Opinion
No. CV 07 5010654
June 23, 2009
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT (#156)
The plaintiff, Anne Fincher, filed a second amended complaint on behalf of her son, Mikhael Fincher, fn1 on May 12, 2008, against the Yale Alumni Chorus Foundation, Inc., Classical Movements, Inc. and Douglas Berv. The complaint alleges the following against the defendant, the Yale Alumni Chorus Foundation, Inc. The defendant sponsored the "Freedom Tour 2006," a concert tour in which the Yale Alumni Chorus traveled to the Netherlands. The defendant organized and facilitated Yale alumni to participate in the concert tour. Among the alumni was Roy Nisenson, who was then a therapist to sixteen-year-old Mikhael. Nisenson brought Mikhael on the trip with him. During this trip, Nisenson engaged in improper physical contact and consumed illicit drugs with Mikhael. In her complaint, the plaintiff claims the defendant "knew or in the exercise of reasonable care should have known that Roy Nisenson, Ph.D. was taking on the sponsored alumni event a minor patient who was suffering from depression and other mental illness." Additionally, she alleged that prior to the initiation of the tour and during the course of the chorus' trip to the Netherlands the Yale Alumni Chorus Foundation, Inc. knew or should have known that Roy Nisenson, Ph.D. was engaged in an improper relationship with the minor plaintiff yet it failed to intervene and take reasonable and proper steps to prevent Roy Nisenson, Ph.D. from causing the minor plaintiff further harm.
This motion for summary judgment was filed by the Yale Alumni Chorus Foundation, Inc., which will hereafter be referred to as the defendant. Neither Classical Movements, Inc. nor Douglas Berv are involved in the present motion.
The defendant has filed the instant motion for summary judgment. The plaintiff has filed an opposition brief.
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. 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).
The defendant argues that it is entitled to summary judgment because, prior to attending the Netherlands tour and while in the Netherlands, Nisenson and Mikhael represented to the defendant that Nisenson was Mikhael's father. The defendant argues that the gravamen of the plaintiff's claim against the Yale Alumni Chorus is that it failed to conduct an investigation to somehow uncover that, contrary to both Nisenson and Mikhael's representations, Nisenson was not in fact Mikhael's father, and that it failed to take steps to prevent Nisenson from engaging in improper conduct with Mikhael. The defendant argues, in essence, that summary judgment is warranted as to the plaintiff's negligence action against it because the defendant had no duty to investigate whether Nisenson and Mikhael were father and son or to prevent Nisenson's misconduct. The plaintiff counters that the harm that occurred to Mikhael was reasonably foreseeable to the defendant and that failing to impose a duty on the defendant under these circumstances offends public policy.
"The 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.) Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 32, 946 A.2d 839 (2008). "[T]he determination of whether a duty exists between individuals is a question of law . . . Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty." (Internal quotation marks omitted.) Seguro v. Cummniskey, 82 Conn.App. 186, 192, 844 A.2d 224 (2004).
"Existing Connecticut precedents impose only a limited duty to take action to prevent injury to a third person. Our point of departure has been that absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another . . . In any determination of whether even a special relationship should be held to give rise to a duty to exercise care to avoid harm to a third person, foreseeability plays an important role. Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . 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 . . . Thus, initially, if it is not foreseeable to a reasonable person in the defendant's position that harm of the type alleged would result from the defendant's actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff." (Citations omitted: internal quotation marks omitted.) Fraser v. United States, 236 Conn. 625, 632-33, 674 A.2d 811, cert. denied, 519 U.S. 872, 117 S.Ct. 188, 136 L.Ed.2d 126 (1996).
This court must determine whether it was foreseeable to a reasonable person in the defendant's position that the harm alleged by the plaintiff would result from the defendant's failure to conduct an investigation into the relationship represented to exist before permitting the plaintiff's son to attend the tour. The court finds Fraser v. United States, supra, and Beach v. Jean, 46 Conn.Sup. 252 (1999), instructive in making this decision.
In Fraser v. United States, supra, 628, a patient of the defendant hospital fatally stabbed the plaintiff's decedent. The patient had suffered from schizo-affective schizophrenia with accompanying delusions of violence and was under the psychiatric care of the defendant as both an in-and out-patient for approximately six years. Id. Furthermore, during the course of his treatment, the hospital was aware that he carried weapons and advised him to get rid of them. See id., 628-29. However, the patient had not been known to be dangerous, or to have made any threats or overtures toward the decedent. The Supreme Court concluded that the hospital had no duty to exercise control over the patient to prevent his assault on the plaintiff's decedent. "The medical center neither knew nor had reason to know that [the patient] would attack [the decedent] because [he] was not an identifiable victim, a member of a class of identifiable victims or within the zone of risk to an identifiable victim." Id., 637.
Beach v. Jean, 46 Conn.Sup. 252, 746 A.2d 228 (1999), is a case that has much in common with the issues presented here: namely, what is the forseeability of the harm when a defendant makes representations to the outside world that turn out to be false? In Beach v. Jean, the plaintiff, a parishioner, sued the diocese and church for the sexual abuse suffered at the hands of a priest. On a motion by the defendant diocese and church for summary judgment, the court granted summary judgment, finding that the defendants did not owe a duty to the plaintiff. The court noted that there was no evidence presented that the defendants knew of the priest's sexual misconduct while it was taking place. Id., 262. The plaintiff claimed that the defendants should have known about it. The court found that the evidence supported the opposite conclusion. The court noted that the evidence established that the defendants received written assurances from both the priest's seminary and from an independent investigation that the priest had the moral character, fitness and ability to serve as a competent priest and to relate to children appropriately and that he had "served ably as an assistant pastor for thirteen years without a hint of trouble." Id. Moreover, the court found that nothing in the priest's background check even suggested any mental or sexual disorder that should have prompted church officials to probe further than they did. Id., 262-63.
The court granted summary judgment, concluding that "[g]iven this undisputed evidence, there is no genuine issue of material fact concerning whether the defendants should have anticipated that harm of the general nature of that suffered was likely to result . . . The defendants simply received no clues about [the priest's] alleged clandestine activities. The law does not require them to be clairvoyant . . . Accordingly, the defendants had no duty to prevent harm to the plaintiff." (Citations omitted; internal quotation marks omitted.) Id., 264-65.
In the present case, this court finds that the harm suffered by the plaintiff's son was not reasonably foreseeable and thus, the defendant owed no duty to the plaintiff. There is no genuine issue of material fact that Nisenson represented to the defendant that Mikhael was his son. In his deposition, Mikhael admits that he told people prior to and during the Netherlands trip that he was Nisenson's adopted son. He further admits that members of the defendant's choral group on the trip did not know that he was unrelated to Nisenson. Sharon Agar, the president of the defendant's group, attested that "Nisenson represented to the Yale Alumni Chorus prior to the trip and during the trip, both verbally and in writing, that [Mikhael] was his son . . . [Mikhael] represented to the Yale Alumni Chorus during the trip that he was Nisenson's son . . . The Yale Alumni Chorus was not aware that [Mikhael] was not Nisenson's son." Prior to the trip, Nisenson submitted a document to the defendant dated April 28, 2006, that stated "My son Mikhael R. Fincher and provided Mikhael's date of birth and address, in addition to the plaintiff's, his mother's, contact information. The April 28, 2006 document also stated: "Kindly refer all Yale Alumni Chorus communications regarding Mickey to me, his dad." In a letter to the defendant dated August 3, 2006, Nisenson writes: "Though I've had the good fortune to travel extensively some time ago, the upcoming trip with my son Mickey evokes undiluted happiness."
The defendant wrote a letter at the request of Nisenson to Mikhael's school to explain his absence while he was to be traveling to the Netherlands. This letter states: "I am writing to verify Mickael F. Fincher's absence from classes September 12-19th. He, along with his father, will be traveling with my chorus to represent Yale University and the United States as Ambassadors of Song in Holland." The plaintiff has not presented any evidence which shows that the defendant knew that Nisenson and Mikhael were anything other than father and son, as they had represented themselves to be.
Additionally, there is no genuine issue of material fact that the defendant was unaware of sexual contact or illicit drug use between Nisenson and Mikhael while they were on the trip. In his deposition, Mikhael stated that any physical contact that Nisenson had with him in the presence of others resembled only how a father would touch his son. Mikhael also stated that none of the members of the defendant's organization were aware that he and Nisenson were using drugs. He further stated, "I don't believe that anybody knew or anybody could have prevented what happened in the Netherlands." Sharon Agar attested that: "The Yale Alumni Chorus was not aware that there was any inappropriate physical relationship between Nisenson and [Mikhael] . . . The Yale Alumni Chorus was not aware that Nisenson and [Mikhael] were using drugs while they were in the Netherlands." The plaintiff has not presented any evidence that demonstrates that the defendant knew of either Nisenson's sexual contact with Mikhael or that the two used illicit drugs while in the Netherlands.
Given that Nisenson and Mikhael represented to the defendant that they were father and son and that the defendant had no knowledge of their sexual contact and drug use, this court finds that the defendant had no duty to the plaintiff because the harm suffered by the plaintiff's son was not reasonably foreseeable.
Finally, this court addresses the public policy considerations raised by this action. "Foreseeability notwithstanding, it is well established that Connecticut courts will not impose a duty of care on the defendants if doing so would be inconsistent with public policy." Monk v. Temple George Associates, LLC, 273 Conn. 108, 116, 869 A.2d 179 (2005). "[I]n considering whether public policy suggests the imposition of a duty, we . . . consider the following four factors: (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." (Internal quotation marks omitted.) Id., 118. The plaintiff overstates the public policy concerns implicated by this court's finding that the defendant owed no duty to the plaintiff. The plaintiff argues that "imposing a duty of care upon an organization that takes a minor to a foreign country enhances rather than offends public policy." As previously discussed, there is no genuine issue of material fact that the defendant had every reason to believe that Mikhael was Nisenson's son as a result of his and Mikhael's repeated representations. In addition, there is no genuine issue of material fact that the trip sponsored by the defendant did not include the participation of minors unless its adult members elected to bring their children. Under these facts, the defendant had no reason to question or confirm the veracity of Nisenson's and Mikhael's representations. Therefore, public policy is not offended by declining to impose a duty upon the defendant.
For all the foregoing reasons, the defendant's motion for summary judgment is hereby granted.