Smart v. Orico, No. Cv 96-0390828-S (Sep. 16, 1997)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION This is the defendant's Motion for Summary Judgment. The case arises out an auto accident at 11:30 A.M. on August 18, 1994 on Temple Street in the city of New Haven. The vehicle in question was reported stolen at 2:16 P.M. on the same date.

The liability in this case is based on a theory of agency, C.G.S. § 52-183. This statute creates a statutory presumption that if the operator is one other than the owner of the vehicle then the operator will be presumed to be the agent and servant of the owner of the auto and the defendant bears the burden of rebutting such presumption.

The defendant has filed an affidavit claiming her car was stolen and has supported that claim with various other documents. The problem with the position of the defendant is that the existence and scope of permission for operation of a vehicle are peculiarly within the knowledge of the defendant. The defendant's evidence in this case may be strong and the defendant may eventually prevail but that determination involves a judgment by the trier of fact on the credibility of the defendant and her witnesses.

This is, therefore, not a proper case for the granting of summary judgment.

The Motion is Denied.

Thomas V. O'Keefe, Jr. Judge of the Superior Court