Opinion
No. CV 06-5002430-S
September 17, 2007
Corrected Memorandum of Decision
Before this court are motions to strike (M. 128 and M. 128.5) the apportionment complaints filed by Peter H. O'Meara (O'Meara) and Central Connecticut Association of Retarded Citizens, Inc. (CCARC). The original action was filed by the administrators of the estate of Julian Ulloa, Alexander and Donna Ulloa (the Ulloas), who were parents of the deceased. The apportionment complaints, filed by the defendants/apportionment plaintiffs, sue Donna UIloa (Ulloa) in her capacity as plenary guardian of Julian Ulloa (Julian).
The court has reviewed the motions to strike filed on September 29, 2006 by the apportionment defendant, Ulloa, the corrected memoranda of law filed in support of said motions dated October 3, 2006, as well as the memoranda in opposition filed by the apportionment plaintiffs, O'Meara and CCARC, dated October 26, 2006, and November 1, 2006, respectively. Following oral argument on April 16, 2007, this court requested supplemental briefing to give the parties an opportunity to address any relevant legislative history bearing upon the issues presented. As such, the parties filed supplemental briefs on May 25, 2007, and June 27, 2007.
"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). "The role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).
In March of 2006, the Ulloas, in their representative capacity as coadministrators of Julian's estate, filed suit against the defendants, the department of mental retardation (DMR), commissioner O'Meara and the CCARC. In their two-count complaint, the Ulloas allege the following facts. Julian was a mentally retarded person under the care, custody and control of DMR. DMR contracted with CCARC to provide for Julian's living arrangements including staffing and other services necessitated by Julian's medical conditions. On February 6, 2005, Julian suffered a severe epileptic seizure while sleeping in his bed, choked on his own vomit and died. The Ulloas allege that O'Meara and CCARC (1) knew or should have known that Julian was susceptible to severe epileptic seizures, especially while asleep; (2) knew or should have known that Julian's condition required twenty-four hour supervision and "trained `awake' staff" and (3) knew or should have known that Julian might suffer an epileptic seizure that could result in serious injury, choking or death. They further claim that O'Meara and CCARC proximately caused Julian's death by failing adequately to provide for his safety and health.
Julian suffered from a number of neurological disorders including but not limited to severe mental retardation, severe long-tern autism and epilepsy.
In their apportionment complaints filed respectively on July 21, 2006, and July 24, 2006, O'Meara and CCARC allege that Ulloa, in her capacity as plenary guardian, is or may be liable, in full or in part, for a proportionate share of the damages that could be awarded on the underlying complaint. Appointed by the Probate Court on August 22, 2000 when Julian (date of birth, March 22, 1982) turned eighteen years old, Ulloa was "vested with all the powers of a plenary guardianship, including the powers to `assure and consent to a place of abode outside the natural family home' under General Statutes § 45a-677(d)(1) . . . `to consent to specifically designed educational, vocational or behavioral programs' as delineated in General Statutes § 45a-677(d)(2) . . . [and] `to assure and consent to routine, elective and emergency medical and dental care' as delineated in General Statutes § 45a-677(d)(4)." They further allege that Ulloa was the primary decision maker regarding Julian, deciding where he would live and managing his health care.
O'Meara and CCARC further allege the following facts in the apportionment complaints. Ulloa's role with respect to her son's care included advocating for his residential placement at the May Institute in 1997, and securing the approval of this placement by the local educational agency, which had initially resisted this plan. When Julian turned twenty-one and no longer was under the jurisdiction of the local educational agency [LEA], Ulloa, as plenary guardian, sought and secured DMR funding for his continued placement at the May Institute until he was discharged in January 2004. During Julian's stay at the May Institute, Ulloa was informed by his treating physicians that Julian required twenty-four hour trained "awake" staff to provide him with adequate care and supervision.
The apportionment complaints further allege that prior to February 1, 2004, Ulloa decided that Julian would live in a private independent apartment within the open community, a "supported living arrangement" in which he would live with other qualified persons with twenty-four hour support. This plan is one of a variety of living arrangements which an adult with mental retardation, either on his own, through his representative or in combination with his representative, can seek. Accordingly, an adult, if capable of participating in this decision, and/or his or her parent or guardian, can choose from an array of options and providers, including comprehensive residential settings, long-term care facilities, a community living arrangement (otherwise known as a group home model), a community training home where one lives in a private family residence other than one's own, and the above described supported living arrangement, with anywhere from a few hours of support each month to twenty-four hour supervision. According to the complaint, Ulloa ruled out having Julian living in the Ulloas' family home.
In consultation with DMR, Ulloa also developed an individual support plan (ISP) and an individual support agreement (ISA) under which she agreed to manage Julian's need for care and supervision, as well as handle financial transactions, including contracting with a community provider to assist in staffing the independent apartment while Julian was not attending a day program. As such, Ulloa contracted with CCARC to provide day programming and assist her in managing Julian's independent apartment all of which was funded by DMR.
The apportionment complaints further allege that at no time during the ISP planning process, the ISA budgeting building process or the period of time when Julian resided in the independent apartment, from February 1, 2004, until his death on February 7, 2005, did Ulloa communicate to DMR or to CCARC that Julian required care and supervision from twenty-four hour trained "awake" staff, especially during the overnight period. As such, O'Meara and CCARC have asserted that Ulloa's failure to communicate and/or to remedy the inadequacy of this level of care ultimately caused, in full or in part, Julian's death.
O'Meara and CCARC have also alleged that Ulloa's own conduct, her responsibility for and power over the management of Julian's medical care, and particularly her management of his medications, significantly contributed to his death. Specifically, they allege that Ulloa's consent to Julian's participation in an experimental study of autism resulted in medication adjustments that she knew or should have known would become the proximate cause of Julian's death. In all of these allegations, O'Meara and CCARC assert that Ulloa's conduct was done with an apparent indifference and disregard for Julian's health and safety and that as such, her conduct rose to the level of gross negligence, all of which caused or significantly contributed to Julian's death.
In her memoranda of law in support of the motion to strike, Ulloa asserts that both apportionment complaints are legally insufficient because: (1) gross negligence is a separate and distinct cause of action from negligence and General Statutes §§ 52-102b and 52-572h only allow apportionment claims based on negligence; and (2) gross negligence was created in certain situations by statute and § 52-572h(o) prohibits apportionment between parties liable for negligence and parties liable pursuant to any cause of action created by statute. O'Meara and CCARC counter that their apportionment complaints are allowed under § 52-572h(o) because gross negligence is merely a heightened form of negligence and not a separate cause of action. They further assert that their apportionment complaints are valid because § 52-572h(o) permits liability to be apportioned in actions for wrongful death.
General Statutes § 52-572h provides in relevant part: "(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property . . . if 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 such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section . . . (o) 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 . . ." (Emphasis added.)
In support of her claim that gross negligence is a cause of action distinct from negligence, Ulloa cites to Sanada v. Plymouth, Superior Court, judicial district of New Britain, Docket No. CV 03 0519045 (June 9, 2003, Cohn, J.) ( 35 Conn. L. Rptr. 179), where the court granted a motion to strike based on the failure of the plaintiffs to plead a legally sufficient claim of gross negligence. The mere fact that the Sanada court discerned a heightened pleading requirement for gross negligence, however, does not persuade this court that negligence cannot encompass gross negligence, for purposes of interpreting § 52-572h. Indeed, several Superior Court decisions have wrestled with, on the one hand, the observation in Decker v. Roberts, 125 Conn. 150, 157, 3 A.2d 855 (1939), that "gross negligence has never been recognized in this state as a separate basis for liability in the law of torts" and on the other hand, the legislature's recognition of a gross negligence exception to immunity under § 52-557b, the Good Samaritan Law. See, e.g., Sanada v. Plymouth, supra, 35 Conn. L. Rptr. 180-82; Hansen v. Mohegan Fire Co., Superior Court, judicial district of New London at Norwich, Docket No. 111388 (April 7, 2003, Corradino, J.) ( 34 Conn. L. Rptr. 479, 480). In attempting to define gross negligence in Connecticut tort jurisprudence, the Hansen court observed that "there is a separate concept, created by statute, of gross negligence which is different in kind than willful, wanton, that is reckless conduct," and quoted W. Prosser W. Keeton, Torts (5th Ed. 1984), § 34, p. 212, for the proposition that "most courts consider that `gross negligence' falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree, and not in kind." (Emphasis added.) Hansen v. Mohegan Fire Co., supra, 480.
Like the Sanada and Hansen courts, the court (Hodgson, J.) in Glorioso v. Police Dept. of the Town of Burlington, 48 Conn.Sup. 10, 826 A.2d 271 [ 34 Conn. L. Rptr. 472] (2003), also addressed a motion to strike a claim of gross negligence in the context of § 52-557b. In that case the defendant based its motion to strike on its assertion that Connecticut does not recognize distinct causes of action for gross negligence. Id., 13. In rejecting the defendant's motion to strike, the court noted that the legislature neither created a cause of action in gross negligence nor abolished any existing causes of action at common law by enacting § 52-557b. Id., 15. Instead, the court concluded that the text of § 52-557b had no effect on "existing common law causes of action other than the creation of an immunity limited to ordinary negligence"; id.; and observed that "[g]ross negligence is merely a heightened form of negligence." Id., 16. Considering the limits of the immunity provided in the Good Samaritan Law, the court held that the plaintiff was justified in pleading gross negligence. Id., 17; see also Crandall v. Stonington Volunteer Ambulance Corp, Inc. Superior Court, judicial district of New London, Docket No. CV 06 5001172, (May 1, 2007, Hurley, J.T.R.) ( 43 Conn. L. Rptr. 308, 310) ("When a plaintiff alleges gross negligence under the Good Samaritan Law, the plaintiff is not alleging gross negligence as a separate basis of liability. The cause of action is still common-law negligence, whether the tortfeasor's conduct is ultimately determined to be ordinary or gross negligence").
In this case, O'Meara and CCARC have also pleaded gross negligence on the par of Ulloa, candidly recognizing that a cause of action in ordinary negligence would trigger Ulloa's statutory immunity, as a plenary guardian appointed by the probate court, under General Statutes § 45a-683. In light of the analogous and persuasive authority in the Glorioso and Crandall decisions, the court finds that the mere fact that O'Meara and CCARC have pleaded facts to satisfy this heightened form of negligence does not make their cause of action something other than negligence for purposes of the apportionment statute.
General Statutes § 45a-683 provides in relevant part: "Any plenary guardian of a person with mental retardation, temporary limited guardian or limited guardian of a person with mental retardation who acts in good faith or pursuant to order of a court of probate . . . shall be immune from civil liability, except that such immunity shall not extend to gross negligence." (Emphasis added.)
The court also rejects Ulloa's claim that gross negligence is a statutory cause of action precluded by the apportionment statute. In citing to the Hansen decision to assert this claim, Ulloa takes language of the decision severely out of context. Nowhere in its decision does the Hansen court suggest that the legislature created a new statutory cause of action when it enacted the immunity provisions in statutes like the Good Samaritan Law. On the contrary, in attempting to define the concept of gross negligence, notwithstanding the principle that gross negligence is not recognized as a separate cause of action at common law, the court noted: "The legislature must be taken to be aware of the common law . . . but still chose to use the term gross negligence. In other words, the legislature was not extending the common law as such but can be viewed as defining a statutory concept explicitly not based on preexisting common law." (Emphasis added.) Hansen v. Mohegan Fire Co., supra, 34 Conn. L. Rptr. 480.
An even more compelling basis for denying the motion to strike is the fact that the case at bar is an action for wrongful death based on negligence, which is one of the exceptions to the legislative restrictions on apportionment of parties in § 52-572h(o). Ulloa dispenses with this issue in a footnote, reiterating her claim that O'Meara and CCARC assert a separate cause of action in gross negligence and thus this exception does not apply. For the reasons discussed above, the court is not persuaded.
As requested by this court, the parties submitted supplemental briefs on the legislative history relevant to § 52-572h(o). Having reviewed those briefs, the court notes that the legislative history is significant and substantial, to the extent that there was significant discussion by supporters of the bill as to the public policy it would effect. Nevertheless, it is not illuminating with respect to the issue of gross negligence, especially in the context of the immunity provisions of statutes like the §§ 45a-683 and 52-557b. The court notes that § 52-572h(o), in listing nonnegligence claims that cannot serve as a basis for apportionment, uses the phrase "including, but not limited to," and thus its silence with respect to gross negligence is not necessarily fatal to the motion to strike. As the Hansen court observed, however, the legislature is deemed to be aware of the case law and statutory law implicating negligence, gross negligence and statutory immunity. Hansen v. Mohegan Fire Co., supra, 34 Conn. L. Rptr. 480. As such, this court concludes that if the legislature intended to include gross negligence in the exceptions listed in § 52-572h(o) as something conceptually distinct from negligence, would have done so, as it has done in §§ 45a-683 and 52-557b.
The motions to strike are hereby denied.