Opinion
No. CV 095012047
February 4, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 121
The operative complaint with respect to the present motion is the amended version filed by the plaintiff, Jane Doe, by and through her father and next friend, John Doe, on December 30, 2009. Counts one through four are against the defendant who brings the present motion, Patricia McGugan. The plaintiff alleges the following facts in the amended complaint. On or about June 16, 2007, she and another girl were overnight guests of the defendant's daughter, Bethany McGugan, at the defendant's residence (the premises), where they acquired and consumed alcoholic beverages. They then received an invitation to attend a party that night/morning hosted by Jeffrey Lyon, Jr. at the residence of Jeffrey Lyon, Sr., his father and a co-defendant in the present case. The plaintiff acquired and consumed additional alcoholic beverages at the Lyon residence. During the party and while she was intoxicated, she was sexually assaulted.
The following causes of action comprise the counts against the defendant. Count one sounds in negligent supervision. Count two is a claim for medical bills by John Doe for damages and injuries to the plaintiff caused by the defendant's negligent supervision. Count three sounds in negligent provision of alcohol. Finally, count four is a claim for medical bills by John Doe for damages and injuries to the plaintiff caused by the defendant's negligent provision of alcohol.
The defendant filed the present motion for summary judgment on counts one through four and a memorandum in support of the motion on October 16, 2009. The plaintiff filed an objection to the motion and a memorandum in opposition to the motion on November 18, 2009. The court heard the matter at short calendar on November 23, 2009. On the same day, the defendant filed a reply to the plaintiff's objection to the motion.
STANDARD
"Summary judgment is a method of resolving litigation when 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 . . . The 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." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
"To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. 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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
DISCUSSION
In the present case, the defendant moves for summary judgment on the ground that she is entitled to a judgment as a matter of law because there is no genuine issue of material fact for two reasons. First, the plaintiff has admitted that the defendant neither provided the alcohol that she consumed nor permitted her to leave the premises in order to obtain alcohol or go to the Lyon residence. Attached to the defendant's memorandum as Exhibit A is a copy of the plaintiff's responses to the defendant's requests for admissions. The plaintiff makes the following admissions among the responses. First, the defendant was told that her daughter and her daughter's guests planned to watch a movie in the upstairs area of the premises. Second, the plaintiff did not ask the defendant for permission to leave the premises on the night of June 16, 2007 in order to obtain alcohol from Nick De La Cruz, who had earlier offered to provide it to her. Third, all of the alcohol that she consumed on the premises on the night of June 16, 2007 was provided to her by De La Cruz. Fourth, she did not ask the defendant for permission to leave the premises on the morning on June 17, 2007 in order to go to the Lyon residence. Finally, none of the alcohol that she consumed at the Lyon residence on the morning of June 17, 2007 was provided by the defendant.
The defendant also argues that there is no genuine issue of material fact because she had no actual knowledge that the plaintiff had acquired and consumed alcohol or that the plaintiff had left the premises twice. In support, the defendant has attached copies of affidavits given by her and her daughter as Exhibits C and D to the memorandum in support of the motion. The defendant attests that she neither knew about nor consented to the following: the plaintiff's first departure from the premises, the plaintiff's acquisition of alcohol from De La Cruz, the plaintiff's consumption of alcohol on the premises, the plaintiff's second departure from the premises and the plaintiff's acquisition and consumption of alcohol at the Lyon residence. The defendant further attests that she locked the doors of the premises after all of the occupants had retired for the evening and that she neither provided nor made available any alcohol to the plaintiff at any time. In her affidavit, Bethany McGugan likewise avers that her mother neither knew about nor consented to the plaintiff's acquisition and consumption of alcohol and the fact that the plaintiff left the premises twice.
The plaintiff objects to the motion on the ground that there remain questions of fact related to whether the defendant knew or should have known of the need to supervise her daughter and her daughter's guests and control their acquisition and consumption of alcohol on the premises. The plaintiff does not contest the defendant's argument that she lacked actual knowledge of both the plaintiff's acquisition and consumption of alcohol and the fact that the plaintiff left the premises twice. Instead, the plaintiff argues in her memorandum in opposition to the motion that the issue of what the defendant should have known is factual in nature, as potentially determinative of the defendant's negligence as the defendant's actual knowledge and therefore not susceptible to summary adjudication. The plaintiff relies upon the facts alleged in her complaint and contained in Bethany McGugan's affidavit. She has not provided any documentary evidence in support of her objection to the motion.
The defendant makes three arguments in her reply to the plaintiff's objection to the motion. First, the plaintiff has not cited facts or submitted affidavits establishing that the defendant knew or should have known of the need to supervise her daughter and her daughter's guests and control their acquisition and consumption of alcohol on the premises. Second, the plaintiff has not established that she became either intoxicated or injured on the premises. Finally, the issue of whether the defendant knew or should have known of the need to supervise her daughter and her daughter's guests is irrelevant, because Bethany McGugan is not a party in the present case, and the plaintiff has not alleged that the defendant had or should have had reason to know of the need. Attached to the defendant's reply are two exhibits. Exhibit A is a copy of a page from the plaintiff's answers to the defendant's interrogatories, in which she states that the only alcohol she consumed on the premises was received from De La Cruz. Exhibit B is a copy of the hospital report documenting the plaintiff's first instance of post-sexual assault medical treatment, in which there is no reference to any occurrence on the premises.
A.
The court will first deal with the count three, negligent provision of alcohol and the derivative action for the recovery of medical expenses alleged in count four. The defendant has met her burden as the movant to show that there is no genuine issue of material fact by way of the documentary evidence attached to her memorandum and her reply, but the plaintiff has not met her burden as the nonmovant because she has not presented documentary evidence in turn and therefore disputes the facts with only the allegations contained in the pleadings. "The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006). When "there [are] no contradictory affidavits" submitted by a nonmovant in a summary judgment motion, "the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995). The court will therefore proceed with its analysis by determining whether the defendant is entitled to a judgment as a matter of law.
The defendant has definitively established that she neither provided nor made available any of the alcohol that the plaintiff consumed, and the plaintiff has not presented evidence to put this material fact in dispute. A negligent provision of alcohol to a minor cause of action requires that a defendant actually purvey or serve alcohol to a minor. See Rangel v. Parkhurst, 64 Conn.App. 372, 376, 779 A.2d 1277 (2001) (affirming summary judgment grant on negligence cause of action to defendant parents where allegation was based on fact that minor son purchased alcohol and stored it at their residence); Natale v. Caron, Superior Court, judicial district of Norwich, Docket No. 111113 (May 21, 1997, Hendel, J.) ( 19 Conn. L. Rptr. 458, 460) (granting motion to strike negligence claims based on theory of social host liability where plaintiff did not allege how defendants had made alcohol available to minor son and "actual service or provision of alcohol [was a] necessary predicate"). The court therefore grants the defendant's motion for summary judgment on counts three and four.
B.
As for the motion with respect to counts one and two, the issue before the court is whether the defendant had a duty to exercise reasonable care in supervising her daughter and therefore her daughter's guests. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . If a plaintiff cannot prove all of those elements, the cause of action fails." (Internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 711, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007). "The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised . . . The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Citations omitted; internal quotation marks omitted.) Neal v. Shiels, Inc., 166 Conn. 3, 13, 347 A.2d 102 (1974).
"At common law, the torts of children do not impose vicarious liability upon parents qua parents, although parental liability may be created by statute . . . or by independently negligent behavior on the part of parents." (Citation omitted.) Kamzinski v. Fairfield, 216 Conn. 29, 34, 578 A.2d 1048 (1990). "Thus, absent statutory liability, parents are not liable for the torts of their children unless they themselves are independently negligent, as where they had entrusted a dangerous instrumentality to their children or had failed to restrain their children who they knew possessed dangerous tendencies. In recognizing a cause of action for negligent supervision of a minor child by the child's parents, Connecticut trial courts follow the 2 Restatement of Torts, Standard of Conduct, § 316, p. 123 (1965), whereby: A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control." (Internal quotation marks omitted.) Pagan v. Amston Liquor Shoppe, Superior Court, judicial district of New Britain, Docket No. CV 01 0511544 (June 30, 2003, Cohn, J.) ( 35 Conn. L. Rptr. 231, 231-32).
In the present case, no genuine issue of material fact exists about whether the defendant entrusted her daughter and her daughter's guests with alcohol or had reason to know based upon past and/or present behaviors, circumstances and/or occurrences that they would leave the premises and acquire and consume alcohol. The defendant has established with documentary evidence that she neither provided nor made available any of the alcohol consumed by the plaintiff and that she locked the doors of the premises after she had been told by her daughter and her daughter's guests that they were retiring for the evening. The plaintiff again has not submitted any evidence to create a genuine issue of material fact regarding what the defendant had reason to know and instead only argues in her memorandum that the nature of the issue precludes summary adjudication because resolution requires more than the facts currently known to the court.
In order for a plaintiff in a negligent supervision action to argue that there is a disputed factual issue about what a defendant parent "should have known," a court must have a factual basis based upon what has been presented by the parties in order to conclude that a defendant parent could have been able to anticipate the incident that is the subject of the action. See, e.g., Kitchens v. Kramer, Superior Court, judicial district of New Haven, Docket No. CV 04 0287229 (January 26, 2006, Shlugher, J.) (factual dispute over whether plaintiff's injury from fight at party hosted by minor daughter was foreseeable existed where defendant parents' agent had witnessed another fight during party earlier that evening); Burke v. Fitzgerald, Superior Court, judicial district of Fairfield, Docket No. CV 95 0322083 (September 22, 1997, Melville, J.) (factual dispute over what defendant parents should have known existed where defendant minor stated that they "were aware that she drank alcohol" due to past "trouble"). Without such a factual basis, summary judgment is proper. See, e.g., Latronica v. Powers, Superior Court, judicial district of Middlesex, Docket No. CV 06 5000699 (July 16, 2007, McWeeny, J.) ( 43 Conn. L. Rptr. 776, 778) (court looked to "facts presented" in granted summary judgment motion when it concluded that "the defendants did not know or have reason to know the need to exercise control over [their minor son] to keep him from holding a party"); Pagan v. Amston Liquor Shoppe, supra, 35 Conn. L. Rptr. 232.
There is no factual basis in the present case for the court to conclude that the defendant could have been able to anticipate that her daughter and her daughter's guests would leave the premises and acquire and consume alcohol, such that there is a disputed factual issue about what she should have known. The court therefore rejects the plaintiff's argument and concludes that the defendant is entitled to a judgment as a matter of law on counts one and two of the amended complaint.
For the foregoing reasons, the court grants the defendant's motion for summary judgment on counts one through four of the plaintiff's amended complaint.