Opinion
No. CV 02-0079846S
August 6, 2003
MEMORANDUM OF DECISION RE MOTION TO STRIKE (103) AND PLAINTIFF'S OBJECTION TO DEFENDANT'S MOTION TO STRIKE (105)
Introduction
This is an action brought by a minor plaintiff, Michael Hurlburt, by and through his father, against Stanley Baldyga. The complaint in this matter is brought in two counts, in the first count the plaintiff claims negligence and in the second count the plaintiff claims negligent supervision.
The complaint alleges that Baldyga lives next door to the Hurlburt property. The plaintiff alleges that Joseph Ivanisin and his brother and mother lived at the Baldyga property where the mother cohabitated with Baldyga. It is further alleged that at least twice Baldyga instructed and supervised the Ivanisin children on the use and procedure for firing paint ball guns which were kept on the Baldyga property. On October 17, 2000 the plaintiff engaged in target shooting with an air rifle behind the Baldyga and Hurlburt properties. He was joined by three other minors including Joseph Ivanisin, age thirteen at the time, and they engaged in target shooting in the woods behind the properties. Ivanisin used a Crossman Powermaster .177 caliber air rifle which was kept in the house on Baldyga's property and with his knowledge. The plaintiff decided to leave the other boys to look for squirrels and birds. Unbeknownst to him, the other boys followed him and began shooting. The plaintiff fled, but was later detected by Joseph Ivanisin who thereafter borrowed a Powermaster Air Rifle as well as pellets from another boy, Peter Fischer. Ivanisin pumped up the rifle to create as much pressure and power as possible and then discharged a pellet which struck the plaintiff in the right eye resulting in the loss of his eye.
The plaintiff claims that his injuries are due to the carelessness and negligence of Baldyga in that he knew or should have known that the Crossman rifle was accessible to the Ivanisins; he failed to determine whether the Ivanisins were familiar with the operation of the rifle; he failed to determine if they had adequate and proper training; he permitted the use of the Crossman rifle by the Ivanisins when he knew or should have known they would use it in an unsafe manner; and he failed to exercise reasonable care in controlling the Ivanisins. In the second count, the plaintiff claims his injuries were due to the failure of Baldyga to properly supervise the two Ivanisin children who lived in his home in that they were part of his household; he undertook to train them in the use of deadly weapons; he failed to supervise the children who were left unattended with access to an air rifle in the Baldyga home; he entrusted the Ivanisins with the Crossman rifle, a dangerous instrument, without properly instructing or supervising them; he failed to restrain and supervise the Ivanisin children although he knew or should have known they had violent tempers and a propensity for violence; and the defendant failed to exercise reasonable and proper control over the use of the Crossman rifle.
The defendant has moved to strike both counts of the complaint as well as the second paragraph of the claim for relief which seeks exemplary damages. The defendant claims that count one lacks sufficient factual allegations to support a legal conclusion that the defendant's conduct constituted negligence, in particular, the allegations fail to support a claim of duty and causation of the plaintiff's injuries. As to count two, the defendant claims that the plaintiff has failed to allege the existence of a special relationship necessary to support a negligent supervision cause of action; in the alternative, insufficient facts are alleged to support the legal conclusion that the defendant is liable for the actions of children for whom he is neither parent or guardian; the facts do not satisfy the element of causation; the allegations do not set forth a cause of action; and the legal theories alleged in count two are essentially the same as alleged in the first count. Lastly, the defendant moves to strike the second paragraph of the prayer for relief seeking punitive damages since such damages can only be awarded when the evidence shows a reckless indifference to the rights of others or an intentional or wanton violation of those rights.
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.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997); see Practice Book § 10-39. `A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.' (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). `A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.' Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992)." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. King v. Board of Education, 195 Conn. 90, 93, 486 A.2d 1111 (1985)." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988). Thus the court will not consider facts beyond those stated in the complaint in reviewing the motion to strike.
In light of this, the court will not consider the additional facts alleged in the plaintiff's objection, in particular, the references to the deposition testimony of the defendant and Debra Ivanisin.
The essence of the defendant's motion to strike is that the plaintiff has failed to allege a cause of action against the defendant because the plaintiff has simply alleged that the Ivanisins resided in his house and that he had in his a home a Crossman air rifle and paint ball guns which the Ivanisins used. Yet the defendant was not the Ivanisins' parent or guardian and the plaintiff was not shot with the Crossman rifle but with a Powermaster air rifle which was borrowed from another boy.
"In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994)." LaFlamme v. Dallessio, 261 Conn. 247, 251 (2002). The defendant claims that the first count of the complaint fails to allege two essential elements of a negligence claim: duty and causation.
As to duty, the court must determine whether the defendant was under a duty to prevent the alleged harm. See, Stokes v. Lyddy, 75 Conn. App. 252, 257 (2003). "`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. 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 25:05, p. 25-7.' Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997); RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385, 650 A.2d 153 (1994). (Internal quotation marks omitted.) `[T]he determination of whether a duty exists between individuals is a question of law. Petriello v. Kalman, 215 Conn. 377, 382, 576 A.2d 474 (1990); Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty. Petriello v. Kalman, supra, 382-83 . . . We have stated that the 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. [ RK Constructors, Inc. v. Fusco Corp., supra] 386-87.' (Internal quotation marks omitted.) Zamstein v. Marvasti, 240 Conn. 549, 558, 692 A.2d 781 (1997). `Our first step in an analysis of whether a duty exists and the extent of the defendant[s'] duty, therefore, is to determine the foreseeability of the plaintiff[s'] injury . . .' Jaworski v. Kiernan, supra, 241 Conn. 406." Lodge v. Arett Sales Corporation, 246 Conn. 563, 571-72 (1998). "`[I]t is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty.' (Citations omitted; internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 566, 707 A.2d 15 (1998) . . . We sometimes refer to the scope of that duty as the requisite standard of care. See, e.g., Santopietro v. New Haven, 239 Conn. 207, 226, 228-29, 682 A.2d 106 (1996); Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982); see also 57A Am.Jur.2d, Negligence § 85 (1989). `[O]ur threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant . . . By that is not meant that one 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.) Gomes v. Commercial Union Ins. Co., supra, 258 Conn. 615; Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997); see also 57A Am.Jur.2d 216, supra, § 154 (`ordinary care has reference to probabilities of danger rather than possibilities of peril'). `The idea of risk in this context necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may possibly follow.' W. Prosser W. Keeton, Torts (5th Ed. 1984) § 31, p. 170; see also Schiavone v. Falango, 149 Conn. 293, 298, 179 A.2d 622 (1962) (`[r]easonable care does not require that one must guard against eventualities which, at best, are too remote to be reasonably foreseeable'). Accordingly, the fact finder must consider whether the defendant knew, or should have known, that the situation at hand `would obviously and naturally, even though not necessarily, expose [the plaintiff] to probable injury unless preventive measures were taken.' CT Page 8981 Bonczkiewicz v. Merberg Wrecking Corp., 148 Conn. 573, 579, 172 A.2d 917 (1961)." LePage v. Horne, 262 Conn. 116, 123-24 (2002).
Here the plaintiff has not alleged facts to show that the defendant breached any duty he had to the plaintiff. The plaintiff alleges only that the Ivanisins resided in the defendant's home, that there was in the dwelling a Crossman rifle that the Ivanisins used, and that the defendant had instructed the Ivanisins on how to use a paint ball gun. There are no allegations that on the day of the incident that the defendant gave the Ivanisins the air rifle to use or that he even knew they were using it that day, or that he was supervising their use of the gun on that occasion or even present when they were using it, or that he had any obligation to control the Ivanisins who are not alleged to be his children or his wards. Based on the bare allegations of the complaint that the Ivanisins resided in the defendant's home; that in the home there was a Crossman air rifle; and that the defendant had instructed the Ivanisins in the past regarding the use of a paint ball gun, it cannot be found that the defendant should have foreseen that Joseph Ivanisin would chase the plaintiff, then borrow Fischer's Powermaster air rifle and shoot the plaintiff in the eye. In the absence of the foreseeability of such an event the defendant owed no duty to the plaintiff.
The plaintiff also cites Irons v. Cole, 46 Conn. Sup. 1 (1998), 25 Conn.L.Rptr. 59, as support for his claims against the defendant. However in Irons the court found a duty on the part of the defendant to the plaintiff based on the defendant's control of the premises recognized in Stewart v. Federated Department Stores, Inc., 234 Conn. 597 (1995), and not of the person who caused the injury. In Stewart the court upheld a jury verdict which found the defendant liable for the murder of the plaintiff's decedent in the defendant's parking garage where previous robberies as well as other violent crimes had occurred in the garage and the defendant had been advised by its security manager of the need for increased security in the garage. Here the plaintiff alleges only that the defendant owned the property where the Ivanisins lived and that there was kept on the property a Crossman rifle and paint ball guns with the defendant's knowledge. In fact, the complaint reveals that the incident occurred on the Fischer's property while Joseph Ivanisin was using the minor Fischer's rifle. This does not meet the test of Stewart.
The plaintiff also cites Restatement (Second), Torts 2 § 318 (1965), quoted in Irons. "The text of that section provides: `If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person 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 actor (a) knows or has reason to know that he has the ability to control the third person, and (b) knows or should know of the necessity and opportunity for exercising such control.'" Irons v. Cole, 46 Conn. Sup. 1, 7 (1998). Even under this standard the complaint does not state a cause of action. There is no allegation that the defendant entrusted Joseph Ivanisin with the air rifle with which he shot the minor plaintiff, in fact the complaint alleges it was given to him by another boy. The complaint also does not allege that defendant was present when the shooting occurred.
As to causation, "a plaintiff must establish that the defendant's conduct `legally caused' the injuries, that is, that the conduct both caused the injury in fact and proximately caused the injury. Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 24-25, 734 A.2d 85 (1999); Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987). `The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct.' Kowal v. Hofher, supra, 181 Conn. 359. The test of proximate cause is whether the defendant's conduct is a `substantial factor' in producing the plaintiff's injury. The substantial factor test asks, `whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence.' Merhi v. Becker, 164 Conn. 516, 521, 325 A.2d 270 (1973). This requirement `tempers the expansive view of causation [in fact] . . . by the pragmatic . . . shaping [of] rules which are feasible to administer, and yield a workable degree of certainty . . . Remote or trivial [actual] causes are generally rejected because the determination of the responsibility for another's injury is much too important to be distracted by explorations for obscure consequences or inconsequential causes . . . In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice . . . `The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence . . . In applying this test, we look from the injury to the negligent act complained of for the necessary causal connection.'" Craig v. Driscoll, 262 Conn. 312, 330-31 (2003).
The facts alleged in the complaint here do not support a claim that the defendant's conduct was a cause of the plaintiff's injuries. It is clear that any negligence as alleged in the complaint by the defendant was not the proximate cause of the plaintiff's injury. It is not alleged that the defendant owned or controlled the gun with which the plaintiff was shot or that he gave it to Joseph Ivanisin to use or that he was there when he used it. The complaint alleges simply that the Ivanisins resided in the defendant's home; that in the home there was a Crossman air rifle; and that the defendant had instructed the Ivanisins in the past regarding the use of a paint ball gun. There is no causal connection alleged between these actions and the plaintiff's injuries.
Therefore the motion to strike the First Count is granted.
As to the second count alleging negligent supervision, as the Court stated in Fraser v. United States, 236 Conn. 625, 632 (1996), "[e]xisting 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. See 2 Restatement (Second), Torts § 315 (1965); F. Harper, F. James O. Gray, The Law of Torts (2d Ed. 1986) § 18.7; W. Prosser W. Keeton, Torts (5th Ed. 1984) § 56.' Kaminski v. Fairfield, 216 Conn. 29, 33-34, 578 A.2d 1048 (1990); see also Dennison v. Klotz, 12 Conn. App. 570, 578-79, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988)."
The plaintiff has cited to no cases which have found that simply because an adult resides in the same house as a child, without more, that adult is responsible for the torts of the child or has a duty to control the child such that he is restrained from harming others. The cases on which the plaintiff relies for his argument that the court should impose a duty on the Defendant for the behavior of the members of his household are clearly distinguishable. Those cases relate to the interpretation of policies of insurance which cover family members or to the rights of custody and visitation regarding a minor child. The fact that, as the plaintiff states, in modern family life various people not necessarily related by blood or marriage live under one roof as a single household, does not suggest, in the absence of legislative mandate or judicial precedent, that the court should impose liability for the actions of a minor member of the household on a unrelated adult who takes on a parenting role in relation to the minor child or simply allows the child to reside in his home with a parent. In any event "[a]t common law, the torts of children do not impose vicarious liability upon parents qua parents, although parental liability may be created by statute; see General Statutes 52-572; or by independently negligent behavior on the part of parents. LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970)." (Footnote omitted.) Kaminski v. Fairfield, 216 Conn. 29, 34 (1990). Although Connecticut trial courts have recognized a cause of action for negligent supervision of a minor child by the child's parents and, by extension, a claim for reckless supervision, Doe v. Favreau, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 02393019 (March 7, 2003, Thim, J.), 34 Conn.L.Rptr. 276, these principles have not been extended so as to impose liability on persons who are not the child's parent or guardian.
Therefore the Motion to Strike the Second is also granted.
Since the court has granted the motion to strike as to both counts of the complaint the court need not address the motion to strike addressed to the prayer for relief.
Conclusion
The defendant's Motion to Strike is granted and the plaintiff's Objection to defendant's Motion to Strike is overruled.
Jane S. Scholl, J.