Opinion
No. CV02 0470131S
December 15, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The defendants have moved to strike Counts Four, Five, Six and Seven of the plaintiffs' amended complaint dated November 22, 2002 on the grounds that each count is legally insufficient as a matter of law. Specifically, the Fifth and Sixth counts fail to state legally sufficient claims for vicarious and/or respondeat superior liability and the Fourth and Seventh counts fail to state legally sufficient claims for negligent supervision.
The plaintiffs have brought this claim for injuries allegedly sustained by the plaintiff Andrew Zides on or about October 3, 2000, while he participated in the baseball batting practice held by the Quinnipiac University baseball team. Andrew Zides was not a team member. Specifically, he claims to have been struck in the face by a ball which was hit by an aluminum baseball bat and passed through a protective "L-screen" that the plaintiff was standing behind. The plaintiffs claim that this protective screen was in a defective condition, and that the various defendants were negligent in permitting the use of the protective "L-screen," and in permitting the plaintiff Andrew Zides to participate in the batting practice. The plaintiffs additionally allege that the defendants were negligent in failing to supervise various employees in the Quinnipiac Athletic Department.
The eleven-count amended complaint names as defendants, Mattei, the baseball coach; Leahy, the college president; McDonald, the college athletic director; Manzo and Belcher, the assistant baseball coaches; and Quinnipiac University. This motion to strike is directed at the Fourth and Fifth Counts against Leahy, the college president, alleging negligent supervision and vicarious liability, and the Sixth and Seventh Counts against McDonald, the athletic director, alleging vicarious liability and negligent supervision respectively. The plaintiffs claim that Plaintiff Andrew Zides sustained severe injuries and other damages to his financial detriment and the financial detriment of his parents, the plaintiffs Marjory and Richard Zides.
The court first reviews the standards of law governing a motion to strike. "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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn. App. 208, 211, 535 A.2d 390 (1988).
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra, 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
I
The defendants claim that the Fifth Count against Leahy and the Sixth Count against McDonald fail to state legally sufficient claims of vicarious liability and respondeat superior as to those two defendants. Leahy is the president of the college and McDonald is the athletic director. Both are employees of Quinnipiac. The Tenth Count of the amended complaint already alleges vicarious liability on the part of the defendant Quinnipiac in that all other defendants, Leahy and McDonald included, were employees of Quinnipiac and were acting within the course of their respective employment capacities. The defendants, as to the Fifth and Sixth Counts, argue that there are no allegations that Leahy or McDonald employed any of the defendants or that their negligence was in the furtherance of either Leahy's or McDonald's business. Under the doctrine of respondeat superior or vicarious liability, "an employer is liable for the negligent and willful torts of his employee committed within the scope of the employee's employment and in the furtherance of his master's business." Pelletier v. Bibiles, 154 Conn. 544, 547, 227 A.2d 251 (1967); Rappaport v. Rosen Film Delivery System, Inc., 127 Conn. 524, 526 18 A.2d 362 (1941).
The plaintiffs argue that they have alleged that Leahy, as president, "is the supervisor of Quinnipiac employees," including the remaining individual defendants Mattei, McDonald, Manzo and Belcher, and that Leahy is responsible for the operation of Quinnipiac College Departments. The departments include the athletic department and athletics are a selling tool for Quinnipiac in its quest to procure students. Therefore, since baseball and athletics further the business of Quinnipiac, and the defendant coaches were involved in the business within the scope of their employment and duties, vicarious liability stands as a cognizable cause of action against Leahy, the president of Quinnipiac. As to McDonald, the athletic director, the plaintiffs allege he is responsible for the operation of the Athletic Department, including supervision of the baseball team and its coaches. The plaintiffs argue that it can reasonably be implied that McDonald supervised the operation of the baseball team. Therefore, the plaintiffs argue, Count Six stands as a cognizable cause of action as a matter of law. As to the Fifth and Sixth Counts the court disagrees with the plaintiffs.
"Vicarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another]. Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another." (Emphasis added; internal quotation marks omitted.) Alvarez v. New Haven Register, 249 Conn. 709, 720, 735 A.2d 306 (1999). Thus, an allegation of vicarious liability does not involve the breach of any duty by the party vicariously liable. Pelletier v. Sordoni/Skanska Construction Co, 264 Conn. 509, 538 n. 12, 825 A.2d 72 (2003). "[S]ubstantial justice is best served by the rule that an employer is liable for the torts committed by its employee, a conclusion that rests upon a public policy too firmly settled to be questioned. Hearns v. Waterbury Hospital, 66 Conn. 98, 126, 33 A. 595 (1895). Nearly seventy years ago, this court explained this doctrine as follows: The liability of [an employer and its employee] exists without relation to that of the other; the [employee] for his own wrongful conduct; the [employer] for the wrongful conduct of his [employee] while acting for him. Chase v. New Haven Waste Material Corp., 111 Conn. 377, 380, 150 A. 107 (1930)." (Internal quotation marks omitted.) Alvarez v. New Haven Register, supra at 731-32.
"The doctrine of respondeat superior focuses on the employee's conduct rather than on the employer's knowledge or approval of the acts. If the employee acted with apparent authority in furtherance of employer business, the employer's consent or ratification of the misconduct is irrelevant . . . even an innocent employer must compensate an injured party." Belanger v. Village Pub I, 26 Conn. App. 509, 520, 603 A.2d 1173 (1992), quoting Paine Webber Jackson Curtis, Inc. v. Winters, 22 Conn. App. 640, 646, 579 A.2d 545, cert. denied, 216 Conn. 820, 581 A.2d 1055 (1990). See also, Glucksman v. Walters, 38 Conn. App. 140, 144-45, 659 A.2d 1217 (1995).
The plaintiffs, as argued by the defendants, are attempting to affix liability to defendants Leahy and McDonald in their capacities as administrators for the alleged negligent actions of their subordinates, the baseball coaching staff. In their capacities as president and athletic director, neither Leahy or McDonald are employers. They are both employees of Quinnipiac. Neither can be held vicariously liable to the plaintiffs under a theory of respondeat superior in their employment capacities as president and athletic director of Quinnipiac University. The motion to strike the Fifth and Sixth Counts of the amended complaint is hereby granted.
II
The plaintiffs next argue that the Fourth and Seventh Counts of the amended complaint fail to state legally sufficient claims of negligent supervision. "To state a cause of action for negligent supervision, a plaintiff must ordinarily plead and prove injury by the defendant's own negligence in failing to properly supervise an employee or agent who the defendant had a duty to supervise and who the defendant knew or should have known would cause the injury."
"The existence of a duty of care, an essential element of negligence, is a matter of law for the court to decide." Shore v. Stonington, 187 Conn. 147, 151 444 A.2d 1379 (1982). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand" Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). "A duty to use care may arise from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375 441 A.2d 620 (1982); Calderwood v. Bender, 189 Conn. 580, 584 457 A.2d 313 (1983). The ultimate test of the existence of a duty to use care is found in the forseeability that harm might result if it is not exercised. Frankovitch v. Burton, 185 Conn. 14, 20-21 440 A.2d 254 (1981). "[T]he test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" Connecticut Savings Bank v. First National Bank Trust Co., 138 Conn. 298, 303-04, 84 A.2d 267 (1951); Goldberger v. David Roberts Corporation, 139 Conn. 629, 632, 96 A.2d 309; Burns v. Board of Education, 228 Conn. 640, 646 638 A.2d 1 (1994). "Thus, initially, if it is not foreseeable to a reasonable person in the defendant's position that harm of the type alleged would result from the defendant's actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff." Clohessy v. Bachelor, 237 Conn. 31, 45, 675 A.2d 852 (1996).
The plaintiffs argue that Leahy, as president, has the necessary supervision and authority over the employee defendants in the athletic department to order and that (1) non-team members such as the plaintiff Andrew Zides be prohibited from participating in the baseball teams' batting practice; (2) that defective equipment not be used; (3) that defective equipment be repaired or replaced; and (4) that such equipment be required to be inspected. It is noted, however, that the plaintiffs have not alleged that Leahy had a duty to supervise and institute such rules and procedures The general rule is that absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another. Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996); Kaminski v. Fairfield, 216 Conn. 29, 33, 578 A.2d 1048 (1990); see also 2 Restatement (Second), Torts, § 315, p. 122 (1965).
While Leahy, as president, maintains a certain authority and control over all departments of Quinnipiac University, there is nothing in the pleadings of the plaintiff to indicate that he was aware of any defective equipment being allegedly used by the athletic department and the baseball team, or that it was forseeable to Leahy that the harm of a general nature that occurred to the plaintiff Andrew Zides would occur. Leahy in his duties as president had no duty to oversee the day-to-day operation of the athletic department or to institute the rules or regulations alleged by the plaintiffs, knowing what Leahy knew or should have known in his capacity as president. Moreover, there is no claim that Leahy knew or should have known of that fellow defendant employees had a propensity for tortious conduct. The court emphasizes that Leahy, himself, was, and is an employee and not an employer.
Regarding the defendant athletic director, McDonald, the court takes a different view. In his capacity as an athletic director, and viewing the amended complaint in a light favorable to the plaintiffs the court concludes that a duty to institute the aforementioned rules and procedures, regarding the baseball practices and the duty to prohibit the use of defective equipment or at least to repair defective equipment and to supervise the employees in the athletic department may properly fall within the duties associated with an athletic director at Quinnipiac. It is properly left to the trier of fact to determine whether the defendant McDonald, knowing what he knew or should have known about athletic department practices and procedures and the state of repair of athletic equipment at Quinnipiac, would make it forseeable that the general type of injury that occurred was likely to occur as a result from alleged negligent supervision of the athletic department employees in charge of the baseball team.
The motion to strike the Fourth Count alleging negligent supervision as to defendant Leahy is granted, while the Seventh Count alleging negligent supervision as to the defendant McDonald is hereby denied.
Accordingly, and in summary, for the reasons stated herein, the motion to strike is granted as to Counts Four, Five and Six and is denied as to Count Seven.
BY THE COURT
ARNOLD, JUDGE.