Opinion
KNLCV176032300
10-29-2019
Zachary Chesebro v. Sophia Thielman et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Swienton, Cynthia K., J.
MEMORANDUM OF DECISION RE DEFENDANT, CONNECTICUT COLLEGE’S MOTION FOR SUMMARY JUDGMENT, #149
Swienton, J.
The defendant, Connecticut College, has moved for summary judgment as to the plaintiff’s complaint, count four sounding in negligence and count five sounding in public nuisance. Connecticut College argues that the plaintiff’s claims must fail as a matter of law because: (1) it did not have a duty to the plaintiff in preventing an adult student’s negligent or reckless acts occurring off campus; (2) any actions taken or not taken by Connecticut College were not a proximate cause of the plaintiff’s injuries; and (3) the plaintiff’s fatally defective negligence claim causes the public nuisance claim to fail also as a matter of law.
FACTS
The plaintiff, Zachary Chesebro, in the five-count complaint that he filed on November 28, 2017, alleges the following facts. The defendant, Sophia Thielman, was a student at the defendant, Connecticut College, in New London. She lived in a residence house on campus. During the evening of November 21 and early morning of November 22, 2016, Ms. Thielman consumed alcohol and drugs in a residence house on campus. She was 19 years old and therefore was under the legal drinking age of 21.
On November 22, 2016, the plaintiff operated a moped on Mohegan Avenue in New London. Ms. Thielman traveled behind the plaintiff’s moped in a motor vehicle, which was owned by the defendant, Melinda Thielman. Ms. Thielman drove the motor vehicle directly into the rear of the plaintiff’s moped and caused a collision. As a result, the plaintiff sustained severe and permanent bodily injuries, including quadriplegia.
On February 1, 2019, the defendant filed a motion for summary judgment on the grounds that it did not have a duty to a third party in preventing an adult student’s negligent or reckless acts occurring off campus. It further argues that the plaintiff cannot show that the defendant was a proximate cause of his injuries. Lastly, it contends that the plaintiff’s public nuisance claim fails as a matter of law because the claim is based on a fatally defective negligence claim. The motion is accompanied by a memorandum of law and exhibits. On May 15, 2019, the plaintiff filed exhibits accompanied by a memorandum of law in opposition to the motion for summary judgment. The defendant filed a reply to the plaintiff’s memorandum of law on June 10, 2019.
As only the defendant Connecticut College filed this motion for summary judgment, all references in this memorandum to "defendant" refer to Connecticut College.
Here, both parties submitted uncertified deposition transcripts without objection from the opposing party. Where uncertified deposition transcripts are submitted without objection in support of or in opposition to a motion for summary judgment, the court may, in its discretion, choose to consider or exclude them. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).
DISCUSSION
"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[s] 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." Fiano v. Old Saybrook Fire Co. No. 1, Inc., 332 Conn. 93, 101, 209 A.3d 629 (2019).
"[I]t is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ... Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case ... Accordingly, the rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment ... [I]f the party moving for summary judgment fails to show that there are no genuine issues of material fact, the nonmoving party may rest on mere allegations or denials contained in his pleadings ..." (Citations omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320-21, 77 A.3d 726 (2013).
"[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." 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).
The defendant argues that the plaintiff’s negligence claim fails as a matter of law because the defendant did not have a duty to a third party by way of its relationship to the alleged tortfeasor or by enacting alcohol and drug policies that govern students’ behavior. Even if it had a duty to the plaintiff, it argues, the claim still fails because the defendant’s actions were not a proximate cause of the plaintiff’s injuries. It further argues that the plaintiff’s public nuisance claim fails as a matter of law because the nuisance claim is based on a fatally defective negligence claim. The plaintiff argues in response that the defendant owed a duty to him because the defendant contributed to the foreseeable risk of injury to third parties, it had a special relationship with its underage students, and it assumed the responsibility of monitoring and enforcing its own alcohol and drug policies. He further argues that the defendant’s actions were a substantial factor in causing the plaintiff’s injuries, and his nuisance claim does not fail because his negligence claim is not defective.
I. Negligence- Duty
The defendant first moves for summary judgment on the ground of nonexistence of a legal duty to the plaintiff. "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 determined by the circumstances surrounding the conduct of the individual ... Foreseeability is a critical factor in the analysis ... Our law makes clear that foreseeability alone, however, does not automatically give rise to a duty of care: [A] simple conclusion that the harm to the plaintiff was foreseeable ... cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself ... but is only an expression of the sum total of those considerations of policy [that] lead the law to say that the plaintiff is entitled to protection ... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results." (Citations omitted; internal quotation marks omitted.) Demond v. Project Service, LLC, 331 Conn. 816, 834-35, 208 A.3d 626 (2019).
A. Duty to Control or Supervise Adult Students
The court will address the defendant’s arguments in order. The defendant first argues that colleges do not have a general duty to control or supervise their adult students. The plaintiff counters that the defendant owed a duty to regulate and supervise foreseeable dangerous activities occurring on campus.
"[A] person typically has no duty of care to protect third persons from harm caused by a primary tortfeasor, or to control the conduct of that tortfeasor, unless there is a special relationship between the defendant and either the third person or the tortfeasor, or other exceptional circumstances exist ... [A]n owner or possessor of property in this state generally cannot be held liable in negligence for harms caused by adults who consume alcohol on that property but cause injury only after leaving to drive on the public roads." (Citations omitted.) Id., 836-37.
Connecticut appellate courts have not spoken on a college’s duty to control or supervise its students, or regulate students’ activities on campus. Looking to persuasive authority, the reasoning in Pawlowski v. Delta Sigma Phi, Superior Court, judicial district of New Haven, Docket No. CV-03-0484661-S (January 23, 2009) (47 Conn.L.Rptr. 132) is instructive, albeit under somewhat different facts. In Pawlowski, an intoxicated, underage university student was struck by a motor vehicle and died while crossing a street after a party. Id. The party was held at a private off-campus residence that was attended almost exclusively by those affiliated with a particular fraternity. Id. The administrators of the student’s estate brought a legal action against the student’s university alleging the university’s negligence and recklessness. Id.
Because of the lack of evidence that the university took any affirmative action to increase the risk of harm to the student, the court in Pawlowski did not find that the university assumed a duty. Id. After concluding that it was not reasonably foreseeable to the university that "the manner in which it enforced its alcohol policy and its past disciplinary actions against certain [fraternity] members enhanced the risk of harm that [the student] faced, created a new risk or induced him to forego some opportunity to avoid risk on the night in question," the court then went on to consider public policy implications. Id.
"[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 responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Emphasis added.) Munn v. Hotchkiss School, 326 Conn. 540, 548, 165 A.3d 1167 (2017).
"[S]ince the late 1970s, the general rule is that no special relationship exists between a college and its own students because a college is not an insurer of the safety of its students ... As desirable as it may be to address the serious problem of students’ underage drinking and its adverse consequences, courts recognize that it is difficult to so police a modern university campus as to eradicate alcohol ingestion ... The premise of modern post-secondary education is that students have both rights and responsibilities and that universities do not have a general duty to insure their safety." (Citation omitted; emphasis in original; internal quotation marks omitted.) Pawlowski v. Delta Sigma Phi, supra .
In the present case, the same public policy discussed in Pawlowski militates against finding duty on the part of the defendant to control or supervise students, or regulate students’ activities on campus. Although the drinking took place at an off-campus residence in Pawlowski, the court’s reasoning resonates strongly in the present case.
B. Duty Based on Drug or Alcohol Policies
The defendant next argues that the existence of alcohol or drug policies does not create a duty to nonstudent third parties. The plaintiff counters that by including alcohol and drug policies in its student handbook, the defendant assumed a duty, which it negligently performed. Albeit under different facts, the Connecticut Supreme Court examined a similar legal question in Demond. In that case, a homeless man- who for approximately one week had been living in his vehicle that was parked at an interstate highway service plaza- consumed alcohol at the plaza, then drove onto the interstate while intoxicated, and caused a multi-vehicle collision. Demond v. Project Service, LLC, supra, 331 Conn. 822-24. Pursuant to a concession agreement, the defendants served the service plaza that was owned by the Department of Transportation (DOT). Id., 822. The "no alcohol/no loitering provisions" of the agreement prohibited the defendants from allowing those at the service plaza to consume alcohol or loiter at the plaza. Id. During the week leading up to the collision, some plaza employees were aware of the homeless man’s presence in the plaza and his alcohol consumption, but the man continued to live in his vehicle at the plaza. Id., 823.
The victims and their families alleged negligence and public nuisance against the entities responsible for the operation and maintenance of the service plaza. Id., 820. The court in Demond stated that the issue was "whether [the defendants], by undertaking a contractual obligation to prevent alcohol consumption and loitering on the premises, assumed a duty of care to off premises highway travelers that the DOT did not have in the first instance." Id., 838-39. The court explained the applicability and scope of § 324A(b) of the Restatement (Second) of Torts. Id., 842-46. Section 324A(b) provides: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if he has undertaken to perform a duty owed by the other to the third person." 2 Restatement (Second), Torts § 324A(b), p. 142 (1965).
"[T]he precise terms of a contractual undertaking will not strictly delimit the extent of the legal duty to protect third parties under § 324A of the Restatement (Second), but it would be anomalous if the nature and scope of the contractual undertaking were wholly irrelevant to the nature and scope of the duties arising from it. The foreseeability reference in § 324A is not free-floating but instead is anchored to the reasonable expectations of the undertaking party arising from the services to be performed." (Emphasis in original.) Demond v. Project Service, LLC, supra, 331 Conn. 845. The court explained: "[E]ither an express contractual undertaking or evidence of an unambiguous intention on the part of the contracting parties [is required] before the law will impose a duty to protect third persons from off premises harm caused by an intoxicated driver. Unless there is sufficient evidence to support a jury finding that the contracting parties actually intended to depart from the preexisting liability rules, or some other basis for imposing a duty- e.g., a special caretaking or supervisory relationship between the defendant and either the primary tortfeasor or the victim- a landowner or possessor who undertakes to prevent the consumption of alcohol as part of its on premises responsibilities does not thereby incur a duty to protect third parties from off premises physical harm caused by a driver who became intoxicated before leaving the premises." (Emphases in original.) Id., 848.
In reversing the judgment of the trial court after trial, the court stated: "There is no evidence in [Demond] that the parties intended contractually to alter or extend the existing common-law rules holding that a party in the defendants’ position has no duty to protect off premises travelers from the risks posed by intoxicated drivers who consumed alcohol while loitering at the service plaza ... Nor does any extrinsic evidence presented by the plaintiffs demonstrate any such contractual intent." Id., 850-51. The court concluded that "the evidence presented by the plaintiffs was insufficient as a matter of law to support a finding that the contracting parties had the specific intent to protect passing motorists from the risk of harm created by the consumption of alcohol at the service plaza." Id., 854.
In the present case, the undisputed evidence submitted by the parties reveals an absence of a genuine issue of material fact that the defendant did not undertake an express contract or evince an unambiguous intent to protect motorists who are not affiliated with Connecticut College from the risks posed by intoxicated drivers who consume alcohol in an on-campus residence house and then operate a motor vehicle off campus. In support of his position, the plaintiff presents Connecticut College’s 2016-17 Student Handbook (Handbook) as evidence of the defendant’s intent to protect such motorists. Specifically, he points to the language that requires students to act in accordance with the codes in the Handbook. "The Honor Code and Student Code of Conduct apply to the behavior of Connecticut College students both on and off campus ... In student relationships with other members of the Connecticut College community and the surrounding community, students are expected to be aware of and demonstrate respect and courtesy for the rights and needs of others on and off campus." Plaintiff’s Exhibit I, p. 272. "Negative behaviors occurring on or off campus that result from being under the influence of alcohol/drugs are unacceptable." Plaintiff’s Exhibit I, p. 284.
The plaintiff’s reliance on the Handbook is misplaced. The Superior Court in Pawlowski v. Delta Sigma Phi, supra, considered the scope of a private educational institution’s duty to its students through the policies laid out in a student handbook. In that case, "[t]he plaintiffs assert[ed] that the university assumed a protective duty towards Pawlowski, a student under the age of 21, either to prevent the occurrence of the specific party he attended ... or to stop him from entering the residence where the party took place. They maintain[ed] that the duty arose as [a] result of the alcohol policy promulgated in the [h]andbook, the university’s reservation of the right to address off-campus student behavior that may endanger the health, safety and welfare of [the university] students, and the university’s specific knowledge of past conduct by members of [the fraternity] in hosting off-campus parties at which alcohol was served to minors." (Internal quotation marks omitted.) Id.
The court recognized: "In the absence of affirmative conduct on the part of a university, courts have been reluctant to find that negligent administration of a university’s rules or policies gives rise to an enforceable duty. ... Generally, courts that have found an assumed duty under [Restatement] § 323 base it on the university’s affirmative conduct." Id. Section 323 provides: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking." 2 Restatement (Second), Torts § 323, p. 135 (1965).
"[T]he basic legal relation between a student and a private university or college is contractual in nature ... [T]here seems to be no dissent from [the] proposition that the catalogues, bulletins, circulars, and regulations of the institution determine the contractual relationship between the student and the educational institution." Burns v. Quinnipiac University, 120 Conn.App. 311, 320-21, 991 A.2d 666 (2010). The contractual relationship does not implicate a third party who is not a party to the contract. Our case law does not hold otherwise. See id., 313, 315 (a law student alleging breach of contract against her law school for refusing to issue certificates of good standing); Morris v. Yale University, 142 Conn.App. 191, 193, 63 A.3d 991 (2013) (a former medical student alleging breach of contract against his medical school for dismissing him); see also Okafor v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV-98-0410320-S (June 25, 2004) (a former student alleging breach of contract against her university for failing to comply with its disciplinary procedures against students); Goetz v. Sherman, Superior Court, judicial district of Fairfield, Docket No. CV-15-6049996-S (November 8, 2017) (a former student alleging breach of contract against his university for failing to award him a degree and for failing to follow the termination process laid out in the student handbook).
In the present case, the undisputed evidence demonstrates the absence of a genuine issue of material fact that the defendant did not manifest an unambiguous intent to protect third parties from off-premises physical injury caused by a student motorist who became intoxicated before leaving the defendant’s premises. The language in the Handbook demonstrates, if anything, that students owed a duty to the defendant’s surrounding community. Students were obligated to conform their conduct to meet the honor code and the student code of conduct.
The plaintiff puts forth other materials to demonstrate that the defendant assumed the duty of enforcing and monitoring the policies and procedures laid out in the Handbook. "A material fact is a fact which will make a difference in the result of the case." Charles v. Mitchell, 158 Conn.App. 98, 108, 118 A.3d 149 (2015). These facts are not material to this case. Even if such facts are undisputed, they do not affect the outcome of this motion for summary judgment because undertaking these duties did not put the defendant’s students and its surrounding community at a greater risk. Specifically, the act or failure to act on the part of the defendant did not increase the risk of harm to the students and the community.
They are heavily discussed from pages 8 to 29 of the plaintiff’s memorandum of law in opposition to the motion for summary judgment.
The plaintiff argues that the defendant increased the risk of injury to others by failing to enforce and monitor its alcohol and drug policies, and applicable state and federal laws. In Demond, the Connecticut Supreme Court recognized that "the increase in the risk of harm required is not simply that which occurs when a person fails to do something that he or she reasonably should have. Obviously, the risk of harm to the beneficiary of a service is always greater when the service is performed without due care. Rather ... [liability exists] only when the defendant’s actions increased the risk of harm to [the] plaintiff relative to the risk that would have existed had the defendant never provided the services initially. Put another way, the defendant’s negligent performance must somehow put the plaintiff in a worse situation than if the defendant had never begun performance." Demond v. Project Service, LLC, supra, 331 Conn. 855.
In the present case, the plaintiff does not put forth evidence that the defendant’s acts or omissions increased the risk of harm to motorists, such as the plaintiff, within the meaning of § 442B of the Restatement (Second). The evidence presented does not indicate that the defendant placed the plaintiff in a worse position than he would have been in the absence of any undertaking because the defendant failed to enforce and monitor its alcohol and drug policies. Even if the defendant failed to diligently enforce and monitor its policies, the failure to act would not have increased the risk of harm to the plaintiff. Moreover, the undisputed evidence shows that the defendant may have actually followed its policies.
Section 442B provides: "Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct." 2 Restatement (Second), Torts § 442B, p. 469 (1965).
A floor governor in Ms. Thielman’s residence house spotted Ms. Thielman with a can of alcohol in the hallway and instructed her to throw it away, as Ms. Thielman had violated the school policy. Plaintiff’s Exhibit Y, p. 501. The floor governor then reported the incident to the defendant’s campus safety. Id. The accident took place mere hours after the floor governor saw Ms. Thielman in the hallway. See id. (indicating that the floor governor saw Ms. Thielman with a can of alcohol on November 21, 2016 at 9:15 p.m.); Plaintiff’s Exhibit A (showing that the police received reports of a collision on November 22, 2016 at approximately 12:18 a.m.).
Because the defendant did not have a duty to the plaintiff, it is unnecessary to consider the defendant’s arguments on proximate cause.
II. Public Nuisance
The defendant moves for summary judgment on the ground that the allegations in the public nuisance claim and those in the negligence claim are the same, and because the negligence claim is fatally defective, the public nuisance claim fails as a matter of law. The plaintiff argues that the negligence claim is not fatally defective, and the allegations in the two claims are not the same.
"To prevail [on] a claim for public nuisance ... a plaintiff must prove the following elements: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages." Demond v. Project Service, LLC, supra, 331 Conn. 860-61. "A nuisance ... describes an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property ... The term nuisance refers to the condition that exists and not to the act or failure to act that creates it." Fisk v. Redding, 164 Conn.App. 647, 652-53, 138 A.3d 410 (2016).
The court in Demond confirmed our precedent that "[t]o the extent that the defendants’ conduct contribute[s] to the creation of the dangerous condition (i.e., the intoxication of the motorist), their liability [is] cut off by the intoxicated motorist’s own choice to consume alcohol immoderately and then drive." Demond v. Project Service, LLC, supra, 331 Conn. 862. The rule applies only to adults and not to minors as defined under General Statutes § 30-1(12). "In view of the legislative determination that minors are incompetent to assimilate responsibly the effects of alcohol and lack the legal capacity to do so, logic dictates that their consumption of alcohol does not, as a matter of law, constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury." Ely v. Murphy, 207 Conn. 88, 95, 540 A.2d 54 (1988).
See Quinnett v. Newman, 213 Conn. 343, 349, 568 A.2d 786 (1990) ("[T]he inherently dangerous condition claimed to constitute a nuisance is the intoxicated adult operator of the motor vehicle. The proximate cause of the adult motorist’s intoxicated condition, however, lies in his own immoderate use of the alcohol and not in its service to him by the defendant sellers").
Section 30-1(12) provides: ‘Minor’ means any person under twenty-one years of age."
Although the theory of negligence in Ely was social host liability, id., 91, the case is relevant for its rule on proximate causation, which is stated in the preceding sentence in the main text. As further support, Demond discusses Quinnett at length even though Quinnett was a social host liability case also.
In the present case, the undisputed evidence demonstrates the absence of a genuine issue of material fact that Ms. Thielman was 19 years old, and, therefore, she was a minor pursuant to § 30-1(12). Consequently, Ms. Thielman’s act does not break the chain of proximate causation, and, thus, the defendant is not insulated from liability. See Ely v. Murphy, 207 Conn. 95. The elements of nuisance are distinct from those of negligence. As the defendant has not presented evidence disproving any essential element of the nuisance claim, the defendant has not met its burden as the party moving for summary judgment. Because the defendant provides no other basis to conclude that the public nuisance claim fails as a matter of law, the court denies the defendant’s motion for summary judgment as to the public nuisance claim.
CONCLUSION
The defendant has met its burden of demonstrating the absence of a genuine issue of material fact that it did not have a duty to the plaintiff under the negligence claim. As to the public nuisance claim, the defendant failed to meet its burden of showing that, under applicable principles of public nuisance law, it is entitled to a judgment as a matter of law in the absence of any genuine issue as to all the material facts. Accordingly, the court grants the defendant’s motion for summary judgment with regard to the negligence claim and denies the motion with regard to the public nuisance claim.