Opinion
No. HHD CV-07-5011581S
March 22, 2010
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
This is an action by plaintiff Carlton Forse to recover money damages from five defendants for injuries he claims to have suffered when, while attending a party at the home of defendants John F. Kaselouskas and Brenda J. Kaselouskas in Enfield, Connecticut on July 2, 2005, he was physically assaulted by two other guests at the party, defendants Thomas Hebb and Casey Furey. In his five-count Revised Complaint dated November 14, 2007, the plaintiff has made the following claims: in the First Count, claims of assault and battery against defendants Thomas Hebb and Casey Furey; in the Second Count, a claim of recklessness against defendants Thomas Hebb and Casey Furey; in the Third Count, a claim of negligence against defendants Thomas Hebb and Casey Fury; in the Fourth Count, a claim of parental liability pursuant to General Statutes § 52-572 against defendant Michael Hebb, the father of defendant Thomas Hebb; and in the Fifth Count, a claim of negligence against defendants John F. Kaselouskas and Brenda J. Kaselouskas ("the Kaselouskas defendants"). The case is now before the Court on the Kaselouskas defendants' Motion for Summary Judgment dated July 13, 2009, wherein they challenge the legal sufficiency of the plaintiff's claim of negligence against them.
THE PARTIES' CONFLICTING CLAIMS
As set forth in the Fifth Count of the plaintiff's Revised Complaint, the claim of negligence against the Kaselouskas defendants is based upon the following allegations of fact. On the evening of July 1-2, 2005, the plaintiff attended a party at the home of the defendants, located at 6 Grandview Drive in Enfield, as the invited guest of their daughter, Erika Kaselouskas. After midnight on that evening, at approximately 1:00 a.m., the plaintiff was assaulted at the party by two of Erika Kaselouskas' other guests: defendants Thomas Hebb, who struck him in the face with his fists; and defendant Casey Furey, who kicked him in the stomach. Revised Complaint, Count V, ¶ 4. As a result of this assault, the plaintiff suffered serious physical injuries, some of which may be permanent in nature. Such injuries included a concussion and brain injury with resulting confusion and loss of orientation and maxillary and orbital fractures with resulting facial pain. Id., ¶ 6. As results of those injuries, the plaintiff has endured physical and mental pain and suffering, experienced limitations upon his ability to engage in recreational and other life activities, incurred substantial medical expenses, and sustained other significant economic losses, including lost wages for time he lost from work and the impairment of his earning capacity. The plaintiff claims that the above-described assault and his resulting injuries and losses were directly and proximately "caused by the negligence and carelessness of the [Kaselouskas] defendants . . . in one or more of the following ways: a. In failing to supervise, monitor and/or control the use of their home and the individuals entering same; b. In allowing a gathering of minors and young adults without adequate supervision; c. In failing to supply adequate protection to ensure the safety of the minors and young adults gathering on their premises on the date in question; [and/or] d. In allowing individuals they knew or should have known to be aggressive and confrontational to gather in their home." Id., ¶ 5.
Erika Kaselouskas was not sued in this action.
The Kaselouskas defendants have denied all of the essential allegations of the plaintiff's claim of negligence against them, and have pleaded as a special defense that the plaintiff negligently contributed to the causation of his own injuries and losses by trespassing at their home on the evening in question. Answer to Revised Complaint (4/27/09).
In their Motion for Summary Judgment, the Kaselouskas defendants claim that they are entitled to judgment as a matter of law on the plaintiff's claim against them because, on the facts presented to this Court, there is no genuine issue of material fact that, on the evening in question, they did not owe the plaintiff a legal duty to protect him from assault and battery by Thomas Hebb and/or Casey Furey, and thus they did not breach such a legal duty to him, as required by law to prove a claim of negligence against them. The defendants have supported their Motion with a memorandum of law and two sworn affidavits, one from each defendant, which address the issues raised by the plaintiff's claims against them.
In particular, the defendants aver that they were out of state on the evening in question, that they did not invite the plaintiff, Thomas Hebb or Casey Furey to their home on that evening, that they had no knowledge that the plaintiff, Mr. Hebb or Mr. Furey would be coming to their home on that evening, and that they did not otherwise agree to supervise, control or take custody of the plaintiff, Mr. Hebb or Mr. Furey on that evening. They assert, on that basis, that they had no legal duty to protect the plaintiff from assault and battery by Mr. Hebb and/or Mr. Furey on that evening because they had no special relationship with the plaintiff which required them to protect him from injury, they had no special relationship with either of their co-defendants which required them to supervise or control such co-defendants' behavior on that evening, and they did not know and could not reasonably have foreseen that, in their absence, their minor daughter would host a party of any kind, let alone one at which alcohol would be served or made available and guests would engage in dangerous activities of the sort that would expose persons present to assault by others and possible injury.
The plaintiff has responded to the defendants' Motion by filing his own memorandum of law in opposition and sworn affidavit. The plaintiff averred in his affidavit that he and several other young people, including defendants Thomas Hebb and Casey Furey, attended the party on the evening in question at the invitation of the defendants' daughter Erika when neither of her parents was present and there was no other adult supervision at the party. He further averred that Erika, a minor, had previously thrown unsupervised parties for young people when her defendant parents were not at home, although he candidly admitted that he did not know if the parents ever learned that she had done so. Against this background, the plaintiff's position on the Motion is that the defendants had a legal duty to protect him from physical assault by other party goers on the evening in question because it was reasonably foreseeable to them that a young person such as their daughter, if left alone without parental or other adult supervision, would invite other young people over for an unsupervised party, and it was reasonably foreseeable that alcohol would be consumed at such a party, and thus that the party would get out of control, leading party goers to engage in aggressive, assaultive behavior towards one other, causing physical injury of the kind he complains of here.
SUMMARY JUDGMENT STANDARDS
"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). "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).
"[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006).
THE LAW OF NEGLIGENCE AS APPLIED TO THIS CASE
"Where there is no legal duty, there can be no actionable negligence. Unless some relationship exists between the person injured and the defendant, by which the latter owes a duty to the former, there can be no liability for negligence . . . The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if [care] is not exercised." (Citations omitted; internal quotation marks omitted.). Neal v. Shiels, Inc., 166 Conn. 3, 12-13, 347 A.2d 102 (1974).
"Broadly stated, parents at common law are not liable for the torts of their minor children. To this general rule an exception has attached in situations where parents have failed to restrain their children who they know possess dangerous tendencies." Gillespie v. Gallant, 24 Conn.Sup. 357, 359, 190 A.2d 607 (1963). "A parent is under a duty to exercise reasonable care so to control his minor child as to prevent him from intentionally harming others or from so conducting himself 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." Id.; 2 Restatement (Second), Torts, Standard of Conduct § 316, p. 123 (1965). "Neither the Supreme nor the Appellate Court has, as yet, imposed liability for injury on parents whose children, without the parents' knowledge, host a social function at the parents' home where alcohol is consumed when the parents did not even supply the alcoholic beverages." Silk v. Gill, Superior Court, judicial district of Litchfield, Docket No. CV 05 4002254 (September 15, 2005, Bozzuto, J.) [ 40 Conn. L. Rptr. 14].
The plaintiff argues that the injury he complains of was foreseeable, in that a parent should have known that leaving a teenage child home alone could result in that child throwing a party at which alcohol is served, and that it is reasonably foreseeable that such a situation could escalate into one in which assaultive behavior and resulting physical injury take place. Connecticut courts, however, have declined to extend liability to parents for the actions of their minor children in such situations, except where the parents themselves are both aware of the potentially dangerous activity their children intend or are likely to engage in and take affirmative steps of some kind to promote or facilitate their involvement in such activity.
ANALYSIS OF THE PARTIES' CLAIMS
The present case is similar to several others which have come before our courts in which parents have been sued for negligence based upon the unsupervised behavior of their children. In Silk v. Gill, supra, for example, a minor (Silk) died of acute ethanol intoxication after he attended a party thrown by another minor (Gill) at the house of the other minor's parents, who were aware of the planned gathering, but were unaware that alcohol would be served there. The Silk Court held, in ruling on the defendant parents' motion to strike the claim of negligence against them, that that claim was legally insufficient because "the plaintiff does not allege that [the parents] served or provided alcoholic beverages to minor children. The plaintiff instead alleges that [the parents] were negligent in that they allowed minors to consume alcoholic beverages on their property, allowed minor guests to become intoxicated at their residence, allowed alcoholic beverages to be provided to minors, including the decedent and they allowed unlimited quantities of alcoholic beverages to be distributed to minors . . . Applying a foreseeability test, the plaintiffs have failed to plead sufficient facts to indicate that the harm alleged was a reasonably foreseeable result of the conduct alleged on the part of [the parents] . . . Connecticut courts have recognized a distinction between circumstances in which alcoholic beverages are served or provided and when they are not. Neither the Supreme nor the Appellate Court has, as yet, imposed liability for injury on parents whose children, without the parents' knowledge, host a social function at the parents' home where alcohol is consumed when the parents did not even supply the alcoholic beverages. This court cannot conclude, as a matter of law, that [the parents] had a duty to the decedent under the facts alleged . . . 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 . . ." (Citations omitted; emphasis added; internal quotation marks omitted.) Silk v. Gill, Superior Court, judicial district of Litchfield, Docket No. CV 05 4002254 (September 15, 2005, Bozzuto, J.).
The Court in Pagan v. Amston Liquor Shoppe, supra, also dealt with the issue of parents' liability for injuries suffered at a party held by their child, without their knowledge, when they were away. In particular, that Court noted the importance of the parents' knowledge that a party was occurring, holding that "summary judgment is appropriate for [the defendants]. There is no indication that they knew or should have known that [the minor son] would hold a party while they were away or that alcohol would be served. There was no prior indication that their son was a person engaged in any dangerous enterprise, or to drink, or to have parties without parental permission . . . Summary judgment is proper because, under the facts presented, the parents owed no legal duty to the plaintiff." 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).
In the present case, there is no allegation by the plaintiff, and no evidence of record tending to establish, that the Kaselouskas defendants ever had a special relationship with the plaintiff, or with either of the defendants who allegedly assaulted him on the evening in question, of the sort that required them to use due care for his safety by protecting him from assaultive behavior by the defendants or preventing the defendants from engaging in such assaultive behavior towards him. Instead, the plaintiff bases his claim of negligence upon the defendants' alleged breach of their duty to care for his safety by controlling the dangerous conduct of their own minor daughter, particularly by preventing her from holding unsupervised parties for young people where alcohol was consumed when they were not home, thus assertedly reducing the likelihood that such parties would go out of control, with partygoers engaging in assaultive behavior towards one another, potentially causing each other injury. To establish such a claim under the foregoing authorities, the plaintiff must plead and prove that the defendants had notice that their daughter was or might be planning such a party, and that such a party, if she threw it, would probably involve the particular dangers or conditions of danger — attendance by minors and other young people, consumption of alcohol and lack of adult supervision — which combine to give rise to a foreseeable risk of loss of control, assaultive behavior and resulting injury to other partygoers.
Here, however, there is no evidence tending to establish that the defendants knew or should have known that a large number of young people had been, would be or might be invited to their home for such a party by their daughter. There is also no evidence tending to establish that the plaintiff, Mr. Hebb or Mr. Furey had been, would be or might be invited to such a party, or that alcohol would or might be consumed at the party. There is also no evidence of circumstances that would have put an ordinarily prudent person in the defendants' position on notice that their daughter had planned or was planning such a party, such as telltale signs of party planning like the receipt of communications on that subject or the laying in of supplies for that purpose, and there is no evidence that the parents knew of any similar behavior by their daughter in the past that might have served as a warning that she would engage in such behavior in the future. Lacking such actual or constructive knowledge that their daughter had already planned or was likely to plan such a party while they were away, the Kaselouskas defendants had no reason to foresee that by leaving their daughter home alone, they were creating a danger of injury to persons like the plaintiff who might attend such an unanticipated party.
The plaintiff urges this Court to rely upon a broad assumption that, in this day and age, all parents must reasonably foresee the risk that their own minor children, if left home alone, will throw unsupervised house parties for other minors and young people where alcohol will be consumed. With due respect to the plaintiff, such a cynical assumption has never been made by our courts, which invariably require proof that parents have actual or constructive notice of their children's dangerous activities before imposing liability upon them for injuries and losses resulting from such activities. The Court in Silk v. Gill, supra, for example, held that even when parents were aware that their minor child was hosting a party, the likelihood that drinking would occur at that party was not reasonably foreseeable to them in the circumstances presented, and thus they could not be held liable for injuries resulting from such unforeseeable drinking at the gathering. In Pagan v. Amston, supra, moreover, the Court held that unless there is prior evidence that the minor child had engaged in particular behavior that would make the parents so aware, there is no duty to a plaintiff injured during the course of a party held in their absence. In light of these rulings, the mere notion that parents should in general be aware that their minor children might throw parties where alcohol might be served in their absence is insufficient as a matter of law to pass a foreseeability test.
For all of the foregoing reasons, the Court concludes that there is no genuine issue of material fact that the Kaselouskas defendants had no legal duty to protect the plaintiff from assault by defendants Thomas Hebb and Casey Furey on the evening of July 1-2, 2005, and thus that their Motion for Summary Judgment must be granted.
IT IS SO ORDERED this 22nd day of March 2010.