ERIC KURISOO v. HARRY ZIEGLER ET AL.
(AC 38659)
Sheldon, Beach and Harper, Js.
Syllabus
The plaintiff sought to recover damages from the defendants, Z and M Co.,
for negligence in connection with personal injuries he had sustained in
a motor vehicle accident when his vehicle was struck by a vehicle driven
by Z. As to M Co., the plaintiff initially brought this action claiming that
M Co.’s direct negligence had proximately caused his injuries. M Co.
moved for summary judgment on the only count then pending against
it, claiming that it did not owe a duty of care to the plaintiff because
M Co.’s alleged negligence did not create a reasonably foreseeable risk
that the alleged harm would occur, as required under the first prong of
the legal duty analysis. The trial court rejected M Co.’s argument, but
granted M Co.’s motion for summary judgment on the ground that, under
the second prong of the legal duty analysis, M Co.’s responsibility for
its alleged negligence should not extend to the plaintiff under these
circumstances for reasons of public policy, and that there was no need
for a determination of the factual issue of whether the plaintiff’s injuries
were reasonably foreseeable to M Co. Subsequent to M Co.’s filing of
its first summary judgment motion, but prior to the trial court’s ruling
on that motion, the plaintiff amended his complaint to allege that M Co.
was also vicariously liable for the negligence of Z, who had proximately
caused his injuries. In response, after the court had ruled on M Co.’s
first motion for summary judgment, M Co. filed a motion for summary
judgment on the plaintiff’s vicarious liability claim on the sole ground
that vicarious liability could not be established because Z was not acting
as the agent, servant or employee of M Co. at the time of the collision
that caused the plaintiff’s injuries. The court again rejected the argument
raised by M Co., concluding, inter alia, that the plaintiff had failed to
establish the absence of a genuine issue of material fact as to whether
Z was acting as M Co.’s agent, but again rendered summary judgment
in favor of M Co., finding that, as a matter of public policy, M Co. owed
no legal duty to the plaintiff at the time of its alleged negligence that
proximately caused the plaintiff’s injuries. On appeal to this court, the
plaintiff claimed, inter alia, that the trial court improperly rendered
summary judgment in favor of M Co. on both of its motions because
the court based its rulings on a ground not raised in M Co.’s summary
judgment motions. Held that both of M Co.’s motions for summary
judgment should have been denied, the trial court having lacked the
authority to render summary judgment for M Co. because the court
based its summary judgment rulings on a ground not raised by M Co. in
its motions, namely, that M Co.’s responsibility for its alleged negligence
should not extend to the plaintiff under the circumstances of this case
for reasons of public policy; in ruling on both the first and second motion
for summary judgment, the court rejected the only basis upon which
M Co. claimed it was entitled to judgment as a matter of law, specifically,
that it owed no duty of care to the plaintiff.
Argued February 8—officially released July 4, 2017
(Appeal from Superior Court, judicial district of New
London, Zemetis, J. [motion for summary judgment];
Vacchelli, J. [summary judgment])
Procedural History
Action to recover damages for the defendants’ alleged
negligence, brought to the Superior Court in the judicial
district of New London, where the court, Zemetis, J.,
granted the motion for summary judgment filed by the
defendant Mystic Seaport Museum as to one count of
the complaint; thereafter, the court, Vacchelli, J.,
granted the motion for summary judgment filed by the
defendant Mystic Seaport Museum and rendered judg-
ment thereon, from which the plaintiff appealed to this
court. Reversed; further proceedings.
Mary M. Puhlick, for the appellant (plaintiff).
Alexandra J. Zeman, with whom, on the brief, were
Michael P. Kenney and Kate J. Boucher, for the appellee
(named defendant).
Joseph M. Musco, for the appellee (defendant Mystic
Seaport Museum).
Opinion
SHELDON, J. The plaintiff, Eric Kurisoo, appeals
from the summary judgment rendered by the trial court
in favor of the defendant Mystic Seaport Museum d/b/
a Mystic Seaport. On September 20, 2013, the plaintiff
was injured when the motorcycle he was operating
collided with a motor vehicle operated by Harry
Ziegler,1 who, at the time of the collision, was participat-
ing in an antique car tour sponsored by the defendant.
The plaintiff initially brought this action, claiming that
its direct negligence had proximately caused his injur-
ies. Subsequently, he amended his complaint to allege,
as well, that the defendant was vicariously liable for
the negligence of Ziegler, who had proximately caused
such injuries. The court rendered summary judgment
in favor of the defendant on both of the plaintiff’s claims,
finding, as a matter of public policy, that it owed no
duty to the plaintiff at the time of its direct or vicarious
negligence. On appeal, the plaintiff claims that the court
improperly rendered summary judgment in favor of the
defendant on both of his claims because it based its
rulings on a ground not raised in the defendant’s sum-
mary judgment motions. We agree with the plaintiff,
and thus reverse the judgment of the trial court.2
The trial court found that the following facts were
undisputed. ‘‘[The defendant] is a nonprofit, educational
institution that operates Mystic Seaport [(seaport)],
located in Mystic. . . . It is a recreation of a nineteenth
century coastal village with historic ships, and it offers
related exhibits and attractions to the public. It has,
since 1996, sponsored an antique car show featuring
pre-1930 vintage automobiles on the grounds of the
seaport called the ‘By Land and By Sea Antique Vehicle
Show.’ The show permits vintage car owners to exhibit
their vehicles for public viewing on a Sunday. Although
there is an admission fee for entry to the seaport, there
is no extra charge for viewing the Sunday antique
auto show.
‘‘At the time of the accident . . . Ziegler registered
his antique car for inclusion in the show. He was
required to and did pay a $40 registration fee to be able
to enter his car in the show. As part of the weekend
activities, [the] seaport staff and volunteers organized
driving tours on the Friday and Saturday before the
show for the entrants to give them the opportunity to
see the local scenery and attractions and to allow them
to exhibit their vehicles to the public.
‘‘On Friday, September 20, 2013, Ziegler participated
in a [thirty] mile scenic tour of the Mystic/Stonington
area arranged by the event volunteers and staff. About
[forty] or [fifty] cars were involved. The participants
gathered at the Old Mystic Village north parking lot and
were provided with printed driving directions, routes
and a map to follow for the event’s tour that particular
day. In addition, the participants were provided with
banners to place on their antique cars by event volun-
teers and staff, which stated, ‘Follow Me on Sunday to
Mystic Seaport to the Mystic Seaport Antique Vehicle
Show.’ . . . Ziegler affixed the banner to his car prior
to the tour commencing, and then he joined the tour.
It was not a parade of cars, with one following the other,
and event organizers did not arrange for personnel to
guard intersections or direct traffic along the route.
Cars did not follow one after the other. Rather, each
driver simply proceeded independently and followed
the directions given at the start. Although participants
were not required to follow the route, it was assumed
that most participants would stay together and follow
the instructions. They were instructed to follow the
rules of the road, and be vigilant at intersections. They
were encouraged to remain on the prescribed route
because [the] seaport arranged for a ‘trouble car’ to
help with breakdowns along the route, although there
was no trouble car available on the day of the accident.
‘‘Ziegler did follow the directions he was given. While
on Coogan Boulevard at the intersection with Jerry
Browne Road in North Stonington, he stopped at a stop
sign, then proceeded to turn left (northbound) onto
Jerry Browne Road, when the collision [with the plain-
tiff] occurred.’’
On March 20, 2014, the plaintiff commenced this
action by way of a two count complaint, one count
against Ziegler and the other count against the defen-
dant. As to the defendant, the plaintiff alleged that it
had negligently caused his injuries by failing to provide
an escort for the procession, failing to warn the public
regarding the route of the procession, failing to properly
secure the intersection where the collision occurred,
failing to properly instruct or train the participants in
the procession, and failing to obtain a permit for the
procession. On January 21, 2015, the plaintiff amended
his complaint to add a third count, claiming that the
defendant was vicariously liable for the negligence of
Ziegler, who had caused his injuries.
On December 18, 2014, prior to the filing of the plain-
tiff’s amended complaint, the defendant moved for sum-
mary judgment on the sole count then pending against
it, which sounded in direct negligence. The defendant
argued in support of its motion that it did not owe a duty
to the plaintiff because ‘‘the defendant’s negligence, as
alleged, [did not create] a reasonably foreseeable risk
that . . . Ziegler would pull out from a stop sign into
the path of the plaintiff’s oncoming motorcycle when
it was not safe to do so.’’ In its memorandum of decision,
filed on May 22, 2015, the court disagreed, explaining:
‘‘The question is whether a reasonable jury could find
that [the defendant] should have anticipated that a
motorist might be injured by a vehicle participating
in the antique vehicle show without [the defendant]
employing additional safety precautions on public road-
ways. Because reasonable people could disagree as to
whether [the defendant] should have anticipated a harm
of the general nature of that suffered by the plaintiff,
reasonable foreseeability in the present case would be
a question for the jury.’’ The court went on, however,
to consider ‘‘whether public policy militates against
imposing a duty under the circumstances of this case.’’
On that issue, which the defendant had not raised in
its motion and the parties had not briefed or argued,
the court concluded: ‘‘If one who provides directions
to a motorist may be liable for the consequences of
that motorist’s failure to follow the rules of the road
while en route and not because of the route directions
provided, significant costs would be imposed on soci-
ety. Because public policy considerations preclude the
imposition of a duty on [the defendant], there is no
need for a jury to determine the factual issue of whether
the injuries suffered by the plaintiff were reasonably
foreseeable to [the defendant].’’ On that sole ground,
the court rendered summary judgment in favor of the
defendant.
On July 29, 2015, the defendant filed a second motion
for summary judgment on the plaintiff’s claim of vicari-
ous liability for the negligence of Ziegler, on the sole
ground that vicarious liability could not be established
because Ziegler was not acting as the agent, servant or
employee of the defendant at the time of the collision
that caused the plaintiff’s injuries. In its November 20,
2015 memorandum of decision, the court found that
‘‘there are multiple facts in the record tending to estab-
lish that [Ziegler] was an agent’’ and, thus, ‘‘[a] trier of
fact could conclude that . . . Ziegler was an agent [of
the defendant] during the procession.’’ The court con-
cluded, on that basis, that the defendant had failed to
establish the absence of a genuine issue of material fact
as to whether Ziegler was its agent at the time of his
alleged negligence, or thus that it was entitled to judg-
ment on the plaintiff’s vicarious liability claim as a mat-
ter of law. Even so, the court went on to grant summary
judgment in favor of the defendant on the unpleaded,
unargued basis of its earlier ruling on the defendant’s
first motion for summary judgment, to wit: that, on
the basis of public policy considerations, the defendant
owed the plaintiff no duty of care at the time of the
alleged negligence that proximately caused his injuries.
The court explained its reasoning as follows: ‘‘Absent
a duty, [the defendant] cannot be held liable, vicariously
or otherwise. To permit vicarious liability where there
is no direct liability would be to accomplish indirectly
that which could not be accomplished [directly]. The
law does not permit that type of legal circumvention.’’
This appeal followed.
‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
A party moving for summary judgment is held 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 sum-
mary judgment fail to establish that there is no genuine
issue of material fact, the nonmoving party has no obli-
gation 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 dis-
puted 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 pre-
sented to the court under Practice Book § [17-45]. . . .
Our review of the trial court’s decision to grant [a]
motion for summary judgment is plenary.’’ (Citation
omitted; internal quotation marks omitted.) Ferri v.
Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
The plaintiff challenges the court’s summary judg-
ment rulings on both of his claims against the defendant
on the basis that each was improperly based on a ground
that the defendant had not raised in its summary judg-
ment motions, and which the parties had not briefed
or argued. The plaintiff claims initially that the court
improperly rendered summary judgment in favor of the
defendant on his claim of direct negligence because it
improperly determined that the defendant owed no duty
to him based on public policy considerations, which
had not been raised or argued in support of its first
motion for summary judgment. We agree.
‘‘Duty is a legal conclusion about relationships
between individuals, made after the fact, and imperative
to a negligence cause of action. The nature of the duty,
and the specific persons to whom it is owed, are deter-
mined 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. The ultimate test of the existence of the
duty to use care is found in the foreseeability that harm
may result if it is not exercised. . . . 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 [that] resulted was foreseeable
. . . . [T]he test for the existence of a legal duty entails
(1) a determination of whether an ordinary person in
the defendant’s position, knowing what the defendant
knew or should have known, would anticipate that harm
of the general nature of that suffered was likely to
result, and (2) a determination, on the basis of a public
policy analysis, of whether the defendant’s responsibil-
ity for its negligent conduct should extend to the partic-
ular consequences or particular plaintiff in the case.’’
(Internal quotation marks omitted.) Ruiz v. Victory
Properties, LLC, 315 Conn. 320, 328–29, 107 A.3d 381
(2015).
Based on the foregoing principles, the determination
of the existence of a legal duty entails a two-pronged
analysis. In its first motion for summary judgment, the
defendant challenged the existence of a duty to the
plaintiff only under the first prong of that analysis—
that the harm alleged by the plaintiff was not reasonably
foreseeable. The defendant did not assert any argument
whatsoever under the second prong—that its responsi-
bility for its alleged negligence should not extend to
the plaintiff under these circumstances for reasons of
public policy.3 Consequently, and understandably, the
plaintiff did not brief that issue in opposition to the
defendant’s motion for summary judgment. This court
has held that a trial court lacks authority to render
summary judgment on a ground not raised or briefed
by the parties that does not implicate the court’s subject
matter jurisdiction. Greene v. Keating, 156 Conn. App.
854, 860, 115 A.3d 512 (2015) (‘‘[t]he court’s function is
generally limited to adjudicating the issues raised by
the parties on the proof they have presented’’ [emphasis
in original; internal quotation marks omitted]); see also
Bombero v. Bombero, 160 Conn. App. 118, 131–32, 125
A.3d 229 (2015). Thus, because the court improperly
based its summary judgment ruling on a ground not
raised by the defendant in its motion, and rejected the
only basis upon which the defendant claimed it was
entitled to judgment as a matter of law in its first motion
for summary judgment, that motion should have
been denied.
As to the defendant’s second motion for summary
judgment, the court similarly rejected the sole argument
advanced by the defendant in support of its motion,
but rendered summary judgment for the defendant on
an unraised ground. The court based its ruling on that
motion on the earlier improper determination that the
defendant owed no duty to the plaintiff on public policy
grounds, which was not raised by the defendant in
either of its summary judgment motions. The summary
judgment on the plaintiff’s vicarious liability claim thus
cannot stand.
The judgment is reversed and the case is remanded
with direction to deny both of the defendant’s motions
for summary judgment, and for further proceedings
according to law.
In this opinion the other judges concurred.
1
Ziegler is also a defendant in this action. Because this appeal deals only
with the summary judgment rendered in favor of Mystic Seaport Museum,
any reference to the defendant herein refers to Mystic Seaport Museum
only. We note that Ziegler has filed a brief in this appeal supporting the
position of the plaintiff in accordance with Practice Book § 67-3.
2
The plaintiff also claims that the court’s public policy analysis was flawed
on its merits. Because we reverse the judgment of the trial court on the
ground that the public policy issue was not properly before it, we need not
address it now.
3
The defendant contends that its citation of cases that involve public
policy, among other legal issues, is sufficient to have raised the issue for
determination by the trial court, even though it did not actually assert
a public policy argument in this case. We decline to countenance such
an argument.
Other than that argument, which is contained in a single footnote of its
brief, the defendant does not address the plaintiff’s claims on appeal. Rather,
the defendant reasserts the arguments that it made to the trial court in its
motions for summary judgment, both of which were rejected by the trial
court. The defendant has not challenged those determinations on appeal,
nor has it stated an alternative ground to affirm the court’s summary judg-
ment. Those arguments are thus not properly before this court.