Opinion
No. HHB CV01 511200
September 29, 2006
MEMORANDUM OF DECISION ON DEFENDANT TINA SOUCY'S MOTION TO STRIKE
INTRODUCTION
Courts operating in the quintessential common-law context — that is, when they are asked to recognize a new common-law cause of action — function best, and command the most respect, when their decisions can be defended on grounds of reason and principle. Although courts are, like legislatures, often in the business of drawing lines, how we are expected to draw lines differs significantly from how the legislature is expected to draw lines. Whereas legislatures often must draw arbitrary lines, we are expected to draw lines based on reason and principle, and to rely on arbitrary limits only when the policy reasons are sufficiently persuasive to justify performing such an extraordinary task. Mendillo v. Board of Education, 246 Conn. 456, 486-87, 717 A.2d 1177 (1998).
STATEMENT OF THE ISSUE
The plaintiffs Stephen Faulkner and Michael Perron bring this action to obtain money damages for grievous injuries they suffered when the defendant Ramon Lopez forced his way into the locked apartment of defendant Tina Soucy and shot the plaintiffs with a gun belonging to the defendant Richard Kaupas. The defendant Tina Soucy moves to strike the counts in the complaint against her on the grounds that she owed no duty to the plaintiffs. Therefore there was no breach of a duty and thus no tort which could give rise to a cause of action against her. For reasons stated below, the court agrees.
THE ALLEGATIONS IN THE COMPLATNT CT Page 17818
On November 7, 2000, the defendant Tina Soucy obtained a Family Violence Restraining Order against the defendant Ramon Lopez, ordering Lopez to stay away from her and from her residence at 4 Collins Street, New Britain. Six weeks later, on December 19, 2000, Lopez, who lived on Pleasant Street in New Britain, obtained a gun and ammunition from his next door neighbor Richard Kaupas. On that same day, December 19, Soucy had invited the two plaintiffs to her home in advance of the three of them going out together. As the two plaintiffs waited in Soucy's living room for Soucy to get ready to leave, Lopez, violating the restraining order, approached Soucy's residence, shot off the front door lock, forced his way into the apartment, compelled the three to sit down, shot Perron in the face, and chased Faulkner through the kitchen to the locked back door, where Lopez caught up to him and shot him in the gut. Perron and Faulkner were badly injured but they survived.In addition to suing Lopez, who is currently incarcerated, the plaintiffs are suing Kaupas for negligently supplying the weapon to Lopez. They are also suing Soucy 1) for having locked all the doors and windows in a manner that failed to allow them an easy means of escaping the assailant and 2) for failing to warn them that Lopez was a violent person who had called her earlier in the day wanting to see her. The plaintiffs allege that had Soucy not locked all the doors and windows in such a secure manner and had she warned her visitors that she had recently been contacted by Lopez, they would not have been injured.
THE MOTION TO STRIKE
The defendant moves to strike Count Five, brought against her by Perron, and Count Six, brought against her by Faulkner, on two grounds. First, Soucy argues that, as a matter of law, she owed no legal duty to either of these plaintiffs under these circumstances. Second she argues that none of her actions was a legal or proximate cause of the harm suffered by either plaintiff.
STANDARD FOR A MOTION TO STRIKE
In deciding a Motion to Strike, the court must read the allegations in the contested pleading in the light most favorable to the pleader. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The purpose of a motion to strike is to contest the legal sufficiency of the allegations in the complaint and to challenge whether they state a claim upon which relief can be granted. Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). The "inextricably bound concepts of proximate causation and duty" are ones that can be challenged by way of a motion to strike. Ganim v. Smith Wesson Corp., 258 Conn. 313, 364, 780 A.2d 98 (2001); Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001); Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998).
THE EXISTENCE OF A DUTY
The plaintiffs allege that under the circumstances as Soucy knew them to be, Soucy had a duty not to lock the back door with a deadbolt that required an inaccessible key to unlock it. They further allege that this breach of duty was a proximate cause of the injury to the plaintiff Faulkner. As to both Faulkner and Perron, the claim in the motion to strike is that Soucy had a duty to warn the plaintiffs that she had been contacted earlier in the day by Lopez whom she knew to be violent and whom she knew was under an order not to contact her. The plaintiffs allege that this breach of duty was also a proximate cause of the injury to the two plaintiffs. The implication of these allegations is that, had the plaintiffs known that the apartment was escape-proof and had they known of Lopez's telephone calls to Soucy, they would not have entered Soucy's apartment that evening where they were the targets of Lopez's assault.
Under certain circumstances, one who is in control of a premises may owe a duty to use reasonable care to safeguard invitees from assault by third parties. Stewart v. Federated Department Stores, Inc., 234 Conn. 597 (1995). In Stewart, the court recognized that the criminal acts of third parties at a certain location might be foreseeable to the person in control of that location Id., 610-13; accord, 2 Restatement (Second) Torts § 442B. The court held that if the defendant was aware that prior criminal activity at the premises had included acts with a natural propensity to escalate into violence, the defendant was under a duty to take reasonable measures to protect invitees from such activity.
This general principle is founded on sound public policy in the context of premises liability cases. Where the risk to others is confined to a specific location over which the defendant has some measure of control, it serves the public interest to require that reasonable steps be taken by the person in control of that premises to protect the safety of those invited to come to the premises. See, Monk v. Temple George Associates, LLC, 273 Conn. 108 (2005).
But what of the circumstances alleged by the plaintiffs here? The allegations are not that Lopez was looking to commit a crime at Soucy's residence; the allegations are that Lopez was looking to commit a crime against Soucy herself, wherever she might be found.
In determining whether to recognize a duty of care to third parties, the Supreme Court has held that the court must consider whether recognition of the cause of action would require arbitrary limitations, whether the recognition would impose some additional economic burden on the general public, whether it would yield any significant social benefits, and whether it would create a substantial risk of double recovery. Mendillo v. Board of Education, supra, 486. In addition, the court should consider the weight of judicial authority in determining whether to recognize a duty that has not formerly been defined. Id. Except for the largely immaterial risk of double recovery, all of these considerations militate against a recognition of a duty under these circumstances.
First a recognition of such a duty would involve a host of arbitrary limitations. Is the duty to safeguard third parties to be imposed on every person who has recently been the victim of a violent crime? How recently? Is a mere threat enough, or must one have been the actual victim of an assault to have a duty to safeguard third parties with whom one comes in contact? Does the duty include only the duty to warn third parties of the threat, or does it include the duty to take affirmative steps to guard them from harm? Is the duty confined only to reasonable steps to secure one's residence, or does the duty also include providing an escape route from the premises? Does the duty extend to invitees only or also to one's family members, co-workers, or acquaintances who might literally be caught in the line of fire? Is the duty confined only to those who possess a valid current family violence restraining order? What if the order has expired? What if the application for such an order is denied?
The difficulty of drawing these arbitrary limits on where this duty starts and ends also informs the second consideration: the added economic burden on the public. In Mendillo, the court explored the costs of litigating on settling the claims of an entire new class of loss-of-consortium plaintiffs. The court recognized that it was the role of the legislature and not the court to determine whether the public should bear the increased costs in the litigation and insurance systems of opening up a claim to a newer and larger number of claimants.
Closely aligned with this and perhaps more important than the economic consequences are the social consequences of recognizing a duty in this case. The allegation is that the defendant is a woman who has met the test set forth in Conn. Gen. Stat. § 46b-15: she "has been subjected to a continuous threat of present physical pain or physical injury" by a male family member or boyfriend. To find that she has a duty to warn others of her victimhood is to doubly victimize her. This duty would have the effect of isolating her and endangering her further. This court cannot find that such a consequence is warranted under the common law.
Finally the parties have cited no case in any jurisdiction that has held that a crime victim has a duty to warn her acquaintances or household invitees that her stalker is still obsessed with her.
More recently the Supreme Court has reconsidered these criteria in case in which a business invitee was assaulted by a third party. In Monk v. Temple George Associates, LLC, 273 Conn. 108 (2005), the court characterized the relevant considerations as 1) the normal expectations of the participants in the activity under review, 2) the public policy of encouraging participation in the activity, while weighing the safety of the participants, 3) the avoidance of increased litigation, and 4) the decisions of other jurisdictions. In Monk, as in Stewart, the defendants were operating parking lots as part of profit-making entities. Such lot owners, the court said, reasonably would expect to provide some measure of security for customers who patronized them. Monk, supra, 119. Moreover a policy of obligating parking lot owners in Connecticut cities to provide reasonable security in high-crime areas is to be encouraged as a way of favoring local enterprises and business activity, especially in view of the marginal increased cost of providing such security. Id.
When the defendant is a single individual with no profit or commercial motivation, however, these law-and-economics factors are absent. When that defendant is herself the target of the violent tortfeasor, there is no legal, economic, social, or public policy that persuades the court to allow the tort system to apportion blame to her, under the circumstances presented here.
THE FORESEEABILITY OF THE HARM
As to the duty to provide an operable means of egress from the apartment, it may be the case that the defendant had a duty not to unreasonably block the exits of her residence. This duty is circumscribed by that which is foreseeable, however. In Lodge v. Arett Sales Corp., 246 Conn. 563 (1998), the court held that the defendant's faulty alarm equipment did not create liability of the alarm company for injuries caused when a responding fire vehicle's brakes failed on the way to answer a false alarm. The reason for not imposing liability was that, as a matter of law, the harm (the vehicle crash because of defective brakes) was not a reasonably foreseeable consequence of the negligent transmission of the alarm. The court did not hold that an alarm company is never liable for the transmission of a false alarm, only that the harm to Lodge and his co-plaintiffs was too remote to be reasonably foreseeable in the circumstance of that case.
And so it is with Ms. Soucy's locked doors and windows. An intentionally blocked back door may give rise to liability to invitees if, for example, a fire breaks out. As a matter of law, it does not give rise to liability when a felon with a gun shoots his way into the apartment and catches a visitor trying to escape the back way.
CONCLUSION
The court finds that Soucy had no duty to the plaintiffs as pled in the complaint. Accordingly the court grants the motion to strike Count Five and Six of the complaint.