Opinion
No. CV04 0287229-S
January 26, 2006
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #187
I ISSUE
The defendants Robin and Kenneth Kramer have filed a Motion for Summary Judgment alleging that there are no issues of material fact and that they are entitled to judgment as a matter of law.
II FACTS
On October 17, 2005 the plaintiff, Adam Kitchens, filed a twenty-four-count second amended complaint against the defendants, Kenneth and Robin Kramer (Kramers), Jamie Kramer, Adam Mirsky (Mirsky), David Eder (Eder), Robert Ignatowski (Ignatowski), Ernest, Alexander and Zachary Cuzzocreco (Cuzzocreos), Joseph Reichbadt and Michelle and Ernest Cuzzocreo (Cuzzocreos' parents). In relevant part, counts one, four and six of the plaintiff's complaint sound in negligence against the Kramers, Mirsky and Eder, respectively. Count one also asserts that Mirsky and Eder were acting as agents of the Kramers at the time that the plaintiff was injured. Counts five and seven sound in recklessness against Mirsky and Eder, respectively.
The plaintiff's request for leave to file an amended revised complaint was granted by this court on October 31, 2005. The complaint attached to his request, is therefore, the complaint of record for the purpose of deciding the Kramers' motion for summary judgment, which was filed September 29, 2005. It is noted that the plaintiff filed a supplemental request for leave to file an amended revised complaint on October 27, 2005, and the Kramers filed an objection thereto. The court has not ruled on the request or the objection.
This memorandum does not consider counts two, three, or eight through twenty-four, which allege various claims sounding in negligence, recklessness or intentional assault against Jamie Kramer, Ignatowski, the Cuzzocreos, Reichbadt and the Cuzzocreos' parents.
On September 29, 2005, the Kramers filed a motion for summary judgment as to count one, a memorandum of law in support thereof, affidavits of both Robin and Kenneth Kramer, a September 8, 2004 statement by Mirsky and excerpts from the November 1, 2004 and March 28, 2005 depositions of the plaintiff and Eder, respectively. On October 18, 2005, the Kramers filed a supplemental memorandum of law in support of their motion for summary judgment. The plaintiff filed an objection to the defendants' motion for summary judgment on November 8, 2005. The Kramers replied on November 14, 2005, with an additional memorandum of law.
This action arises out of the following facts, which are derived from the evidence viewed in the light most favorable to the non-moving party, the plaintiff. In mid-October 2003, the Kramers left town for the weekend. Prior to doing so, Robin Kramer asked Mirsky to housesit and watch out for the Kramers' children while they were away, and he agreed to do so. Robin Kramer told Mirsky that it was alright for her eighteen-year-old daughter, Jamie Kramer, to invite her friends over during the Kramers' absence as long as no alcohol was consumed. On October 17, after her parents left town, Jamie Kramer invited some friends over to her parents' home. Eventually, approximately twenty- to twenty-five people came to the house, at least some of whom were consuming alcohol. At some point two young men got into a fight, which some of the other guests broke up. One of the young men then left the party. At that point, Mirsky told Jamie Kramer that he was going to kick everyone out, but she convinced him that everything was fine, that everyone at the house was a friend of hers and that the person who left had not been invited. Mirsky then called David Eder, who was a friend of his and, who also knew the Kramers. Mirsky relayed the details of the evening to Eder and asked him to come over because Mirsky believed that Eder would be more familiar with Jamie Kramer's friends. Eder complied with Mirsky's request. The plaintiff, who had heard from his friends that Jamie Kramer was having a party, also arrived at the house after the first fight had occurred. Several people told him about the incident shortly after he got there.
Later, the plaintiff, Mirsky, Eder and almost everyone else went outside the house. Shortly thereafter, an altercation occurred on the Kramers' property outside the house, in which the plaintiff was assaulted and injured. The plaintiff alleges that he was assaulted by several people, including Ignatowski, Reichbadt and the Cuzzocreos.
III DISCUSSION A Standard of Review
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any 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." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005).
"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 . . ." (Citations omitted, internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431,434, 362 A.2d 857 (1975). "The existence of a duty [however] 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.) Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 478-79, 823 A.2d 1202 (2003).
B The Parties' Arguments
In count one, the plaintiff alleges that his injuries were the result of the negligence of the Kramers in that they gave their daughter permission to have a party and then failed to provide adequate adult supervision for their daughter and her guests; failed to hire house-sitters who were competent; failed to make their premises reasonably safe and to provide adequate security and supervision for their social guests; failed to warn the plaintiff of any dangerous conditions; and failed to control the conduct of the five defendants who assaulted the plaintiff. The Kramers contend that they are entitled to summary judgment as to count one because the plaintiff cannot establish that they owed him a duty or that they negligently supervised their daughter.
The Kramers' first argue that they owed no duty to prevent the intentional assault by the other defendants upon the plaintiff because they did not have a special relationship with either the plaintiff or his assailants. The Kramers then argue that they did not owe a duty to the plaintiff in that he was merely an uninvited social guest on their premises when he was injured. According to the Kramers, the evidence establishes that they did not invite the plaintiff to the party and that he did not provide an economic or business benefit to them, and, therefore, he cannot be characterized as an invitee as a matter of law. The Kramers contend that they did not owe the plaintiff a duty of care as a licensee on their premises in that the evidence establishes that they were not actually or constructively aware of the danger which caused the plaintiff to be injured and that he was aware of the danger.
As to the plaintiff's allegations of negligent supervision, the Kramers argue that this claim fails because the evidence establishes that they did not know that Jamie Kramer intended to have a party or that alcohol would be provided. Although they admit that they knew Jaime intended to have some friends come to the house, they contend that they asked Mirsky to housesit and that they believed he could handle the situation. In the alternative, they contend that they did not owe a duty to the plaintiff because the evidence establishes that he was an uninvited social guest.
The plaintiff counters that the Kramers owed him a duty to use reasonable care to protect him pursuant to General States § 52-557a because he was a social invitee of their daughter, Jamie Kramer. He contends that his lack of an express invitation to the party is not dispositive of his status given that he received a general invitation to the party and that the Kramers, represented by their daughter and their house-sitter, acquiesced to his presence at their party. Also, the plaintiff argues that where a guest's presence is for the mutual benefit of all those present, he may be an invitee.
The plaintiff next asserts that the Kramers' duty to exercise reasonable care toward him as a social guest was nondelegable. Accordingly, the Kramers breached their duty to the plaintiff when they allowed their daughter to host a party while they were out of town, which gave rise to the uncontrollable environment that resulted in his injuries. To the extent that the Kramers attempted to delegate their duty to Mirsky, they are liable for Mirsky's negligence as their agent. In the alternative, the plaintiff contends that if the court concludes that the evidence establishes that he was a licensee, the Kramers owed him a duty of care. The plaintiff contends that the evidence shows that Mirsky, the Kramers' agent, was aware of his presence, knew of the dangerous condition on the premises and failed to protect the plaintiff. Consequently, the plaintiff asserts that genuine issues of material fact exist with regard to his status at the Kramers' home and the duty they owed to him.
C Agency
The first issue is whether a genuine issue of material fact exists regarding the existence of an agency relationship between the Kramers and Mirsky or Eder at the time the plaintiff was injured. This issue is relevant because if an agency relationship existed at that time, the Kramers, as principals, may be held liable for the negligent actions of their agents. Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 505, 656 A.2d 1009 (1995) ("the theory of respondent superior attaches liability to a principal merely because the agent committed a tort while acting within the scope of his employment").
This theory is also consistent with the principle that a landowner "owes invitees a nondelegable duty to exercise ordinary care for the safety of such persons." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 257, 765 A2d 505 (2001).
"Agency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking . . . Moreover, it is a general rule of agency law that the principal in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the [agency relationship] . . . The rule charging the principal with an agent's knowledge is not necessarily restricted to matters of which the agent has actual knowledge, and . . . the principal is charged with the knowledge of that which the agent, by ordinary care, could have known, especially where the agent has received sufficient information to awaken inquiry." (Citations omitted; internal quotation marks omitted). McDermott v. Calvary Baptist Church, 263 Conn. 378, 384-85, 819 A.2d 795 (2003). "The Restatement (Second) of Agency, § 220 (1958) . . . defines the relationship of master and servant [in relevant part] as follows: . . . A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control." (Internal quotation marks omitted.) Hanson v. Transportation General, Inc., 245 Conn. 613, 629, 716 A.2d 857 (1998).
Although the general principles of agency are easily recited, research yields limited case law where Connecticut courts have applied agency principles to determine whether a housesitter had an employee-employer relationship with a homeowner. But see Stupak v. Lindsay, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97 0005970 (March 2, 1999, Corradino, J.) ( 24 Conn. L. Rptr. 283) (both principle-agent and master-servant relationships can form the basis of vicarious liability of a homeowner for the acts of a housesitter). Other jurisdictions have found that an agency relationship may arise in this context. See Ferrell v. Martin, 276 Pa.Super. 175 (1980) (agency relationship existed between a babysitter and homeowner but liability did not exist for the babysitter's actions that occurred outside the scope of her employment); See also Madsen v. Scott, 128 N.M. 255, 992 P.2d 268 (1999) (where no agency relationship was found because a homeowner did not pay the housesitter, enter into a contract with him, or give him detailed instructions regarding care of the house).
In the present case, a genuine issue of material fact remains as to whether Mirsky was acting as an agent of the Kramers, Although "[a]sking a friend or acquaintance to house sit requires little or no skills on the part of the house-sitter, and is not typically an occupation or business"; (internal quotation marks omitted) Madsen v. Scott, supra, 128 N.M. 259; in this case the evidence shows that: (1) the Kramers appointed Mirsky to watch over their home and children while they were away; (2) Mirsky accepted the role of housesitter, for which he received compensation; and (3) the Kramers expected that Mirsky would supervise the premises according to their wishes including that Jamie Kramer could have some friends over after a football game but that no alcohol was to be served. These facts, viewed in a reasonable light most favorable to the plaintiff establish that genuine issues of material fact exist as to the three elements required for agency.
The Kramers have failed to present evidence which would establish the absence of a genuine issue of material fact with regard to any of these elements. Thus, a reasonable juror could find that Mirsky was acting as the agent of the Kramers at the time the plaintiff was injured.
D Negligence: Duty
The Kramers argue that they owed no duty to the plaintiff. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care." Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004). "The test for determining legal duty is a two-prong analysis that includes: (1) a determination of foreseeability; and (2) public policy analysis." Monk v. Temple George Associates, LLC, 273 Conn. 108, 114, 869 A.2d 179 (2005) (where court found parking lot owed duty to patron injured by attacker on its premises where such attack was foreseeable and public policy was not offended by such a finding).
1 Foreseeability
Regarding the issue of duty, the court first considers whether the Kramers, or Mirsky as an agent of the Kramers, should have foreseen that the party held at their home could lead to the injuries suffered by the plaintiff. "[O]ur threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? . . . Accordingly, the fact finder must consider whether the defendant knew, or should have known, that the situation at hand would obviously and naturally, even though not necessarily, expose [the plaintiff] to probable injury unless preventive measures were taken." (Citations omitted; emphasis added; internal quotation marks omitted.) LePage v. Horne, 262 Conn. 116, 124, 809 A.2d 505 (2002).
The Kramers have submitted their own affidavits to support their contention that no reasonable jury could find that the assault on the plaintiff was foreseeable to them. Therein, the Kramers state that they were not familiar with the plaintiff or his assailants. They claim that they were not aware of the party atmosphere at their home or the altercation that took place earlier in the evening, prior to the plaintiff's arrival. Even if true, these facts are not sufficient to foreclose the possibility that Mirsky should have foreseen the altercation that resulted in the plaintiff's injuries. Indeed, Mirsky states that he was aware of the prior altercation at the party and that he warned Jamie Kramer of the possible need to ask everyone to leave if any alcohol was present.
Although Mirsky denies that he saw anyone consuming alcohol at the party, the plaintiff points out that in their affidavits, Dan Shekman, who attended the party, and the plaintiff attested that alcohol was available at the party, they saw many guests openly drinking alcohol, and that many guests were visibly intoxicated. Further, the plaintiff testified that he saw an adult male walking around the house where guests were openly drinking alcohol.
In addition, Mirsky testified that he witnessed the end of the first physical altercation that occurred within the Kramer home. This resulted in the physical ejectment of one of the people who eventually assaulted the plaintiff, after he punched a fellow party attendee. Indeed, Mirsky testified that he thinks that the person who was ejected from the party approached the house again shortly before the plaintiff was injured, and yet Mirsky did not summon the police, or tell anyone else to do so, until several minutes later, after he heard a noise that sounded like a car accident, and was told that kids were attacking people with baseball bats. Although these facts do not establish that another assault would certainly occur, that a reasonable jury could find that a reasonable person in Mirsky's position could have foreseen that there was a reasonable possibility of additional violence unless preventative measures were taken. As Mirsky may be found to have been acting as the agent of the Kramers, that a genuine issue of material fact remains with regard to the foreseeability to the defendants of the plaintiff's injuries.
2 Public Policy
"[T]he conclusion that a particular injury to a particular plaintiff . . . possibly is foreseeable does not, in itself, create a duty of care . . . Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed." (Citations omitted; internal quotation marks omitted.) Ryan Transportation, Inc. v. MG Associates, 266 Conn. 520, 528-29, 832 A.2d 1180 (2003). "[T]here generally is no duty that obligates one party to aid or to protect another party. See 2 Restatement (Second), Torts § 314, p. 116 (1965). One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another." (Internal quotation marks omitted.) Murdock v. Croughwell, supra, 268 Conn. 566.
"[I]n considering whether public policy suggests the imposition of a duty, [courts] . . . consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions . . . [Courts] apply these four factors [to decide whether] imposing a duty of care on the defendants . . . is not inconsistent with public policy. (Citation omitted; internal quotation marks omitted.) Monk v. Temple George Associates, LLC, supra, 273 Conn. 118.
The first public policy consideration in this case involves the normal safety expectations of party attendees and social hosts. "In general, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee." (Internal quotation marks omitted.) Morin v. Bell Court Condominium Ass'n., Inc., 223 Conn. 323, 327, 612 A.2d 1197 (1992). "Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact . . . Where, however, the facts essential to the determination of the plaintiff's status are not in dispute, a legal question is presented." (Internal quotation marks omitted.) Kolaniak v. Board of Education, 28 Conn.App. 277, 282, 610 A.2d 193 (1992). "Invitees fall into certain general categories . . . [General Statutes § 52-557a], which provides that [t]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee, in effect recognizes a third kind of invitee, namely, the social invitee. The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land, to enter the land or remain on the land. Although an invitation itself does not establish the status of an invitee, it is essential to it. Mere permission, as distinguished from invitation, is sufficient to make the visitor a licensee but it does not make him an invitee." (Internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Ass'n., Inc., 76 Conn.App. 306, 320-21, 819 A.2d 844 (2003).
The plaintiff testified that some of his friends told him that Jamie Kramer was hosting a party at the Kramers' house that was open to all. He does not contend that any of the Kramers expressly invited him to the party. Rather, he argues that he was invited to attend by implication. An invitation to enter the land of another may arise by implication in two circumstances: "where one person goes upon the land of another for their mutual benefit"; Guilford v. Yale University, 128 Conn. 449, 453, 23 A.2d 917 (1942); or where "the person injured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors . . ., and that such use was not only acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be so used. The true distinction is this: a mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability; but if he directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use, and for a breach of this obligation he is liable in damages to a person injured thereby." (Internal quotation marks omitted.) Id.
Thus, although the Kramers did not expressly invite the plaintiff to their home, they, or their agent, may have indirectly invited him or endorsed his invitation by their conduct. The plaintiff testified that he was served alcohol in the home and used the bathroom. There is no evidence that the plaintiff was asked to leave. For the purpose of deciding a motion for summary judgment, this evidence is sufficient to raise a genuine issue of material fact as to the plaintiff's status while he was on the Kramers' property.
"A possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe." Morin v. Bell Court Condominium Ass'n., supra, 223 Conn. 327. In addition, "the possessor [of land] must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands. He must act as a reasonable man to avoid harm . . . even from intentional attacks on the part of such third persons." Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270 (1973). Although Merhi involved a business invitee, "[t]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee . . ." (Internal quotation marks omitted.) Sevigny v. Dibble Hollow Condo Ass'n., Inc., supra, 76 Conn.App. 320. Moreover, as the Supreme Court recently noted, it has "expressly disavowed any intention to elevate the burden of proof in premises liability claims involving criminal or intentional acts beyond foreseeability." Monk v. Temple George Associates, LLC, supra, 273 Conn. 116. Finding that the Kramers owed the plaintiff a duty is, therefore, consistent with the first public policy factor.
The "continued vigorous participation in the activity" factor also supports imposing a duty on the Kramers. "[This] factor requires [consideration of] the benefits, if any, of encouraging the underlying activity . . ." Seguro v. Cummiskey, 82 Conn.App. 186, 196, 844 A.2d 224 (2004). In Seguro, the court found that employers have a duty to supervise tavern employees concerning their consumption of alcohol at work. The court instructed that, "it is consistent with our public policy to encourage employers to supervise their employees in a manner that prevents employees' irresponsible consumption of alcohol while at work. Establishment of such a duty will therefore encourage the responsible consumption of alcoholic beverages in bars and restaurants." Id.
In this case, it is also consistent with public policy to encourage responsible party hosts to use reasonable care to see that underaged drinking does not occur on their premises and to take steps to see that their guests are not harmed as a result of foreseeable violence. Where potential underaged drinking is involved, it is especially incumbent upon party hosts to use reasonable care to protect their guests. See Bohan v. Last, 236 Conn. 670, 681, 674 A.2d 839 (1996) ("minors are presumed not to have the capacity to understand fully the risks associated with intoxication.") Finding that the Kramers owed a duty to the plaintiff in this case is, therefore, supported by this second public policy factor.
The third factor, the potential for increased litigation, is not offended by finding that the Kramers owed the plaintiff a duty under these facts. Extending liability to those who fail to use reasonable care to protect their social guests from foreseeable harm will not unnecessarily increase litigation but, rather, will provide an incentive to the hosts to act responsibly toward their guests.
Finally, other jurisdictions have found that social hosts owe a duty to party-goers to protect them from the foreseeable assault of third persons. See Martin v. Marciano, 871 A.2d 911 (R.I. 2005) (holding that party host owed duty to her guests to use reasonable care to protect them from the assault by third persons); Pollard v. Powers, 50 Mass.App.Ct. 515, 738 N.E.2d 1144 (2000), review denied, 434 Mass. 1103, 751 N.E.2d 419 (2001) (social host had duty to use reasonable care toward guests); but see Anthony H. v. John G., 415 Mass. 196, 200, 612 N.E.2d 663 (1993) ("[o]wnership and control of premises may serve as the basis for imposing liability for injuries resulting from the physically dangerous condition of the premises . . . However, this principle generally does not extend to criminal conduct of third persons"). Thus, applying the fourth factor of the public policy test supports the imposition of a legal duty on the defendants in this case.