Opinion
No. CV 04-0834592
June 7, 2005
MEMORANDUM OF DECISION ON MOTION TO STRIKE
In this action to collect sums due for furnishing personal health services, defendant has filed a two-count counterclaim, alleging that plaintiff's employee "committed theft." The first count of the counterclaim sounds in contract, and the second count sounds in negligent supervision in that plaintiff failed to exercise due care in selecting and supervising the employee.
Plaintiff on December 29, 2004 moved to strike the second count of the counterclaim for insufficiency as well as the claim for treble damages made pursuant to General Statutes § 52-564. The second count alleges that the employee committed theft through unauthorized ATM withdrawals and forging defendant's signature on checks.
I
Under Connecticut law an employer maybe held liable for the negligent supervision of an employee. See Gutierrez v. Thorne, 13 Conn.App. 493, 500 (1988); Seguro v. Cuommiskeg, 82 Conn.App. 186 (2004). Nearly all the Superior Court decisions drawn to our attention have required the plaintiff in a negligent supervision action to plead and prove injury by the defendant's negligence in failing to properly supervise an employee who the defendant had a duty to supervise and who the defendant knew or should have known would cause the injury. See Zides v. Quinnipiac University, Superior Court, judicial district of New Haven, Docket No. CV 020470131 (December 15, 2003, Arnold, J.) (motion to strike granted because plaintiff's count for negligent supervision did not allege the defendant president knew or should have known of an employee's propensity to commit a tort); Doe v. Abrahante, Superior Court, judicial district of New Haven, Docket No. 97 040311 (April 28, 1998, Lacari, J.) ( 22 Conn. L. Rptr. 65) (motion to strike negligent hiring count granted because "[n]owhere, even by inference" did plaintiff state that the defendant knew or should have known that its employee was likely to commit the resulting harm); see also Elbert v. Connecticut Yankee Council, Superior Court, judicial district of New Haven, Docket No. CV 01 0456879 (July 16, 2004, Arnold, J.).
This motion was submitted "on the papers" and defendant has not filed a brief in opposition to the motion. Substantively, he has failed to allege that the plaintiff knew or should have known that its employee would commit forgery and theft.
Plaintiff's motion to strike the second count of the counterclaim is granted.
II
In pleading a cause of action for treble damages under General Statutes § 52-564 which provides treble damages for theft, a plaintiff's claim for relief must be specifically based upon the statutory remedy as well as factually within its boundaries. Alaimo v. Royer, 188 Conn. 36, 43, 448 A.2d 207 (1982). A violation of Section 52-564, which is often referred to as statutory theft, is synonymous with larceny. To establish statutory theft a plaintiff must prove the additional element of intent to deprive over and above the elements required to establish conversion. Priceline.com v. Mayes, Superior Court, judicial district of Stamford-Norwalk, Docket No. X08 CV 03 0196820 (March 16, 2005, Adams, J.) ( 39 Conn. L. Rptr. 9). See also Rossman v. Morasco, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket No. X08 CV 01 0183603 (March 24, 2005, Adams, J.) (motion to strike § 52-564 count granted where plaintiff failed to allege he was deprived of property); cf. Gregory v. Progressive Northern Ins., Superior Court, judicial district of Hartford, Docket No. CV 03 0826713 (May 13, 2004, Wagner, J.T.R.) (defendant's motion to strike § 52-564 count denied because the plaintiff complaint stated knowingly engaged in theft).
The plaintiff has moved to strike the defendant's prayer for relief on the grounds that the complaint fails to state the plaintiff stole or knowingly received and concealed stolen property. In fact, nowhere in the defendant's counterclaim complaint does he factually allege that the plaintiff intentionally acted to deprive the defendant of his property or knowingly received and concealed stolen property. Nor does the counterclaim invoke the applicable mens rea elements or set forth facts from which it could be concluded that the plaintiff acted intentionally or knowingly.
Motion to strike the defendant's prayer for relief for treble damages is granted.
Wagner, J. Judge Trial Referee