Opinion
No. 32 02 03
February 9, 1996
MEMORANDUM OF DECISION
The plaintiff, Alan Flores, by his parents and next friends, Neftali Flores and Ana Flores; and Neftali Flores and Ana Flores individually, instituted this action against Danbury Hospital, Candlewood Obstetric Gynecological Associates (Candlewood), Mary Ellen May and Jose Henriquez, for damages resulting from the premature birth of their infant son. On March 18, 1993, Ana Flores entered Danbury Hospital for treatment and the next day Alan was born prematurely. They continue by alleging that due to the negligence of the defendants, the child sustained severe and permanent injuries associated with his birth. In count one, they assert that Danbury Hospital was negligent by, inter alia, failing to diagnose early labor, by improperly discharging Ana Flores from the facility, and by failing to provide a Spanish interpreter for her. In count two, it is claimed that Candlewood, through its employees, Mary Ellen May and Jose Henriquez, was negligent for the above described reasons.
Counts three and four recited the same allegations of negligence described above, and are directed towards defendants, May and Henriquez, individually. Count five is directed at all defendants and seeks damages for emotional distress suffered by Ana Flores. Count six is also directed against all defendants and CT Page 1319-W seeks damages for Ana and Neftali Flores for loss of filial consortium associated with the permanent injuries to their son.
The hospital has filed a motion to strike a portion of the sixth count of the complaint on the ground that Connecticut has not recognized a cause of action for filial consortium. In its memorandum in support of the motion to strike, it cites numerous cases which have held that filial consortium is not a cognizable cause of action under Connecticut law.
The plaintiffs argue that although no Appellate Court has recognized a cause of action for filial consortium, several Superior Court decisions have allowed such claims to stand in the absence of an adverse ruling from an Appellate Court. The plaintiffs also argue that both the United States Supreme Court and the Connecticut Supreme Court have granted constitutional protections to the parent-child relationship, and thus urge this court to do the same by allowing their claim of filial consortium.
Plaintiffs rely on Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); and McGaffin v. Roberts, 193 Conn. 393, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1747, 84 L.Ed.2d 813 (1985).
The plaintiffs have filed an amended complaint which is identical in all respects except that it corrected a typographical error in count six of the original complaint. For purposes of the motion to strike, the amended complaint controls. However, there are no material changes in the allegations of the amended count six. Counsel for the plaintiffs argued that the hospital's motion to strike is technically improper because it seeks to strike only one paragraph of count six of the plaintiffs' complaint.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted; alterations in original.) Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-215. In addition, a motion to strike may be used to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotations marks omitted.) Burns v. Hanson, 13 Conn. L. Rptr. No. 19,593 (March 8, 1995, Stanley, J.). "A motion to strike will be granted only when the pleading as a whole fails to state a cause of action or defense; no separate paragraph thereof may be stricken." (Internal quotations marks omitted.) Nunes v. Blake Bus Service, Inc., 3 Conn. L. Rptr. 117 (January 4, 1991, Mancini, J.). Put another way, "`[a] motion to strike a single paragraph is technically improper when the CT Page 1319-X paragraph does not purport to state a cause of action.'" (Emphasis added.) Fromkin v. Brown, 9 CSCR 329 (March 3, 1994, Hartmere, J.), quoting Michaud v. St. Mary's Hospital, 4 Conn. L. Rptr. (August 21, 1991, Byrne, J.).
Under this analysis, the plaintiffs are correct in their assertion that the hospital's motion to strike is technically improper since it attempts to strike only paragraph twenty-two (22) of the complaint. However, in this case, the disputed paragraph purports to state a cause of action in and of itself Count six, as amended, has twenty-three (23) paragraphs. The first twenty (20) paragraphs incorporate allegations of the previous five counts, and the twenty-first (21st) alleges that Ana and Neftali Flores are the parents of the infant plaintiff, Alan Flores. The twenty-second (22nd) paragraph purports to state a cause of action for filial consortium, and the final paragraph alleges that as a result of the loss of filial consortium, the plaintiffs have sustained damages. The only significant paragraph of count six is paragraph twenty-two (22) — that which attempts to state a cause of action for loss of filial consortium. As such, the hospital's motion to strike that paragraph effectively seeks to strike the entire cause of action for loss of filial consortium.
Turning to the merits of the hospital's motion to strike, the court is constrained to grant the motion to strike paragraph twenty-two (22) as legally insufficient since no appellate authority exists for a cause of action for loss of filial consortium. "No appellate court case has yet addressed squarely the issue of whether, under any circumstances, a cause of action for the loss of filial consortium lies." Mahoney v. Lensink, 17 Conn. App. 130, 141 n. 7, rev'd on other grounds, 213 Conn. 548, (1990). While the plaintiffs are correct in pointing out that several courts have recognized such a cause of action, the vast majority of courts still reject such claims.
One early case, Foran v. Carangelo, 153 Conn. 356, 216 A.2d 638 (1966), upheld the defendant's demurrer to the plaintiffs' complaint, which purported to state a cause of action for loss of consortium on behalf of the minor plaintiffs for injuries sustained by their mother. Id., 361. Although Foran was decided prior to the Connecticut Supreme Court's decision in Hopson v. St. Mary's Hospital, 176 Conn. 485, 408 A.2d 260 (1979), recognizing loss of spousal consortium, Foran remains good law.
Specifically, of fifty-seven (57) cases that research has revealed, forty-five (45) have rejected claims of filial consortium, while only twelve (12) have allowed such claims to go forward.
Cases in which claims for loss of filial consortium were permitted are: Ammerman v. Johnson, Superior Court, Judicial District of Waterbury, Docket No. 121129 (October 24, 1995, Vertefeuille, J.); Steeves v. Alexander Trucking Co., 14 Conn. L. Rptr. 532 (July 6, 1995, Corradino, J.); Scalise v. Bristol Hospital, 14 Conn. L. Rptr. 534 (July 6, 1995, Corradino, J.);Vizzo v. Keleman, 13 Conn. L. Rptr. 266 (January 16, 1995, Maiocco, J.); Dastych v. New Britain General Hospital, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 537645 (December 14, 1994, Mulcahy, J.); Cherry v. ABF Freight Systems, Inc., 12 Conn. L. Rptr. 101 (June 29, 1994, Hartmere, J.); Shabazz v. Price, 11 Conn. L. Rptr. 331 (April 22, 1994, Hodgson, J.); Condron v. Pollak, 10 Conn. L. Rptr. 411 (November 18, 1993, Dean, J.); Sliney v. Denisanko, 9 Conn. L. Rptr. 537 (August 6, 1993, Gordon, J.); Beckwith v. Akus, 8 Conn. L. Rptr. 487 (March 16, 1993, Hurley, J.); Henderson v. Micciche, 6 Conn. L. Rptr. 317 (May 1, 1992, Murray, J.); and Kizina v. Minier, 5 Conn. L. Rptr. 481 (January 24, 1992, Santos, J.).
Cases which have refused to recognize claims for loss of filial consortium are: Casner v. Fine, 14 Conn. L. Rptr. 570 (May 22, 1995, Handy, J.); Mills v. Lake Quassapaug Amusement Park, Superior Court, Judicial District of Waterbury, Docket CT Page 1319-Z No. 123482 (May 17, 1995, Pellegrino, J.); Kohutka v. Mazzucco, 14 Conn. L. Rptr. 87 (April 18, 1995, Lewis, J.); Tyrrell v. Cassell, Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. 304981 (February 27, 1995, Thim, J.);Ayala v. Kochanowsky, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 544317 (January 30, 1995, Allen, STR); Maresca v. De Longhi, 13 Conn. L. Rptr. 206 (December 12, 1994, Handy, J.); Smith v. Doura, Superior Court, Judicial District of Hartford-New Britain at New Britain, Docket No. 463230 (December 9, 1994, Stengel, J.); Zamstein v. Marvasti, 13 Conn. L. Rptr. 159 (November 29, 1994, Handy, J.);Klein v. City of Stamford, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. 129999 (November 3, 1994, Mottolese, J.); Waitkus v. Thompson, Superior Court, Judicial District of Waterbury, Docket No. 119007 (September 19, 1994, McDonald, J.); La Prad v. Parizek, Superior Court, Judicial District of Tolland at Rockville, Docket No. 55310 (September 13, 1994, Klaczak, J.); Daley v. Aetna Life Casualty, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 533693 (August 3, 1994, Sheldon, J.); Penn v. Housing Authority of New Haven, 11 Conn. L. Rptr. 485 (May 13, 1994, Fracasse, J.); Olkowski v. Dew, 9 CSCR 719 (June 10, 1994, Hennessey, J.); DiFiore v. Stop Shop, 9 CSCR 395 (March 21, 1994, McDonald, J.); Poteat v. Rose, Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 527853 (March 18, 1994, Aurigemma, J.); Rodriguez v. Bristol Housing Authority, 9 CSCR 418 (March 16, 1994, Berger, J.); Castrovillari v. Bourse, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. 129351 (March 3, 1994, Lewis, J.);Paradiso v. Nasinka, 11 Conn. L. Rptr. 53 (February 8, 1994, Sullivan, J.) (recognizing cause of action for children's loss of parental consortium, but rejecting claims for parents' loss of child's consortium); Gridley v. Sunshine Oil, Inc., 10 Conn. L. Rptr. 20 (August 24, 1993, McDonald, J.); Lesco v. Royal Glass of Connecticut, Superior Court, Judicial District of New Haven at New Haven, Docket No. 325447 (July 22, 1993, Zoarski, J.);Giatrelis v. Krauss, 8 Conn. L. Rptr. 560 (April 1, 1993, Hadden, J.); Hendrickson v. Frick, Superior Court, Judicial District of Middlesex, Docket No. 66630 (April 15, 1993, Higgins, J.);Bachanlal v. Tindoy, 8 Conn. L. Rptr. 606 (April 13, 1993, Booth, J.); Toscano v. Sinsteden, 8 CSCR 372 (March 8, 1993, Wagner, J.); Prete v. Laudano, Superior Court, Judicial District of New Haven at New Haven, Docket No. 337966 (January 25, 1993, Thompson, J.); Williams v. Picard, 8 Conn. L. Rptr. 173 (January 7, 1993, Teller, J.); Taylor v. McKenna, Superior Court, Judicial CT Page 1319-AA District of New London at New London, Docket No. 524349 (January 5, 1993, Teller, J.); Finley v. Masiello Bus Co., 7 CSCR 1357 (November 24, 1992, Rush, J.); Reardon v. Middlesex Hospital, 7 Conn. L. Rptr. 299 (August 27, 1992, Hendel, J.); O'Hazo v. Sousa, 7 Conn. L. Rptr. 62 (July 8, 1992, Langenbach, J.); Crocco v. Lieb, 6 Conn. L. Rptr. 426 (May 20, 1992, Gaffney, J.);Michaud v. St. Mary's Hospital, 4 Conn. L. Rptr. 442 (August 21, 1991, Byrne, J.); Zlotoff v. Perugini, 6 Conn. L. Rptr. 426 (June 10, 1991, Gaffney, J.); Cocca v. Pocesta, 2 Conn. L. Rptr. 69 (July 13, 1990, Barnett, J.); Rebich v. Langan, 1 Conn. L. Rptr. 660 (May 23, 1990, Flynn, J.); Livingston v. Avery Center Obstetrics Gynecology, 1 Conn. L. Rptr. 464 (April 9, 1990, Meadow, J.); DeMaio v. Travelers Insurance Co., Superior Court, Judicial District of Hartford-New Britain at Hartford, Docket No. 335931 (January 18, 1990, Clark, J.); Seger v. Dunne, 3 CSCR 233 (January 22, 1988, Hennessey, J.); Sears v. Stearn, 2 CSCR 731 (June 15, 1987, Burns, J.); Johnson v. Burns, 2 CSCR 540 (April 23, 1987, Jacobson, J.); Evans v. City of Stamford, 12 Conn. L. Trib. No. 11, 17 (November 18, 1985, Freedman, J.); Shattuck v. Gulliver, 40 Conn. Sup. 95 (Super.Ct. 1984); Reilly v. DiBianco, 7 Conn. L. Trib. No. 13, 13 (February 17, 1981, Levine, J.); andHinde v. Butler, 35 Conn. Sup. 292 (Super.Ct. 1979).
The great weight of authority does not support allowing a cause of action for filial consortium on the current state of the law. This court "must yield to the force of present law which at this time in our history limits the tort of loss of consortium to the spousal relationship. [It] . . . is bound by that precedent unless and until modified by appropriate authority."Klein v. City of Stamford, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. 129999 (November 3, 1994, Mottolese, J.). CT Page 1319-Y
The motion to strike is, accordingly, granted.
Moraghan, J.