Opinion
No. CV 09-5024692S
June 8, 2010
MEMORANDUM OF DECISION
The defendant, Gary Terwilliger, moves to strike the sixth count of the plaintiff's, Jane Doe's, third revised complaint filed on March 29, 2010. The plaintiff's action against the defendant arises from his alleged acts of harmful, offensive and/or sexual touching of the plaintiff. Count six alleges that the defendant, as the plaintiff's public school coach, mentor and confidant, breached his fiduciary duty to the plaintiff by committing these alleged acts. The defendant filed his motion to strike on April 23, 2010. The plaintiff filed an objection on May 12, 2010, and the defendant filed his reply on May 14, 2010. The parties appeared for oral argument on May 17, 2010.
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771, 802 A.2d 44 (2002). "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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
The defendant argues that count six should be stricken in the absence of any Connecticut cases finding that a coach-athlete relationship gives rise to a cause of action for breach of fiduciary duty. The plaintiff counters that the Connecticut Supreme Court's imprecise definition of a fiduciary relationship allows the court to consider new situations that create such relationships.
It is well established that "[a] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interest of the other . . . The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." (Internal quotation marks omitted.) Jarvis v. Lieder, 117 Conn.App. 129, 144, 978 A.2d 106 (2009). The Supreme Court has "specifically refused to define a fiduciary relationship in precise detail and in such a manner as to exclude new situations, choosing instead to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other." (Internal quotation marks omitted.) Alaimo v. Royer, 188 Conn. 36, 41, 448 A.2d 207 (1982).
"In the seminal cases in which this court has recognized the existence of a fiduciary relationship, the fiduciary was either in a dominant position, thereby creating a relationship of dependency, or was under a specific duty to act for the benefit of another . . . In the cases in which this court has, as a matter of law, refused to recognize a fiduciary relationship, the parties were either dealing at arm's length, thereby lacking a relationship of dominance and dependence, or the parties were not engaged in a relationship of special trust and confidence." (Internal quotations marks omitted.) Biller Associates v Peterken, 269 Conn. 716, 723-24, 849 A.2d 847 (2004). "The law will imply [fiduciary responsibilities] only where one party to a relationship is unable to fully protect its interests [or where one party has a high degree of control over the property or subject matter of another] and the unprotected party has placed its trust and confidence in the other." (Internal quotation marks omitted.) Hi-Ho Tower, Inc. v Com-Tronics, Inc., 255 Conn. 20, 41, 761 A.2d 1268 (2000).
"The existence of a fiduciary duty is largely a factual determination and the extent of the duty and the resulting obligations may vary according to the nature of the relationship: the obligations do not arise as a result of labeling, but rather by analysis of each case." Hoffnagle v Henderson., Superior Court, Judicial District of Hartford, Docket No. CV02 0813972 (April 17, 2003, Beach, J.). Furthermore, "[i]t is inappropriate to decide a question of fact on a motion to strike . . . It is appropriate, however, for this court to decide whether the plaintiff . . . has [pleaded] sufficient facts to allege a fiduciary relationship." (Internal quotation marks omitted.) Golek v St. Mary's Hospital, Superior Court, Judicial District of Waterbury, Docket No. CV 08 5007118 (August 22, 2008, Roche, J.).
Both parties direct the court's attention to Ahern v Kappalumakkel, 97 Conn.App. 189, 190, 903 A.2d 266 (2006), in which the Appellate Court agreed with the trial court's ruling that there was no fiduciary relationship between a parishioner and an associate priest. In Ahern, an adult parishioner had a long history of psychiatric and emotional problems and sought the advice, counsel, and friendship of the priest. The priest engaged in recreational activities rather than formal counseling with her, and eventually they entered into a consensual sexual relationship. See id., 190-91. The court was satisfied that no fiduciary relationship existed because there was not "something more" than the general priest-parishioner relationship. The relationship was not characterized by the unique degree of trust and confidence required of a fiduciary relationship and there was no formal pastoral counseling relationship. See id., 198-200.
Significantly, the Ahern court relied upon Martinelli v Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 414 (2d Cir. 199), in which the plaintiff, who was fourteen at the time of the alleged abuse, brought a breach of fiduciary duty claim against a diocese. The plaintiff claimed that a priest abused his position of trust and induced members of a church sponsored youth group to engage in sexual relations with him. The Second Circuit upheld the jury's finding that a fiduciary relationship existed between the plaintiff and the diocese, basing its decision not on the general clergy-parishioner relationship, but rather on the "particulars of [the plaintiff's] ties to [the abusive priest] and the [d]iocese's knowledge and sponsorship of that relationship . . ." Id., 429. The court found the relationship to be fiduciary in nature because the diocese had sponsored and encouraged the abusive priest's contact with the youth of the parish, the plaintiff attended a Catholic high school within the diocese, participated in church sponsored activities, including the liturgical reform group for which the priest served as a mentor and spiritual adviser, and had been taught throughout grade school catechism classes to trust and respect the bishop of the diocese, whom he considered his "caretaker and moral authority," Id., 429-30.
The Ahern court noted that "subsequent Connecticut trial court decisions have attached significance to the fact that the Martinelli plaintiff was a minor and was entrusted to the care of the diocese." Ahern v. Kappalumakkel, supra, 97 Conn.App. 197; see Doe v Baker, Superior Court Judicial District of New Haven, Docket No. 99 0427137 (January 10, 2000, Meadow, J.) (denying adult plaintiff's application for a prejudgment remedy for her breach of fiduciary duty claim against the pastor of her church, who allegedly engaged her in consensual, sexual conduct); DeCorso v Watchtower Bible Tract Society of New York Inc., Superior Court, Judicial District of Waterbury, Docket No. CV 98 0145296 (October 16, 2000, Wiese, J.) (granting defendants' motion to strike the breach of fiduciary duty claim because unlike Martinelli, the case did not involve a minor child whose teaching and moral authority was entrusted to the diocese).
Furthermore, in Leary v Wesleyan University, Superior Court, Judicial District of Middlesex, Docket No. CV 05 5003943 (March 10, 2009, Jones, J.) ( 47 Conn. L. Rptr. 340, 346-47), the court granted summary judgment finding no issue of material fact that there was no fiduciary relationship between the defendant university and the student plaintiff. In Leary, the defendant's public safety officers responded to a call placed by the plaintiff, in which he complained he was suffering from a panic attack. The public safety officers transported him to a hospital and dropped him off without further investigating or securing medical attention for him. At some point shortly thereafter, the plaintiff left the hospital and committed suicide. See id., 341.
In determining whether there existed a fiduciary relationship between the parties, the court examined multi-jurisdictional law addressing whether there existed a fiduciary duty in the context of a university-student relationship. See id., 347. In doing so, the Leary court drew a line between a regular university-student relationship and one which included acts of fraud, misconduct or misappropriation on the part of the university's officers. See id., see also Johnson v Schmitz, 119 F.Sup.2d 90, 97-98 (D. Conn. 2000) (finding legally sufficient plaintiff's claim for breach of a fiduciary duty when plaintiff graduate student alleged that members of his graduate dissertation advisory committee misappropriated his theories); Schneider v Plymouth State College, 144 N.H. 458, 463, 744 A.2d 101 (1999) (upholding jury's finding that a fiduciary duty existed between plaintiff and university when plaintiff alleged that she was subjected to sexual harassments by her college professor).
Finally, in the recent Superior Court decision of Golek v St. Mary's Hospital, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 08 5008961 (March 12, 2010, Eveleigh, J.), the court granted the defendant doctor's motion for summary judgment on the plaintiff's claim that the defendant hospital breached an alleged fiduciary duty to him when it offered him a contract to repeat his fourth clinical year of residency before moving to the position of Chief Resident. In reaching its decision, the court analyzed Ahern v Kappalumakkel, supra, 97 Conn.App. 189, Martinelli v Bridgeport Roman Catholic Diocesan Corp., supra, 196 F.3d 409, and Leary v Wesleyan University, supra, 47 Conn. L. Rptr. 340. In light of these cases, the court noted: "Connecticut Court have attached significance . . . to the fact that the plaintiff was a minor . . . A student-teacher relationship is analogous to the clergy-parishioner relationship. `Something more' than a student-teacher relationship must be present for a fiduciary relationship to exist."
In the present case, the plaintiff alleges the following: "Terwilliger was a coach (and is) employed by the Guilford Public Schools during all relevant times . . . Terwilliger was plaintiff's coach, mentor, and/or confidant for several years . . . James Ford was plaintiff's high school coach and in 2005, defendant James Ford began bringing plaintiff Jane Doe to defendant Gary Terwilliger's pool at Terwilliger's house ostensibly to cross-train . . . Between the late fall of 2005 and the spring of 2006, defendant Gary Terwilliger committed numerous acts of harmful and/or offensive touching on the person of plaintiff Jane Doe, a then minor." The complaint goes on to allege several other incidents of harmful and offensive touching and harassment by the defendant. Count six specifically alleges: "Terwilliger, as plaintiff's public school coach, mentor and confidant, a position of trust and confidence and superiority by defendant . . . and was in a fiduciary relationship with plaintiff . . . Terwilliger breached his fiduciary duty owed to plaintiff Jane Doe when he willfully and repeatedly engaged in harmful and offensive conduct against the plaintiff . . .
"The existence of a fiduciary duty is largely a factual determination inappropriate to decide on a motion to strike. Given the plaintiffs allegations in this case, the court is satisfied that she has plead sufficient facts to allege the existence of a fiduciary relationship between herself and the defendant and as a result, denies the defendant's motion. The court is persuaded by the Supreme Court's disinclination to confine the fiduciary duty doctrine to a precise definition and its willingness to allow for case-by-case analysis in new situations. See Johnson v Schmitz, supra, 119 F.Sup.2d 98.
The court is further persuaded by the fact that Connecticut courts, addressing the existence of a fiduciary relationship, attach significance to whether the plaintiff was a minor and additionally, draw a line between a typical student-teacher relationship and those relationships that include "something more," namely acts of fraud, misconduct or misappropriation on behalf of the superior party. Given the collaborative nature of the relationship between a public school coach and a student-athlete, and that the minor plaintiff has alleged that the defendant, her "mentor and confidant," engaged in several acts of sexual misconduct and harassment, the court is convinced that more factual development is warranted in this case.
The defendant's motion to strike is hereby denied.