Opinion
CV175018586
07-23-2018
Jane DOE et al. v. Brandon HEWSON et al.
UNPUBLISHED OPINION
OPINION
Swienton, J.
The plaintiff, Jane Doe, acting through her parent, John Doe, brings this action against the defendant, Brandon Hewson for damages as a result of sexual abuse suffered by the minor plaintiff. After the commencement of the action, the plaintiff amended the complaint to add allegations against the defendant, Dona Bayag. In count four of the amended complaint, the plaintiff alleges that Bayag owed the plaintiff a duty not to harm the plaintiff or to allow her to be harmed. In count five, the plaintiff alleges that Bayag breached the duties she owed to the plaintiff by failing to monitor and supervise her husband in order to prevent injury to the minor plaintiff. Bayag has filed a motion to strike the two counts against her arguing that she owed no duty to minor plaintiff to prevent the alleged abuse, and she had no duty to control and/or supervise the actions of Brandon Hewson, her then husband.
Allegations of Duty in the Complaint
The plaintiff alleges that approximately six to eight years ago, she stayed overnight on multiple occasions at the home of the defendant, Dona Bayag, and her then husband, Brandon Hewson. The defendant and Hewson were family friends of the plaintiff’s parents, and the visits were suggested by Hewson who wanted to "see what it was like to have kids." (Amended complaint, first count, ¶ 5.) During those visits, she was sexually abused by Hewson. In count four against Ms. Bayag, the plaintiff makes these allegations against her: that she owed a duty not to harm the plaintiff or to allow the plaintiff to be harmed, and that she:
In the plaintiff’s objection to motion to strike, reference is made to Bayag arranging for the visits for the minor child in the couple’s home. However, this is not alleged in the complaint. The allegation contained in the complaint is in Count one, ¶ 5, which states "These visits to the Hewson household were suggested by the defendant, Brandon Hewson, who wanted to ‘see what it was like to have kids.’ "
a. Knew or should have known that her husband had interests in child pornography websites;
b. Knew or should have known that her husband had sexually assaulted his two-year-old cousin;
c. Knew or should have known that her husband had the propensity to sexually abuse, or exploit minor girls but still invited Jane Doe to visit with her husband;
d. Knew or should have known that her husband was sexually abusing the minor plaintiff and she allowed such conduct to continue;
e. Allowed her husband to have unchaperoned access and contact with the minor plaintiff, at their home in Bristol, Connecticut;
f. Failed to supervise and/or improperly supervised her husband’s conduct with the minor plaintiff, who was invited into their home;
g. Failed to supervise the minor plaintiff when she was in their home;
h. Allowed her husband to supervise, oversee and be alone with the minor plaintiff when she knew or should have known her husband had the potential to sexually abuse, sexually exploit the minor plaintiff. (Amended complaint, count four, ¶ 10.)
In count five, entitled negligent supervision, the plaintiff alleges that Bayag took voluntary custody of the minor plaintiff into her home, which times the minor plaintiff was without a parent and/or guardian. She alleges that Bayag knew or should have known that having the minor plaintiff in her home with Hewson and allowing contact with him would likely cause harm to the minor plaintiff. The plaintiff alleges that the damages she suffered were the "proximate and foreseeable breach of duties owed to the minor plaintiff ... in that [Bayag] failed to act affirmatively and proactively to monitor and supervise her husband, in order to prevent injury to the [minor plaintiff] who was especially vulnerable." (Amended complaint, count five.)
Motion to Strike- Legal Standard
"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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party’s] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." [fn2] (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "A motion to strike is the proper procedural vehicle ... to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Ortiz v. Waterbury Hospital, judicial district of Waterbury, Docket No. CV 99 154112 (March 9, 2000) (26 Conn.L.Rptr. 547).
"A motion to strike ... does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. Further, our Supreme Court "will not uphold the granting of [a] motion to strike on a ground not alleged in the motion." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).
Count Four- Negligence
"[T]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury[.]" (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 538, 51 A.3d 367 (2012).
"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 [breached] that duty in the particular situation at hand ... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant ... Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action ... [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ... [A] duty to use care may arise from a contract, from a statute, or 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." (Citations omitted; internal quotation marks omitted.) Id., 538-39.
Since the existence of a duty raises a question of law, the question of whether a defendant owed a duty of care to an injured party is properly decided in the context of a motion to strike. See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171-72, 544 A.2d 1185 (1988).
"[N]ot all injuries that are foreseeable give rise to a legal duty. Because foreseeability is a necessary component of duty, the absence of foreseeability forecloses the existence of a duty of care ... The converse is not [true, however]: the conclusion that a particular injury to a particular plaintiff or class of plaintiffs possibly is foreseeable does not, in itself, create a duty of care ... Thus, foreseeability is not commensurate with duty, and proof of foreseeability does not establish the existence of a duty of care ... Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ... In accordance with these principles, the two-part test for the existence of a legal duty invokes the question of foreseeability, and ... the question of policy ... Thus, when a duty is not found to exist under the public policy prong of the test, there is no need to perform an analysis under the foreseeability prong." (Citations omitted; internal quotation marks omitted.) Ryan Transportation, Inc. v. M&G Associates, 266 Conn. 520, 528-29, 832 A.2d 1180 (2003).
The plaintiff bases her objection to the motion to strike on the Restatement (Second) of Torts, and, in particular Sections 314A, 318 and 320.
The Supreme Court has looked to the Restatement of Torts in ascertaining the existence of a duty of care. "[T]here generally is no duty that obligates one party to aid or to protect another ... One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another ... In delineating more precisely the parameters of this limited exception to the general rule, [the Supreme Court] has concluded that, [in the absence of] a special relationship of custody or control, there is no duty to protect a third person ...; see also 2 Restatement (Second), Torts § 314 (1965) (‘[t]he fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action’); 2 Restatement (Second), supra, § 314A (enumerating special relationships giving rise to duty to aid or protect, including ‘[o]ne who ... voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection’); 2 Restatement (Second), supra, § 315 (‘[t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless ... a special relation exists between the actor and the other which gives to the other a right to protection’)." (Citation omitted; emphasis in original; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, supra, 306 Conn. at 539-40.
"Section 320 of the Restatement (Second) ... imposes a duty of care upon a person who takes custody of another person so as to deprive him of his normal powers of self-protection." (Footnote omitted.) Murdock v. Croughwell, 268 Conn. 559, 570-71, 848 A.2d 363 (2004). "[C]hildren outside the supervision of their parents require special protection ..." Id., at 572.
"Sections 314A ... and 320 ... of the Restatement (Second) of Torts list special relations which, if existing, require one party to that relation to render protection to the other. The most important and widely recognized relation of this kind is that between an adult and a child in his custody. The duty of the adult to protect the child from harm is enhanced when the child is of tender years or is otherwise incapable of managing his own affairs. We learn this from comment b to Section 320 of the Restatement, which states that ‘[t]he actor who takes custody ... of a child is properly required to give him the protection of which the custody or manner in which it is taken has deprived him.’ This understanding is confirmed by comment 1 to the proposed version of Section 40 of the Restatement (Third) of Torts, which as adopted (though not yet published) states that ‘[w]hat constitutes reasonable care is contextual- the extent and type of supervision required of young elementary school pupils is substantially different from reasonable care for college students.’ We also learn this from Murdock, which, in declining to find a duty running from the chief of police to one of his off-duty police detectives, expressly distinguished the factual situation before it from previous cases in which it had taken the position that children outside the supervision of their parents require special protection. [Murdock v. Croughwell, supra, 268 Conn.] at 572, 848 A.2d 363. The public policy embodied in the rule imposing a duty on adults to protect children in their custody is reflected in substantial case law which has dealt with the issue. The ... cases show that this duty arises not only in the public school settings, but in private and other settings." (Footnotes omitted.) Doe v. Talabi, Superior Court, judicial district of Hartford, Docket No. CV 07 5009974 (August 7, 2009) (48 Conn.L.Rptr. 382).
Here, the plaintiff alleges that when she was between the ages of six and eight, she stayed overnight on multiple occasions at the home of the defendant, Bayag, and her then husband, Hewson. She alleges that Bayag had a duty not to harm the plaintiff or to allow the plaintiff to be harmed. She further alleges that she was sexually assaulted at the home of Bayag. She claims that Bayag’s negligence involved failure to supervise the minor plaintiff, who was invited into the home when Bayag knew or should have known of Hewson’s interests in child pornography, his prior sexual assault on a two-year-old, and his propensity to sexually abuse minor girls.
For the duty set forth in Restatement (Second), Torts § 320 to apply, the circumstances under which a person takes custody of another must be "such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him ..." Here, the plaintiff has alleged such circumstances. She has alleged that Bayag subjected her to association with a person- Hewson- who was likely to harm her .
Although the defendant argues that Restatement (Second) of Torts Section 320 has not be held to apply to individual parties in Connecticut, but only entities or employees of those entities, the court can see no greater duty than the protection of a child of six or eight from a sexual predator. However, there are no allegations that the defendant, Bayag, was present during these alleged overnight visits, nor are there any allegations that she arranged for the visits. The complaint alleges Hewson suggested these visits to the plaintiff’s parents who wanted to "see what it was like to have kids." There is no allegation that she was present in the home when any of the conduct took place, and no duty arises as a result. "The fact that one knows that a tort is occurring at a particular location, even if one owns the location, does not translate, by itself, into a duty to the plaintiff to prevent the tort from occurring." Doe v. Pahl, Superior Court, judicial district of New Britain, CV 10 5014881 (June 8, 2011). Therefore, the motion to strike count four is granted.
Although Count five alleges that Bayag took voluntary custody of the minor plaintiff, the allegations of count five are not incorporated into count four.
Count Five- Negligent Supervision
The court has found that based upon the allegations contained in the complaint no duty exists between the defendant, Bayag, and the minor plaintiff. In count five, the plaintiff alleges that when the minor plaintiff was in the defendants’ home, she was without a parent or guardian. It is further alleged that Bayag failed to act affirmatively and proactively to monitor and supervise her husband in order to prevent injury to the minor plaintiff. (Amended complaint, count five, ¶ 14.)
The issue is whether the defendant, Bayag, had a duty to control the actions of her then-husband, Hewson. A person is not responsible for the actions of a third party unless a special relationship exists that creates such a duty. Our Supreme Court has concluded that "[in the absence of a] special relationship of custody or control, there is no duty to protect a third person from the conduct of another ..." Murdock v. Croughwell, supra 286 Conn. 566.
In the case of Kaminski v. Town of Fairfield, 216 Conn. 29, 578 A.2d 1048 (1990), the Supreme Court considered the issue of whether a defendant has a duty to control a third party to prevent some harm in relation to a claim brought against the parents of a mentally ill adult son by a police officer who was injured to an attempt to subdue the son at the parent’s home. The court found that the parents did not have a duty to control their son. "Section 319 provides: One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. This court has not previously considered whether to adopt § 319 as an exception to the common-law rule that, absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another. See 2 Restatement (Second), Torts § 315 (1965); F. Harper, F. James & O. Gray, The Law of Torts (2d Ed. 1986) § 18-7; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 56 ... [T]he official illustrations to § 319 deal with the liability of institutions, such as hospitals, that have formal custodial responsibility for those in their charge." Id., 33-36.
In Murdock v. Croughwell, supra, 268 Conn. 559, which dealt with claims arising out of an employment relationship, the court provided a detailed consideration of the special relationships in which a duty to control a third person might arise. "Sections 316, 318 and 319 of the Restatement (Second) all identify specific relationships that give rise to a duty to control a third party pursuant to § 315(a). Section 316 imposes a duty on a parent to prevent his minor child from intentionally harming a third party. Section 318 imposes a duty on the possessor of land or chattels to control the conduct of a licensee. Finally, § 319 requires those exercising custodial control over an individual, such as sheriffs or wardens, to prevent such an individual from harming third parties." Id., 568-69.
The plaintiff argues that this falls within the second exception to the Restatement (Second) Torts § 314 because a duty to aid or protect the minor child exists because of the special relationship of custody and control between Bayag and the minor child. However, the question here is not whether the special relationship exists between Bayag and the minor child, but whether Bayag had a duty to supervise the defendant, Hewson, and if so, did the breach of that duty result in harm to the minor plaintiff.
There is no allegation of any special relationship that would require the defendant, Bayag, to supervise and control the actions of her then-husband, Hewson. Therefore, the motion to strike count five is granted.
Conclusion
For the foregoing reasons, the motion to strike counts four and five is granted.