2010
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT
On or about June 5, 2004, at approximately 5:10 p.m., the plaintiff was playing in an adult soccer game at West Beach Field in Stamford, Connecticut as a member of the Polonia Stamford soccer team. The plaintiff sustained personal injuries while in the act of scoring a goal when he collided with the goal keeper from the opposing team.
This is a personal injury action commenced by the plaintiff regarding alleged injuries sustained by the plaintiff while participating in a soccer match on June 5, 2004, in Stamford, Connecticut. The plaintiff initiated this action by way of a one-count complaint dated May 30, 2006 sounding in negligence. On January 30, 2007, the plaintiff filed an Amended Complaint consisting of one count, as well. The defendants Connecticut State Soccer Association, Inc. ("CSSA") and the Amateur Soccer League of Connecticut ("ASLC") have moved for summary judgment on this count which is directed at the two of them. The Amended Complaint against these defendants alleges common-law negligence based on the following allegations:
1. They allowed the game to be played on a field which had a substandard playing surface, which was not safe for various stated reasons;
2. They failed to repair the field or remedy the conditions;
3. They failed to inspect the field before allowing the game to be played;
4. They failed to provide a safe playing field;
5. They failed to post signs or notices to warn the plaintiff of unsafe field conditions;
6. They failed to properly officiate the game to eliminate violent or improper behavior of players that was likely to cause injury to other players, including the plaintiff;
7. They failed to provide properly trained officials;
8. They allowed players to participate, who they knew or should have known were likely to cause injury to others;
9. They failed to properly supervise officials that they provided to referee the game;
10. They failed to properly train such officials;
11. They permitted the game to continue, knowing it wasn't being properly officiated to prevent violent behavior and to prevent violations of the rules;
12. They failed to properly train players as to the rules of the game and proper techniques for playing the game before allowing them to participate in the games;
13. They failed to appropriately discipline players for violent play and/or violations of the rules;
14. They failed to enforce the rules of the game of soccer;
15. They failed to warn the plaintiff that they permitted and/or allowed violent behavior and rules violations during the games that were likely to cause injury;
16. They misrepresented to the plaintiff that the game would be conducted in accordance with the rules, and violent behavior would not be tolerated; and
17. They allowed the game to be played without the number of officials required to properly enforce the rules by Laws 5 and 6 of the Laws of the Game, so as to eliminate violent and improper behavior.
In filing the motion for summary judgment, the defendants argue:
1. They cannot be liable because they did not own or maintain the playing field where the soccer match was held;
2. Any alleged negligence by the defendants was not the proximate cause of the plaintiff's injuries;
3. There is no evidence that the referee was negligent, and if he was, neither defendant can be held vicariously liable, as the referee was an independent contractor, rather than an employee, agent or servant of the defendants; and
4. The defendants had no duty to train the referee because the referee was an independent contractor.
I Standard of Law
"A Motion for Summary Judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 576 A.2d 829 (1989). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Hertz Corp. v. Federal Ins., Co., 245 Conn. 374, 381, 713 A.2d 820 (1998). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist. Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Hertz Corp. v. Federal Ins. Corp., supra, 245 Conn. 381. "The opposing party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Id. "A material fact is a fact which will make a difference in the result of a case." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994); Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, CT Page 5506 264 Conn. 904, 823 A.2d 1221 (2003). The test used by the court is to determine if the moving party would be entitled to a directed verdict if the same set of facts were presented at trial. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). A directed verdict is properly rendered if a trier of fact cannot reasonably and legally and in any fashion other than that directed. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996).
The issue of causation is a question of fact for the trier of fact, Abrahams v. Young and Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997), and can only become one of law "when the mind of a fair and reasonable person could reach only one conclusion." Id. Accordingly, "issues of negligence are ordinarily not susceptible of summary judgment adjudication but should be resolved by trial in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary judgment is ill-adapted to negligence cases, since the conclusion of negligence is normally one of fact." Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 374, 423 A.2d 77 (1979). Nonetheless, "[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." Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660 (1997).
II Plaintiff's Allegations and Procedural Background
The complaint alleges that the plaintiff was a registered soccer player with the Connecticut State Soccer Association, Inc. and a member of the Polonia Stamford soccer team. The Polonia Stamford team was a part of the Amateur Soccer League of Connecticut ("ASLC"). On or about June 5, 2004, at approximately 5:10 p.m., the plaintiff was playing in an adult soccer game at West Beach Field in Stamford, Connecticut as a member of the Polonia Stamford soccer team. The plaintiff alleges that the league game was organized, supervised and controlled by the ASLC and was under the jurisdiction, supervision and control of the Connecticut State Soccer Association ("CSSA"). The plaintiff further alleges that the playing surface of the field was not fit for play in that it was dry, rough and uneven. On said date, he alleges that the defendants allowed players participating in league games to engage in violent behavior, outside the laws of soccer which was likely to cause injury to other players, plaintiff among them. On June 5, 2004, the plaintiff sustained personal injuries while in the act of scoring a goal when he collided with the goal keeper from the opposing team. The plaintiff alleges he had kicked the ball into the goal, and after the play was completed, the goalkeeper charged the plaintiff and tackled him by sliding into the plaintiff's lower right extremity, causing him various injuries, including but not limited to a right tibial plateau fracture, which required surgical intervention. The City of Stamford, which owned the field, the goalkeeper who allegedly tackled the plaintiff and the referee who supervised play were not sued and are not defendants in this case.
The defendants' motion for summary judgment and memorandum of law was filed on October 24, 2007. The plaintiff filed an objection and an opposing memorandum dated July 1, 2008. The defendants then filed a rely memorandum of law dated July 17, 2008 and a supplemental memorandum dated July 28, 2008. The plaintiff then filed his supplemental memorandum of law in support of his objection to summary judgment on October 26, 2009. The parties have each submitted numerous exhibits totaling several hundred pages in support of their respective positions which include among other items, affidavits, deposition and court transcript copies.
The large majority of documentary materials submitted by the parties are similar, in that the deposition copies are from the same deponents. However, submitted excerpts from any one deponent's testimony can differ, leaving the court with the task of "piecing together" the respective submissions to get a clearer interpretation of a deponent's entire testimony and the conclusions to be drawn therefrom.
Oral argument on the motion for summary judgment was initially held on July 21, 2008, before the court (Hiller, J.) At that argument, the court requested further information regarding: (1) the relationship between the defendant organizations and the referees that officiate their games; and (2) the referee's pre-game inspection of the playing field and his ability to cancel the game in the event of unsafe playing conditions. The court then ordered a further briefing schedule and scheduled additional oral argument for August 11, 2008. The court is not aware that any further action was taken by the court or the parties regarding additional oral argument or a decision by the court regarding the merits of the motion for summary judgment. The parties, thereafter, appeared before this court on October 26, 2009, and requested re-argument of all the issues before this court. Oral argument was then presented by the parties on October 26, 2009.
The court is in possession of a transcript of those proceedings.
III Discussion
As noted in a preceding section of this decision the defendants argue:(1) they cannot be liable because they did not own or maintain the playing field where the soccer match was held; (2) any alleged negligence by the defendants was not the proximate cause of the plaintiff's injuries; (3) there is no evidence that the referee was negligent; (4) if the referee was negligent, neither defendant can be held vicariously liable, as the referee was an independent contractor, rather than an employee, agent or servant of the defendants; and (5) the defendants had no duty to train the referee because the referee was an independent contractor.
Liability for injuries occurring on real property is grounded in possession and control of the property. There is no question that the playing field in this matter was owned by the City of Stamford, which is not a defendant in this case. However, it is the possession of land that imposes liability for injuries, rather than the ownership of the land because the person in possession is in a position of control and is best able to prevent harm. Charest v. Burger King Corporation, Superior Court, judicial district of Hartford at New Britain, Docket No. 91 395749 (Mar. 3, 1993, Aurigemma, J.) [ 8 Conn. L. Rptr. 756]; Rubbo v. Knoll Wood, LLC, Superior Court, judicial district of Litchfield, CV000082484 (Sept. 7, 2001, Cremins, J.); Hobart v. McDonald's Restaurant of Connecticut, Superior Court, judicial district of New Haven at Meriden, Docket No. 98 0263193 (July 19, 1999, Beach, J.). "The word `control' has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the authority to manage, superintend, direct or oversee." Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 (1958). Accordingly, a finding of negligence is reliant upon a showing of control. Lin v. National Passenger Railroad Corp., 277 Conn. 1, 16 n. 10, 889 A.2d 798; Rosa v. American Oil Co., Inc., 129 Conn. 585, 589, 30 A.2d 385 (1943). "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." Mafucci v. Royal Park, Ltd. Partnership, 243 Conn. 552, 566, 707 A.2d 15 (1998). "Where there is no duty, there can be no negligence." Hassett v. Palmer, 126 Conn. 468, 473, 12 A.2d 646 (1940).
The defendants state that the field where the subject soccer match was played was never under the possession and/or control of the defendants and, in addition, the field's condition was not the proximate cause of the plaintiff's injury. The plaintiff argues that the defendants' liability for the plaintiff's injuries is not predicated on their possession of the field, but rather, is predicated on the defendants' negligence: (1) in allowing and/or causing the league games conducted under their jurisdiction and control to be played on an unsafe field; (2) in failing to inspect the field before allowing the game to be played; and (3) in failing to warn the plaintiff of the unsafe condition of the field. In support of this argument the plaintiff states that the permit for the field was procured by a member of the defendant ASLC and the ASLC operates under the jurisdiction of the defendant CSSA. Accordingly, the decision of where to play the soccer match was totally within the control of the defendants, and the defendants did not have to decide to play this soccer match on the unsafe field. The plaintiff, by way of the materials submitted in support of his objection further argues that the defendants had a right to repair defects in the field's surface. The plaintiff claims that this is sufficient evidence of possession and control by the defendants to warrant allowing the action to be determined by the jury as the trier of fact.
The court has reviewed the plaintiff's exhibits submitted in support of his objection to the motion for summary judgment and finds little to support the plaintiff's argument that the defendants had a right to repair the playing field and controlled or possessed it. Stamford owned, possessed and controlled the playing field. The responsibility to repair and maintain the field belonged to the City of Stamford, which is not a party to this action. The decision whether to play the match on the subject field was a decision to be made by the referee and the teams themselves. The referee and the respective teams are also not parties to this action. The testimony of Joseph O'Beirn, President of the ASLC at the subject time, reveals that the ASLC worked in cooperation with the City of Stamford to assign the permits for use of Stamford's soccer fields. The liaison with Stamford for the ASLC was Robert Pepi. An affidavit from Pepi states that the maintenance and repair of the soccer field was the responsibility of Stamford. In his affidavit he states the field was not substandard, and the managers of the two soccer teams voiced no complaints or objections regarding the condition of the playing surface of the field at any time on the date of the plaintiff's injury.
An affidavit from Rick Bauer, a representative of the Department of Parks and Recreation for the City of Stamford states that Bauer issued the permits for playing fields to Pepi, an agent for the defendants CSSA and ASLC. Pepi then decides which matches are played on the fields. A condition for the issuance of the permits is a certificate of insurance, which is provided by the CSSA through the United States Amateur Soccer Association.
Once it was determined that the soccer match was to be played, the final decision as to whether or not to participate rested solely with the plaintiff, himself. The plaintiff in his deposition testimony stated that on the date in question, he decided to participate in the soccer match despite his private thoughts that the field was not in good condition. However, he never complained to anyone about his opinion of the field's condition. In his response to discovery inquiries from the defendants, the plaintiff stated that he never observed any defect in the field. He never complained to anyone about the physical nature of the match or the conduct of other players and did not request that the match be halted. He stated that he could have taken himself out of the match, but soccer players don't do that.
The plaintiff, in his deposition testimony, stated that on a prior date he had complained that the same playing field was "too dry." However, he doesn't remember to whom he made this complaint.
The court has reviewed a Release of Liability and Waiver form signed by the plaintiff prior to his participation in the soccer league, wherein the plaintiff agrees to inspect the playing field.
The referee noted that the condition of the field was "fair" and that he had conferred with the managers of both of the soccer clubs. It was his duty to inspect the field before the match commenced and he did inspect the field, as well as, the goal nets. He testified that there was nothing "extraordinary" about the field, other than it was slightly "uneven." He stated that he was to rely upon his own judgment in making the decisions regarding the field and the refereeing of the match.
The testimony of Joseph O'Beirn, President of the ASLC at the subject time, reveals that the ASLC worked in cooperation with the City of Stamford to assign the permits for use of Stamford's soccer fields. The liaison with Stamford for the ASLC was Robert Pepi. An affidavit from Pepi states that the maintenance and control of the soccer field was always the responsibility of Stamford. In his affidavit he states the field was not substandard, and the managers of the two soccer teams voiced no complaints or objections regarding the condition of the playing surface of the field.
The plaintiff also claims that the defendants did not provide adequate referees or safeguards to prevent the plaintiff from colliding with the opposing team's goalie when the plaintiff was running towards the opponent's goal in an attempt to score a goal. The question then becomes whether the defendants' conduct "caused the plaintiff's injury." See Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 605, 662 A.2d 753 (1995). The defendants argue: (1) that any alleged negligence by the defendants was not the proximate cause of the plaintiff's injuries; (2) there is no evidence that the referee was negligent, and if he was, neither defendant can be held vicariously liable, as the referee was an independent contractor, rather than an employee, agent or servant of the defendants; and (3) The defendants had no duty to train the referee because the referee was an independent contractor.
Proximate cause is an "actual cause that is a substantial factor in the resulting harm . . . the substantial factor test reflects the inquiry fundamental to all proximate cause questions, that is, whether the harm which occurred was of the same general nature as the forseeable risk created by the defendant's negligence." (Citations omitted; internal quotation marks omitted.) Suarez v. Sordo, 43 Conn.App. 756, 762, 685 A.2d 1144, cert. denied, 240 Conn. 906, 688 A.2d 334 (1997).
The defendants note that issues similar to those involved in the present matter were addressed by the court in Sullivan v. Quiceno, Superior Court, judicial district of New Haven at Meriden, No. CV05 4003173-S (Oct. 5, 2007, Holzberg, J.) 44 Conn. L. Rptr. 338. In Sullivan v. Quiceno, supra, the plaintiffs filed suit against the defendants Connecticut Junior Soccer Association and the Stamford Youth Soccer League, alleging the defendants were negligent in allowing the plaintiff to be injured when an altercation broke out between players of opposing soccer teams. In Sullivan, the plaintiff alleged that he expressed his concern to a referee that an opposing player 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 the offending player. The plaintiff alleged that the defendant soccer association 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 Sullivan court in determining the merits of a motion for summary judgment applied the analysis of the issue of proximate cause that was expressed in Vaillancourt v. Latifi, 81 Conn.App. 541 (2004).
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. 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.
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.
Sullivan v. Quiceno, supra, Superior Court, judicial district of New Haven at Meriden, No. CV05 4003173-S (Oct. 5, 2007, Holzberg, J.)
Regarding the negligence of the referee in the present action, the court has taken note that neither the plaintiff, his manager or members of his team complained to the referee regarding the condition of the playing field or any violent level of play. No one ever requested that the referee stop the game. The number of referees assigned for a game was controlled by the competing teams who were reluctant to pay for additional referees.
Regarding the mechanics of the plaintiff's injury, the plaintiff complains that the opposing goalie could have avoided contact with the plaintiff's leg, but that the opposing goalie wanted to "hit him." Deposition testimony of Krzystof Sobecki, who viewed the sequence of play leading to the injury, reveals that as the plaintiff was striking the soccer ball, the goalie was falling down and sliding simultaneously while trying to grab the ball from the plaintiff. Cezary Bartosiewicz, manager of Polonia, the plaintiff's team, stated that when the plaintiff attempted to score a goal, the goalie collided with the plaintiff while attempting to prevent the goal. Bartosiewicz stated that the plaintiff never complained about aggressive play and that when it game to aggression, the match was played at a "normal" level for soccer matches.
In addressing injuries in athletic competitions, 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. Jaworski v. Kiernan, 241 Conn. 399, 407-08, 696 A.2d 332 (1997).
"Soccer, while not as violent a sport as football, is nevertheless replete with occasions when the participants make contact with one another during the normal course of the game. When two soccer players vie for control of the ball, the lower limbs are especially vulnerable to injury. If a player seeks to challenge another player who has possession of the ball or seeks to prevent another player from gaining possession of the ball, the resulting contact could reasonably be foreseen to result in injury to either player." Id., 406-07.
"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. That is why there are penalty boxes, foul shots, free kicks, and yellow cards. Indeed, the specific rules applicable to this game demonstrate that rules violations were expected in the normal course of the game. Some injuries may result from such violations, but such violations are nonetheless an accepted part of any competition. Simply put, when competitive sports are played, we expect that a participant's main objective is to be a winner, and we expect that the players will pursue that objective enthusiastically. We also anticipate that players in their enthusiasm will commit inadvertent rules violations from which injuries may result. The normal expectations of participants in contact team sports include the potential for injuries resulting from conduct that violates the rules of the sport." Id., 407-08.
The acts the plaintiff alleged against the defendants were not the proximate cause of his injury. The plaintiff has alleged that the defendants owed the plaintiff and competitors a duty to operate the league safely. According to the plaintiff, the defendants breached that duty by failing to select, employ and train its referees to protect and to prevent attacks on competitors. The essence of the plaintiff's claim is that the referee failed to prevent the opposing goalie from running into the plaintiff. That claim is predicated on the assumption that goalie and other players were demonstrating unsportsmanlike behavior prior to the collision, which the referee failed to stop. The plaintiff concedes, however, that neither he or anyone else complained to the referee or did anything prior to the collision to alert the referee that play had become too aggressive or that the goalie intended to do harm to the plaintiff. "Individuals who serve as officials at athletic competitions are not clairvoyant, and we do not presume that they can foresee a malicious or intentional act of bad sportsmanship such as that alleged by the plaintiff." Vaillancourt v. Latifi, supra, 81 Conn.App. 548-49. As a matter of law, the referee's actions and those of the defendants were not the proximate cause of the plaintiff's injuries. Id. "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 . . ." Id., 550. Even when a player has been warned or is aware of behavior that creates a risk of injury to others, he may fail to heed such warning. As a matter of law, the defendants did not owe the plaintiff a duty of care.
The court also address the defendants' argument that they cannot be vicariously liable for the alleged negligence of the referee because the referee was an independent contractor, and, as such, the defendants had no duty to train or supervise him. "[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 referee was acting as their agent. "[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 deposition of the licensed referee indicates that the referee was not an employee of the defendants and was not trained by the defendants. The referee attends clinics conducted by the United States Soccer Federation. The defendants do not train the referees. The referee stated that he is paid by the home team for the soccer match on a game by game basis. While the ASLC and the team managers can decide how many referees to assign to a soccer match, the CSSA designates the particular referee to be assigned working in conjunction with the Connecticut State Referees Program. The Connecticut State Referees Program is an organization separate and distinct from the two defendants that recruits referees who then are assigned to the CSSC and the ASLC matches. An affidavit from Jesus Zornoza, State Referee Administrator for the Connecticut State Referees Program, states that the referees assigned to matches conducted under the auspices of the ASLC and CSSA are independent contractors. Any referee can choose to work a particular soccer match of their choosing or can decline to work a particular match. Once a referee is assigned to a match the defendants do not control the referee's conduct. The decision to play the game and to inspect the field, as well as the enforcement of the rules of the game are in the discretion of the individual referee.
The defendants have satisfied their burden of demonstrating the non-existence of a genuine issue of material fact regarding the absence of an agency relationship between either defendant and the referee for purposes of vicarious liability. The documentary submissions of the parties that have been considered by this court, all indicate that the referee was an independent contractor because neither defendant exercised any control over the referee, beyond assigning the referee to a particular game, which assignment the referee was free to decline. The defendants did not pay the referees. That responsibility belonged to the home team, and is done 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 evidence considered by the court demonstrates the absence of a genuine issue regarding whether the referee was an agent of either of the defendants. "[T]he existence of the genuine issue of material fact must be demonstrated by counter-affidavits 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). While the plaintiff has offered documentary evidence in opposition to summary judgment none of it rises to the level of such concrete evidence.
The plaintiff has submitted copies of the Rules of the Game, but the court finds they are only marginally relevant to the issues presented for the court's determination.
Accordingly, for the reasons set forth herein, the defendants' motion for summary judgment is hereby granted.