Opinion
No. X01 CV-02-179481S
December 27, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Background
This suit centers upon the alleged abduction of two minor children (hereafter referred to as "H and V"), then ages 7 and 6, by their natural father who took them from their home in Massachusetts to Cairo, Egypt, via a flight from Bradley Airport in this state on a privately chartered airliner. There is not a dispute the defendant, Executive Jet Management, operated the airline or that its employees or agents arranged the flight and flew the plane. The mother of the children is the named plaintiff who, in the Second Revised Complaint ("Complaint"), asserts causes of action for custodial interference (Count One), negligence (Count Two), negligent infliction of emotional distress (Count Four), and loss of filial consortium (Count Six). The children were not reunited with the plaintiff until June of 2003 when she went to Cuba (where the children and their father were temporarily) and recovered them. At the time of the claimed abduction, the plaintiff had shared legal and had primary physical custody of H and V under valid and enforceable orders of the Probate and Family Court of the Commonwealth of Massachusetts, the state in which she, her former husband, and the children continuously resided prior to the occurrence. The couple divorced in March of 2001 and the abduction was on August 23, 2001.
The action was originally brought against Rifton Enterprises, LLC, FKA but no longer pends as against it. The father, Anwar Wissa, Jr., is also a defendant but has not appeared.
Several other facts are relevant to adjudication of one or more of these counts. EJM is based in Ohio; the jet and its crew were based in New York. The defendant knew, prior to the flight, there were to be only three passengers — Wissa and the two minor children. It knew Wissa was a new customer and that the flight was to occur within thirty (30) hours of the reservation having been made. It knew Wissa at first attempted to charge the approximate $160,000 charge for the flight to a corporate American Express card, that American Express would authorize only fifteen thousand ($15,000), and that ultimately the fee would be paid from the personal account of an individual with a different last name and who had not been identified either as a passenger or as someone with a legal or family connection to H and V. It knew the crew was booked for only a three-day stay in Egypt, an unusually short stay given the lengthy travel. It did not know — nor did it inquire — whether H and V's mother was alive or dead though it did know that, if alive, she would not be accompanying them.
Originally, there was to be a fourth passenger, Wissa's mother, who, given her date of birth, was highly unlikely to be either Wissa's wife or the children's mother.
The broad claim is that EJM advertised discretion and privacy to a clientele sufficiently elite to pay a price many times the fee charged by commercial airlines for a flight to Egypt and that it failed to employ adequate safeguards to prevent international child abductions. The defendant has denied all substantive allegations and has moved for summary judgment on all four counts. Both parties have filed memoranda of law, each with extensive supporting documentation, and both have waived oral argument in consenting to the court's adjudication of the motion on the papers.
Applicable Law
Summary judgment shall be rendered if the pleadings, affidavits and any other proof submitted show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. P.B. § 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450 (2003). The moving party has the burden of showing the absence of any genuine issue of material fact and therefore his/her entitlement to judgment as a matter of law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434 (1980). The non-moving party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Appleton v. Board of Directors, 254 Conn. 205, 209 (2000). It must be demonstrated by counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). "A material fact . . . [is] a fact which will make a difference in the result of the case." H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, 560 (2001).
Count Six
The defendant argues the time is ripe for the court to address whether the plaintiff can here maintain a cause of action for loss of filial consortium. The issue presents a conflict of law inquiry. This state does not recognize the cause of action; Massachusetts law does. M.G.L.C. 231, § 85x states the parents of a minor child "shall have a cause of action for loss of consortium of the child who has been seriously injured against any person who is legally responsible for causing such injury." The court agrees it is now appropriate to address this issue.
The court earlier declined to address the issue when raised by a motion to strike because she did not then have the necessary information — now provided.
Connecticut superior courts have considered the issue frequently and with differing results. The majority has declined to recognize the claim though it has not often presented in the context of a choice of law issue.
The defendant relies upon the "most significant relationship" test enunciated in O'Connor v. O'Connor, 201 Conn. 632 (1986), wherein our Supreme Court abandoned the traditional doctrine of lex loci delicti. O'Connor involved a plaintiff passenger's suit against a defendant operator with regard to an accident in Quebec. Both parties were Connecticut domiciliaries; the trip began and was intended to end in Vermont; the plaintiff was hospitalized in Canada and endured continuing physical problems in this state. Reversing the appellate court's affirming of the trial court's determination Canadian law governed, our Supreme Court acknowledged there were circumstances where strict application of the lex loci delicti theory frustrated the expectations of the parties and undermined important public policies of this state. "We are therefore persuaded that the time has come for the law in this state to abandon categorical allegiance to the doctrine of lex loci delicti in tort actions." Id., at 648. Instead, it adopted the approach of the Restatement Second of Conflict of Laws — specifically, §§ 145 and 6.
While acknowledging lex loci had "lost its theoretical underpinnings," it did not determine to discard the doctrine in all its manifestations. Id.
Section 145(1) of the Restatement provides "[t]he rights and liabilities of the parties with respect to an issue are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6." Section 6 states:
(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protections of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.
This court concludes the relevant factors, given the contextual circumstances of this case, are (a) — the needs of the interstate and international systems, (b) — the relevant policies of the forum, (e) — the basic policies underlying the particular field of law, and (f) — certainty, predictability and uniformity of result. This state's failure to recognize a cause of action for loss of filial consortium is surely offensive to the policy concerns of Massachusetts where, as here, both parents and children resided prior to the abduction and where the plaintiff mother has a justifiable expectation of recovery for this loss. That expectation derives from the Massachusetts legislature's declaration of the public policy of promoting the integrity of the family unit as articulated in M.G.L.C. 231, § 85x. The Restatement cautions against attaching independent weight to certainty and ease of application, noting in comment j to Section 6, that it is more important good rules be developed than that certainty be assured. That is not, however, to suggest either that predictability is of no relevance where all four family members were Massachusetts domiciliaries or that, under the egregious circumstances here posed, permitting this cause of action is antagonistic to either good law or desirable results. Thus, (a), (b) and (f) suggest the application of Massachusetts law. Connecticut shares with Massachusetts the same interest in preserving the family unit, safeguarding the physical or emotional well-being of children, and the enforcement of judicial determinations of custody and visitation. Thus, while consideration of (b) above does not afford either state a clear advantage, it cannot be said Connecticut would be offended by permitting this claim given this state's adversity to condoning any conduct which as strongly challenges the vitality of the family and as seriously undermines the strength of this societal standard as does the conduct here at issue.
Section 145(2) of the Restatement establishes black-letter rules of priority to guide the application of § 6 principles to tort cases. It provides the following contacts ought be analyzed:
(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.
"[I]t is the significance, and not the number, of § 145(2)contacts that determines the outcome of the choice of law inquiry . . ." 201 Conn., at 652. Only (b) above inclines in favor of Connecticut since it is here that the flight resulting in the abduction occurred. The "injury" referred to in (a) above is necessarily with reference to the plaintiff; she learned of the kidnapping in Massachusetts and it is in that state where she remained and thus endured the deprivation of her children and experienced emotional and financial sequelae. The domicile of all of the actors, with the exception of the Ohio-based defendant, is in Massachusetts. Most significant in this court's view is factor (d) since this case centers on the disruption of the parent-child relationship. That relationship was clearly in Massachusetts. Connecticut's relationship is fortuitous; in point of fact, documentation suggests first consideration was given to a Massachusetts airport as the point of origin for the flight. Given the timetable imposed by the father, Connecticut (specifically, Bradley) was chosen — not only for convenience to the father but for the airport's size and physical layout. There was but a small window of activity — albeit instrumental — in Connecticut. All of the arrangements for the abduction were initiated from the father's location in Massachusetts. For all of these reasons and for the additional reasons that to apply Connecticut law would deprive the plaintiff of any tort remedy for the twenty-two month loss of filial consortium and that Massachusetts law embodies a public policy traditionally embraced by our courts, justice and reason point to Massachusetts as the jurisdiction whose law bears the most significant relationship to the parties and this controversy. The plaintiff may assert a claim for loss of filial consortium.
The concluding sentence of § 145(2) states these concepts "are to be evaluated according to the relative importance with respect to the particular issue."
The motion for summary judgment is therefore denied as to Count Six.
Count Two
Paragraph 47 of Count Two asserts EJM "owed legal duties" to the plaintiff to exercise reasonable care to protect the children from being wrongfully removed from the United States without the mother's consent and that those duties included "requiring the pre-embarkation execution of dual parental consent forms" under the circumstances. Paragraph 48 provides "[n]on-passenger parents are foreseeable victims of international child abductions to air carriers that fly internationally" in view of the existence of dual parental consent forms and EJM's own internal practices to include inquiring whether both parents would be traveling with a minor. It avows the defendant breached that duty of care and proximately caused the plaintiff-mother's damages. Paragraph 48 and 49.
The defendant argues the absence of any duty (statutory, regulatory, or by industry standards) to use the consent forms and points to the deposition testimony of Jameel Joseph, plaintiff's liability expert and an aviation industry consultant who queried thirty (30) airlines regarding the use of the consent forms. His testimony was that, prior to September 11, 2001, 37.9% of the companies used the forms whereas 61.99% (nearly two-thirds of the companies canvassed) did not. Exhibit E to plaintiff's memorandum, p. 145. Thus, EJM argues, use of the forms was not an industry standard and summary judgment on this count is warranted because it owed no duty.
The parties agree no such statute or regulation existed at the time.
The abduction occurred approximately two weeks prior to the terrorist attacks in this country.
Both Massachusetts and Connecticut agree the existence of a duty is a legal determination for the court. Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 479 (2003); Cottam v. CVS Pharma, 436 Mass. 316, 320 (2002) (citation omitted). Where no duty exists, a negligence action cannot be maintained. "Duty is a legal conclusion about relationships between individuals, made after the fact . . . 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." Lodge v. Arett Sales Corp., 246 Conn. 563, 571 (1998). The test in Connecticut for the legal duty of care 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 plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy. 264 Conn., at 479.
Massachusetts law also analyzes foreseeability as an element of duty. See e.g., Whittaker v. Saraceno, 418 Mass. 196, 635 N.E.2d 1185, 1187 (1994); McLaughlin v. Vinios, 39 Mass.App.Ct. 5, 12, 653 N.E.2d 189, 193 (Mass.App. 1995). The first step, therefore, in determining whether a duty exists is to determine the foreseeability of the injury. The "exact" nature of the harm suffered need not have been foreseeable, only the "general" nature of the harm. Lodge, 246 Conn. 563, 573; Andrews v. Jordan Marsh Co., 283 Mass. 158 (1933) (Citation omitted.). Regarding the permissible level of generality of the harm, "[l]iability may not be imposed merely because it might have been foreseeable that some accident could have occurred; rather liability attaches only for reasonably foreseeable consequences. Id., at 577. "[R]easonable foreseeability, rather than hindsight, is the criterion which must be applied." Id., at 578. In defining the limits of duty, the Court in Lodge stated, "[w]hat is relevant . . . is the . . . attenuation between [the defendant's] conduct, on the one hand, and the consequences to and the identity of the plaintiff, on the other hand." Id., at 574 (Citation omitted.). The Court also recognized the duty inquiry is similar to the analysis engaged in with respect to the third element of negligence — proximate causation. Id., at 9. It is therefore appropriate, as part of the duty analysis, to consider such questions as whether the defendant stands in any such relation to the plaintiff as to create any legally recognized obligation or whether the interests of the plaintiff are entitled to legal protection at the defendant's hands against the invasion which has in fact occurred. Id.
The defendant focuses solely upon the complaint's allegation of EJM's failure to require execution of the dual parental consent forms and ignores the complaint's assertion the defendant owed the plaintiff the duty not to wrongfully remove the children from the U.S. without her consent (Paragraph 47). That duty, Paragraph 47 asserts, also "included" inquiring whether the minors would be accompanied by both parents when the father first requested the flight and identified the passengers — particularly when it was clear from the ages of the children and the date of birth of the only adult female then listed that the mother would not be on the flight — and "requesting and receiving consent" from her (Paragraph 48) — in whatever form. In concluding EJM owed the mother no duty because she was not a passenger and injury to her could not therefore have been foreseen, the defendant ignores the language of Lodge — the case it cites and argues as authority for its position — and fails to engage in the analysis suggested by that Court. Lodge involved a fire engine's collision with a tree. The allegation of the injured firefighters and the estates of firefighters who died as a result of the accident was that the defendant alarm company and defendant alarm service company negligently caused the transmission of a false fire alarm to which the plaintiffs responded and that, while responding to that alarm, the brakes of the fire engine failed, causing the truck to strike a tree. A jury verdict in excess of $4.4 million was returned against the defendants. The appeal was transferred to the Supreme Court which reversed the judgment of the trial court. The Court concluded the brake failure of the negligently maintained fire truck was beyond the scope of the reasonably foreseeable risks created by the transmission of the false alarm and that no legitimate legal objective would be served by imposing liability on alarm companies for a harm they could not reasonably be expected to anticipate and over which they had no control. 246 Conn., at 578. "The possibility that a city would so negligently maintain its vehicles, and that firefighters would operate a fire engine, the mechanical soundness of which was clearly in doubt, is sufficiently remote that a reasonable person should not be expected to anticipate such an event." Id. In the Court's view, the harm suffered by the plaintiffs was an unforeseeable — as opposed to a reasonably foreseeable — consequence. Id. at 577. In a case more factually similar to the one before this court, the Second Circuit Court of Appeals affirmed the district court's setting aside of a jury verdict and dismissal of the claims of the plaintiff parent and child against an airline for aiding and abetting the other parent's removal of the child from the U.S. in violation of both a court order and the plaintiff parent's right to joint custody. The primary issues before the Court in Pittman v. Grayson, 149 F.3d 111 (2d Cir. 1998), were whether New York law recognized a claim for custodial interference where the removing parent had joint custody ("New York law has not provided a definitive answer." Id., at 121. Thus the Court's response was not to decide the issue.) and whether the defendant common carrier, Icelandair, Inc., had sufficient notice of the court order restricting the mother's travel with the children beyond northwest Florida (The Court concluded it did not because such knowledge by the airline was based on "mere oral representations" by the father of one of the girls. Id., at 123.). Two paragraphs of the fourteen-page opinion addressed whether a negligence claim would lie under the circumstances there presented. It determined it would not because the airline owed no duty to the parent. Without citation or analysis, the Court stated only that the absence of a duty was premised upon the fact the father of one of the two girls had "no special relationship with the airline." Id., at 125.
In her memorandum, the plaintiff makes reference to the defendant's violation of its own internal practice of inquiring whether a minor passenger would be accompanied by both parents and cites to exhibits which do not in fact establish any such practice by EJM prior to September 11, 2001. Rather, the deposition testimony cited establishes that such item of inquiry became part of its International Trip Checklist only after that date and thus there was no practice to make that inquiry when this abduction occurred.
Clearly, our Supreme Court in Lodge was concerned that employing a foreseeability test that incorporated a high level of generality to the harm would inevitably lead to creation of a strict liability standard. 246 Conn., at 563. The Court was persuaded the defendants ought not be held liable for that which they could not control — specifically, the maintenance and operation of the city's emergency vehicles which was the direct cause of the accident. In the instant case, "the attenuation of the defendant's conduct and the consequences to and identity of the plaintiff" ( 246 Conn., at 563) warrants a finding the harm to this plaintiff was a reasonably foreseeable consequence of EJM's conduct and that the abduction — the direct cause of this plaintiff's loss of her children for twenty-two months — was within the defendant's control. Considering only what the defendant undisputedly knew — the father's taking of the children to Egypt for what was to be a three-day visit, that no female passenger would be with the six- and seven-year-old children on the flight, that no reference of any kind was made to the mother during any of the telephone calls between the father and the charter company, and that it was highly unlikely a three-day trip to Egypt with the children would have been either for vacation or business purposes, there is sufficient evidence for the jury to conclude the defendant should have suspected an abduction was planned and that harm of the general nature sustained by this plaintiff was a reasonably foreseeable consequence if, as it should have known from these facts, she was unaware of and did not consent to the trip. The defendant's argument actual knowledge is required to impose liability is not persuasive in view of the absence of any effort by the charter company even to inquire whether the mother was dead or alive and, if alive, whether she consented. When one further considers the unusual circumstances regarding the cost of the trip, the facts regarding Wissa's payment for the trip, and the fact this charter company advertised its discretion, its privacy, and its willingness to accommodate its clientele, that conclusion presents as even more compelling. "Knowledge of facts or circumstances which ought reasonably to excite suspicion and put one on inquiry is sufficient to charge one with notice of those facts that he might have ascertained by the exercise of ordinary diligence." State v. Barber, 190 A.2d 497, 501, 24 Conn.Sup. 346 (Conn. Cir.App.Div., 1962). The defendant controlled the flow of information by choosing not to inquire of the mother's status or consent or to require evidence of her consent. When it chose to be willfully blind regarding external but relevant facts of which it should have been aware — i.e., rising divorce rates and international child abductions, the existence of warnings by the state department regarding children on international flights, the use by some airlines of dual parental consent forms under these circumstances, the conclusion looms boldface. This court concludes the harm was reasonably foreseeable. It is for the jury to determine whether knowledge of the father's wrongful intent should here be imputed to the defendant and is a question of material fact.
Plaintiff's counsel has exhibited a proclivity to state as fact what has not been proven. It cites, on p. 3 of its memorandum, the deposition testimony of Raber at pp. 87-88 and the deposition testimony of Joseph at pp. 196-97 establish Egypt as "a country widely known as a target destination for child abductions" when examination of the referenced testimony does not support that proposition. Greater exactitude in legal writing is a goal to be espoused. Lack of faithfulness to textual language encourages the reader's suspicion with regard to the stated conclusions.
The defendant has described its services in a promotional flyer as "Air Travel On Your Own Terms." Exhibit L to plaintiff's memorandum.
That harm to a particular plaintiff or class of plaintiffs is reasonably foreseeable does not itself create a duty of care since duty "is only an expression of the sum total of those consider actions of policy which lead the law to say that the plaintiff is entitled to protection. 246 Conn., at 576. Fundamental policy purposes of the tort compensation system include not only the compensation of innocent parties but the shifting of loss to responsible parties and the deterrence of wrongful conduct so as to prevent future harm. Where, as here, a private charter company handsomely profits from the sale of its services rendered with a blind eye regarding the totality of all of the circumstances surrounding the flight it arranged, no compelling reason exists to so narrow the scope of the duty owed to non-passengers who are reasonably foreseeable victims harmed in reasonably foreseeable ways since that would encourage lack of vigilance. Imposing liability under such circumstances provides an incentive to avoid conduct which encourages the wrongful taking of children from parents with custodial rights, an experience which evokes deep-seated, time-honored, and broad societal concerns regarding the health and development of both the children and the parents wrongfully deprived of the right to share in and guide the passage of their offspring from childhood to adulthood with all of the joy and pleasure that journey usually affords a custodial parent. The failure to impose liability under these circumstances would remove the impetus of charter airlines to act with due care and fracture the underpinnings of the family unit. Whether there was a breach of the duty this court finds was here owed and whether the harm to the mother was proximately caused by that breach are questions of fact for the jury. The defendant's motion for summary judgment as to Count Two is denied.
Count Four
Count Four asserts many of the allegations of preceding counts but adds: 1) the conduct of EJM was "extreme and outrageous" (Para 54); 2) the plaintiff's illness and injury included "significant emotional distress, anxiety and adjustment disorder, and depression, (sic) with physical manifestations" ( Id.); (3) the plaintiff remained in Massachusetts for most of the 22-month absence of the children, "contemporaneously and continuously experiencing and observing the children's absence therefrom" (Para 56); 4) before the children were returned to her, the plaintiff "personally observed them in a foreign country" and "witnessed firsthand manifestations of trauma" exhibited by the children as a result of the ongoing abduction ( Id.); and 5) as a result of this defendant's negligence, the plaintiff suffered "severe mental anguish and emotional distress" (Para 57).
Neither party's memorandum analyzed — or even referenced — Massachusetts law despite the plaintiff's earlier position that state's law ought govern the count for loss of filial consortium — which should have put both parties on notice regarding the need to address Massachusetts law with regard to all counts. Adjudication of the defendant's motion as applied to Count Four is further complicated by inartful pleading which does not clarify whether what is asserted is a claim for negligent infliction of emotional distress (as the caption for that count would indicate) or bystander emotional distress (as suggested by language descriptive of a claim for that cause of action). The plaintiff addresses Count Four on only one (1) of thirty-five (35) pages in a way that blurs the distinction between the two causes of action and concludes Connecticut law does not apply (despite a discussion of Clohessy v. Bachelor, 237 Conn. 31) because this state's courts have not addressed emotional distress claims in the context of a continuing tort. Memorandum, at p. 29.
Before 1993, a plaintiff seeking recovery for negligent infliction of emotional distress under Massachusetts law had to prove: 1) the tortfeasor's negligence; 2) emotional distress; 3) proximate causation; 4) physical harm manifested by objective symptomatology; and 5) that a reasonable person would have suffered emotional distress under the same circumstances. Payton v. Abbott Labs, 386 Mass. 540, 557 (1982). Under that rule, the "objective symptomatology" required substantiation by expert medical testimony. Id., at 556. In 1993, Sullivan v. Boston Gas Co., 414 Mass. 129, relaxed the requirement of objective symptomatology and held instead that plaintiffs must "corroborate their mental distress claims with enough objective evidence of harm to convince a judge that their claims present a sufficient likelihood of genuineness to go to trial." Id., at 137-38. It did not, however, eliminate the physical harm requirement. "We hold that both plaintiffs produced sufficient objective evidence of physical manifestation of mental distress to survive a summary judgment motion (Emphasis added.)." The Court then added, "[We] explicitly stated that a successful negligent infliction of emotional distress claim . . . must do more than allege mere upset, dismay, humiliation, grief and anger." Id., at 137 (Citation omitted.). However, evidence of tension headaches, concentration and reading problems, cramps, diarrhea, nightmares and depression, etc. have found to be sufficient objective symptomatology to satisfy the physical harm requirement. See e.g., Gutierrez v. Mass. Bay, 437 Mass. 396 (2002). That the injuries described here in Paragraph 54 "anxiety and adjustment disorder, and depression" are not intended to allege physical injuries is made clear by the inclusion of the phrase "with physical manifestations" at the end of the same paragraph. The court assumes the plaintiff's intent in choosing to include that language was to signify a different kind of injury than described in the preceeding language since, if it did not, it was duplicative. "Anxiety and adjustment disorder" and "depression" are expressions of emotional turmoil. Further, the plaintiff's assertions she contemporaneously and continuously experienced and observed the children's absence, that she personally observed them in a foreign country, and witnessed firsthand manifestations of trauma exhibited by the children indicate an intent to state a claim for bystander emotional distress despite the caption employed for Count Four.
Massachusetts has recognized a claim for emotional distress resulting from physical injury to a third party. Dzionkonski v. Babineau, 375 Mass. 555 (1978). See also Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507 (1980). The Court in Dzionkonski stated that "reasonable foreseeability is a proper starting point in determining whether an actor is to be liable for the consequences of his negligence." Id. at 567. However, though Massachusetts' courts look to factors such as the plaintiff's relation to the injured party and the plaintiff's contemporaneous awareness of the injury, the central focus remains the existence of a substantial physical injury to the third party. Dzionkonski, supra, involved a minor struck by a car as she alighted from a school bus. The mother lived in the vicinity of the school, went to the accident scene, and witnessed her daughter lying injured on the ground. The mother died as she accompanied her child in the ambulance on the way to the hospital. The administratrix of the mother's estate brought a claim for "physical and emotional shock, distress and anguish." 375 Mass., at 557. The father of the child and husband of the decedent also brought a claim; he, however, suffered "an aggravated gastric ulcer" and "a coronary occlusion" in addition to emotional distress. Id., at 558. His claim is easily distinguishable from the facts in the instant case. Regarding the claim brought on behalf of the decedent mother, the Court acknowledged the weight of authority in this country would deny recovery, but it concluded not to adopt a rule which absolutely denied recovery to every parent "for whatever negligently caused, emotionally based physical injuries result from his concern over the safety of or injury to his injured child." (Emphasis added.) Id., at 562. Following a review of "zone of danger" cases across the country, the Court described cases permitting recovery as involving "tortious injury to the child and substantial physical consequences to the parent." Id., at 566. It recognized there was no suggestion there that the physical injuries to the parents were contrived and thus there was no threat of a fraudulent claim. Id., at 565-66. It concluded there must be both a "substantial physical injury and proof that the injury was caused by the defendant's negligence." Id., at 568. "Where the parent either witnesses the accident or soon comes on the scene while the child is still there," there is a claim for which relief may be granted. Id. The Court in Ferriter v. O'C'onnell's Sons, Inc., 381 Mass. 507 (1980) extended the contemporaneous issue to include a wife and son who rushed to the bedside of their seriously injured husband/father, but many other Massachusetts cases find a lack of spatial and temporal proximity to the accident causing injury to the third party a block to negligent infliction of emotional distress. See e.g., Cohen v. McDonnell Douglas Corp., 389 Mass. 327 (1983) (recovery denied to son who brought suit individually and as executor of mother's estate where mother died in response to learning of another's son's death in an airplane crash seven hours before notice to her); Stockdale v. Bird Son, 399 Mass. 249 (1987) (recovery denied where mother did not learn of son's death in an industrial accident until four hours later and didn't observe his injuries until the next day at the funeral home).
In an affidavit from William R. Newman, the plaintiff's treating psychologist, he states the plaintiff suffers from "post-traumatic stress disorder," "major depression," and "more recently has been suffering from an adjustment disorder with mixed anxiety and depression." Paragraph 2; affidavit of 9/28/04. In her affidavit, the plaintiff references "anxiety" and "worry" about the children. Paragraph 23. These injuries fall short of the Massachusetts requirement there be a substantial physical injury to recover for negligently inflicted emotional distress and the plaintiff's claim in Count Four lacks the spatial and temporal proximity to the harm to the children (who themselves were not physically injured as is also required under Massachusetts law). Summary judgment is granted as to this count.
If Connecticut law applied, the result would not be different since Count Four's language is to plead a claim for bystander ("zone of danger") emotional distress and Clohessy v. Bachelor, 237 Conn. 31 (1996), which plaintiff argues, requires both a contemporaneous sensory perception of the third party's injury and that that harm result in death or serious physical injury. Id., at 52-53. That harm standard was relaxed in Montinieri v. Southern New England Telephone Company, 175 Conn. 337 (1978), in which the Court found no reason to make a distinction between a physical and emotional harm. Instead, it concluded, the limitation or recovery was appropriately that no liability was imposed "unless the defendant should have realized its conduct posed an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." Id., at 345.
Count One
Count One alleges EJM aided and abetted interference with the plaintiff's custodial relations with her children, thus resulting in mental suffering, anxiety and depression. Complaint, at Paragraphs 43, 45. It further asserts EJM "knew, remained willfully blind and/or egregiously refused to see the obvious unlawful activity, which had more than placed them on inquiry notice." Paragraph 43.
Since at least 1993, this state's highest court has recognized interference with custodial relations as a civil cause of action. Marshak v. Marshak, 226 Conn. 652 (1993). Liability attaches when one has "knowledge that the parent does not consent" and "abducts or otherwise compel[s] or induce[s] a minor child to leave a parent legally entitled to its custody . . ." Id., at 663. Connecticut has broadened the scope of liability to include joint custodians, finding it unlawful when a parent "purposefully deprives the other joint custodian of their joint custody of the minor child." State v. Vakilzaden, 251 Conn. 656, 664 (1999). The Court noted the important role the expansion of this cause of action would play "in encouraging the speedy return of abducted children to the custodial parent." Id. at 662, citing to Marshak, supra, at 665.
The Connecticut Supreme Court has also recognized aiding and abetting as an appropriate vehicle for imposing civil liability in Carney v. DeWees, 136 Conn. 256 (1949). To sustain a cause of action for aiding and abetting, the plaintiff must plead and prove the following: 1) the party whom the defendant aided must have performed a wrongful act that caused an injury; 2) the defendant must have been generally aware of [its] role as part of an overall illegal or tortious activity at the time [it] provided the assistance; and 3) the defendant must have knowingly and substantially assisted the principal violation. Efthimiou v. Smith, 268 Conn. 499, 504-05 (2004), citing Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983). The civil cause of action for aiding and abetting rests on a valid underlying cause of action. See Efthimiou, supra, at 504-05, citing Marshak, supra, at 668. However, satisfaction of the first element of aiding and abetting necessarily satisfies the requirement of a valid underlying cause of action. Id.
In a 1991 case, Murphy v. I.S.K Con. of New England, Inc., 409 Mass. 842, the Massachusetts Supreme Court recognized a civil cause of action for intentional interference with parental rights. Finding for the plaintiff mother who brought this claim against her daughter's church, the Court stated interference with parental rights is "a contemporary expression encompassing actions for abduction." Murphy, supra, at 861. Although Massachusetts courts have yet to address the existence of the companion cause of action for aiding and abetting this tort, it follows that, once the underlying tort of abduction has been established, Massachusetts courts would also impose liability for substantially aiding the perpetration of that tort. Moreover, though the Court did not specifically address aiding and abetting in Murphy, it did favorably acknowledge a New Hampshire case, Plante v. Engel, 124 N.H. 213 (1983), that imposed liability for aiding and abetting intentional interference with a custodial parent's rights.
There is also Massachusetts case law addressing the statutory criminal equivalent that suggests the Commonwealth would embrace a cause of action against a joint custodian for interference with another's parental rights. Mass. G.L.c. 265, § 26A makes it unlawful for "any relative of a child . . . without lawful authority . . . to hold a child . . . from his lawful custodian." Yet, in Commonwealth v. Beals, 405 Mass. 550 (1989), the Massachusetts Supreme Court declared that a parent who removes his or her children without the consent of the other parent, and in the absence of a custody order, is not criminally liable under that statute. The Court reasoned the statute was ambiguous as to abductions or removals by custodial parents and, therefore, the Massachusetts legislature "may have decided not to use the extreme sanctions of the criminal law in dealing with pre-custody parental kidnapping." Beals, supra, at 555.
Massachusetts law lends support to the recognition of a cause of action when one joint custodian interferes with the parental rights of another joint custodian in two ways. First, Murphy, supra, recognizes a civil cause of action for interference with parental rights. Second, Beals addresses pre-custody parental rights. Where, as in the case before the court, joint custody has been awarded; each possesses legal rights to custody of that child. It follows, therefore, that interference with those legal rights is a tort for which the courts would afford a remedy. The Court in Beals went so far as to say, "[P]olicy reasons may support prohibiting one parent from taking possession of his or her children to the exclusion of the other." Id., at 554-55. Thus, while Massachusetts courts have yet to specifically address this action, such a holding is consistent with both Massachusetts law and public policy.
EJM contends it is entitled to summary judgment on Count One because the plaintiff has failed to allege any facts to support a claim of interference with custodial relations. Count One alleges the plaintiff had custodial rights to her children who were knowingly removed by defendant Wissa from plaintiff's custody without her consent for a period of twenty-two months. Complaint, at Paragraphs 41-42, 44. Viewing the evidence in a light most favorable to the plaintiff, as this court must, these alleged facts, if proven, would clearly support a claim for aiding and abetting interference with custodial relations under Massachusetts law.
EJM's motion suggests that, because no facts support a finding EJM was the primary tortfeasor, there is no issue of material fact. See Memorandum, at pp. 6-7. As the plaintiff's claim against EJM is clearly that of aiding and abetting and, since logically EJM could not have aided and abetted itself, the court does not address this argument beyond stating there is not the need for EJM to be the abductor given this cause of action.
EJM next contends there is no evidence it knew defendant Wissa was breaching a duty to the plaintiff. Decisional law permits factfinders to infer knowledge, awareness, or willful blindness from circumstantial evidence sufficient to impute knowledge of a tortious act. Here, the plaintiff has alleged EJM "remained willfully blind and/or egregiously refused to see the obvious unlawful activity, which had more than placed them on inquiry notice." Paragraph 43.
EJM argues the plaintiff must plead and prove `actual' knowledge. There is no such requirement under either Massachusetts or Connecticut law. See e.g. State. v. Barber, 24 Conn.Sup. 346, 352 (Conn. Cir.App.Div. 1962) (". . . knowledge of facts or circumstances which ought reasonably to excite suspicion and put one on inquiry is sufficient to charge one with notice of those facts that he might have ascertained by the exercise of ordinary diligence."); Demoulas v. Demoulas, 428 Mass. 555 (1998) ("If a person confronted with a state of facts closes his eyes in order that he may not see that which would be visible and therefore known to him if he looked, he is chargeable with `knowledge' of what he would have seen had he looked." (Citation omitted)).
Count One alleges facts which, in their totality, would, if proven, support a claim EJM knew the children were being transported out of the United States without the consent of the plaintiff mother. It alleges several irregularities in the arrangements for the flight that should have made EJM aware. First, plaintiff alleges that in failing to require execution of a dual consent form, EJM did not protect the children against abduction. It further alleges that, though EJM knew the children were six and seven years old, it failed to follow even its own internal procedures by not asking whether both parents would be traveling with the children. Additionally, the plaintiff alleges that several unusual circumstances surrounding the flight — i.e., the short notice, the quick turn-around contrasted with the lengthy travel time, and the way in which payment was made — all should have alerted EJM to a possible unlawful act. Finally, the plaintiff has alleged EJM knew or should have known of the Department of State's warning of child abductions to Egypt and that Egypt was not a signatory to any treaties requiring the return of abducted children. Whether the defendant had the requisite knowledge to impose liability for the tort alleged is a question particularly suited to a trier of fact. See Batick v. Seymour, 186 Conn. 632 (1982). There is therefore a disputed question of material fact; summary judgment as to this count is denied.
The defendant further urges the court determine the plaintiff may not recover economic damages or, alternatively, that such recovery be capped at $1,162,211.06, and that she be precluded from claiming punitive damages. In the absence of any argument by the plaintiff that these requests are not properly the subject of a motion for summary judgment (as opposed to a Motion to Preclude), the court treats them as such and addresses the substantive merit of each such claim.
As to the first issue, the defendant's claim is that the plaintiff ought not be permitted the costs and expenses incurred in recovering her children because those monies were either paid by the Mary Ann Streeter Trust under which she is not a beneficiary or were paid directly by the plaintiff but reimbursed by the trust fund. At deposition, the plaintiff testified she either paid the costs herself or that the monies came from one of her trust funds or that another family member paid them, in which case it was her understanding the sums paid out would be deducted from her inheritance. Deposition of May 10, 2004, at p. 281. In the affidavit accompanying her memorandum of law, she stated she had personally incurred and had paid recovery expenses in excess of $200,000 (Paragraph 18). There is therefore a disputed and material question of fact. More to the point "[a]ssessment of damages is peculiarly within the province of the jury." Fox v. Mason, 189 Conn. 484, 489 (1983) (Citation omitted.). "A genuine issue of material fact must be one which the party opposing the motion is entitled to litigate under his pleadings . . ." New Haven Savings Bank v. La Place, 66 Conn.App. 1, 15 (2001). Whether the so-called "inheritance" is a mere "expectancy" is an open question and not here decided. Suffice it to say the plaintiff relies upon more than the fact she disagrees with the defendant's position (contrary to the defendant's argument on p. 6 of its reply brief). She relies on sworn testimony which this court must here presume she will be able to support at trial. The defendant correctly states, however, that the expectancy of an inheritance is no more than the possibility the inheritance will eventuate and thus has no attributes of property. See e.g., Krafick v. Krafick, 234 Conn. 783, 797 (1995). Damages are recoverable only to the extent the evidence affords a sufficient basis for estimating their amount with reasonable understanding. 24 Leggett Street Ltd. Partnership v. Beacon Industries, Inc., 239 Conn. 284, 308-09 (1996). The plaintiff's testimony it is her "understanding" there will be a dollar-for-dollar deduction from her inheritance for amounts not paid by her does not make the testimony admissible. However, the argument contributions made by family members is a "collateral source" under C.G.S. § 52-225a(c) is a mis-reading of that statute. § 52-225b defines "collateral source" as extending to payment of or reimbursement for the costs of "hospital, medical, dental or other health services" by way of contractual obligations created under an insurance policy or plan or other "contract or agreement." The voluntary payments at issue here are an inappropriate expansion of the collateral source rule for which the plaintiff cites no authority. As to this issue, summary judgment is denied.
The defendant next argues such damages, if not precluded, be limited to the amount it states were documented prior to the May 26, 2004, deposition of the plaintiff's accounting expert. This court has already ruled — prior to the deposition date — the plaintiff would be precluded from presenting at trial documents reflecting recovery costs not provided defense counsel in advance of the expert's testimony. Though the defendant annexed to its memorandum a host of documents it argues amounts to $1,162,211.06, it is unclear that some of the listed charges are relevant to recovery costs as is the date of production of the documents or the precise amount to which recovery is limited by the prior Order. Damages are appropriately a jury issue and the attempt to limit the defendant's exposure per the contour of the referenced ruling given the difficulties posed by the records submitted poses not an issue of "material fact" because not one which determines whether the plaintiff recovers — and thus the outcome of the case — but merely an issue of fact which encompasses both evidentiary facts but also "questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969). Summary judgment is denied as to this issue.
Some flight and hotel charges, courier charges, "over limit" fees, etc. are not readily identifiable as relevant recovery charges and require the taking of evidence.
Regarding the argument punitive damages be precluded, recovery of punitive damages for the commission of a tort has traditionally been permitted either by statute (not here applicable) or under common law when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights. Ames v. Sears Roebuck Co., 8 Conn.App. 642, 654 (1986). Our Supreme Court has held the plaintiff must specifically plead the defendant's actions were malicious, culpable or wanton and that the injury was willful and maliciously caused in that it was inflicted intentionally, without just cause or excuse. See e.g., Rogers v. Doody, 119 Conn. 532 (1935); Hayden v. Fair Haven, 76 Conn. 355 (1904). The defendant argues the plaintiff has not alleged recklessness or any facts supporting recklessness nor has she alleged "evil motive." Defendant's memorandum, at pp. 17-18. Examination of the complaint reveals the assertion in Count One that EJM intentionally arranged and facilitated transportation of the minors with reason to know the mother had not given consent (Paragraph 42) and that it "knew, remained willfully blind and/or egregiously refused to see the obvious unlawful activity, which had more than placed them on inquiry notice." Paragraph 43. The plaintiff has offered little by way of legal analysis regarding this issue.
As the Court in Ames, supra, has stated, "As a general rule punitive damages may be awarded only for outrageous conduct." See Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 128, citing to 4 Restatement (Second), Torts § 908, comment (b). The conduct must be outrageous, either because the defendant's acts are done with an evil motive or because they are done with "reckless indifference to the interests of others." 8 Conn.App., at 655. Use of the descriptors "intentionally," "wilfully blind," and "egregiously" in Paragraphs 42 and 43 of Count One may permit a finding of recklessness. "The conduct of the defendant would appear to be at least in reckless disregard for the consequence it knew or should have known would result, and, if this element is present, an actual intention to do harm to the plaintiff is not necessary." Collens v. New Canaan Water Co., 155 Conn. 477, 490 (1967). "Where there is a finding of wilful and malicious conduct, the plaintiff is entitled to recover punitive or exemplary damages in an amount which would serve to compensate the plaintiff to the extent of its expenses of litigation less taxable costs." United Aircraft Corporation v. International Assn. of Machinists, 161 Conn. 79, 106 (1971). "Summary judgment is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." See Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111 (1994). For these reasons as well as for the reason that, in adjudicating a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, summary judgment is denied.
Summary judgment is denied as to Counts One, Two, and Six and with regard to economic damages, the limitation thereof, and punitive damages. The motion is granted as to Count Four.
B.J. Sheedy, J.