Opinion
No. HHB CV06 5002231
March 30, 2007
MEMORANDUM OF DECISON ON DEFENDANT MARY JEAN BENEDETTO'S MOTION TO STRIKE
The plaintiff Vincent Brazeau brings this action to recover damages on behalf of the estate of the decedent Lyndsey Brazeau. The decedent, who was nine years old at the time of her death, was riding her bicycle on Kearney Street in the Terryville section of Plymouth, CT, when she was struck and killed by a car driven by the defendant Jeremy Thormahlen. In addition to naming Thormahlen as a defendant, the plaintiff has brought this action against Mary Jean Benedetto who is alleged to have owned the property adjacent to the scene of the accident, Cassandra Pelkey who is alleged to have parked a ear in such a way to obstruct Thormahlen's view of Lyndsey Brazeau, and Robert and Sandra Pelkey who are alleged to have parked a second car in such a way as to create an obstructed view.
The court has before it a Motion to Strike filed by the defendant Mary Jean Benedetto. She moves to strike Count Two of the complaint, in which the plaintiff alleges that 1) Benedetto owned the property at 17 Kearney Street, 2) leased the property to Cassandra Pelkey, and 3) "allowed . . . or permitted [Pelkey's] vehicle to be parked, partially in the travel portion of Kearney Street, and partially on the sidewalk and pedestrian thoroughfare . . . and partially on land at 17 Kearney Street, with said vehicle facing the wrong way against traffic." The plaintiff alleges that this manner of parking tended to cause those who might bicycle on the sidewalk to ride around the car and into the street where vision was obstructed by the parked car, and that this obstruction was a proximate cause of the injury and death of Lyndsey Brazean. In her motion to strike, Benedetto claims that Count Two fails to allege facts sufficient to establish a duty of care owed by Benedetto to the plaintiff's decedent. The plaintiff opposes the Motion to Strike.
STANDARD FOR A MOTION TO STRIKE
In deciding a Motion to Strike, the court must read the allegations in the contested pleading in the light most favorable to the pleader. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The purpose of a motion to strike is to contest the legal sufficiency of the allegations in the complaint and to challenge whether they state a claim upon which relief can be granted. Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). The "inextricably bound concepts of proximate causation and duty" are ones that can be challenged by way of a motion to strike. Ganim v. Smith Wesson Corp., 258 Conn. 313, 364, 780 A.2d 98 (2001); Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001); Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998).
THE ISSUE OF DUTY
First there is the question of whether Benedetto had a duty of care under a premises liability theory. A duty to maintain premises in a reasonably safe condition does exist in certain circumstances, but that duty usually runs only to those who are considered to be licensees or invitees and who are injured on the premises. See, generally, Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 327-28 (1992). There is no allegation that the decedent was ever on Benedetto's property in any capacity. Therefore Benedetto owed no duty to the decedent under an ordinary premises liability theory.
The related question is whether Benedetto had a duty to attempt to control or limit the actions of Cassandra Pelkey so that Pelkey would not cause injury to unidentifiable third parties. The general rule is that, absent a special relationship of custody or control between the named defendant and one alleged to have directly caused the harm, there is no such duty. See Fraser v. United States, 236 Conn. 625, 632-33 (1996). Benedetto, as the owner of the premises, had no relationship with the tenant Cassandra Pelkey that gave rise to any duty to attempt to control Pelkey's actions to prevent harm to travelers on the sidewalks or streets of the neighborhood.
That leaves only the ordinary, general duty not to engage in negligent conduct of any kind that has a likelihood of proximately causing harm to others. This duty is circumscribed by that which is foreseeable, however. In Lodge v. Arett Sales Corp., 246 Conn. 563 (1998), the Supreme Court held that faulty alarm equipment negligently maintained by the alarm company did not create liability of the alarm company for injuries caused when a responding fire vehicle's brakes failed on the way to answer a false alarm. The reason for not imposing liability was that, as a matter of law, the harm (the vehicle crash because of defective brakes) was not a reasonably foreseeable consequence of the negligent transmission of the alarm. The court did not hold that an alarm company could never be liable for the transmission of a false alarm, only that the harm to Lodge and his co-plaintiffs was too remote to be reasonably foreseeable in the circumstance of that case.
In the instant case, the plaintiff alleges that Benedetto engaged in negligent conduct by knowingly permitting a car to be parked partly on her property in a way that would cause a hazard to people on the public right-of way, and that it was foreseeable that harm of such a kind as happened to the decedent was a likely result. Here, the conduct is not as remote from the harm as it was in Lodge. Here, in the chain of causation, the link, though hardly direct, is close enough for the issue of foreseeability to become less a question of law than a question of fact. The plaintiff will have to prove that Benedetto engaged in conduct that resulted in Pelkey's car becoming parked in such a way that a reasonable person could reasonably foresee that a child on a bicycle would be injured in the road as a result.
CONCLUSION
The alleged conduct of Benedetto is sufficiently proximate (from the Latin meaning "near") to the harm, that a jury could find the harm to have been foreseeable. For that reason, the Motion to Strike must be denied.