Opinion
No. CV 03-0177767 S
December 5, 2003
MEMORANDUM OF DECISION
This is a decision on the plaintiff's motion to strike the defendant's apportionment complaint, dated August 5, 2003. Specifically, the plaintiff alleges that the apportionment complaint fails to state a claim upon which relief can be granted.
The plaintiff is Gary Saucier who was previously employed by the defendant, the town of Wolcott (town), as a custodian at Wolcott High School. Saucier alleges the following in his complaint. On October 14, 2002, Saucier was called to the office by the defendant, Thomas Smyth, the Superintendent of Wolcott Public Schools. In the office, while in the presence of others, Smyth openly accused Saucier of committing lewd physical sexual acts in the women's locker room with articles of women's clothing and pictures belonging to and of some of the female students and teachers. Saucier was immediately suspended from his position, the Wolcott Police were contacted and Smyth sent a letter to Saucier and various other parties reiterating the accusations against Saucier. On October 31, 2002, Saucier's suspension was extended and another letter was sent to him and various other parties reiterating the accusations. Saucier was innocent of the accused conduct and proved so through scientific testing thereby forcing the defendants to acknowledge his innocence. A student, and the defendant in the apportionment complaint was later arrested for performing the acts.
Saucier filed against the defendants a five-count complaint for defamation, negligence, violation of his civil rights, recklessness and indifference for the truth in their investigation and accusations and negligent infliction of emotional distress. The defendants then filed an apportionment complaint under General Statutes § 52-572h in which they assert a claim against Luis Hernandez as an apportionment defendant. The defendants claim Hernandez is also liable to Saucier for his negligence and negligent infliction of emotional distress in that he actually performed the actions Saucier was accused in the locker room and that he failed to make reasonable use of his senses and faculties and come forward and confess his guilt after an investigation was commenced into the conduct. Saucier moves to strike the apportionment complaint on the grounds that Hernandez is an improper apportionment defendant because it was not foreseeable that his actions would injure Saucier and his actions were intentional, not negligent, and the policy behind the statute is to protect insurable interests.
"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.) Fort Trumbull Conservancy, LLC. v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading] . . ." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . [On the other hand] [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC. v. Alves, supra, 262 Conn. 498.
Section 52-572h (c) governs the apportionment of liability among multiple tortfeasors. "[T]he language of § 52-572h (c) explicitly provides for apportionment of liability only among those parties from whom the plaintiff is entitled to recover damages." (Emphasis in original.) Crotta v. Home Depot, Inc., 249 Conn. 634, 639, 732 A.2d 767 (1999). General Statutes § 52-572h (o) "now entirely precludes apportionment on any basis other than negligence." Bhinder v. Sun Co., 263 Conn. 358, 365, 819 A.2d 822 (2003).
General Statutes § 52-572h (c) provides in relevant part: "[I]f the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages . . ."
General Statutes § 52-572h (o) provides: "Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52-556."
"A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence." (Internal quotation marks omitted.) Taylor v. Winsted Memorial Hospital, 262 Conn. 797, 805, 817 A.2d 619 (2003). "If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85, 650 A.2d 153 (1994). "The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . 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?" Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 615, 783 A.2d 462 (2001).
Looking to the facts as alleged in the apportionment complaint, while the reasonable person in Hernandez's position may have foreseen that his conduct would harm the owners of the property he defiled, it is not likely he would foresee that his actions would likely cause harm to Saucier, a third party who had no direct connection to the events. Because it is not likely that Saucier's injuries would have been foreseeable to Hernandez, he did not owe Saucier a duty and would not be liable to him in negligence as required by the apportionment statute.
Therefore, the plaintiff's motion to strike the defendants' apportionment complaint is granted.
MATASAVAGE, JUDGE.