Opinion
HHDCV156059915S
03-30-2016
Lauren Howroyd v. New England Ski & Scuba, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#109)
Sheila A. Huddleston, Judge.
The plaintiff, Lauren Howroyd, brought this action in two counts to recover damages for injuries allegedly sustained while participating in a scuba diving event organized by the defendant, New England Ski & Scuba, LLC (count one), and supervised by the defendant, James Morell (count two). New England Ski & Scuba, LLC has moved to strike count one, arguing that it fails to allege sufficient facts to show that Morell was its agent and to show that it owed any duty of care to the plaintiff. The court disagrees and, accordingly, denies the motion to strike.
The first count alleges the following facts that are material to the defendant's motion. " New England Ski & Scuba, LLC, its agents servants and/or employees" provided scuba diving lessons. The plaintiff participated in a dive organized by the defendant and supervised by Morell, who was acting as the defendant's " agent, servant and/or employee." The defendant, " its agents, servants and/or employees, " were negligent in supervising the dive in a number of specified ways, including allowing the plaintiff to ascend to the surface too quickly, failing to recognize signs of decompression sickness, and failing to train or supervise their agents and/or employees properly to supervise open water dives. The plaintiff claims that, as a result of the defendant's negligence, she suffered decompression sickness, traumatic brain injury, and tympanic membrane perforation, among other injuries. Count one contains allegations sounding both in corporate negligence (failure to train and supervise its agents and employees) and in vicarious liability (agent's or employee's failure to supervise the plaintiff's dive properly).
" 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). The court must " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). " [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [courts] assume the truth of both the specific factual allegations and any facts fairly provable thereunder." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
" [T]he complaint is required only to fairly put the defendant on notice of the claims against him." (Internal quotation marks omitted.) Montanaro v. Gorelick, 73 Conn.App. 319, 323, 807 A.2d 1083 (2002). " [T]he modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically . . . As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery." (Citations omitted; internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Rank, 230 Conn. 486, 496, 646 A.2d 1289 (1994). " [W]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
The defendant relies on Hollister v. Thomas, 110 Conn.App. 692, 705-07, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008), in support of its motion to strike based on insufficient allegations of agency. In Hollister, the Appellate Court affirmed a trial court's decision to strike a complaint alleging, in a conclusory fashion, that a subcontractor was the agent of an individual, Brown, a plumbing contractor who had agreed to remodel a bathroom. Brown had delegated certain of the plumbing work, including the use of a blow torch, to a subcontractor, who negligently started a fire. The plaintiff, a firefighter, injured his ankle when, in responding to the fire, he jumped off the fire truck to get to the scene quickly. In Hollister, the Appellate Court agreed that the complaint had failed to allege any of the elements of agency, namely, " (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking." Id., 706.
The issue that has arisen following Hollister concerns the scope of its application. " While there are some Superior [Court] cases which have required the pleader to spell out the elements of an agency relationship, other decisions have deemed it sufficient to allege the relationship." (Internal quotation marks omitted.) Custom Midget Club, Inc. v. Fuller, Superior Court, judicial district of Tolland, Docket No. CV-12-6005378-S, (May 7, 2013, Sferrazza, J.). " Trial courts recognize the difficult, if not impossible burden on a plaintiff at the commencement of the lawsuit of knowing the facts giving rise to the alleged agency relationship when they allow the plaintiff simply to plead the three elements of the agency relationship." (Emphasis in original; internal quotation marks omitted.) Id.
A number of trial courts have narrowly construed Hollister, concluding that the Appellate Court's decision only applies in situations where the plaintiff is suing an individual, not a corporate entity. See, e.g., Pease v. The Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV-12-6006002 (May 23, 2013, Pickard, J.) (56 Conn. L. Rptr. 204, ); Gagnon v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV-11-6012982 (February 19, 2013, Swienton, J.) (55 Conn. L. Rptr. 576, ); Newburry v. Bristol Hospital, Inc., Superior Court, judicial district of New Britain, Docket No. CV-11-6010996 (April 5, 2012, Swienton, J.) (53 Conn. L. Rptr. 690, 691-92) (" [C]orporations always act through agents. They are excepted from the rule requiring that the fact that a contract was made through an agent be stated . . . Therefore, when the defendant is a corporation . . . it is not even necessary to allege that the act charged to have been performed by the defendant was in fact performed by an agent acting for it, much less is it necessary to allege that this agent had authority to act").
In Trimm v. Kasir, Superior Court, judicial district of New Britain, Docket No. CV-11-6009059 (November 30, 2011, Shortall, J.T.R.) (53 Conn. L. Rptr. 35), the court found it unnecessary for a plaintiff to plead the factual basis for the elements of agency where he had pleaded, in the alternative, that the corporate defendant's unnamed employees were negligent. " [U]nder the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment." (Emphasis omitted.) Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003).
In this case, unlike Hollister, the defendant is a limited liability corporation that can act only through agents and employees. Here, the plaintiff alleges that Morell was the defendant's " agent, servant and/or employee." The plaintiff also alleges that the defendant itself was negligent in the training of its servants or employees. Construing the allegations of the complaint broadly and realistically, in the light most favorable to sustaining their sufficiency--as the court is required to do--the court concludes that these allegations adequately serve to put the defendant on notice of the claims against it.
The defendant also claims that the complaint fails to allege facts from which the court could conclude that it owed a duty of care to the plaintiff. The court disagrees. " [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." (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717 A.2d 215 (1998).
In this case, the plaintiff alleges that the defendant offers scuba diving lessons; that the plaintiff participated in a dive supervised by the defendant's agent or employee, Morell; and that Morell negligently allowed her to stay down too long, to ascend too quickly, and then encouraged her to dive again, failing to recognize her symptoms of decompression sickness. " Decompression sickness, " also known as " divers' disease, " is defined as " a sometimes fatal disorder that is marked by neuralgic pains and paralysis, distress in breathing, and often collapse and that is caused by the release of gas bubbles (as of nitrogen) in tissue upon too rapid decrease in air pressure after a stay in a compressed atmosphere." Merriam-Webster's Collegiate Dictionary (11th Ed. 2012). The court concludes that a company alleged to be in the business of giving diving lessons and organizing dives should foresee harm of the general nature alleged to have occurred here, and that public policy favors the imposition of responsibility on such a company because it is in the best position to guard against the risks of the activity it promotes. The factual allegations in the complaint adequately state a basis for concluding that the defendant owed a duty to the plaintiff to guard against such foreseeable risks.
For the reasons stated above, the motion to strike is denied.