Opinion
No. CV 010446764.
December 12, 2006.
MEMORANDUM OF DECISION
The plaintiff brings this action in a one-count Complaint, originally captioned Jane Doe v. Hill Health Corporation. The complaint alleges that while Jane Doe was a patient at an in-patient care facility owned and operated by Hill Health Corporation, the defendant, she was sexually assaulted by Moises Velez, an employee of the defendant, resulting in an unwanted pregnancy and other emotional and psychological injuries. The Complaint further alleges that the harm to Jane Doe was caused by the negligence of the defendant, in that it was negligent in hiring, training, staffing and supervising. The defendant denies the allegations of negligence, and has asserted a statute of limitation special defense, which special defense the plaintiff denied. During the pendency of this action, Jane Doe, the original plaintiff died, and her fiduciary, Nancy Burban, was substituted as the party in interest.
The defendant now moves for summary judgment arguing that it is not liable for the injuries to Jane Doe because it had no prior knowledge that its former employee would sexually assault a patient. The plaintiff counters that she has presented sufficient facts, including expert opinion and testimony from Mr. Velez, to place the issue of foreseeability in dispute. For reasons more fully set forth below this court denies the motion for summary judgment.
Mr. Velez was terminated after the defendant learned of the allegation that he sexually assaulted Jane Doe. Mr. Velez maintains that the sexual encounter with the plaintiff's decedent was consensual. But, defense counsel conceded at oral argument that, for purposes of this motion, whether the relations were consensual or forcible is irrelevant because either would violate the rules and policies of the defendant.
I. Factual Background
The plaintiff alleges that in December 1999, her decedent was involuntarily admitted to South Central Rehabilitation Corporation for treatment for mental health issues. The facility, which is owned and operated by the defendant, treated patients with mental health and substance abuse issues. The particular site which housed plaintiff's decedent treated the "weaker" patients, those who have more problems. While in the defendant's facility, the plaintiff's decedent was required to wear hospital scrubs, without undergarments. During her admission she was on medication for post traumatic stress disorder, depression, anxiety and other psychiatric problems.
Robert Brooks, the Security Supervisor for the Hill Health facility testified in his deposition on September 2, 2004, that the facility on Cedar Street, where the plaintiff's decedent was located, dealt with "pretty sensitive issues"; and the people in that hospital were "weaker" or "have a little more problems than . . . the other sites." Deposition of Robert Brooks, dated September 2, 2004, pp. 48-49.
Prior to Jane Doe's admission, the defendant hired Moises Velez as a security guard. Mr. Velez had no criminal history and no criminal charges in his history. His job references were excellent. And, from the time he was hired by the defendant to the time the defendant became aware of the allegation of sexual assault, the defendant reasonably considered Mr. Velez an exemplary employee. Further, prior to this incident, the defendant claims that there had never been any incidents involving patients and guards having sexual relations at the facility.
The defendant references deposition testimony of Robert Brooks, to support this claim. In its Supplemental Brief defense counsel refers to Deposition testimony on page 163 lines 5-10 of Robert Brook's deposition. But, the exhibit attached to the document in the court file ends at page 79. Because defense counsel is an officer of the court, duty-bound to provide only truthful representations to the court, this court will accept the representation of counsel in his brief, for purposes of deciding this motion.
The plaintiff claims that during Jane Doe's in-patient stay at the South Central Rehabilitation Corporation, Mr. Velez lured her into a stairwell and raped and sodomized her. The plaintiff also claims that on the day of the assault, there were no other security guards on duty on the floor and that her decedent did not see any other staff in the area near where the assault occurred.
In his deposition, Mr. Velez testified that had a supervisor or any other security guard been present on the day of the incident, he would not have had sex with the plaintiff's decedent because "they would have caught me." Deposition of Moises Velez, dated September 2, 2004, p. 78. Also, Mr. Velez testified during his deposition, as follows.
Q: So the fact that nobody was there to supervise you, that wasn't a problem for you that day?
A: Yes.
Q: Correct?
A: Correct.
Q: And if somebody was there to supervise you, you wouldn't have done it?
A: Correct.
Q: Whether she pulled you in there or you pulled her in there, anyway you look at it, if there was a supervisor on duty or another security guard on duty you would have stayed clear?
A: Yes.
Deposition of Moises Velez, September 2, 2004, pp. 78-79.
The Security Supervisor, Robert Brooks, conceded in his deposition that the stairwell in which the alleged assault occurred is an area where there's heightened risk of injury to persons. Deposition of Robert Brooks, dated September 2, 2004, p. 130. And, he also conceded that there are no security cameras in the stairwell. Deposition of Robert Brooks, dated September 2, 2004, p. 131.
The plaintiff retained an expert, Norman Bates, who attested in an affidavit that hospital patients are generally considered particularly vulnerable. Mr. Bates also opined, based upon the facts he reviewed, that the population of patients in South Central Rehabilitation Corporation were more vulnerable to criminal victimization and sexual exploitation. Additionally, Mr. Bates opined, based upon the facts he reviewed, that the defendant failed to properly supervise its security officers.
II. Positions of Parties
The defendant claims that it is entitled to judgment because it was not foreseeable that Mr. Velez would sexually assault the plaintiff. Relying upon various trial court decisions, including, Beach v. Jean, 46 Conn.Sup. 252, 746 A.2d 228 (November 18, 1999, Schuman, J.) and Doe v. X. Corp., Superior Court, judicial district of New Haven, Docket No. CV93-0351397 (January 30, 1997, Silbert, J.), the defendant asserts that "there is no genuine issue of material fact concerning whether Hill Health should have anticipated the harm of the general nature of that allegedly suffered by the plaintiff was likely to result." Memorandum of Law in Support of Defendant's Motion for Summary Judgment, p. 9. In a Supplemental Memorandum of Law, dated February 21, 2006, the defendant further argues that the facts proffered in the depositions of Mr. Brooks and Mr. Velez supported its claim that it lacked knowledge or notice of the attack. The defendant also cites additional trial court decisions that it claims support its position. Jensen v. DePaolo et al, Superior Court, judicial district of New Haven at Meriden, Docket No. CV010277460 (June 30, 2004, Wiese, J.); Accountemps v. Shelton Laundry, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV990363683 (April 9, 2002, Skolnick, J.); Pruitt v. Main Tower, Superior Court, judicial district of Hartford, Docket No. CV96056 1045 (March 14, 2002, Rittenband, J.); and Murdock v. Croughwell, Superior Court, judicial district of Hartford, Docket No. CV980581593 (March 8, 2002, Peck, J.) [ 31 Conn. L. Rptr. 529].
The plaintiff argues that the defendant is not entitled to summary judgment because the plaintiff has presented facts supporting her claims of negligence, putting the issue of foreseeability in dispute. Relying upon the holding in Gutierrez v. Thorne, 13 Conn.App. 493, 537 A.2d 527 (1988) the plaintiff contends that summary judgment is inappropriate because the issue of foreseeability cannot be decided in this case, as a matter of law.
III. Issue to Be Decided
There is no dispute that the defendant did not have actual knowledge that Mr. Velez would sexually assault a patient. And, the plaintiff concedes that because there is nothing in the employment, or criminal background of Mr. Velez which would have precluded the defendant hiring him, the defendant would be entitled to judgment on the issue of negligent hiring.
The court does not enter judgment on this claim, because it is pled among the other claims of negligence in the One-Count Complaint.
The issue presented in this case is whether the defendant can be held liable for negligent supervision or negligent staffing, in the absence of direct or actual knowledge of a potential sexual assault on a patient. The court concludes that, depending upon what facts a trier of fact ultimately believes, the defendant may be held liable. In other words, given the allegations and the facts in this case, the mere fact that the defendant did not actually know that its employee would sexually assault a patient of the defendant does not automatically relieve the defendant of liability, as a matter of law. The sufficiency of notice is an issue of fact for the trier of fact to determine.
IV Legal Discussion
" `A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.' Wilson v. New Haven, 213 Conn. 277, 279 (1989). `Practice Book section 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.' (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545 (2003). Barragan v. Norwalk Transit District, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 980358826 (Doherty, J., January 7, 2004) (36 Conn. L. Rptr. 328)." Ahern v. Kappalumakkel, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. CV010075617 (March 9, 2004, Robinson, A. J.) [ 36 Conn. L. Rptr. 756].
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by the trial court in the ordinary manner." Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). "Summary Judgment procedure is especially ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurny, 168 Conn. 431, 434, 362 A.2d 857 (1975)." For this reason, summary judgments are generally disfavored in negligence cases. See, also Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 199, 319 A.2d 403 (1972).
"In passing on a defendant's motion for summary judgment, the trial court is limited to deciding whether an issue of fact exists, but it cannot try that issue if it does exist. (Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969)." Gutierrez v. Thorne, supra at 496.
A. Duty and Foreseeability
"Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so . . . The determination of whether a duty exists between individuals is a question of law . . . Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. 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 . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of duty to use care is found in the foreseeability that harm may result if it is not exercised." (Citations omitted; internal quotation marks omitted.) Seguro v. Cummiskey, 82 Conn.App. 186, 192, 844 A.2d 224 (2004).
So, first this court must determine whether or not the defendant owed the plaintiff a duty. The next issue to address, if a duty is found to exist, is the scope of the duty owed. Jane Doe was a patient/client of the defendant. There is no dispute that the defendant owed her a duty of care. In fact, defense counsel conceded during oral argument that if the issue in dispute pertained to issues of standard of care, the defendant would lose. Rather, the issue is not whether the defendant owed plaintiff's decedent a duty of care, but the scope of the duty owed.
In Gutierrez v. Thorne, the Connecticut Appellate Court concluded that the defendant owed a duty to supervise its employee which it may have violated, resulting in its female client being sexually assaulted by its male employee. 13 Conn.App. 493, 537 A.2d 527 (1988). The plaintiff brought the appeal because the trial court had granted the defendant's motion for summary judgment, concluding that the defendant could not have foreseen that the plaintiff would be sexually assaulted by its employee and therefore could not have violated a duty to supervise. On appeal, the court considered "whether it was reasonably foreseeable that a male employee of the department of mental retardation . . . would commit a sexual assault upon the plaintiff . . ." Id. at 494. Notwithstanding the lack of prior sexual assaults on the premises, and notwithstanding the employee's excellent employment record and lack of a criminal record, the appellate concluded that there was "a factual dispute as to whether the assault was reasonably foreseeable." Id. Therefore, the Appellate Court concluded that it was error for the trial court to have concluded, as a matter of law, that it was not foreseeable that a male employee would sexually assault a female client-participant of a program operated by the defendant. Id.
In Gutierrez, the plaintiff was a mildly retarded women who resided in an apartment program of the Department of Mental Retardation. The defendant Department hired Steven Jones as a mental retardation aide. Jones had access to the plaintiff's apartment and was charged with supervising her and providing her with assistance. Jones had no criminal convictions or history of criminal charges. Jones underwent an orientation and was supervised, initially, on a daily basis. During the time when the plaintiff was assigned to Jones, he entered her apartment while she was taking a shower and sexually assaulted her. Subsequently, Jones threatened to terminate the plaintiff from the apartment program if she told on him; and then he sexually assaulted her on three more occasions. Jones was arrested and pleaded guilty to two counts of sexual assault. No employee of the defendant had ever been arrested for or convicted of any crime of violence, including sexual assault, in the twenty-year history of the program.
The Appellate Court deemed the following factors to be important. The "plaintiff is a woman whose mental functioning is slightly impaired. She is a client of the department of mental retardation . . . [T]he department . . . permitted Jones, a male employee, to have complete, unfettered, and unsupervised access to the plaintiff's apartment. The plaintiff was in a position where it is unlikely that she could resist Jones' entry . . . [Jones had the] ability to threaten a termination of her state services." Id. at 501-02.
In the instant matter, the defendant contends that it is entitled to judgment based on the single undisputed fact that the defendant had no actual notice that Velez would sexually assault the plaintiff's decedent. This undisputed fact was similarly present and relied upon in Gutierrez. In Gutierrez, the Appellate Court concluded that, although the defendant was not actually or constructively aware of any prior incidents of violent crimes, including sexual assaults, whether the sexual assault of the plaintiff was foreseeable was a question of fact. Though Jones, the assailant in Gutierrez, had no history of violent crimes or of any crimes, the Appellate Court concluded that it was still a question of fact as to whether the defendant should have foreseen that he would sexually assault the plaintiff. Based upon the holding in Gutierrez, this court concludes that there is, at least, a question of fact as to whether alleged the sexual assault by Moises Velez was foreseeable.
Also, considering the Appellate and Supreme Court's recent observations regarding foreseeability, this court is disinclined to conclude, as a matter of law, that the attack on the plaintiff's decedent was not forseeable. See, e.g. Monk v. Temple George Association, 273 Conn. 108, 117, 869 A.2d 179 (2005); and Seguro v. Cumminskey, supra. The determination of foreseeability in this case, as in most cases, is properly left with the trier of fact.
In Monk v. Temple George Association, the Supreme Court observed that " . . . the imposition of duty, fundamentally, is not dependent on the existence or nonexistence of a relationship between an attacker and her victim, but on the nature of the relationship between a plaintiff and a defendant." 273 Conn. 108, 117, 869 A.2d 179 (2005). Therefore, it is error to conclude that the nature of the relationship between the plaintiff and her assailant is determinative of the duty owed by the defendant to the plaintiff; or that the absence of prior attacks on the premises requires a finding of a lack of notice. Id. at 124. The court in Monk highlighted the distinction between the duty owed to the plaintiff, which is "a duty of reasonable care," from the "obligation to prevent harm from occurring on the premises." Id. at 118.
Similarly, the Appellate Court in Seguro v. Cummiskey framed the issue of foreseeability as imposing a duty to supervise and protect third parties from harm when harm of the general nature which occurred could be anticipated. The Appellate Court upheld the decision of the trial court not to overturn a jury verdict finding the defendants liable for injuries caused by the defendants' employee. The defendants owned and operated a bar. The defendants' employee consumed alcohol, while working at the bar, a fact which the defendants knew or should have known. After consuming alcohol one day at the bar, the employee left work and caused injury to a third party. The defendants insisted that the jury should not have found them liable for conduct of the employee which took place off site from the place of employment. The appellate court concluded that the jury could reasonably have concluded that the defendants had a duty to supervise their employees which extended off-site to unidentified third parties because the jury could have found a foreseeable connection between the injury to the third party and the employee's consumption of alcohol at the bar.
Though the defendant in this case may not have known that this specific assailant would commit this specific offense, at the specific time it occurred, there are sufficient facts presented in the case to require the trier of fact to determine whether the defendant had sufficient notice to have been required to act differently. The plaintiff has presented expert testimony which states that the defendant did not have adequate security staffing or an adequate security plan. The plaintiff has also presented facts which demonstrate that the plaintiff's decedent was in a vulnerable and weak population group which required greater protection. Further, the plaintiff presented evidence that the plaintiff's decedent was held in the custodial care of the defendant, involuntarily. Also, the plaintiff presented evidence that the defendant's security supervisor knew that there was an increased risk of injury in the stairwell, where the alleged assault took place. And, the plaintiff has presented facts that attest that the plaintiff's decedent, a female, was required to be under the protection and care of male employees while wearing only hospital scrubs, with no undergarments.
Accordingly, this court concludes that defendant's motion for summary judgment must be denied because there are issues of fact in dispute as to whether or not the harm suffered by the plaintiff's decedent was foreseeable.
B. Cases Relied Upon by Defendant
Briefly, this court will address the various other trial court decisions relied upon by the defendant. Murdock v. Croughwell, supra, and Pruitt v. Main Tower, supra, were issued after full trials. The trial court (Peck, J.) in Murdock v. Croughwell, provides an interesting and useful discussion about the law regarding duty and foreseeability. But, that decision was issued as a post-judgment Memorandum of Decision, after a "lengthy trial, exhaustive briefing and argument, [and] the examination and reexamination of the admissible evidence . . ." Similarly, the trial court (Rittenband, J.) in Pruitt v. Main Tower, issued its decision after "a court trial held before this Court on five days . . . [after] briefs were filed by the parties as well as reply briefs." The defendant, in this case, contends that the plaintiff is not entitled to a trial.
Accountemps v. Shelton, supra, another decision the defendant relies upon to support its argument that it cannot be held liable for negligent hiring or negligent supervision unless it had notice of the employee's propensity to engage in tortious conduct, primarily addresses an allegation of negligent hiring. The trial court (Skolnick, J.) granted the plaintiff's motion for summary judgment on the negligent hiring claim because it concluded that the defendant "ha[d] not produced any factual evidence that the plaintiff could have uncovered in the course of its investigation from which it could have foreseen Hopkins' future criminal activities." Id. The court noted that "[i]n the context of negligent hiring, courts generally rule that an employer cannot be held liable for the conduct of its employees that injure a third party if the employer could not have foreseen that the employee would engage in such conduct." (Citations omitted.) Id. The plaintiff, in the instant case, is not pursuing her negligent hiring claim in this case. Therefore, the holding in Accountemps, though interesting is not directly applicable.
Interestingly, the defendant cites Jensen v. DePaolo to support its proposition that "an employer could reasonably foresee that an employee might attack someone physically [only] if he knew that the employee was making aggressive and provoking comments to another person." Supplemental Memorandum of Law in Support of Defendant's Motion for Summary Judgment, dated February 21, 2006, p. 6. But, the trial court in Jensen (Wiese, J.) denied the defendant's motion for summary judgment, concluding that there were genuine issues of fact in dispute as to whether the defendants had notice. The plaintiff in Jensen claimed that the defendants were negligent in their supervision of intoxicated patrons who assaulted the plaintiff in the bar owned and operated by the defendants. The defendants, who owned and operated a bar, argued that they did not have a duty to prevent the alleged attack because they could not have foreseen it. Id. Specifically, the defendants argued that, not only did they not foresee the attack by the patrons, but they had no notice or prior similar acts on the premises. The trial court found that the defendants owed the plaintiff a duty of care as a business invitee and denied the motion for summary judgment. This "duty [was] to keep their premises in a reasonably safe condition . . . [and as] a possessor of property [to] . . . act as a reasonable person to avoid harm . . . even from intentional attacks on the part of third parties . . ." (Internal quotation marks and citations omitted.) Id.
The decision in Jensen seems less supportive of the defendant's position and more supportive of the plaintiff's position because the trial court concluded that it was for the trier of fact to determine whether the assault on the plaintiff was foreseeable or not. Applying the reasoning of the trial court in Jensen, this court similarly concludes that the issue of foreseeability is properly left to the trier of fact.
Finally, the defendant relies upon two trial court decisions, Beach v. Jean, supra and Doe v. X Corp, supra, to support its claim that when the specific harm is not foreseeable, the defendant is entitled to summary judgment. While this statement of the law may be generally accurate, certain facts in Beach and Doe distinguish those cases from the instant matter.
The question of whether there exists a duty to use reasonable care requires the fact-finder to answer "would the ordinarily prudent [person] in the position of the defendant, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" Seguro v. Cummisky, supra at 194. "This does not mean foreseeability of any harm whatsoever or foreseeability that the particular injury which resulted would occur." Id.
Beach involved allegations by the plaintiff that while he was nine years old he was sexually abused by the pastor of his church. The plaintiff attempted to hold the Archdiocese liable for the sexual abuse by alleging that it was negligent in its supervision of the pastor, Jean. The court granted summary judgment after concluding that there was nothing in the record to suggest that the Archdiocese had any knowledge or notice of the sexual abuse. Other than hiring the pastor and assigning him to the plaintiff's church, the facts did not establish that the archdiocese was involved in the day-to-day dealings within the church. There was no dispute that the archdiocese never received complaints or information that might have led them to suspect or know that the pastor was engaging in sexual misconduct. And, the plaintiff in that case, apparently, failed to present evidence from which a trier of fact could conclude that the church was obligated to act, even in the absence of such information. Therefore, given the lack of evidence supporting the claim that the church acted unreasonably, coupled with the lack of specific information of misconduct by the pastor, the trial court in Beach concluded that none of the facts presented "upset the larger conclusion that the defendants could not reasonably have known about Jean's alleged activities . . . and that there is no genuine issue of material fact concerning whether the defendants should have anticipated that harm of the general nature of that suffered was likely to result." Id.
The plaintiff, "[i]n response to the summary judgment motion . . . filed his own affidavit and portions of his own deposition and the deposition of Jean [the pastor]. The affidavit and the plaintiff's deposition excerpts address the nature and location of the alleged sexual activity by Jean. In the attached portions of Jean's deposition transcript, Jean denies that . . . he underwent any psychological or psychiatric testing or that the church officials interviewed or asked him about the nature of his sexuality. He also denied that . . . diocese officials visited his church to see what was going on . . ." Beach v. Jean, supra.
Unlike the defendant in this instant matter, the diocese did not have a direct supervisory relationship over the pastor though he was, technically, an agent of the diocese. Further, unlike the defendant in instant matter, the diocese was not involved in the day to day care of the plaintiff. The relationship between the plaintiff and the diocese in Beach is not analogous to the relationship between the plaintiff's decedent and Hill Health Corp. in this case.
In Doe, the trial judge (Silbert, J.) concluded that because the plaintiff failed to produce any evidence that the defendant knew or should have known about G.G.'s propensity toward sexual misconduct, G.G's employer, the defendant, was entitled to summary judgment. The facts in the case alleged that John Doe, a minor, was sexually assaulted by his sixth grade teacher at a private religious school. The plaintiff alleged that the defendant was negligent in hiring and supervision of G.G. After the sexual assault was reported to the police and the school, G.G. committed suicide.
The plaintiff in Doe apparently did not present expert testimony. Though evidence was submitted to establish that the plaintiff was vulnerable, the court concluded that the harm to the plaintiff was not foreseeable.
The holding in Doe reaches certain conclusions, which though understandable given the factual record before the trial court, are contrary to those reached by this court in this matter. The trial court in Doe significantly valued the fact that the defendant had no prior knowledge of its employee's propensity for assaultive behavior. However, the court in Doe does not seem to reconcile its valuation with the holding in Gutierrez, a case which similarly involved a defendant who lacked notice and knowledge of the employee's propensities. The Doe court does note certain other distinguishing facts between the cases. But, there are still unanswered questions regarding the weight the court gave the one fact.
To this court it is highly significant that in Gutierrez, the granting of the motion for summary judgment was held to be erroneous. If the lack of notice, alone, is sufficient to immunize the defendant from liability, as the defendant contends, one would have expected a different conclusion in Gutierrez because the defendant in that case lacked notice and knowledge of the employee's negative and harmful propensities. Given the holding in Gutierrez it seems clear that lack of notice is a fact. It may even be an important and critical one. But, it is one fact which must be considered with all the other pertinent facts, and it is not, on its own determinative of the issue.
For the foregoing reasons, this court denies the defendant's motion for summary judgment.