Opinion
CV126028454S
11-02-2015
Alma Vargas et al. v. Specialized Education Services, Inc
UNPUBLISHED OPINION
Filed Date November 5, 2015
MEMORANDUM OF DECISION RE MOTION TO STRIKE #226
PETER EMMETT WIESE, JUDGE.
I
Procedural History
On August 4, 2014, the plaintiffs, Alma Vargas and Gustavo Rodriguez, filed a thirteen-count operative complaint against the defendants, Specialized Education Services, Inc., Jim Prosper, Steven Melillo, and Clifton Crabbe, alleging, inter alia, negligence. On June 2, 2015, the defendants filed an amended answer and twenty-two special defenses. On June 15, 2015, the plaintiffs filed a motion to strike the first, fourth, sixth through ninth, eleventh, twelfth A, twelfth B, and thirteenth through twenty-second special defenses on the grounds that they are " (1) legally insufficient; (2) have already been litigated adversely against [the] defendants; and/or (3) are against public policy." This case arises from allegations previously stated and discussed in Vargas v. Specialized Education Services, Inc., Superior Court, judicial district of Hartford, Docket No. CV-12-6028454-S, (November 19, 2013, Pellegrino, J.T.R.).
II
DISCUSSION
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . 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 addition to challenging the legal sufficiency of a complaint or counterclaim, our rules of practice provide that a party may challenge by way of a motion to strike the legal sufficiency of an answer, 'including any special defenses contained therein . . .' Practice Book § 10-39; see also Practice Book § 10-6." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 179-80, 73 A.3d 742 (2013). " As a general rule, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway . . . Whether facts must be specially pleaded depends on the nature of those facts in relation to the contested issues." (Internal quotation marks omitted.) Coughlin v. Anderson, 270 Conn. 487, 501, 853 A.2d 460 (2004). " In . . . ruling on [a] . . . motion to strike, the trial court [has an] obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). " On the other hand, 'the total absence of any factual allegations specific to the dispute renders [the special defense] legally insufficient.'" PHL Variable Ins. Co. v. Charter Oak Trust, Superior Court, judicial district of Hartford, Docket No. CV-10-6012621-S, (March 27, 2013, Robaina, J.); U.S. Bank National Ass'n as Trustee v. Ascenzia, Superior Court, judicial district of New Haven Docket No. CV-08-5022527-S (July 30, 2009, Abrams, J.) (48 Conn. L. Rptr. 345, 346).
A. First, Ninth, Seventeenth Special Defenses
The plaintiffs move to strike the first, ninth, and seventeenth special defenses on the ground that the special defenses are in violation of public policy because the defendants' allegations run afoul of the doctrine of parental immunity. Specifically, the special defenses improperly allege that the plaintiff, Vargas, was a substantial factor in producing the injuries of her son, Rodriguez, due to her contributorily negligent supervision. The defendants counter that the doctrine of parental immunity is inapplicable to the claims made on behalf of Vargas in her individual capacity.
The doctrine of parental immunity " bars an unemancipated child from suing his or her parents for personal injuries . . . Under this doctrine a parent is not liable civilly to his child for personal injury inflicted during [the child's] minority . . ." (Citations omitted.) Crotta v. Home Depot, Inc., 249 Conn. 634, 638, 732 A.2d 767 (1999). " The Supreme Court, in Crotta, held that the parental immunity doctrine precluded a defendant in a negligence action from bringing a third-party complaint against the minor plaintiff's parent for purposes of apportionment, contribution or indemnification based upon the parent's allegedly negligent supervision of the minor plaintiff." Beverly v. Tarragon Management, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-10-6006773-S (September 24, 2010, Dooley, J.) (50 Conn. L. Rptr. 650, 651). " After the Crotta decision, the vast majority of superior courts to determine whether the parental immunity doctrine forecloses a special defense which alleges negligence by the parent of a minor plaintiff, have held that it does." Id. " These cases reason that [t]o allow this special defense of negligence would be to place at issue the nature and adequacy of the plaintiff's exercise of parental discretion. This is precisely what the doctrine of parental immunity is designed to prevent." (Internal quotation marks omitted.) Austin v. Rozmyslowicz, Superior Court, judicial district of New Britain, Docket No. CV-12-6016864-S (April 3, 2014, Abrams, J.) (57 Conn. L. Rptr. 854, 856).
" The reasoning of the cases disallowing the assertion of parental negligence as a special defense, regardless of the absence or presence of a claim on behalf of the parent, is persuasive and consistent with the reasoning in Crotta ." Austin v. Rozmyslowicz, supra, 57 Conn. L. Rptr. 857. In the present case, the defendants allege in their respective special defenses that the plaintiffs' damages were the result of Vargas' negligent supervision of her son. The defendants allege, inter alia, Vargas was negligent, or fraudulently induced the defendants, in that she failed to provide medication for her son, failed to provide mental health treatment for her son, and failed to attend family counseling. Although Vargas' claims are independent from her son's claims, her damages include those that arise from " financial loss due to hospital, medical, medication, and physical therapy expenses" for her son's injuries. " It is artificial to separate the parent and child as economic entities . . . The reality of the family is that, except in cases of great wealth, it is a single economic unit . . ." (Internal quotation marks omitted.) Crotta v. Home Depot, Inc., supra, 249 Conn. 644. " Accordingly, whether the claim of parental negligence is raised by apportionment, contribution, indemnification or, as here, special defense the effect is the same-it diminishes the child's recovery. Current law does not permit such diminution." Hart v. Torello, Superior Court, judicial district of New Haven, Docket No. CV-99-0421294-S (September 24, 1999, Devlin, J.) (25 Conn. L. Rptr. 506, 507). Therefore, the defendants' allegations of parental negligence are barred by parental immunity.
B. Fourth Special Defense
The fourth special defense reads: " This count fails to state a legally viable cause of action, as it is in violation of the statute of limitations pursuant to Connecticut General Statutes Section 52-584 and/or Connecticut General Statutes Section 52-577."
The defendants' fourth special defense improperly challenges the legal sufficiency of the plaintiffs' claims and states a legal conclusion with no factual allegations in support.
C. Sixth Special Defense
The sixth special defense reads: " The plaintiff fails to state a viable cause of action upon which relief can be granted, as essentially the plaintiff is stating a claim for education malpractice and as such, this is not a cognizable cause of action in the State of Connecticut."
This court has previously held; see Johnson v. City of Bristol, Superior Court, judicial district of Hartford, Docket No. CV-12-6034988-S (February 3, 2014, Wiese, J.); that " a special defense that expresses the mere deficiency of the plaintiffs' statements is both unnecessary and serves no legitimate pleading purpose." (Internal quotation marks omitted.) Coss v. Steward, Superior Court, judicial district of New London, Docket No. CV-08-5007541-S (May 20, 2009, Martin, J.). Here, the defendants' sixth special defense merely states the plaintiff's claim is legally insufficient because it fails to state a viable cause of action.
D. Seventh Special Defense
The seventh special defense reads: " The plaintiff's claims are barred by the doctrine of unclean hands." The defendants' seventh special defense states a legal conclusion with no factual allegations in support.
E. Eighth Special Defense
The eighth special defense reads: " There was a lack of consideration and as such, no contract formed."
The defendants' eighth special defense states the legal conclusion that no contract was formed and alleges a lack of consideration. The allegation that there was a lack of consideration is inconsistent with the plaintiffs' allegation that the parties entered into renewable annual contracts with the defendants.
F. Eleventh Special Defense
The eleventh special defense reads: " The plaintiff's claim of a verbal contract violates Connecticut General Statutes § 52-550, the statute of frauds, as the alleged agreement would not be completed within one year from the alleged making."
The defendants' allegation that the agreement would not be completed within one year is inconsistent with the plaintiffs' allegation that the parties entered into a renewable annual contract.
G. Twelfth Special Defense A
The twelfth special defense A reads: " The liability of the defendants to the plaintiff, if any, is based on principles of tort law and it is legally insufficient and contrary to Connecticut law for the plaintiff to convert that liability into one sounds in contract merely by a [sic] working contract language into her complaint."
The defendants improperly challenge the legal sufficiency of the fourth count to state a cause of action for breach of contract by arguing that the plaintiffs converted a tort claim into a contract claim.
H. Twelfth Special Defense B
The twelfth special defense B reads: " The plaintiff, Vargas, is not an aggrieved person, in light of the fact that she does not have a disability and in light of the fact that her son, who is over the age of 18 years and who has been added to this action as a plaintiff, has brought this same claim in this action. Thus, the plaintiff's claim in this count is legally insufficient in that she lacks standing to bring this cause of action.
The defendants improperly challenge the legal sufficiency of the plaintiffs' claims. Additionally, federal courts have found a parent may assert claims on her own behalf under the IDEA; see Winkelman ex rel. Winkelman v. Parma City School District, 550 U.S. 516, 127 S.Ct. 1994, 167 L.Ed.2d 904 (2007); Section 504, and the ADA. See A.M. ex rel. J.M. v. NYC Dept. of Education, 840 F.Supp.2d 660, 665-66 (E.D.N.Y. 2012).
I. Thirteenth Special Defense
The thirteenth special defense reads: " These counts are legally insufficient and this court lacks subject matter jurisdiction in that the plaintiff has failed to exhaust administrative remedies prior to bringing litigation in the State or Federal Court, as is required pursuant to Connecticut General Statutes Section 10-76h; 20 U.S.C. § 1411 et seq.; 20 U.S.C. § 1415(l)."
The defendants improperly challenge the legal sufficiency of the plaintiffs' claims. Additionally, the special defense states a legal conclusion with no factual allegations in support. Finally, the court, Pellegrino, J.T.R., has ruled that based upon the allegations of the plaintiffs' complaint the exhaustion of administrative remedies would be futile. See Vargas v. Specialized Education Services, Inc., supra, Superior Court, Docket No. CV-12-6028454-S. The defendant has provided no additional allegations and failed to provide new or overriding circumstances and thus, the court's, Pellegrino, J.T.R., decision as to the exhaustion of administrative remedies is the law of the case. See Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).
J. Fourteenth Special Defense
The fourteenth special defense reads: " The defendants are entitled to qualified immunity in the capacity of providing an equivalent of a public education for the plaintiff and as such, the plaintiff fails to state a claim upon which relief can be granted."
The plaintiffs argue that the defendants' fourteenth special defense is legally insufficient because " the defendants are either individuals or a private institution, not entitled to qualified immunity." The defendants have pleaded that the education provided to the plaintiff is the equivalent of a public education. Viewing the defendants' fourteenth special defense in the manner most favorable to sustaining its legal sufficiency, an inference from the allegations of the special defense is that the defendants are also entitled to the same protections given to public schools and employees for their discretionary acts. " The courts have not foreclosed, altogether, the possibility that a defendant who is not a government employee might enjoy the benefits of qualified immunity." Dibble Edge Partners, LLC v. Wallingford, Superior Court, judicial district of New Haven, Docket No. CV-06-4006084-S (February 4, 2008, Gilligan, J.) . The defendants have pleaded a legally sufficient special defense for qualified immunity.
K. Fifteenth Special Defense
The fifteenth special defense reads: " The defendants would have taken the same actions regarding the plaintiff regardless of any claimed disability."
The defendants' allegation is inconsistent with the plaintiffs' complaint. The plaintiffs' complaint alleges that minor students with disabilities, including the plaintiff, " were denied the benefits and services of a high school education afforded to non-disabled students." Additionally, the plaintiffs allege that the plaintiff endured " disparaging and ridiculing remarks . . . because of his learning disabilities, in order to humiliate and embarrass him." As alleged in the plaintiffs' complaint, the defendants' actions were inextricable from the plaintiff's claimed disability.
L. Sixteenth Special Defense
The sixteenth special defense reads: " The plaintiff's injuries were proximately caused by the plaintiff's own negligence in failing to behave according to rules, in failing adhere [sic] to verbal queues, in failing to adhere to medical recommendations for medication and mental health treatment and in physically engaging with the High Road staff, and in negligently causing circumstances that posed a threat to himself and others requiring use of the timeout room and physical restraints at his own risk and because he assumed this risk, his comparative negligence must be considered."
The defendants' sixteenth special defense is legally insufficient. As described by the defendants, the " sixteenth special defense alleges contributory negligence on behalf of" Rodriguez. Contributory negligence is a defense to a negligence claim permitted by General Statutes § 52-114. See Big Y Foods, Inc. v. Green Valley Landscaping, LLC, Superior Court, judicial district of Danbury, Docket No. CV-12-6010659-S, (March 19, 2015, Truglia, J.) (59 Conn. L. Rptr. 947, 949). In the present case, the defendants' sixteenth special defense as to count ten is legally insufficient because count ten is not an action to recover damages for negligently causing personal injury, but rather an action to recover damages for intentional infliction of emotional distress.
General Statutes § 52-114 provides in relevant part: " In any action to recover damages for . . . negligently causing personal injury . . . it shall be presumed that such person . . . who was injured . . . was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants." (Emphasis added.)
M. Eighteenth Special Defense
The eighteenth special defense reads: " This count fails to state a legally viable cause of action, as it is in violation of the 90 day statute of limitations set forth in the IDEA, 20 U.S.C. § 1415 et seq."
The defendants' eighteenth special defense improperly challenges the legal sufficiency of the plaintiffs' claims and states a legal conclusion with no factual allegations in support.
N. Nineteenth Special Defense
The nineteenth special defense reads: " This count fails to state a legally viable cause of action, as it is in violation of the Connecticut Uniform Administrative Procedure Act's Statute Section 10-76h et seq."
The defendants' nineteenth special defense improperly challenges the legal sufficiency of the plaintiffs' claims and states a legal conclusion with no factual allegations in support.
O. Twentieth Special Defense
The twentieth special defense reads: " This count fails to state a legally viable cause of action, as it is in violation of the two year limitations period of the ADA."
The defendants' nineteenth special defense improperly challenges the legal sufficiency of the plaintiffs' claims and states a legal conclusion with no factual allegations in support.
P. Twenty-first Special Defense
The twenty-first special defense reads: " This count fails to state a legally viable cause of action, as the defendants do not qualify as public entities pursuant to 42 U.S.C. § 12132 et seq."
The defendants' twenty-first special defense improperly challenges the legal sufficiency of the plaintiffs' claims and states a legal conclusion with no factual allegations in support.
Q. Twenty-second Special Defense
The twenty-second special defense reads: " This count lacks subject matter jurisdiction and personal jurisdiction over Specialized Education Services, Inc. as it does not manage High Road Schools or employ any of the individual defendants. Additionally, there is no such entity as Specialized Education Services, Inc. dba High Road Schools. As such, all counts fail to state a legally viable claim against Specialized Education Services, Inc."
The defendants' twenty-second special defense improperly challenges the legal sufficiency of the plaintiffs' claims. Additionally, the defendants have waived any claim that the court lacks personal jurisdiction. " [A] party waives the right to dispute personal jurisdiction unless that party files a motion to dismiss within thirty days of the filing of an appearance . . . Unless the issue of personal jurisdiction is raised by a timely motion to dismiss, any challenge to the court's personal jurisdiction over the defendant is lost . . . As noted by our Supreme Court, under our rules of practice, the filing of a responsive pleading operates as a waiver of a future challenge of the court's personal jurisdiction over a party." General Electric Capital Corp. v. Metz Family Enterprises, LLC, 141 Conn.App. 412, 419-20, 61 A.3d 1154, 1159 (2013). Moreover, " [p]ursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction." (Internal quotation marks omitted.) Mark v. Neundorf, 147 Conn.App. 485, 489, 83 A.3d 685, 689 (2014). " Accordingly, a claim of lack of subject matter jurisdiction is not properly brought by way of a special defense . . ." Buddington v. Sterling Winthrop, Inc., Superior Court, judicial district of New Haven, Docket No. CV-92 0327296-S (November 12, 1993, Zoarski, J.) (10 Conn. L. Rptr. 358, 360). Finally, even if the court could consider jurisdiction as a special defense, the defendants fail to allege facts consistent with the plaintiffs' complaint in support of their legal conclusions. See Central Connecticut Acoustics, Inc. v. New York-Connecticut Development. Corp., Superior Court, judicial district of New Haven, Docket No. CV-10-6011417-S (April 11, 2011, Woods, J.).
III
CONCLUSION
For the foregoing reasons, the plaintiffs' motion to strike is granted as to the first, fourth, sixth, seventh, eighth, ninth, eleventh, twelfth A, twelfth B, thirteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twenty, twenty-first, and twenty-second special defenses, but denied as to the fourteenth special defense.
SO ORDERED.