Opinion
LLICV156013124S
12-13-2016
Richard Blitz, Trustee of the Richard Blitz Defined Benefit Pension Plan and Trust v. Glen Lovejoy et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
John W. Pickard, Judge
In this case the plaintiff seeks monetary recovery from the defendants for damage done to a structure on their property by a fire set by the defendants' minor son on March 8, 2014. The defendants have moved for summary judgment (#115) on the second count of the complaint and the plaintiff has objected (#120). The matter has been fully briefed and was argued at short calendar on November 7, 2016. For the reasons given, the court will grant the motion for summary judgment.
Claims of the Parties
On the day of the fire, the plaintiff owned the property located at 102 Simmons Pond Road in Colebrook (" the plaintiff's property") where the fire took place. The defendants owned adjacent property where they lived with their minor son who was then seventeen years and six months old. In the second count of his complaint, the plaintiff alleges that the defendants' minor son " intentionally burned down the residential dwelling" on the plaintiff's property, and that this action was " willful, wanton and malicious." The plaintiff alleges that his damages were caused by the carelessness and negligence of the defendants in one or more of these ways: 1. " they failed to exercise reasonable care in controlling their minor child so as to prevent him from causing the harm to" the premises. 2. " they negligently and carelessly failed to restrain their minor son, although they knew or should have known that the minor possessed a disposition and propensity to cause the damage he did to the Plaintiff's property, and the damages he caused to the Plaintiff's property was the probable consequence of such failure to restrain their son." In their answer, the defendants denied that their minor son " intentionally burned down the residential dwelling" or that they were negligent.
The defendants have moved for summary judgment on the second count on the ground that they are entitled to judgment as a matter of law because they owed the plaintiff no duty of care based on the facts presented. They argue that based upon their supporting documentation (1) their minor son did not possess a propensity to engage in fire-related conduct prior to March 8, 2014; (2) the defendants did not know, and had no reason to know, whether their son possessed such propensity prior to March 8, 2014; and (3) the defendants had no realistic ability or opportunity to control their seventeen year-old son from setting the fire. Although the defendants have denied that their son " intentionally burned down" the structure, for purposes of this summary judgment motion the defendants do not dispute that their son set the fire which destroyed the structure.
The plaintiff initially argues that this denial " dooms" the motion for summary judgment because it creates an issue of material fact in light of a police record which shows that the defendants' minor son admitted setting the fire. The court does not find that this denial in the answer is material for this motion for summary judgment because the defendants implicitly concede for the purposes of this motion that their son set the fire.
The plaintiff counters that the minor son's psychiatric history and behavior in the weeks prior to the fire provide a sufficient basis for a jury to find that the minor had a propensity to engage in conduct such as setting a fire, that the defendants had reason to know that their son possessed such propensity and that they had a realistic ability to control their son.
Summary Judgment Standard
The summary judgment standard is clear. " Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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 . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the 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 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." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013). " 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.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
The standard with respect to negligence claims is also clear. " The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). " Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). " Summary judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).
" [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." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). " The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).
Discussion
The defendants' first argument is that there is no evidence that their son possessed a disposition and propensity to set fires. There is no evidence that he had ever set a fire before. Nothing in his medical records indicates that he had such a propensity. The plaintiff counters this position by arguing that it is unnecessary to show that the defendants' son had a propensity to commit arson if he had a propensity to engage in conduct such as damaging the property of others. The plaintiff presented evidence that within two months of the arson he had been in an auto accident and had fled the scene. He had stolen candy from a teacher's desk and had denied it. He had begun making racial and sexual remarks at school. Finally, the plaintiff points to the minor's mental health record which includes a hospitalization at the Institute of Living for about a week in late August and early September 2013 for a major depressive episode which included generalized anxiety which included suicidal ideation to crash his car or drown himself. He was treated and discharged to a partial hospital program for one month. He was discharged at the end of that program and continued to receive outpatient services while attending high school.
The law regarding parental responsibility for negligent supervision of their minor children is not extensively discussed in the appellate decisions of this state. It has been stated as follows: " At common law parents were not liable for the torts of their children unless they themselves were independently negligent, as where they had entrusted a dangerous instrumentality to their children or had failed to restrain their children who they knew possessed dangerous tendencies. 39 Am.Jur., Parent and Child, § 55; Restatement (Second), 2 Torts § 316." LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970). In order to flesh out this bare-bones statement of the law it is necessary to refer to the authorities relied upon by the LaBonte court as well as Superior Court cases and out-of-state cases which have discussed these authorities.
Because the Supreme Court cited Am Jur. and the Restatement it is helpful to refer to them. Restatement (Second), 2 Torts § 316 provides: " A parent is under a duty to exercise reasonable care so to control his [her] minor child as to prevent it [him/her] from intentionally harming others or from so conducting itself [himself/herself] as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his [her] child; and (b) knows or should know of the necessity and opportunity for exercising such control."
This case does not involve bodily harm. However, the defendants' motion for summary judgment does not raise the issue of whether a parent can be responsible for the negligent failure to control his or her child where the damages are to property only. The court will not address an issue not raised by the moving party.
39 Am.Jur., Parent and Child, § 55 is now 59 Am.Jur.2d, Parent and Child, § 91. It provides, in part: " In general, one owes no duty to control the conduct of another person, but there are limited exceptions based on various special relationships between a defendant and the person whose conduct needs to be controlled; the relationship between parent and child is one such special relationship. Thus, a parent may be liable for the consequences of failure to exercise the power of control over his or her children where he or she knows, or in the exercise of due care should have known, that injury to another is a probable consequence. However, to render a parent responsible, his or her negligence in the exercise of parental supervision must have some specific relation to the act complained of. Also, the injury committed by the child must be one that ought reasonably to have been foreseen as likely to flow from the negligent act. There is no blanket rule that imposes civil liability upon parents who fail to control their minor child's criminal behavior. Parents are not liable for negligent supervision where the record lacks any evidence indication that the parents were aware that the child was prone to commit the particular act or course of conduct that led to the plaintiff's injury. Without specific evidence, based upon prior acts, of a propensity to cause the actual harm that occurred, a plaintiff may not rely on speculation or unsupported inferences to prove that because a child may exhibit certain propensities, that child also possesses other propensities. A child's deed that is unrelated to any of his or her previous acts will not render that parent liable though an act that climaxes a course of conduct involving similar acts may do so." (Emphasis added.)
There are two Superior Court cases which are instructive. In Robyn v. Palmer-Smith, Superior Court, judicial district of Stamford-Norwalk, Docket No. 990174453, (Feb. 5, 2003), Judge Lewis granted summary judgment in favor of the defendant mother for injuries inflicted by her 16-year-old son on the plaintiff's son. The plaintiff argued that there was a genuine issue of material fact concerning the defendant-mother's duty to control her son because: 1) the defendant's son used drugs prior to the assault, 2) he attended a school where other students used drugs and alcohol, 3) he was on the school's wrestling team, 4) the defendant could not point to any specific occasions during which she expressed her negative opinions about drug use, and 5) she attended an out-of-town social event on the day of the assault and did not arrange for someone to watch her 16-year-old son while she was away. Judge Lewis applied the standard expressed in Restatement, 2 Torts § 316 and determined that the connection between the defendant's conduct and the plaintiff's injuries were " too attenuated" and that the defendant did not have a duty to exercise reasonable care to control the conduct of her minor child.
Also helpful is Smith v. Sunbury, Superior Court, judicial district of New Haven, Docket No. 106010501, (July 22, 2011). In that case Judge Burke granted the defendant's motion for summary judgment in a case in which the defendants' minor son killed the plaintiff's son with a samurai sword. The evidence was that the defendants did not know that their son had purchased the samurai sword. However, they had called the police about a month before the assault because their son had damaged their residence during a family argument. Their son left the residence and they were not aware of his whereabouts at the time of the assault. In response to the plaintiff's claim for negligence, the court found that the defendants' son's behavior during the family argument is not evidence that he had a propensity to cause personal injury to another. The court said: " The nonmovants' interpretation of foreseeability is too broad under the prevailing standard. Damage caused to a property by a violent response to a disagreement and injury caused to a person by the negligent use of a dangerous instrumentality harms of the same general nature. The possibility that the defendants' alleged failure to act in response to the former incident led to the decedent's injury during the latter incident is too remote for the court to conclude that the injury was reasonably foreseeable to the defendants."
There are many cases from other states which have discussed Restatement, 2 Torts § 316. One case from the Court of Appeals of Wisconsin which is particularly pertinent here is Nielsen v. Spencer, 2005 WI.App. 207, 287 Wis.2d 273, 704 N.W.2d 390 (2005). The defendant-mother of a 16-year-old boy was sued for negligent failure to control her son after he hit the plaintiff's son over the head with a weapon causing serious injury. The plaintiff argued that the defendant's son had a number of contacts with the police prior to the assault but the majority of them had to do with criminal damage to property. There " may have been a physical altercation with another individual" and the defendant had " expressed frustration at her ability to control her son." The defendant moved for summary judgment and argued that she did not know and should not have known of the necessity and opportunity for exercising control over her son on the day of the incident. The trial court granted summary judgment for the defendant and the Court of Appeals affirmed. The Court of Appeals notes that Wisconsin has adopted Restatement, 2 Torts § 316 as the applicable standard in negligence actions and that this standard has been interpreted narrowly, both in Wisconsin and elsewhere. Id., 285. " Mere knowledge by the parent of a child's mischievous and reckless, heedless or vicious disposition is not of itself sufficient to impose liability with respect to torts of the child. Specifically, the parent must know, or should have known, that the child had the habit of engaging in the particular act or course of conduct which led to the plaintiff's injury. Simply put, no parental liability exists without notice of a specific type of harmful conduct and an opportunity to interfere with it." Id., 283. The court reviewed the evidence and found that, although the defendant's son had several contacts with the police, there were no facts that the defendant should have or could have known about showing that her son had the habit of engaging in violent, aggravated batteries on other children. Id., 396. " § 316 of the Restatement does not require parents to anticipate and guard against every logically possible instance of misconduct. This is so even where, as here, the parent was aware, or at the very least, should have been aware of the child's past delinquent but dissimilar behavior." Id., 288.
Applying the principles cited above to the facts of this case yields the inevitable result that the defendants' minor son did not possess a disposition or propensity to damage the property of others by any means including fire. The most that can be said about his history is that he was a troubled young man who had in 2013 exhibited anxiety and depression with worrisome suicidal thoughts, and, in the weeks before the fire, had begun to act in bizarre and unexpected ways. But nothing in his past shows any tendency to damage the property of others. He certainly had not exhibited a fascination with fire or a propensity to set fires. In summary, the minor son's prior actions did not reveal that he had the propensity of engaging in the particular act or course of conduct which led to the plaintiff's damages, even if that course of conduct is read broadly to include all acts of damage to the property of others rather than being limited to fire-related damage.
The defendants' second argument is that they did not know, and had no reason to know, that their son had the propensity to engage in fire-related conduct. To refute this argument, the plaintiff contends that: " an ordinary person in the Defendant's position (i.e. parents to this minor), knowing what they knew or should have known about their son's mental conditions, prior conduct and warning signals leading up to the arson, should have anticipated the harm to the Plaintiff's property that was suffered in this case." The court agrees with the plaintiff that summary judgment could not be rendered if the defendants should have been aware that their minor son had a propensity to engage in conduct (whether fire related on not) involving damage to the property of others. The court has already found that there is no evidence that the defendants' minor son had the propensity to damage the property of others. It follows that the defendants could not have foreseen a propensity that did not exist.
The defendants' final argument is that they had no reasonable ability or opportunity to realistically restrain their seventeen-year-old son from setting fire to the plaintiff's property. The plaintiff counters that the defendants had hospitalized their son in the fall of 2013 and could have done so again when he began exhibiting bizarre and unexpected behavior. This argument must fail because there can be no duty to control in a case where there is no evidence of a propensity to cause the kind of harm suffered by the plaintiff and where the parents could not have foreseen their child's conduct. A parent is only under a duty to control when he or she knows of the necessity and opportunity for exercising such control. Restatement, 2 Torts § 316(b). Here there was simply no necessity to exercise control.
For the reasons given, the defendants owed no duty of care to the plaintiff based upon the facts of this case. Therefore, the motion for summary judgment on the second count is granted.