Opinion
HHDCV195058572S
01-03-2020
John Doe PPA Jane Doe et al.[1] v. HARC, Inc. et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Peck, A. Susan, J.T.R.
MEMORANDUM OF DECISION RE MOTION TO STRIKE #113
PECK, JTR
On May 22, 2019, the plaintiffs, John Doe, PPA Jane Doe and James Roe, PPA William Roe, filed a sixteen-count amended complaint seeking recovery for damages against the defendant, HARC, Inc. This action arises from injuries and losses sustained by John Doe and James Roe when they were allegedly sexually abused and assaulted by Ricardo Marchand, a HARC employee, while they participated in the defendant’s enrichment programs. Both John Doe and James Roe allegedly have limited intellectual capacities and related disabilities. Counts one through seven are brought on behalf of John Doe, by his parent, guardian and next friend, Jane Doe. Counts eight through fourteen mirror counts one through seven, but are brought on behalf of James Roe, by his parent, guardian and next friend, William Roe. The defendant has moved to strike counts five and twelve (reckless and wanton misconduct), counts six and thirteen (false imprisonment), and counts seven and fourteen (breach of fiduciary duty), on the ground that they are legally insufficient.
The plaintiffs have also brought claims of negligence against Allstate Insurance Company in counts fifteen and sixteen, respectively. Because those claims are not subject of the motion to strike, all references to the defendant in this memorandum are to HARC, Inc.
The plaintiffs also brought claims of negligence, negligent hiring, negligent retention, and negligent supervision in counts one, two, three, and four; and counts eight, nine, ten, and eleven, respectively, against the defendant, HARC, Inc.
Specifically, in counts five and twelve, the plaintiffs incorporate the allegations made in paragraphs 1-15 of counts one and eight, respectively, asserting negligence, which allege, in relevant part, the following: HARC promotes itself as an organization that serves the needs of intellectually challenged individuals; the plaintiffs each have the cognitive ability of four-year-old children; the plaintiffs engaged in HARC’s various enrichment activities as unpaid clients, as well as paid workers under HARC’s job placement program; HARC hired Marchand as a supervisor or job coach in 2010; Marchand was involved in and supervised the plaintiffs during their participation in unpaid activities; Marchand was also their designated supervisor at Allstate, the job placement in which they were paid workers; Marchand sexually assaulted the plaintiffs and forced them to engage in various sexual acts from 2013 to 2017; Marchand’s abuse of the plaintiffs occurred in various areas of the HARC facility and Allstate document retention center; Marchand used his position of authority over the plaintiffs, as well as their cognitive disabilities, to manipulate and threaten the plaintiffs in order to sexually abuse them; and the defendant knew or should have known that Marchand was sexually abusing and exploiting the plaintiffs.
In sum, the plaintiffs allege that the defendant was reckless because it completely disregarded complaints regarding Marchand’s conduct, refused and failed to establish relevant policies to prevent such conduct, knew of Marchand’s sexual misconduct but allowed it to continue and sought to cover it up, refused to investigate and oversee allegations of sexual assault, refused to establish and maintain relevant policies for reporting such conduct, failed to warn Jane Doe and William Roe, and refused to protect the plaintiffs and other clients from such misconduct.
In counts six and thirteen, the plaintiffs incorporate the allegations made in paragraphs 110 of counts one and eight, respectively. In those counts, the plaintiffs further allege that Marchand, as an employee of HARC, was able to direct and control the plaintiffs’ activities and used his superior knowledge, authority, and influence over the plaintiffs to confine them to different areas of the HARC facility and Allstate document retention center against their will; that their confinement occurred when they were both unpaid clients and paid workers at the job placement; and that such confinement constituted false imprisonment.
In counts seven and fourteen, the plaintiffs incorporate the allegations made in paragraphs 1-15 of counts one and eight, respectively. The plaintiffs further allege that HARC and its employees, including Marchand, owed them a fiduciary duty. They allege that as HARC clients, the plaintiffs and their parents relied upon the fiduciary or "specific" relationship they had with HARC when entrusting the plaintiffs’ custody and care to HARC so that they could participate in HARC’s recreational, educational and work activities. Further, they allege that their injuries and damages were the result of the defendant’s breach of its fiduciary duty because it failed to supervise, investigate, and oversee Marchand’s misconduct and failed to take any action to protect the plaintiffs from Marchand.
The defendant filed a motion to strike the aforementioned counts accompanied by a memorandum of law on July 22, 2019. The plaintiffs filed a memorandum in opposition to the motion on August 21, 2019. The defendant thereafter filed a reply memorandum on September 4, 2019. Oral argument was held on September 9, 2019.
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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). In determining the sufficiency of a complaint, "all well pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). Moreover, in assessing the merits of a motion to strike, the court is required to interpret the plaintiff’s complaint in a manner favorable to the plaintiff. See Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011).
I
COUNTS FIVE AND TWELVE- RECKLESSNESS
The defendant moves to strike counts five and twelve on the ground that the plaintiffs have failed to allege sufficient facts to support a cause of action for recklessness. Specifically, the defendant argues that, without more, the plaintiffs’ assertion that HARC knew or should have known about Marchand’s behavior connotes only negligent behavior. The defendant also contends that the plaintiffs’ claims of recklessness fail because they attempt to transform the negligence claim, as set forth in counts one and eight, to a recklessness claim in counts five and twelve, without providing additional facts to support an action for wilful and wanton misconduct. Further, the defendant argues that the plaintiffs’ individual allegations fail because there is no requirement to promulgate or maintain policies prohibiting or policing employee misconduct. In response, the plaintiffs argue that the cumulative effect of the negligence allegations and the reckless-specific factual allegations contained or incorporated in the fifth and twelfth counts are sufficient to establish a cause of action for reckless and wanton misconduct.
"Recklessness is a state of consciousness with reference to the consequences of one’s acts ... It is more than negligence, more than gross negligence. The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... [W]ilful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ... [S]uch aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 532-33, 542 A.2d 711 (1988). "Wanton misconduct is reckless misconduct ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 382, 119 A.3d 462 (2015).
The fact that counts five and twelve "mirror" the assertions of the negligence counts with [little more than the mere addition of the words "willful, wanton and/or reckless" is not determinative when assessing the legal sufficiency of claims of recklessness. "Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted." (Citations omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003). Accordingly, in determining the legal sufficiency of the recklessness counts, "[t]he dispositive question is whether the factual specifications of the recklessness count are sufficient to state a cause of action for recklessness whether or not they are also used to support a negligence claim." McNeil v. Doane, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-16-6022098-S (October 22, 2018, Stevens, J.).
Noting the vulnerability of children attending the defendant’s churches and schools, our Supreme Court has found that given evidence of the defendant’s "commitment to secrecy," despite its knowledge of a priest’s history of sexual molestation of children, treatment for alcoholism and reassignments, a jury could have reasonably concluded that the defendant’s conduct constituted recklessness. See Doe v. Hartford Roman Catholic Diocesan Corp., supra, 317 Conn. 382-83. Our Supreme Court has also acknowledged that where the risk of sexual assault is sufficiently great such that the defendant knew or should have known of that risk, the failure to take reasonable precautions to prevent the exposure to that risk may rise to the level of recklessness. See Doe v. Boy Scouts of America Corp., 323 Conn. 303, 331, 147 A.3d 104 (2016).
In the present case, viewing the allegations of counts five and twelve "broadly and realistically," in a light most favorable to sustaining their legal sufficiency, the plaintiffs have alleged conduct that far exceeds the bounds of negligence that may well support their claims of recklessness as defined by our Supreme Court and recited in this memorandum. See Geysen v. Securitas Security Services USA, Inc., 322 Conn. 398. Without doubt, the language employed in counts five and twelve, and the paragraphs incorporated therein, is explicit enough to inform the court and opposing counsel that reckless misconduct, in addition to negligence, is being asserted. See Craig v. Driscoll, 262 Conn. 343.
II
COUNTS SIX AND THIRTEEN- FALSE IMPRISONMENT
The defendant moves to strike counts six and thirteen on the ground that the plaintiffs have failed to state a legally sufficient claim of false imprisonment under a theory of respondeat superior because Marchand’s confinement of the plaintiffs was an extreme departure from Marchand’s duties as a job coach and could not be considered to be committed in furtherance of the defendant’s business, a necessary element for HARC to be liable. The defendant also argues that the plaintiffs do not allege that Marchand’s acts were specifically committed, authorized or ratified by the defendant. In response, the plaintiffs argue that these counts set forth sufficient facts to support their claims. They argue that Marchand utilized his superior knowledge and authority as a job coach along with HARC’s policies and procedures, or lack thereof, to confine the plaintiffs to areas of the HARC facility and the Allstate worksite against their will. The court notes, however, that although the plaintiffs’ memorandum in opposition argues that Marchand was acting "in furtherance of HARC’s affairs and interests," and that "Marchand was following HARC’s directives, which resulted in said confinement and false imprisonment," there are no facts incorporated or alleged in counts six and thirteen that support such a claim. Pl. Mem., p. 15.
Although the plaintiffs do not specifically allege that these counts are brought under the theory of respondeat superior, since there is no argument made by the plaintiffs that the defendant in any way directed or preauthorized Marchand to performed the acts complained of, the only conceivable legal basis for a claim of false imprisonment against the defendant must necessarily be based on a theory of respondeat superior.
"[F]alse imprisonment is the unlawful restraint by one person of the physical liberty of another." Felix v. Hall-Brooke Sanitarium, 140 Conn. 496, 499, 101 A.2d 500 (1953). "Any period of such restraint, however brief in duration, is sufficient to constitute a basis for liability." Green v. Donroe, 186 Conn. 265, 267, 440 A.2d 973 (1982). "False imprisonment comes within the category of intentional torts." Id., 268. "To prevail on a claim of false imprisonment, the plaintiff must prove that his physical liberty has been restrained ... and that the restraint was against his will, that is, that he did not consent to the restraint or acquiesce in it willingly." (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 820, 614 A.2d 414 (1992).
"Under the doctrine of respondeat superior, a master is liable for the wilful torts of his servant committed within the scope of the servant’s employment and in furtherance of his master’s business." Cornelius v. Dept. of Banking, 94 Conn.App. 547, 557, 893 A.2d 472, cert. denied, 278 Conn. 913, 899 A.2d 37 (2006). "A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phrase during the period covered by his employment ... [T]he vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master’s business, or was engaged in an abandonment of the master’s business ... Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable." (Emphasis added.) Glucksman v. Walters, 38 Conn.App. 140, 144, 659 A.2d 1217, cert. denied, 235 Conn. 914, 665 A.2d 1217 (1995).
"The doctrine of respondeat superior focuses on the employee’s conduct rather than on the employer’s knowledge or approval of the acts. If the employee acted with apparent authority in furtherance of [the] employer[’s] business, the employer’s consent or ratification of the misconduct is irrelevant ... even an innocent employer must compensate an injured party." (Emphasis added.) Id., 144-45. Therefore, a defendant-employer may be liable for the tortious conduct of an employee if it resulted from a misguided effort to serve the principal, and those acts could be inferred to fall within the purview of the employee’s responsibilities. See, e.g., Pelletier v. Bilbiles, 154 Conn. 544, 548, 227 A.2d 251 (1967) (issue of fact existed as to employer’s vicarious liability for employee’s beating of patron because his tortious act could have resulted from misguided desire to follow employer’s instruction to prevent disturbances on premises); Mullen v. Horton, 46 Conn.App. 759, 700 A.2d 1377 (1997) (issue of fact existed as to vicarious liability in light of evidence showing that priest’s sexual relations with parishioner could be a misguided effort at psychologically and spiritually counseling the plaintiff), overruled on other grounds by Cefaratti v. Aranow, 321 Conn. 593, 141 A.3d 752 (2016).
In contrast, Connecticut courts have declined to find liability under a theory of respondeat superior where sexual assault is the underlying act because sexual assault is often an extreme departure from an employee’s duties. See, e.g., Gutierrez v. Thorne, 13 Conn.App. 493, 537 A.2d 527 (1988); Doe v. Norwich, 49 Conn.Supp. 667, 909 A.2d 983 (2006); and Lara v. Legionaries of Christ, Superior Court, judicial district of Hartford, Docket No. CV-10-6016974-S (August 30, 2011, Miller, J.); cf. Mullen v. Horton, supra, 46 Conn.App. 765-66.
"Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant’s employment and was done to further his master’s business. But there are occasional cases where a servant’s digression from duty is so clearcut that the disposition of the case becomes a matter of law." Pelletier v. Bilbiles, supra, 154 Conn. 547. The defendant relies on the foregoing cases involving claims of sexual assault to support its assertion that no Connecticut court has recognized liability under a theory of respondeat superior for acts that are an extreme departure from the employee’s duties. Here, although the claim subject of the defendant’s motion is one for false imprisonment and not sexual assault, false imprisonment is an intentional tort and the rule that an employer is not to be held vicariously liable for the criminal intentional acts of employee when he/she was clearly not acting in furtherance of the employer’s business still holds. See Brown v. Housing Authority, 23 Conn.App. 624, 628, 583 A.2d 643, cert. denied, 217 Conn. 808, 585 A.2d 1233 (1990) (employee’s intentional criminal assault of plaintiff during working hours was no way connected to defendant’s business and could not have arisen from his job responsibilities). As in Brown, confining the plaintiffs against their will for the purpose of engaging in sexually abusive conduct constituted a total abandonment of the defendant’s business.
Importantly, as previously noted, even when read broadly, in a light most favorable to the plaintiffs, the allegations contained or incorporated within counts six and thirteen are devoid of any facts to support an assertion that in confining the plaintiffs against their will Marchand was even remotely acting in furtherance of the defendant’s business. Finally, the conclusory allegations to the effect that Marchand’s acts of false imprisonment of the plaintiffs was somehow "a[ss]ented" to by HARC due to its inaction are totally without factual support. As argued by the defendant, such alleged inaction cannot be held to equate to committing, directing or ratifying Marchand’s false imprisonment of the plaintiffs.
III
COUNTS SEVEN AND FOURTEEN- BREACH OF FIDUCIARY DUTY
The defendant moves to strike counts seven and fourteen on the ground that the plaintiffs failed to plead any facts showing that HARC either owed them (1) a fiduciary duty, which it specifically defines as a duty of loyalty or honesty; (2) a breach of that duty; or, (3) that the defendant knew or should have known that Marchand sexually abused the plaintiffs or others. In its memorandum in support of the motion to strike, the defendant also argues that "all allegations" improperly pleaded by Jane Doe and William Roe, who are the PPAs and not the actual plaintiffs in this case, should be stricken. In response, the plaintiffs argue that consistent with the broad definition of what may constitute a fiduciary relationship in Connecticut, the allegations of the complaint sufficiently support a cause of action for breach of fiduciary duty.
Counts seven and fourteen contain some paragraphs which make allegations on behalf of John Doe and James Roe, respectively, while other paragraphs of those counts purport to make allegations on behalf of Jane Doe and William Roe, their parents, guardians and next friends. In its motion to strike, the defendant argues that all of counts seven and fourteen should be stricken because they do not allege that HARC acted disloyally or dishonestly, engaged in fraud or self-dealing or had a conflict of interest toward John Doe and James Roe. In its memorandum however, the defendant also argues that the complaint improperly recites allegations on behalf of Jane Doe and William Roe, who are nonparties. Although the defendant does not specify the offending paragraphs containing these allegations, presumably it refers to paragraphs 18 through 21 of counts seven and fourteen as the remaining paragraphs of those counts appear to state claims on behalf of John Doe and James Roe.
As an initial matter, the defendant’s argument that the allegations by Jane Doe and William Roe should be stricken because they are not actual parties to the present case is unavailing because "a motion to strike is not the proper vehicle for elimination of irrelevant, immaterial or otherwise improper allegations. The proper vehicle would be a request to revise." (Internal quotation marks omitted.) Doe No. 2 v. Norwich Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X07-CV-12-5036425-S (July 8, 2013, Dubay, J.) (56 Conn.L.Rptr. 460, 463); see Regal Steel, Inc. v. Farmington Ready Mix, Inc., 36 Conn.Supp. 137, 139-40, 414 A.2d 816 (1980). Here, the defendant does not argue that the entire counts should be stricken but rather seeks to strike only those paragraphs reciting allegations made on behalf of the parents. See Practice Book § 10-39. Because the proper procedural mechanism to remove improper allegations is a request to revise and not a motion to strike, the motion to strike the subject paragraphs on this ground must be denied.
The court notes that the defendant has only raised the issue of improper allegations by the parents in argument and not by way of motion.
The principal argument made by the defendant in moving to strike counts seven and fourteen in their entirety is based on the defendant’s stated definition of fiduciary duty as a duty of "loyalty and honesty." "[A] prerequisite to finding a fiduciary duty is the existence of a fiduciary relationship ..." Ahern v. Kappalumakkel, 97 Conn.App. 189, 194, 903 A.2d 266 (2006). "[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other." (Emphasis added; internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 195, 896 A.2d 777 (2006). Our Supreme Court has "refused to define a fiduciary relationship in precise detail and in such a manner as to exclude new situations, choosing instead to leave the bars down for situations in which there is a justifiable trust confided on one side and a resulting superiority and influence on the other." (Internal quotation marks omitted.) Alaimo v. Royer, 188 Conn. 36, 41, 448 A.2d 207 (1982). The existence of a fiduciary or confidential relationship is ultimately a question of fact. See Dunham v. Dunham, 204 Conn. 303, 320-21, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213 n.8, 682 A.2d 106 (1996).
Connecticut courts largely acknowledge Ahern v. Kappalumakkel, 97 Conn.App. 189, when assessing the existence of fiduciary relationships in various contexts involving sexual abuse. See, e.g., Doe v. Villa Marie Education Center, Superior Court, judicial district of Bridgeport, Docket No. CV-16-5032101-S (July 20, 2017, Arnold, J.) (student and catholic education center); Roe v. Boy Scouts of America, Corp., Superior Court, judicial district of Hartford, Docket No. CV-09-5033135-S (August 16, 2012, Schuman, J.) (boy scout and corporate entity); Doe v. Terwilliger, Superior Court, judicial district of New Haven, Docket No. CV-09-5024692-S (June 8, 2010, Zoarski, J.) (student and coach-mentor). In Ahern, the Appellate Court upheld the trial court’s determination that there was no fiduciary relationship between an adult parishioner and a priest. The Ahern court provided that "something more" than the general priest-parishioner relationship must exist in order for there to be a fiduciary relationship and that the relationship was not characterized by a unique degree of trust and confidence required of a fiduciary relationship particularly because there was no formal pastoral counseling relationship between the parties. Id., 189-90.
Significantly, the Ahern court relied on Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d Cir. 1999), in which the plaintiff, who was fourteen at the time of his alleged abuse, brought a breach of fiduciary duty claim against the Bridgeport diocese. The plaintiff claimed that a priest abused his position of trust and induced members of a church sponsored youth group to engage in sexual relations with him. The Second Circuit upheld the jury’s finding that a fiduciary relationship existed between the plaintiff and the diocese, basing its decision not on the general clergy-parishioner relationship, but on the "particulars of [the plaintiff’s] ties to [the abusive priest] and the [d]iocese’s knowledge and sponsorship of that relationship." Id., 429. The Martinelli court applied Connecticut law and found a fiduciary relationship between the diocese and the plaintiff "because the diocese had sponsored and encouraged the abusive priest’s contact with the youth of the parish, the plaintiff attended a Catholic high school within the diocese, participated in church sponsored activities, including the liturgical reform group for which the priest served as a mentor and spiritual adviser, and had been taught throughout grade school catechism classes to trust and respect the bishop of the diocese, whom he considered his caretaker and moral authority ..." (Citation omitted.) Ahern v. Kappalumakkel, supra, 97 Conn.App. 197. Subsequent trial court decisions have attached significance to the fact that the Martinelli plaintiff was a minor and was entrusted to the care of the diocese. Id.
Moreover, the Second Circuit stated that the plaintiff’s evidence reasonably supported the jury’s finding because "the diocese had a duty of care including a duty to investigate and warn or inform so as to prevent or alleviate harm to additional victims." Martinelli v. Bridgeport Roman Catholic Diocesan Corp., supra, 196 F.3d 430. Notably, the diocese’s duty to warn or prevent was triggered when the diocese had received specific information about the priest’s misconduct, including the existence and location of other likely victims. Id., 430; see also Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 10 F.Supp.2d 138, 154 (D.Conn. 1998) (noting that the diocese’s awareness of the priest’s misconduct and other likely victims amounted to superior knowledge that was not otherwise readily available to the plaintiff); Gough v. Saint Peter’s Episcopal Church, Superior Court, judicial district of Hartford, Docket No. CV-106012967-S (July 5, 2012, Domnarski, J.), aff’d, 143 Conn.App. 719, 70 A.3d 190 (2013) (granting summary judgment because the plaintiff failed to present evidence that the defendants breached the fiduciary duty, specifically by showing that the defendants knew or should have known of the priest’s potential danger). Therefore, in these circumstances, if the plaintiff alleges that the defendant had or should have had knowledge of an employee’s sexual misconduct, it may trigger a duty to prevent or alleviate the risk of harm to other victims, whereby the failure to do so constitutes a breach. See Gough v. Saint Peter’s Episcopal Church, supra, Superior Court, Docket No. CV-106012967-S.
In the present case, the plaintiffs set forth sufficient allegations suggesting a justifiable unique degree of trust and confidence existed between the parties. As required by Ahern, something more than a general relationship existed between the parties. Specifically, the plaintiffs allege, that their intellectual capacity is akin to that of four- to seven-year-old children and that they regularly engaged in activities at HARC including educational and counseling activities. Further, as in Martinelli, the allegations suggest that HARC sponsored and encouraged Marchand’s relationship with the plaintiffs because Marchand was responsible for overseeing various activities in which they were involved, as well as transporting them to and from those activities. The plaintiffs regularly participated in HARC-sponsored educational and recreational programs including the paid job placement program, in which Marchand served as their supervisor or job coach. Therefore, the allegations are sufficient to allege the existence of a fiduciary relationship.
With regard to breaching the fiduciary duty, the plaintiffs’ claims are premised on their allegations that HARC knew or should have known of Marchand’s sexual misconduct, that it failed to supervise and investigate Marchand, and that it failed to take any action to protect the plaintiffs. As in Martinelli, HARC’s alleged failure to investigate and supervise Marchand or warn the plaintiffs may constitute a breach, if the plaintiffs prove that HARC knew or should have known of Marchand’s misconduct.
Moreover, the defendant’s argument that there are insufficient facts alleged to support the allegation that HARC knew or should have known of Marchand’s abuse is unavailing. See Marx v. McLaughlin, Superior Court, judicial district of New London, Docket No. CV-00-0556383-S (July 3, 2001, Corradino, J.) (denying motion to strike breach of fiduciary duty claim because the plaintiff specifically alleged that the defendant knew or with reasonable care could have known that the recommended inspector lacked expertise). Finally, given that courts have upheld breach of fiduciary duty claims in analogous contexts, the plaintiffs’ failure to allege disloyalty or dishonesty is not fatal to the plaintiffs’ claim. See also Doe v. Villa Marie Education Center, supra, Superior Court, Docket No. CV-16-5032101-S (denying motion to strike breach of fiduciary duty claim despite plaintiff’s failure to allege fraud, self-dealing or conflict of interest.)
CONCLUSION
Accordingly, for all the foregoing reasons, the motion to strike counts five and twelve and seven and fourteen is hereby denied and the motion to strike counts six and thirteen is hereby granted.