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granting summary judgment in favor of the defendant where the plaintiff failed to offer any evidence to dispute the evidence showing the defendant was not compensated and acting in the course and scope of his volunteer duties at the time of the alleged conduct
Summary of this case from Wäschle v. Winter Sports, Inc. (In re in Resort, Corp.)Opinion
No. CV 05-4009152
February 14, 2006
MEMORANDUM OF DECISION RE OBJECTION TO REQUEST FOR LEAVE TO AMEND COMPLAINT (#114) AND MOTION FOR SUMMARY JUDGMENT ( #105)
The plaintiffs, Michael Avenoso and his father, John Avenoso, in his individual capacity and as next friend of Michael Avenues, commenced this negligence action against the defendants, Shawn Mangan and Soccer Club of Newington (soccer club), by service of process in February 2005. In all four counts of the original complaint, the plaintiffs allege the following facts. On the evening of June 5, 2003, Michael Avenoso was participating in a soccer practice coached by Mangan, who was the agent of the soccer club. As part of the practice activities, Mangan ordered Michael Avenoso to "run the soccer field." Michael Avenoso was injured when Mangan, who was running alongside him, tripped and fell on top of him.
In count one of the original complaint, brought by Michael Avenoso against Mangan, the plaintiffs allege that Mangan was negligent in that he lacked the knowledge and skill necessary to coach Michael Avenoso, failed to warn Michael Avenoso that he was going to run alongside him, failed to determine the appropriate speed at which to run and the appropriate distance from Michael Avenoso, ran too close to Michael Avenoso, ran too fast, failed to provide a safe environment for Michael Avenoso to participate in soccer practice, knew or should have known that he should not run alongside Michael Avenoso or other children, and failed to exercise the degree of care used by similar coaches under similar conditions. In count two, the plaintiffs repeat the essential allegations of count one and further allege that the soccer club is liable for the acts of Mangan, its agent. Counts three and four set forth the same facts as counts one and two, respectively, but are brought by John Avenoso in his individual capacity.
On August 12, 2005, the defendants filed a motion for summary judgment on all counts of the complaint. The defendants move for summary judgment on the grounds that (1) the plaintiffs' claims against Mangan are barred by the federal Volunteer Protection Act, 42 U.S.C. § 14501 et seq., (2) the plaintiffs' claims against Mangan are barred by our Supreme Court's decision in Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997), and (3) the soccer club cannot be held liable if the court grants summary judgment on behalf of Mangan, because the claims against the soccer club are based solely on vicarious liability. Both the plaintiffs and the defendants have filed memoranda of law and affidavits in support of their respective positions.
On October 3, 2005, the plaintiffs, pursuant to Practice Book § 10-60, filed a request for leave to amend their complaint. Specifically, the plaintiffs seek to add to the complaint a fifth and sixth count claiming recklessness. On October 11, 2005, the defendants filed an objection to the plaintiffs' request for leave to amend, on the grounds that the proposed fifth and sixth counts set forth a new cause of action which is barred by the statute of limitations and that the plaintiffs should not be allowed to amend the complaint in order to "foil" a pending motion for summary judgment.
Both the motion for summary judgment and the objection to the request for leave to amend are presently before this court. The court will address each matter in turn, beginning with the objection to the request for leave to amend the complaint.
The following additional facts are relevant to the request for leave to amend the complaint. The proposed fifth and sixth counts of the complaint allege the same injuries as the other counts of the complaint, namely, injuries that Michael Avenoso allegedly sustained when Mangan allegedly fell on him during a soccer practice on June 5, 2003. The proposed counts, however, contain additional allegations. Specifically, the plaintiffs in the proposed amended complaint allege, inter alia, that Mangan's conduct was wanton and reckless in that he participated in the soccer practice as a player, rather than as a coach; ran in the playing field surrounded by a team of seven-year-old players; allowed the children to run alongside him at an unreasonable and unsafe speed; kicked a ball with Michael Avenoso with reckless disregard for the child's safety; allowed other children to kick the ball in close proximity to himself; permitted children to surround him and "run and participate in the soccer practice simultaneously"; and permitted the children to kick at Mangan's legs.
As an initial matter, the court notes that the plaintiffs, in their memorandum of law filed in response to the defendants' objection to the request for leave to amend, concede that the limitation period for making a new claim of reckless or wanton misconduct has expired, and that the proposed fifth and sixth counts of the complaint are therefore time barred if they assert a new cause of action. The plaintiffs contend, however, that the proposed counts relate back to the date of the original complaint because they do not assert a new cause of action.
The law regarding the relation back doctrine is well established. "A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which established the existence of that right and that delict constitute the cause of action . . . A change in, or an addition to, a ground of negligence or an act of negligence arising out of the single group of facts which was originally claimed to have brought about the unlawful injury to the plaintiff does not change the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated . . . Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." (Internal quotation marks omitted.) Alswanger v. Smego, 257 Conn. 58, 64-65, 776 A.2d 444 (2001).
"Two cases in particular are illustrative of [the Supreme Court's] approach to the relation back doctrine. In Sharp v. Mitchell, 209 Conn. 59, 60, 546 A.2d 846 (1988), three men were asphyxiated in an underground fuel storage facility during the course of their employment. The plaintiffs, the administrators of the decedents' estates, alleged a wrongful death action based on negligent supervision in their first complaint. Id., 73. They subsequently amended their complaint to allege that the defendant had negligently designed and constructed the storage facility. Id. In concluding that the amended complaint did not relate back to the original complaint, the court held that `[t]hese complaints involve two different sets of circumstances and depend on different facts to prove or disprove the allegations of a different basis of liability . . . The defendants did not have fair notice of the claim of negligent construction and design of the underground storage area when the original complaint merely alleged that [the defendant] was negligent in ordering the employees to enter the area.' Id. Moreover, the court noted that '[the fact that the same defendant is accused of negligence in each complaint and the same injury resulted . . . does not make any and all bases of liability relate back to an original claim of negligence.' Id." (Emphasis added.) Alswanger v. Smego, supra, 257 Conn. 65-66.
The Supreme Court "came to a different conclusion in Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d 914 (1991). In that case, the plaintiff claimed that she had suffered injuries when her vehicle was struck in the rear by a driver who was intoxicated. Id., 534. The plaintiff's first complaint alleged that the defendant had acted negligently in operating his automobile while he was intoxicated. Id., 546. After the relevant limitations period had passed, the plaintiff amended her complaint to add allegations that the defendant had acted either wilfully, wantonly and maliciously, or outside the scope of his employment. Id. In distinguishing Gurliacci from Sharp, [the court] explained that the amendment in Sharp was significant because `the defendant would have been required to gather different facts, evidence and witnesses to defend the amended claim.' Id., 549. In Gurliacci, however, the amendment `did not inject two different sets of circumstances and depend on different facts . . .' (Citation omitted; internal quotation marks omitted.) Id. Accordingly, [the court] concluded that the amended complaint related back to the original complaint. Id., 546." Alswanger v. Smego, supra, 257 Conn. 66.
In Alswanger v. Smego, the Supreme Court, as it previously had done in Sharp, concluded that an amended complaint did not relate back to a previous complaint. Id., 61. Alswanger was a medical malpractice action in which the original complaint focused "on . . . informed consent as it related to the surgical procedure itself . . ." Id., 66. The amended complaint, on the other hand, added an allegation that the defendant had negligently failed to inform the plaintiff that a medical resident would participate in the surgery. Id., 63. The Supreme Court noted that the claims set forth in the amended complaint "would have required evidence as to [the resident's] actual and specific role in the surgery, his experience whether the plaintiffs were informed of the role he would play and his experience; whether the defendants were required to provide that information to the plaintiffs, and the hospital's policy . . . regarding a resident's involvement in surgery." Id., 66-67. Because much of that evidence would have been irrelevant to the original complaint, the court determined that the amended complaint did not relate back. Id., 67.
In the present case, as in Gurliacci, the plaintiffs are attempting to add claims of reckless and wanton conduct to their negligence complaint. The present case is distinguishable from Gurliacci, however, in that the plaintiffs have also significantly changed the factual allegations. While the original complaint focused on Mangan's alleged negligence in running alongside Michael Avenoso, the focus in the proposed fifth and sixth counts shifts considerably. Specifically, the plaintiffs now allege for the first time that Mangan ran on the field surrounded by a group of children, kicked the ball with Michael Avenoso, allowed other children to kick the ball in close proximity to himself, and permitted children to kick at his own legs. These new facts describe a factual scenario significantly different from the plaintiffs' original claim that Mangan negligently ran alongside Michael Avenoso. Thus, the amended complaint would require the plaintiffs to gather different facts and evidence than the original complaint. Accordingly, although this case appears to be a close one, this court concludes that the amended complaint does not relate back to the original complaint. The defendants' objection to the plaintiffs' request for leave to amend the complaint is therefore sustained. Moreover, the plaintiff's proposed amendment is objectionable on the ground that the allegations set forth in counts five and six do not rise to the level of reckless and wanton conduct. "The mere use of the words `reckless' and `wanton' is insufficient to raise an actionable claim of reckless and wanton misconduct." Sheiman v. Lafayette Bank Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985).
The court will next address the defendants' motion for summary judgment. The defendants first argue that they are entitled to summary judgment because the plaintiffs' claims against Mangan are barred by the federal Volunteer Protection Act, 42 U.S.C. § 14501, et seq., Section 14503 of title 42 of the United States Code provides in relevant part: "[N]o volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if . . . the volunteer was acting within the scope of the volunteer's responsibility in the nonprofit organization or governmental entity at the time of the act or omission . . ." 42 U.S.C. § 14503(a). "This federal statute provides that no volunteer of a nonprofit organization or governmental entity is liable for harm due to ordinary negligence unless an exception to the statute applies." Singletary v. Poynton, Superior Court, judicial district of New Haven, Docket No. CV 03 06473378 (Feb. 14, 2005, Devlin, J.). "Volunteer" for purposes of the act is defined as "an individual performing services for a nonprofit organization or a governmental entity who does not receive . . . compensation . . . or . . . any other thing of value in lieu of compensation . . ." 42 U.S.C. § 14505(6). The act defines nonprofit organization as "any not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare, or health purposes and which does not practice any action which constitutes a hate crime." 42 U.S.C. § 14505(4)(B).
In order for the defendants' motion for summary judgment to be granted there must be no material issue of fact as to whether the defendant was a volunteer, working for a nonprofit organization and acting within the scope of his responsibilities. To establish those facts, the defendants have offered into evidence the affidavit of Mangan, in which he states that he is a volunteer coach for the soccer club, that he has never received compensation for any of his activities with the soccer club, and that at the time of Michael Avenoso's injury, Mangan was engaged in a game with his players as part of a soccer practice. The defendants have also submitted the affidavit of Dave Erwin, the president of the soccer club, who states that the soccer club was, and is, a nonprofit corporation.
In response, the plaintiffs argue that "there is clearly a genuine issue as to the material fact of whether defendant Mangan was acting within the scope and responsibilities of a volunteer within the parameters of the [federal act]." The plaintiffs, however, have failed to offer any evidence to dispute Mangan's sworn statements that he volunteered as a coach for the soccer club and that Michael Avenoso's injuries occurred while Mangan and the team members were engaged in a game as part of a soccer practice. On the contrary, John Avenoso's own affidavit confirms that the injury occurred while Mangan was engaged in a game with the children during practice. "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004). The defendants have offered evidence demonstrating that there is no genuine issue regarding the fact that at the time of the injury, Mangan was acting as a volunteer for a nonprofit organization acting within the scope of his responsibilities as a coach, and the plaintiffs have not offered any evidence that creates a genuine issue of material fact. Accordingly, Mangan is entitled to summary judgment because he is immune pursuant to the federal Volunteer Protection Act.
The defendants further argue that because Mangan is immune under the federal act, the soccer club also is immune as the claims against the soccer club are brought solely under an agency theory. The defendants overlook the clear language of 42 U.S.C. § 14503(c), which provides: "Nothing in this section shall be construed to affect the liability of any nonprofit organization or governmental entity with respect to harm caused to any person." As another judge of this court has observed, "[t]he Volunteer Protection Act of 1997 immunizes volunteers from liability but does not abolish the liability of the organization for whom the volunteer performs services." Gaudet v. Braca, Superior Court, judicial district of Fairfield, Docket. No. CV 98 0251943 (October 15, 2002, Thim, J.) ( 33 Conn. L. Rptr. 200). Such a result is consistent with the prevailing common-law rule that "[i]n an action against a principal based on the conduct of a servant in the course of employment . . . [t]he principal has no defense because of the fact that . . . the agent had an immunity from civil liability as to the act." 1 Restatement (Second), Agency § 217, pp. 468-75 (1958). Accordingly, because the immunity provided by the federal Volunteer Protection Act extends only to the nonprofit organization's volunteer and not to the organization itself, the soccer club is not entitled to summary judgment on the basis of the act.
The defendants argue in the alternative that they are entitled to immunity based on our Supreme Court's holding in Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997), that co-participants in team athletic contests involving contact as a part of the sport owe one another a duty to refrain from reckless or intentional conduct, and that there is no duty under those circumstances to refrain from conduct that is merely negligent. Id., 400. In Jaworski, the plaintiff was injured by another player during an adult soccer game and brought an action alleging the other player's negligence. Our Supreme Court, in order to determine the extent of the defendant's duty, analyzed the following factors: "(1) the normal expectations of participants in the sport in which the plaintiff and the defendant were engaged; (2) the public policy of encouraging continued vigorous participation in recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Id., 407. "In applying these factors to the game of soccer, [the Supreme Court] concluded: (1) the normal expectations of participants in contact team sports such as soccer include a degree of physical contact and concomitant injury, indeed anticipated violations involving contact are expressly provided for in the rules of the game . . . (2) the balance between promoting participation in contact team sports and protecting the safety of participants was best struck by the establishment of a standard of reckless or intentional misconduct . . . (3) such a balance would serve to minimize the litigation which would inevitably result if every negligent act could result in a civil action . . . and (4) such a heightened standard of care is in accord with the law of other jurisdictions with regard to contact team sports." (Citations omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 700-01, 849 A.2d 813 (2004).
More specifically, as to the first factor, the Jaworski court reasoned: "Simply put, when competitive sports are played, we expect that a participant's main objective is to be a winner, and we expect that the players will pursue that objective enthusiastically. We also anticipate that players in their enthusiasm will commit inadvertent rules violations from which injuries may result. The normal expectations of participants in contact team sports include the potential for injuries resulting from conduct that violates the rules of the sport. These expectations, in turn, inform the question of the extent of the duty owed by one participant to another. We conclude that the normal expectations of participants in contact team sports counsel the adoption of a reckless or intentional conduct duty of care standard for those participants." (Citation omitted.) Jaworski v. Kiernan, supra, 241 Conn. 407-08.
This court concludes that the rationale of Jaworski does not extend to the circumstances of the present action. Specifically, the normal expectations of the parties are significantly different than the expectations of the adult soccer players in Jaworski. As stated, the court noted in that case that the object of participants in a soccer game is to win, and that therefore the competitive spirit will result in some injuries and rule violations. Id., 407. In the present case, however, the normal expectation of young children and their parents is that adult coaches will conduct themselves in such a way as to avoid injury to the children. Certainly, the coaches would not be expected to feel a sense of competition with the children on the team, nor would they be expected to engage in the sort of physical contact with young children that would ordinarily occur in competitive play between adults. While the court in Jaworski noted that a player's normal objective in a competitive sports competition is to beat the other team; id., 408; an adult coaching young children in practice certainly would not be expected to have any such desire vis-à-vis young children to beat them at the sport. In short, the normal expectations of those involved, in the coaching of young children, including the children and their parents, are more consistent with a standard of care that would require coaches to avoid acting negligently.
Finally, the court notes that the Supreme Court itself has demonstrated its willingness to limit the scope of the Jaworski decision. In Jagger v. Mohawk Mountain Ski Area, Inc., supra, 269 Conn. 672, the court held that the Jaworski rationale did not extend to skiing, in large part because contact between participants is not an ordinary part of skiing and skiers would ordinarily be expected to "conduct themselves in a manner befitting the dangerous potentialities attendant with the sport" and to "follow the rules and generally accepted practices of the sport of skiing." Id., 701-02. Because the Supreme Court has held skiers to that standard, it seems very likely that the court would reach a similar conclusion with regard to coaches' obligations to young children. Accordingly, this court concludes that it is appropriate to apply a negligence standard to the circumstances of this case and that the soccer club is not entitled to summary judgment based on the holding in Jaworski.
For all of the foregoing reasons, the court hereby sustains the defendants' objections to the plaintiffs' request to amend the complaint. The court grants the defendants' motion for summary judgment as to counts one and three of the complaint and denies the motion for summary judgment as to counts two and four of the complaint.