Bits & Pieces

Gilbert v. Zablauskas


Superior Court of Connecticut, Judicial District of Waterbury At Waterbury

April 29, 2022, Decided

DOCKET NO: UWY CV 18 6041805 S


2022 Conn. Super. LEXIS 518 *; 2022 WL 1404219



Core Terms

Oil, license, violations, proximate, injuries, subject matter jurisdiction, quotation, alleges, marks, truck

Judges:  [*1] RORABACK, J.

Opinion by: RORABACK



The plaintiff in this case, Olivia Gilbert, alleges that she suffered serious injuries when a large oil delivery truck ran her over as she was crossing Dog Lane in Storrs Center on her way to work on April 6, 2018. The plaintiff claims her injuries were caused by the negligent operation of the oil truck by the defendant Jordan Zablauskas. Zablauskas was employed by one of several Dime Oil entities (‘the Dime Oil defendants”) that together owned the vehicle and operated the businesses under whose auspices oil deliveries were made. In the eighth count of her sixth amended complaint dated September 19, 2019, the plaintiff alleges that the Dime Oil defendants violated CUTPA (Conn. Gen Stat. Section 42-110a et. seq.) by conducting their businesses in derogation of both federal and state law in several respects, all of which are enumerated with particularity in Paragraph 9 of that complaint. Evidence to support the violations alleged has been furnished in an undated report authored by Thomas J. Moysey and attached as Exhibit H to an objection to (Docket Entry #235) a motion for summary judgment filed by the Dime Oil defendants (Docket Entry #230). The gravamen [*2]  of these claims is that the Dime Oil defendants failed to adhere to the strictures of federal and state law pertaining to the hiring, training and supervision of their drivers, as well as the manner in which routes should be chosen when deliveries must be made by large vehicles like oil trucks.

The Dime Oil defendants have now moved to dismiss the CUTPA count for lack of subject matter jurisdiction positing that the plaintiff lacks standing to bring a CUTPA claim against them because there is no actionable nexus between her injuries and the unlawful and unfair trade practices alleged. The plaintiff disagrees and argues that under standards established in Connecticut case law, she does have standing to pursue a CUTPA claim predicated on the violations of state and federal law alleged in the complaint and elaborated upon in the Moysey report.

The Connecticut Supreme Court has “recognized that the legislature, by deleting all references to ‘purchasers, sellers, lessors, or lessees’ in § 42-1 lOg (a) in 1979, [has] eliminated CUTPA’s privity requirement. . . . [This court has] proceeded to clarify, however, that the elimination of the privity requirement did not mean that anyone could bring a CUTPA action, [*3]  no matter how attenuated the connection between his or her injuries and a defendant’s allegedly unfair trade practices. Notwithstanding the elimination of the privity requirement . . . it strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any trade or commerce. . . . [N]otwithstanding the broad language and remedial purpose of CUTPA, we have applied traditional common-law principles of remoteness and proximate causation to determine whether a party has standing to bring an action under CUTPA.” (Citations and internal quotation marks omitted.) Soto v. Bushmaster Firearms International, LLC, 331 Conn. 53, 93-94, 202 A.3d 262, cert. denied sub nom. Remington Arms Co., LLC, et al. v. Soto, 140 S. Ct. 513, 205 L. Ed. 2d 317 (2019).

“Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10-31 (a) (1) may encounter different situations, depending on the status of the record in the case. As summarized by a federal court discussing motions brought pursuant to the analogous federal rule, [l]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts [*4]  plus the court’s resolution of disputed facts…. [W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdictional facts…. Likewise, if the question of jurisdiction is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-53, 974 A.2d 669 (2009). In the present situation, the court concluded that the issues of remoteness and proximate causation raised in this motion could not be adjudicated absent an evidentiary hearing affording all parties to present evidence relevant to their positions. Such a hearing was held on March 30, 2022.

“Because standing implicates the court’s subject matter jurisdiction, the plaintiff ultimately bears the burden of establishing standing.” Seymour v. Region One Board of Education, 274 Conn. 92, 104, 874 A.2d 742, cert. denied, 546 U.S. 659, 126 S.Ct. 659, 163 L.Ed.2d 526 (2005). In this case, the moving defendants have conceded that their files are bereft of evidence of compliance with several provisions of the Code of Federal Regulations regarding the hiring, training and supervision of Zablauskas. [*5]  The particulars of these deficiencies are set forth in greater detail in the Moysey report. Acting, as it must, in a manner that affords every indulgence in favor of exercising subject matter jurisdiction and given the dearth of evidence supplied by the defendants as to their compliance with the subject regulations, the court undertakes its analysis taking the plaintiff’s allegations regarding the violations asserted to be true. Nevertheless, for the reasons outlined below, the court concludes that, even if true, these violations are insufficient to set forth a cognizable CUTPA claim under the facts of this case.

In conducting analyses of causation in the context of injuries resulting from motor vehicle collisions, “[i]t has been long established in Connecticut law that there is no causal relation between the fact that the operator of a car was licensed or unlicensed, and an injury occurring during its operation, and that the lack of such license could not be deemed to be the proximate cause of the injury and was not therefore actionable negligence, either as a ground of recovery or of defense…. Likewise, it has long been established that a vehicle operator’s inexperience or incompetence [*6]  does not establish a cause of action for negligence without specific allegations of some negligent conduct.” (Citation omitted; internal quotation marks omitted.) Skerpan v. Gonzalez, Superior Court, judicial district of New Haven, Docket No. CV-08-5016527-S (November 30, 2009, Lager, J.).

In a situation in which it is alleged that “one defendant drove [while his driver’s license was under suspension] and struck the plaintiff, that is not relevant to the manner in which he drove his vehicle. Analogously, if a collision had occurred during the day time and the defendant operated a vehicle with defective headlights, it could not be relevant. Violation of a statute must constitute causative negligence to be relevant or material. The negligence of the operation is to be determined by the facts existing at the time of the accident. The Connecticut supreme court has uniformly held that there was no causal relation between the fact that the operation of a car was licensed or unlicensed, and an injury occurring during its operation, and that the lack of such license could not be deemed to be the proximate cause of the injury and was not therefore actionable negligence … .Whether the operator [*7]  has a license is a wholly immaterial consideration… . ‘When a car is driven without a license, the act of driving the car certainly causes a collision; the absence of the license, or the existence of the statute, of course does not.’ W. Prosser & W. Keeton, Torts, (5th Ed.1984), ch. 5, § 36, p. 223; p. 226 and cases cited therein at n. 60.” (Citations and internal quotation marks omitted.) Baxter v. Naugatuck Valley Lawn, Superior Court, judicial district of Waterbury, Docket No. 123761 (April 4, 1995, Flynn, J.).

Similarly, in the case now before the court, the irrefutable direct cause of the plaintiff’s alleged injuries is that an oil truck ran her over. That truck was being operated by Zablauskas at the time of the incident, and the plaintiff alleges that had he not been negligent in the operation of that vehicle, she would not have suffered the injuries complained of. Our Supreme Court recently noted that it “need not decide today whether there are other contexts or situations in which parties who do not share a consumer, commercial, or competitor relationship with an alleged wrongdoer may be barred, for prudential or policy reasons, from bringing a CUTPA action.” Soto v. Bushmaster Firearms International, LLC, supra, 331 Conn. 96. For the reasons [*8]  that follow, and “based on policy considerations, of setting some reasonable limits on the legal consequences of wrongful conduct,” Ganim v. Smith & Wesson Corp., 258 Conn. 313, 349, 780 A.2d 98, 120 (2001), the court concludes that the plaintiff in this case lacks standing to pursue the CUTPA violations alleged.

“CUTPA was not passed with the intent to regulate motor vehicle safety.” Advanced Copy Technologies, Inc. v. Fallon Moving & Storage, Inc., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV-14-6012681 (May 29, 2015, Aurigemma, J.). In addition, there is no private right of action to enforce alleged violations of the Federal Motor Carrier Safety Act (“FMCSA”) Albuquerque v. Achane, United States District Court, Docket No. CV:19-13901 (SDW) (LDW) (D.N.J. August 12, 2019) (“Plaintiff’s claims for violation of the FMCSA must be dismissed because the FMCSA does not provide for a private right of action for personal injury suits”).1 Finally, under the facts as alleged, the violations alleged cannot be deemed to be the proximate cause of the plaintiff’s injuries.

“We previously have explained the concept of proximate cause as follows: Because the consequences [*9]  of an act go endlessly forward in time and its causes stretch back to the dawn of human history, proximate cause is used essentially as a legal tool for limiting a wrongdoer’s liability only to those harms that have a reasonable connection to his actions. The law has wisely determined that it is futile to trace the consequences of a wrongdoer’s action to their ultimate end, if end there is.” (Internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 88 n.32, 793 A.2d 1048, 1065 (2002).

“The question of whether a set of harms suffered by the plaintiff is the direct, or the indirect, remote or derivative, consequence of the defendant’s conduct, is not determined, however, simply by the court applying one set of labels or the other to the facts of the case. It is, instead, part of the judicial task, based on policy considerations, of setting some reasonable limits on the legal consequences of wrongful conduct.” Ganim v. Smith & Wesson Corp., supra, 258 Conn. 349.2

Therefore, for the reasons stated above, the court grants the motion to dismiss count eight of the sixth amended complaint for lack of subject matter jurisdiction on the basis that the plaintiff has failed to adduce sufficient facts to confer upon her the standing required to prosecute this count.



JURIS # 434448

RORABACK, [*10]  J.

End of Document

To the extent the plaintiffs claim is rooted in an alleged violation of 49 CFR 397.67 independently and as incorporated by reference into General Statutes § 14-163c, it bears noting that “Section 14501 entitled ‘Federal authority over intrastate transportation’ provides in relevant part; ‘(c) Motor Carriers of Property (1) General rule—Except as provided in paragraphs (2) and (3), a State … may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier … with respect to the transportation of property.'” Advanced Copy Technologies, Inc. v. Fallon Moving & Storage, Inc., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV-146012681, n.2 (May 29, 2015, Aurigemma, J.).

Instructive in illuminating the policy considerations that counsel against permitting CUTPA claims to be advanced in cases where a plaintiff suffers injuries resulting from the negligent operation of a motor vehicle is the analysis found in a recent case interpreting Massachusetts’ unfair trade practices law. “Mass. Gen. Laws ch. 93A, § 2(a) provides that ‘[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.’. . . Despite the serious injuries sustained, this case involves a straight-forward motor vehicle accident where, according to the plaintiffs, the speed of the defendant driver is a critical issue. There was simply nothing unfair or deceptive about that accident. It was a negligent act and no more…. While 93A is a statute of ‘broad impact,’ it was not intended ‘to augment every other legal or equitable remedy available to parties injured in automobile accidents.’ … [The defendant’s] conduct of placing unrealistic demands on its drivers was not unfair or deceptive—while it may have been negligent, it did not rise to the level of ‘conduct involving dishonesty, fraud, deceit or misrepresentation’ so as to support a violation of ch. 93 A. . . . Moreover, even under plaintiffs’ version of the events, while [the defendant] may have been aggressive and may have pushed its drivers, there is no evidence that such conduct was unfair or improperly coercive toward either the drivers or other motorists. … Plaintiffs argue further that because [the defendant’s] conduct allegedly violated the Federal Motor Carrier Safety Regulations, 49 C.F.R. § 392.6 (quoted above), and Mass. Gen. Laws. ch. 90, § 17 which makes speeding unlawful, its conduct should be considered unfair under the provisions of ch. 93 A…. Were the Court to accept the plaintiffs’ argument that the violation of any Massachusetts statute or regulation automatically constitutes a violation of chapter 93 A … chapter 93 A would immediately become the preeminent law of the Commonwealth, replacing all other forms of civil liability. The advantage provided by the option of double or treble damages and awards of attorneys fees granted successful consumer plaintiffs in business situations would be granted to all plaintiffs in all situations. Without clearer indication from the Legislature that this result is desirable and just, the Court cannot engage in such a radical rewriting of Massachusetts jurisprudence.” (Citations and internal quotation marks omitted.) Swenson v. Yellow Transportation, Inc., 317 F. Supp. 2d 51, 54-56 (D. Mass. 2004).

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