Opinion
No. CV 04-0526039
November 16, 2004
MEMORANDUM OF DECISION
Motion to Strike FACTS
On February 3, 2004, the plaintiffs, identified in the caption of the complaint as "Rae Etting PPA Jefferson Etting, Jr. and Rae Etting," filed a two-count complaint against the defendant, Virginia Brandi. The action arises from injuries and damages sustained by Jefferson Etting, Jr. (the minor). On February 8, 2002, while he was riding a bicycle with two other friends near the defendant's house, he was hit by a van.
In count one, the minor alleges that the defendant's negligence caused his accident. Specifically, it is alleged that the defendant failed in her duty (1) to supervise the minor by not requiring him to wear a bicycle helmet and (2) to obtain permission for the minor to come to the defendant's residence. In count two, Rae Etting, the mother, alleges that she incurred expenses for the treatment of his injuries.
On May 25, 2004, the defendant filed a motion to strike both counts of the complaint, accompanied by a memorandum in support. In response, the plaintiffs filed a memorandum of law in opposition on August 12, 2004.
DISCUSSION
"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). "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.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "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." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "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, 498.
The defendant moves to strike these counts on the ground that she owes no duty to protect a fifteen year old from injury on a public road and obtain the plaintiff's permission before allowing him to become her guest. In her responding memorandum of law, the plaintiff argues that the defendant assumed a duty when she took the minor without permission to her house and accepted custody in control of the minor. The merits of the counts must be addressed. "[A]t common law, when a minor child is injured by reason of the negligent act of a third party, two causes of action arise, one in favor of the child to recover for injuries, and the other in favor of the parent for consequential damages such as expenses incurred by reason of those injuries. The right of the parent to recover is independent of the right of the child . . . Thus, as in the present case, the mother of the injured child can properly bring an action to recover consequential damages she has suffered as a result of the injury to the minor child." (Citation omitted, internal quotation marks omitted.) Seabrook v. Greater Bridgeport Transit, supra, 21 Conn. L. Rptr. 658.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care." (Internal quotation marks omitted.) Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004). "[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 . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 479, 822 A.2d 1202 (2003). "Although . . . no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant." (Internal quotation marks omitted.) Fraser v. United States, 236 Conn. 625, 633, 674 A.2d 811 (1996). "A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed." (Internal quotation marks omitted.) Jaworski v. Kiernan, 241 Conn. 399, 405, 406, 696 A.2d 332 (1997).
In the present case, the defendant applies the foreseeability analysis to argue that an ordinary person in her position, knowing what she knew or should have known, would not have foreseen that the minor would have suffered the type of harm that he did. Further, the defendant argues that the "link" between her conduct and the minor's injuries is too attenuated for them to have been a reasonably foreseeable consequence of her actions.
The mother counters that the defendant "affirmatively assumed" a duty of care to the minor "when she took him from school and drove him to her house to play, all without permission from the minor plaintiff's parents." Further, the mother argues that it was the defendant's negligent supervision which resulted in the accident.
The test for foreseeability is not that the defendant "charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] 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?" (Internal quotation marks omitted.) Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (2002). The foreseeability to an ordinary-observer in the defendant's position that the accident to the minor could have resulted is too remote under these circumstances when the factual conditions of the road are not established. While the helmet may have reduced the impact of the blow from the van, it would not have prevented the minor's injuries.
"Existing Connecticut precedents impose only a limited duty to take action to prevent injury to a third person . . . absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another." (Internal quotation marks omitted.) Fraser v. United States, supra, 632. A special relationship that may give rise to a duty is where "[o]ne who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection." Restatement (Second), Torts, Special Relations Giving Rise To Duty To Aid Or Protect § 314A, p. 118 (1965). The present case does not exhibit this situation. By driving the minor to her house, the defendant did not take custody of him to deprive him of his usual chances of protecting himself. The same is true for not requiring the minor to wear a helmet. This minor was capable of making these decisions. The minimal interaction between the defendant and the minor did not amount to a special relationship.
Duty depends upon the two-prong test of (1) foreseeability and (2) public policy. Murillo v. Seymour, supra, 264 Conn. 479. First, the defendant could not have foreseen the accident to the minor. Second, there was no special relationship between the defendant and the minor warranting the exception to a limited duty.
For the foregoing reasons, the court grants the defendant's motion to strike counts one and two of the plaintiff's complaint.
BURKE, J.