MEMORANDUM OF DECISION AS TO PLANTIFF'S MOTION TO STRIKE SPECIAL DEFENSES

DEBORAH KOCHISS FRANKEL, JUDGE.

This is an action wherein a minor, Tigran Kochian, through his parent Yeva Kochian, brings an action for negligence against the defendants, herein after referred to as "CCC YMCA."

On November 19, 2005 the plaintiff, age 5, was a guest at an "inflatable fun" birthday party for Lucas Massucci. Lucas's parents hosted the party having paid a fee to CCC YMCA for the party. The plaintiff was an invitee of the defendant. The party featured an inflatable obstacle course which included a slide. The plaintiff slid down the slide and landed not on his feet, but on his elbow.

The plaintiff claims that the defendants were negligent and careless in the manner in which they supervised the party and use of the inflatable by the plaintiff.

The defendant filed an answer and special defenses claiming (1) that the plaintiff child was negligent and (2) that the mother of plaintiff failed to supervise her child and (3) that the plaintiffs failed to mitigate their damages.

The plaintiff then filed a Motion to Strike Special Defenses (motion 107) specifically special defenses Second and Third, claiming that: "When a minor child is injured by the negligent act of a third party, two causes of action immediately spring into existence; first, the right of action by the child itself for the personal injuries inflicted upon it; and second, a right of action to the parent for consequential damages, such as loss of services and expenses, caused by the injury to the child. The right of action of the parent to recover is independent of the right of the child . . . The parent is not regarded in law as either a party or privy to an action brought by the child and hence is not bound by the judgment thereunder." Shields v. Audette, 119 Conn. 75, 77 (1934). This common-law rule was the backdrop for the analysis in a 2004 Superior Court case in this judicial district. In Palacios v. The Children's Place Retail Stores, Inc., the court struck a special defense nearly identical to the one here, specifically: "If the minor plaintiff was injured as alleged in her complaint, her injuries and damages are due to the negligence of the plaintiff Urania Palacios, who failed to watch Kelly Palacios, keep her safe and prevent her from injuring herself while on the defendant's premises." Palacios v. The Children's Place Retail Stores, Inc., J.D. Fairfield at Bridgeport, No. 411076 (November 17, 2004, Levin, J.) [ 38 Conn. L. Rptr. 291]. Excerpt from plaintiff's brief.

The defendant filed an Objection to Motion to Strike Special Defenses (motion 110) claiming that: "The plaintiffs rely in large part on the Superior Court case of Palacios v. The Children's Place Retail Stores, Inc. (case attached to plaintiffs' brief) for their argument that the Second Special Defense (contributory negligence regarding parental supervision) should be stricken. As the Palacios case noted, there is a split of authority among Superior Court judges as to whether this defense is proper. While Palacios struck the special defense, other cases including Sedgwick v. Halfpenny, J.D. of Ansonia-Milford at Milford, No. CV 99-065513 S, 28 Conn. L. Rptr. 42 (August 15, 2000, Shay, J.) (case attached) have allowed it.

The reasoning in Sedgwick is persuasive. In that case, the parents of a minor child started a negligence suit on his behalf for personal injuries sustained in a car accident. Later the complaint was amended to add their own claim for the minor's past and future medical expenses. The second special defense, directed to the parents' claim for medical bills only, alleged that the parents were themselves negligent in that they failed to train and supervise the child properly. In denying on the parents' Motion to Strike the special defense on the grounds of parental immunity, the Court reasoned that the Connecticut Supreme Court has clearly left the door open to decide the issue on a case-by-case basis when it framed the question presented to it by the U.S. District Court at page 635 of the Crotta opinion to be, " . . . whether, in the circumstances presented, the doctrine of parental immunity operates to preclude the parent of a minor plaintiff from being joined as a third party defendant for purposes of (1) apportionment of liability . . . based upon the parent's allegedly negligent supervision . . ." (Emphasis in original.) The Court distinguished the Sedgwick case from others where the parental immunity doctrine had been applied.

[In Crotta], the parent was not an independent party to the action, and the defendants tried to join him for purposes of apportionment, which would be a benefit to them. In the case before this Court, the parents have chosen to institute an independent claim and to make themselves a party to the action, which could result in a benefit to them. Logic and equity dictate that they should not be able to loose their arrows at the defendants and then to hide behind the shield of a legal theory clearly intended for another purpose.

Our case is similar to Sedgwick in that the minor's parent is herself a plaintiff, suing to recover for her expenditures on behalf of her son. The reasoning of Sedgwick is persuasive, and trial courts are split on this issue. The Motion to Strike the Second Special Defense should be denied."Excerpt from defendant's brief.

DISCUSSION OF THE LAW

The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, 36, 522 A.2d 1235 (1987).

The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986).

A motion to strike is an appropriate means of presenting to the court legal issues at the onset of litigation. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).

AS TO MOTION TO STRIKE SECOND SPECIAL DEFENSE — FAILURE OF PARENT TO SUPERVISE HER CHILD.

In Crotta v. Home Depot, Inc., 249 Conn. 634 (1999), our Supreme Court addressed the question of whether, in an action brought by the parent seeking damages for his child's injury, a defendant may join the parent as a third-party defendant for the purposes of asserting claims of apportionment of liability, contribution and indemnification based on the parent's negligent supervision of the minor child. Crotta v. Home Depot, Inc., supra, 249 Conn. 644-45. The court held that the doctrine of parental immunity operated to preclude the parent of a minor plaintiff from being joined as a third-party defendant for purposes of apportionment of liability based on the parent's allegedly negligent supervision of a child. Id., 644-45. The court's reasoning was that "[t]he supervision, care and instruction of one's child involves issues of parental control, authority and discretion that are uniquely matters of a very personal type . . . Each parent has unique and inimitable methods and attitudes on how children should be supervised. Likewise, each child requires individualized guidance depending on intuitive concerns which only a parent can understand." (Internal quotation marks omitted.) Id., 643. Furthermore, the court expressed its view that "allowing such third party claims would have a detrimental effect on the injured child. It is artificial to separate the parent and the child as economic entities by the assertion that the recovery of the non-parent defendant from the negligent parent does not technically diminish the injured child's recovery. The reality of the family is that, except in cases of great wealth, it is a single economic unit and recovery by a third party against the parent ultimately diminishes the value of the child's recovery." (Internal quotation marks omitted.) Id., 644.

Connecticut has recognized certain exceptions to the doctrine which are set forth in Squeglia v. Squeglia, 34 Conn.App. 866, 809. "Connecticut law recognizes only four exceptions to the parental immunity doctrine. First, an unemancipated minor can sue the employer of a parent whose negligence in the course of employment injured the child, thereby putting the parent at risk of an indemnity suit. Chase v. New Haven Waste Material Corp., 111 Conn. 377, 380 (1930). Second, a minor can sue a parent if the child was emancipated prior to the tortious conduct. See Wood v. Wood, 135 Conn. 280, 283 (1948). Third, an unemancipated minor can sue a parent for injuries received through the negligent conduct of a business enterprise conducted away from the home. Dzenutis v. Dzenutis, 200 Conn. 290, 300 (1986). Fourth, an unemancipated minor can sue a parent for injuries resulting from the negligent operation of a motor vehicle, aircraft or waterborne vessel. General Statutes § 52-572c."

Another exception was recognized in Henderson v. Wooley, 230 Conn. 472, 486 (1994), which held "the doctrine does not bar a suit by a child for sexual abuse, sexual assault or sexual exploitation by a parent."

Although "the doctrine of parental immunity is subject to both legislative and judicial modification;" Asciutto v. Farricielli, CT Page 5165 244 Conn. 692, 698, 711 A.2d 708 (1998); the foregoing are the only exceptions recognized by Connecticut and the defendant has presented no legal authority for the proposition that parental immunity does not apply under the facts alleged in the apportionment complaint.

Although the defendant validly claims that the fact pattern of this case differs from the typical parental immunity matter, in that the plaintiff themselves brought the mother into the complaint in count two of the complaint wherein the mother is seeking reimbursement for the medical care of the minor plaintiff, this court is not at liberty to create an additional exception and as the court observed in Jeudy v. Jeudy, Superior Court, judicial district of New London, Docket No. CV 122624 (April 25, 2002, Corradino, J.) ( 32 Conn. L. Rptr. 43), to the extent that the present case presents an invitation to create a new exception to the doctrine of parental immunity, any such invitation is "better addressed to the Appellate Court." See also Tili v. Wal-Mart Stores, Inc., Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV06-5003179S (Aug. 7, 2007 Gilligan, J.) 43 Conn. L. Rptr. 880.

The Connecticut Supreme Court has yet to rule on a case involving the application of parental immunity to special defenses. Connecticut Superior Court decisions have been split. In Sedgwick v. Halfpenny, Superior Court, judicial district of New Haven at New Haven, Docket No. CV99-065513S, 28 Conn. L. Rptr. 42 (Aug. 15, 2000, Shea, J.), a minor plaintiff brought suit against the defendants for the negligent operation of a motor vehicle. The defendants filed special defenses alleging that the plaintiffs' parents were negligent in failing to supervise the minor child. The court denied the plaintiffs' motions to strike the defendants' special defenses.

However, other courts have ruled that parental immunity may be used to strike a special defense claiming contributory negligence. In Hart v. Torello, Superior Court, judicial district of New Haven at New Haven, Docket No. CV99-0421294S, 25 Conn. L. Rptr. 506 (September 24, 1999, Devlin, J.), the court granted the plaintiff's motion to strike the defendant's special defense claiming parental negligence. "Whether the claim of parental negligence is raised by [apportionment], or as here, . . . special defense the effect is the same — it diminishes the child's recovery. Current law does not permit such diminution." See also Bartlett v. First Union Corp., Superior Court, judicial district of New Haven at Meriden, Docket No. CV00-0272 108S (Oct. 11, 2000, Robinson, J.) (disallowing the assertion of parental negligence as a special defense); Tobin v. Connecticut Housing Finance Authority, Superior Court, judicial district of New Haven at New Haven, Docket No. 333231 (June 17, 1997, Lager, J.) (holding that parental immunity bars claims alleging parental contributory negligence whether raised as a special defense or counterclaim).

In Kuzoian v. Saybrook Country Barn, Inc., Superior Court, judicial district of New Britain at New Britain, Docket No. CV00-0501052S (January 22, 2001, Shapiro, J.), the court granted the plaintiff's motions to strike special defenses claiming assumption of risk in a products liability case where defendant alleged the plaintiff's parents allowed the minor plaintiff to improperly use the product. The court concluded that it found most persuasive those cases which have held that parental negligence is not a valid special defense regardless of whether the plaintiff is the minor or the parent. Thus the majority trend since Crotta has been to uphold the parental immunity doctrine when applied to both complaints and special defenses.

The court next analyzes the defendants' claim that their special defenses are appropriate because the parents, in addition to the child, have asserted a cause of action. The plaintiff has asserted a claim for reimbursement of medical expenses she incurred as a result of her child's injuries in counts two.

Before Crotta, there was a split of authority among the Connecticut superior courts that had addressed this question. Since Crotta, one superior court case that denied the parental immunity claim was Sedgwick v. Halfpenny, Superior Court, judicial district of New Haven at New Haven, Docket No. CV99-065513S, 28 Conn. L. Rptr. 42 (Aug. 15, 2000, Shea, J.). There, the court denied the plaintiffs' motion to strike the defendants' special defenses, ruling that "in the case before this court, the parents have chosen to institute an independent claim and to make themselves party to the action . . . Logic and equity dictate that they should not be able to loose their arrows at the defendant and then hide behind the shield of (a) legal theory clearly intended for another purpose." Id. at 2.

The Crotta court held "It is artificial to separate the parent and child as economic entities by the assertion that the recovery of the non-parent defendant from the negligent parent does not technically diminish the injured child's recovery. The reality of the family is that, except in cases of great wealth, it is a single economic unit and recovery by a third party against the parent ultimately diminishes the value of the child's recovery." Crotta at 644. Again: "The primary focus of the parental immunity doctrine in Connecticut is the protection of the relationship between the parent and the child." Crotta at 643. See also, Feer v. Santini, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 531207 (June 13, 1997, Sullivan, J.) [ 19 Conn. L. Rptr. 612] (since medical services are rendered to child it doesn't matter that a parent brings a claim for medical expenses, special defense of parent's comparative negligence stricken); Bartlett v. First Union Corp., Superior Court, judicial district of New Haven at Meriden, Docket No. CV00-0272108S (Oct. 11, 2000, Robinson, J.) (disallowing the assertion of parental negligence as a special defense regardless of the absence or presence of a claim on behalf of the parent); and Wright v. Rogers, Superior Court, judicial district of New Haven at New Haven, Docket No. 417078 (August 4, 1999, Lager, J.) (parental negligence cannot be used as a special defense to a claim for medical expenses brought by a parent).

In Tobin v. Conn. Housing Finance Authority, Superior Court, judicial district of New Haven at New Haven, Docket No. 333231 (June 17, 1997, Lager, J.), the court granted a motion to strike special defenses claiming parental negligence where plaintiffs sued for their emotional distress and to recover for personal injuries sustained by their daughter after exposure to lead paint declaring: "The purposes of the parental immunity doctrine would be defeated if the . . . special defense were allowed to stand." Id. at 5.

In Courchesne v. Dickau Bus., Inc., Superior Court, judicial district of New Britain at Hartford, Docket No. CV93-0527989, 14 Conn. L. Rptr. 130 (March 8, 1995, Wagner, J.), the court denied defendant's motion to cite in deceased child's father as a defendant for purposes of apportionment, where the child's mother and sister both claimed emotional distress and medical expenses.

For these reasons, the plaintiffs' motions to strike the defendants' special defense as to parental supervisor is granted.

AS TO MOTION TO STRIKE THIRD SPECIAL DEFENSE — FAILURE TO MITIGATE DAMAGES

"The doctrine of mitigation of damages contemplates that one who has been injured by the negligence of another must use reasonable care to promote recovery and prevent any aggravation or increase of the injuries." (Internal quotation marks omitted.) Pinho v. Daly, Superior Court, judicial district of New Britain, Docket No. CV00 0500895 (May 3, 2001). "To claim successfully that the plaintiff failed to mitigate damages, the defendant must show that the injured party failed to take reasonable action to lessen the damages; that the damages were in fact enhanced by such failure; and that the damages which could have been avoided can be measured with reasonable certainty." (Internal quotation marks omitted.) Preston v. Keith, 217 Conn. 12, 22, 584 A.2d 439 (1991).

There exists a split of authority within the Superior Court as to whether a defendant may plead failure to mitigate damages as a special defense. Those cases prohibiting mitigation of damages from being raised as a special defense base their decisions on the fact that mitigation of damages is not among those special defenses listed in Practice Book and on the ground that mitigation of damages fails to show that the plaintiff has no cause of action.

On the other hand, those decisions permitting mitigation of damages to be pleaded as a special defense reason that it should be allowed because it puts the plaintiff on notice that failure to mitigate will be an issue at trial.

"As to the third special defense, failure to mitigate damages, the plaintiffs argue that, by pleading this, the defendant is implicitly acknowledging that it is liable, and is seeking only to diminish any award of damages. Therefore, because this special defense is not claiming that they have no cause of action, the plaintiffs argue that this special defense is legally insufficient. The defendant argues that there is a split of authority in Connecticut as to whether failure to mitigate damages must be pled affirmatively and that, because of this split, it should be allowed to plead it as a special defense in order to avoid it being barred when raised for the first time at a later date. "[I]t is proper to allege facts in a special defense whenever they explain the general denials and apprise the plaintiff of all the issues involved in the case . . . The [defendant's] [third] special defense put the plaintiffs on notice that failure to mitigate will be an issue at trial . . . The defendant is not specifically required to plead the failure to mitigate damages . . . The majority rule . . . is that although the defendant need not specially plead it, the defendant must bring forward evidence that the plaintiff could reasonably have reduced his loss or avoided injurious consequences, and he must finally convince the jury of this in order to succeed on this issue . . . Therefore, the defendant has the option of pleading failure to mitigate as a special defense." (Citations omitted; internal quotation marks omitted.) Barfield v. Gasparri, Superior Court, Docket No. 111081, judicial district of Waterbury (Oct. 13, 1993, Sylvester, J.) ( 10 Conn. L. Rptr. 243), see also Salzano v. Goulet, Superior Court, Docket No. CV04 0287567, judicial district of New Haven at Meriden (September 22, 2005, Shluger, J.) (40 Conn. L. Rptr. 28)." LeMaire v. Farmington Ready Mix, Inc., Superior Court, judicial district of Litchfield at Litchfield, Docket No CV-04-4000443S (Jan. 30, 2006 Pickard, J.), 2006 Ct. Sup. 2099.

A failure to plead facts in the special defense is a defect of form which should be addressed by a request to revise or in the alternative, by serving simple interrogatories.

Therefore, the plaintiffs' motion to strike the third special defense is denied.