Opinion
CV175032966S
04-25-2018
John DOE v. CHILDREN’S CENTER OF HAMDEN, INC.
UNPUBLISHED OPINION
OPINION
BELLIS, J.
This action arises out of the alleged failure to report the existence of an ongoing sexual relationship between a minor child and an adult woman. By way of background, the plaintiff, John Doe, filed a three-count amended complaint against the defendant, the Children’s Center of Hamden, Inc., sounding in both medical and ordinary negligence, and in breach of a special duty of care owed to children. On December 1, 2017, the defendant filed an amended apportionment complaint against the apportionment defendant, Kyle E. Damato-Kushel, the adult woman who is alleged to have sexually assaulted, abused, exploited and neglected the plaintiff while he was admitted to the defendant’s treatment facility.
In its amended apportionment complaint, the defendant references the allegations of the plaintiff’s original complaint, namely, that the plaintiff was " engaged in a sexual relationship with [Damato-Kushel] who was the mother of his minor girlfriend," and that " following his report of improper sexual conduct with [Damato-Kushel], [the defendant] allowed [Damato-Kushel] to continue to sexually assault, sexually abuse, sexually exploit and neglect the plaintiff, thereby causing his injury and damage." A copy of the plaintiff’s original complaint is also attached to the defendant’s amended apportionment complaint as exhibit A.
The defendant goes on to allege that if the plaintiff’s injuries and losses were caused by negligence and carelessness, then said injuries were caused by the negligence and carelessness of Damato-Kushel in that she engaged in conduct or actions that the plaintiff believed constituted a sexual relationship; failed to recognize and failed to warn the plaintiff, the plaintiff’s parents, and the plaintiff’s teachers, medical providers, and/or guardians that her actions or conduct would cause the plaintiff emotional distress; failed to recognize and failed to warn the plaintiff, the plaintiff’s parents, and the plaintiff’s teachers, medical providers, and/or guardians that her conduct or actions would cause the plaintiff to suffer a myriad of physical and emotional injuries; failed to notify the appropriate authorities after observing the impact that her actions and conduct had on the plaintiff; and failed to obtain adequate treatment and care for the plaintiff in light of her conduct and actions. The defendant further alleges that Damato-Kushel pleaded not guilty to the criminal charges rendered against her as a result of the plaintiff’s allegations. Accordingly, the defendant seeks, pursuant to General Statutes § § 52-572(h) et seq. and 52-102b, an apportionment of liability against Damato-Kushel for all, or a proportionate share, of the injuries and other damages alleged by the plaintiff.
On December 21, 2017, the plaintiff moved to strike the entirety of the defendant’s amended apportionment complaint on the grounds that the alleged actions by Damato-Kushel were intentional and not negligent. The plaintiff also filed an accompanying memorandum of law in support. The defendant filed an objection on January 31, 2018. On February 1, 2018, the plaintiff filed a reply. The court heard oral argument at short calendar on February 5, 2018.
DISCUSSION
" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Sepega v. DeLaura, 326 Conn. 788, 791, 167 A.3d 916 (2017). In addition, " [i]t is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ... [The court is] limited ... to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). " A complaint includes all exhibits attached thereto." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
In his memorandum of law in support, the plaintiff argues that the amended apportionment complaint is legally insufficient because the underlying allegations concerning Damato-Kushel’s actions are for intentional acts, not negligence as required by General Statutes § 52-572h. Specifically, the plaintiff contends that § 52-572h(o) allows apportionment solely for negligent actors. The plaintiff further maintains that, because Connecticut has adopted the doctrine of " presumption of intent" in cases involving sexual assault on minors, Damato-Kushel’s intent to cause harm to the plaintiff is presumed as a matter of law. In addition, the plaintiff argues that there are no factual allegations within the amended apportionment complaint from which to infer that Damato-Kushel’s assault was anything other than intentional. The defendant counters that Damato-Kushel pleaded not guilty to the criminal charges against her as a result of the plaintiff’s allegations and, therefore, the allegations in its amended apportionment complaint are limited to Damato-Kushel’s negligent acts which, among other things, " caused [the] plaintiff to believe a sexual relationship had taken place." In his reply, the plaintiff argues that the defendant’s objection was untimely and therefore, should be overruled on that ground.
At short calendar, the court indicated that it will not reject the defendant’s objection based on timeliness and instead will consider the merits of the motion to strike.
General Statutes § 52-102b governs the addition of a person as a defendant for apportionment of liability purposes, and " is the exclusive means by which a defendant may add a person who is or may be liable pursuant to section 52-572h for a proportionate share of the plaintiff’s damages as a party to the action." (Internal quotation marks omitted.) Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 792-93, 756 A.2d 237 (2000). In turn, General Statutes § 52-572h(o) provides in relevant part: " [T]here shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute ..." Thus, a civil action to which section 52-572h applies, within the meaning of § 52-102b, means a civil action based on negligence." (Internal quotation marks omitted.) Id., 793-95. Put another way, " only negligent persons may be cited in as apportionment defendants pursuant to [§ 52-572h]." Id., 803.
General Statutes § 52-102b(a) provides in relevant part: " A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff’s damages in which case the demand for relief shall seek an apportionment of liability."
In the present case, during oral argument, the plaintiff stated that the court may take judicial notice of the fact that Damato-Kushel pleaded guilty to sexual assault in the second degree, in violation of General Statutes § 53a-71(a)(1), and risk of injury to a minor, in violation of General Statutes § 53-21(a)(2), in the underlying criminal case arising from the plaintiff’s allegations, despite the defendant’s allegations in its amended apportionment complaint to the contrary. " [A] motion to strike is essentially a procedural motion that focuses solely on the pleadings ... It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, supra, 101 Conn.App. 566. In light of this rule, " [w]hen confronted with a movant attempting to use judicial notice to establish facts in a motion to strike, courts have declined to take judicial notice." Cadle Co. v. Gabel, Superior Court, judicial district of Middlesex, Docket No. CV-00-0091155-S (July 31, 2001, Gilardi, J.); accord Union Street Furniture & Carpet, Inc. v. Peerless Indemnity Ins. Co., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-08-5008699-S (July 15, 2010, Brazzel-Massaro, J.) (50 Conn.L.Rptr. 316); accord Silano v. Granfors, Superior Court, judicial district of Fairfield, Docket No. CV-02-0395209-S (February 27, 2004, Stevens, J.).
In Higgs v. White, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4002669-S (July 26, 2005, Dooley, J.), the trial court declined to consider evidence of the apportionment defendant’s conviction of felony murder in ruling on the subject motion to strike. The plaintiff alleged that the defendant, the decedent’s mother, acted negligently in entrusting the two-year-old decedent to the apportionment defendant, the defendant’s husband. The defendant then filed an apportionment complaint and alleged that the apportionment defendant was contributorily negligent in the death of the decedent in that he " failed to properly supervise the decedent; failed to timely and appropriately seek medical treatment for the decedent; negligently caused injuries to the decedent; failed to take proper precautions to prevent injuries to the decedent; and failed to provide the decedent with a safe environment." While acknowledging that " [t]he information provided [painted] a picture of a horrible death perpetrated not by accident or by misfeasance, followed by intentional efforts to conceal the deed" and that the apportionment defendant was serving a fifty-year prison term based on his felony murder conviction in connection with the death of the decedent, the trial court nevertheless stated that it was limited to the pleadings contained within the apportionment complaint and therefore could not consider that evidence. The trial court determined that, " [a]s drafted, the apportionment complaint adequately [alleged] specific acts of negligence, which, if supported by the evidence, could result in apportionment of liability." Similarly, in the present case, the court may not consider Damato-Kushel’s guilty plea in deciding the present motion to strike. Instead, the court is limited to the allegations set forth within the defendant’s amended apportionment complaint and must accept them as true for purposes of the motion. Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
Reviewing the entirety of the amended apportionment complaint, the defendant has adequately alleged negligent conduct. The plaintiff is correct that apportionment complaints may not simply re-characterize intentional conduct as negligent for apportionment of liability purposes. See Doe v. Stamford Marriott Hotel & Spa, Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X05-CV-08-5006891-S (April 16, 2009, Tierney, J.T.R.) (granting motion to strike where apportionment complaint alleged apportionment defendant negligently " intimidated, restrained, threatened and/or otherwise prevented the plaintiff from leaving" ; " intimidated, attempted to assault and/or assaulted the plaintiff" ; and " failed to avoid contact with the plaintiffs and/or striking the plaintiffs" ); Lowe v. Italian Society of Middletown, Inc., Superior Court, judicial district of Middlesex, Docket No. CV-01-0096700-S (July 10, 2002, Shapiro, J.) (32 Conn.L.Rptr. 506) (granting motion to strike where apportionment defendant " struck the plaintiff in the face and head while another person held her and then cut her with a knife, causing serious injuries, including multiple abrasions and lacerations" ); Hightower v. Walgreen Eastern Co., Inc., Superior Court, judicial district of New London, Docket No. CV-553554-S (September 7, 2000, Hurley, J.T.R.) (granting motion to strike where apportionment complaint alleged apportionment defendant " negligently" attempted to reach into plaintiff’s car to steal purse); see also Stokes v. G6 Hospitality, LLC, Superior Court, judicial district of New Haven, Docket No. CV-14-6050315-S (October 15, 2015, Fischer, J.) (61 Conn.L.Rptr. 106) (denying motions to strike where apportionment complaints alleged additional negligent conduct apart from physical assault on plaintiff, such as negligent consumption of excessive amounts of alcohol prior to subject incident); DeCrescenzo v. Stillwater Realty, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6021660-S (January 15, 2015, Karazin, J.) (denying motion to strike where apportionment complaint alleged additional negligent conduct apart from act of attacking decedent, such as negligent consumption of alcohol and drugs prior to entering premises); Casubolo v. Whelley, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-07-5004646-S (April 21, 2010, Brazzel-Massaro, J.) (49 Conn.L.Rptr. 641) (denying motion to strike where apportionment complaint alleged negligent behavior related to consumption of alcohol and presence at particular location that occurred prior to and apart from subject assault).
Contrary to the plaintiff’s contentions, the defendant in the present case does not allege that Damato-Kushel acted negligently in sexually assaulting the plaintiff. Rather, the amended apportionment complaint explicitly states that Damato-Kushel denies the allegations of sexual assault. Construing the allegations of the amended apportionment complaint as true, the defendant alleges that Damato-Kushel negligently engaged in conduct or actions that the plaintiff believed constituted a sexual relationship; negligently failed to recognize that her conduct or actions would cause the plaintiff emotional distress and other emotional and physical injuries; negligently failed to warn the plaintiff, the plaintiff’s parents, and the plaintiff’s teachers, medical providers, and/or guardians that her conduct or actions would cause the plaintiff emotional distress and other emotional and physical injuries; negligently failed to notify the appropriate authorities after observing the impact of her conduct or actions on the plaintiff; and negligently failed to obtain adequate treatment and care for the plaintiff in light of her conduct or actions. " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [pleading party], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). These allegations, construed in the light most favorable to the defendant and accepted as true for purposes of this motion, refer to conduct or actions separate and apart from any alleged sexual assault. Therefore, " [w]hile the allegations may strain credulity, it is not for this court, on this motion, to decide the facts of the case." Higgs v. White, supra, Superior Court, Docket No. CV-05-4002669-S.
CONCLUSION
Based on the foregoing, the court denies the plaintiff’s motion to strike the defendant’s amended apportionment complaint.