Opinion
UWYCV166033094
06-16-2017
Jennifer Kwiatkiowski PPA Jamie Urkevic v. Albert Beatty et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #104 INTRODUCTION
Barbara Brazzel-Massaro, J.
This action was commenced by a writ, summons and complaint dated December 7, 2016 and filed on December 19, 2016. The plaintiff Jennifer Kwiatkiowski brought the action through her parent and next friend, Jamie Urkevic. She named three defendants, Albert Beatty, McDream Enterprises, LLC (McDream), and Haskos, LLC (Haskos). The complaint consists of six counts; counts one and two allege assault and battery against the defendant Albert Beatty; counts three and five allege negligence as to the defendants McDream and Haskos; and counts four and six allege a breach of special duty to children against the defendants McDream and Haskos. On January 6, 2017, the defendant Haskos filed a motion to strike counts four and six on the ground that it is not a recognized cause of action in Connecticut. In particular, the defendant argues that the claim of a special duty to children in an employer-employee relationship is not recognized in the State of Connecticut. The defendant Haskos filed a motion to strike on January 23, 2017 as to count four of the complaint on the same grounds argued by McDream and adopting the memorandum of McDream. The plaintiff filed a memorandum in opposition to both motions to strike on February 17, 2017. The matter was heard at short calendar on February 21, 2017.
II. FACTUAL BACKGROUND
The minor plaintiff was an employee of the defendant McDream which operates a McDonald's Restaurant. She began employment at or about September 2015. The defendant Albert Beatty was also employed by the McDonald's Restaurant. He was a manger of the store and worked as a supervisor and shift manager for the plaintiff during her course of employment. The plaintiffs allege that Beatty was tasked with the oversight, management, supervision and direction of various employees including the plaintiff. The minor plaintiff brought an action through her parent alleging that beginning in October 2015 until August 2016, she was harassed, intimated, assaulted physically and sexually by the defendant Albert Beatty while she was working at the McDonald's restaurant at 850 South Main Street, Cheshire, Connecticut. Her complaint sets forth very specific allegations of conduct and actions by the defendant, Beatty. In Counts four and six, the plaintiff contends that the defendants McDream and Haskos are liable because they have a special duty to protect the minor plaintiff during the time she was working with Mr. Beatty. The plaintiffs allege that there is a special duty to her because at the time of her employment she was a minor and thus was in the custody of the defendants while performing work on the premises. The defendants argue that there is no recognized cause of action for special duty to children who are hired as employees in a business.
III. DISCUSSION
A. LEGAL STANDARD
" 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). " [T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). " If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court should " 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). " In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 576, 580, 693 A.2d 293. " A motion to strike is the proper procedural vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability . . . [W]hen the motion to strike is being used to test a new cause of action, a trial court should permit the plaintiff to develop a factual basis for the claim . . . Sometimes legal questions require a factual setting within which to be decided. Just because we have a pleading device called a motion to strike it [should not] be regarded as a straight jacket preventing a proper testing of new legal theories." (Internal quotation marks omitted.) Reilly v. Albanese, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-15-6018229-S (December 14, 2015, Stevens, J.) (61 Conn. L. Rptr, 463, 464, ) (denying motion to strike claim for intentional interference with inheritance nothwithstanding cause of action not yet recognized in Connecticut).
B. SPECIAL DUTY TO CHILDREN
The plaintiffs' complaint consists in part of two counts that include a claim of a " special duty" to children. The defendants argue that counts four and six of the complaint, both alleging a breach of special duty to children, fail to state a claim upon which relief can be granted because there is no " special duty" or related cause of action that exists in Connecticut in connection with an employer-employee relationship. The defendants specifically argue that although the plaintiff alleges that she " was in the custody of" the defendants while working at the McDonald's, she also alleges that she " was employed" by the defendants, and that Beatty, as a supervisor, was tasked with oversight and management of " various employees, including the minor plaintiff." The plaintiffs counter that the defendants' motions to strike should be denied because they are based on a single, legally untenable ground that there is no special duty owed to a minor in an employer-employee context. The plaintiff posits that the recognized special duty owed to minor children in custodial scenarios should be extended to the employer-employee relationship when an employee is a minor. The plaintiff argues that because children are in the custody of their employer during work hours, and that parents who allow their children to work entrust their children to the care of the employer, a special duty to minors arises in this context. The concept of an extended special duty in the employment area is a novel concept that has not been addressed in Connecticut even though there are a number of statutes that address various stages and professions for employment of minors.
The plaintiffs do not identify in the complaint the age of the minor nor do they indicate the need for any additional approval for the employment of the minor as a result of her age or the profession. Therefore, based upon the complaint submitted and the claims of the plaintiffs, the court does not determine that the plaintiff is at an age below that permitted for employment in the McDonald's. Connecticut permits any person sixteen years of age or over to be employed in certain positions such as in a business with a liquor permit C.G.S. § 30-90a or a restaurant or public dining room C.G.S. § 31-2. Statutes restrict employment in an occupation pronounced hazardous to health, C.G.S. § 31-23(c).
The plaintiff's argument that parents permit their children to work and thus the employer is entrusted with the care of the child ignores the different relationship that arises between an employee and employer versus the well- known in " loco parentis" doctrine that applies to certain activities and requirements involving a child. In the actions that recognize the responsibility for the protection of the child there are different factual backgrounds which support the heightened responsibility. For instance, a parent who allows their child to attend a camp, to play on a team sport, to attend a special trip, to take part in an after-school activity or to receive special counseling or treatment all require a parent to agree and either sign a form to consent to the activity because of the age of the child or in some manner such as school attendance to relinquish their custody and protection of the minor to a third person. No such form or legal requirement is part of the consideration to permit a sixteen- or seventeen-year-old to seek employment and accept employment. The fact that a minor applies for position at a business such as a restaurant without a need for any parental oversight such as permission or consent supports the premise that this employment activity does not have the same legal relationship as the cases in which the agency, school, team, club or other activity is responsible for the safety in the context of a special relationship. Connecticut case law very clearly recognizes the concept of in " loco parentis" where a surrogate is recognized for the parents in a situation such as teacher and pupil. Sansone v. Bechtel, 180 Conn. 96, 98, 429 A.2d 820 (1980). In a situation with the teacher, the law holds that the adult is responsible for the protection of the minor in the same manner as the parents. They step into the shoes of the parents. However, an employee is a individual who works for a salary for an employer and is performing work related tasks. C.G.S. § 31-275(5) defines an " employee" as " any person who has entered into or works under any contract of service or apprenticeship with an employer . . ." Sibley v. State, 89 Conn. 682, 686, 96 A. 161 (1915). There is no claim that in this action the plaintiff was not legally employed by the defendant. " 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." (Internal quotation marks omitted.) Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996). " [An] . . . exception to the general rule that a defendant has no obligation to aid or protect another person arises when a special relation exists between the actor and the other which gives to the other a right of protection . . . Certain custodial relationships fall within this exception . . . Under this exception, one who takes custody of another person may have a duty to protect that person from the intentional misconduct of a third person. One who . . . takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection . . . is under a duty to exercise reasonable care so as to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him . . ." (Citation omitted; footnotes omitted; internal quotation marks omitted.) Doe v. Saint Francis Hospital & Medical Center, 309 Conn. 146, 181-83, 72 A.3d 929 (2013). The plaintiffs relied upon Doe in their argument that there is a special duty to minors in this action. However, the factual background of Doe is dissimilar and unique so that it does not offer support for the claim-based upon the facts in this action. Doe addresses minors who were not only of tender years but were placed in the physical care and custody of Dr. Reardon by their parents or guardians with the understanding that he would protect them while in his custody. Part of the court analysis recited the Restatement (Second) § 320 at p.130 which provides in comment (c) that " [t]he custody of another may be taken under such circumstances as to associate the other with persons who are peculiarly likely to do him harm from which he cannot be expected to protect himself. If so, the actor who has taken custody of the other is required to exercise reasonable care to furnish the necessary protection. This is particularly true where the custody not only involves intimate association with persons of notoriously dangerous character but also deprives the person in custody of his normal ability to protect himself . . ." Id., comment (c) p. 131. The custody in Doe involved the doctor-patient relationship with a minor. In the Doe scenario, the parents or guardians believed that the hospital would protect their child. The situation involved not just the custodial relationship for the child but the protective duty by the hospital for the children involved in the study. This type of relationship is similar to the school-child relationship where the school takes custody of the child and thus also has the duty to protect the child who is required to attend the school and cannot simply walk away. The same is inherent in the jailer-prisoner context in which the prisoner who is in the custody of the police or other authoritative figure and cannot remove themselves from what could be a dangerous situation.
" Indeed, one of the comments to § 314A of the Restatement (Second) of Torts, which covers special relationships giving rise to a duty to aid or protect when an entity voluntarily takes custody of a child, notes that [t]he duty to protect the [child] against unreasonable risk of harm extends to risks arising out of the [entity's] own conduct . . . [as well as] to risks arising . . . from the acts of third persons, whether they be innocent, negligent intentional, or even criminal." (Emphasis in original; internal quotation marks omitted.) Id., 206. " [I[t is axiomatic that the plaintiff's tender years at the time of the abuse is relevant to a determination of whether he was deprive[d] . . . of his normal opportunities for protection. . . ." (Internal quotation marks omitted.) Id. In Murdock v. Croughwell, 268 Conn. 559, 572, 848 A.2d 363 (2004), the court looked to New Hampshire which recognized the proposition of a special relationship between employer and employees but found that § 314A of the Restatement (Second) does not impose a duty on employers to protect employees from the criminal acts of a third party. See Dupont v. Aavid Thermal Technologies, Inc., 147 N.H. 706, 709-10, 798 A.2d 587 (2002). The Dupont court stated that: " [w]e decline to hold that the employment relationship is the type of 'special' relationship that gives rise to a duty to protect against foreseeable criminal attacks by third parties"). Indeed, the Dupont court, explicitly disavowed attempts to liken that employer-employee relationship to the school student relationship. Id., 711. Sections 314A and 320 of the Restatement (Second) of Torts list special relations which, if existing require one party to that relation to render protection to the other. The most important and widely recognized relation of this kind is that between an adult and a child in his custody . . . We learn this from comment b to Section 320 of the Restatement, which states that [t]he actor who takes custody . . . of a child is properly required to give him the protection of which the custody or manner in which it is taken has deprived him." (Internal quotation marks omitted.) Doe v. Town of Wolcott, Superior Court, judicial district of Waterbury, Docket No. CV 12-6013133-S (March 4, 2014, Shapiro, J.) (57 Conn.L.Rptr. 756, 759, ). Section 314A of the Restatement (Second) of Torts provides in relevant part that special relationships exist between common carriers and passengers, innkeepers and guests, possessors of land open to the public and members of the public, and " [o]ne who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection." Restatement (Second) Torts § 314A, p. 118 (1965). Comment a to § 314A of the Restatement (Second) of Torts provides in relevant part that [a]n additional relation giving rise to a similar duty is that of an employer to his employee"; id. § 314A, comment (a), p. 119; and directs the reader to § 314B of the Restatement (Second) of Torts; however, this section only provides duties to protect endangered or hurt employees and applies only if the employee, while acting in their scope of employment, is in a position of imminent danger, serious harm, or is hurt at work and is in need of assistance, Id., § 314B, p.122. This section does not provide for a custodial relationship in anyway. Id. Examples of when one has custody of another, such as a sheriff or a peace officer, a jailer or warden, officials in charge of state or private asylum or hospital, teachers or other person in charge of a public or private school. See id., § 320, comment (a) p. 130. Moreover, many of the Connecticut cases, which have observed special relationships with a custodial element, have revolved around schools. In fact, since the Supreme Court validated the special duty to children cause of action in Doe v. Saint Francis Hospital & Medical Center, there have only been two cases where the plaintiffs have alleged this duty, one of which was in an education context. See Doe v. Daniels, Superior Court judicial district of Hartford Docket No. CV 12-5036226-S (July 23, 2014, Huddleston, J.) (58 Conn.L.Rptr. 662, ) (denying motion for summary judgment on count alleging breach of special duty of care to children because organization's policy permitting children to use its facility without parents created duty to ensure safety of children on its premises); Doe v. Town of Wolcott, Superior Court, judicial district of Waterbury, Docket No. CV 12-6013133-S (March 4, 2014, Shapiro, J.) (57 Conn.L.Rptr. 756, ) (denying motion to strike count alleging breach of special duty of care to children because town, through board of education, had duty to protect children in their custody). Other jurisdictions have provided some analysis of the special relationship which offers guidance to this court. In Nivens v. 7- 11 Hoagy's Corner, 83 Wn.App. 33, 54, 920 P.2d 241 (1996) aff'd., 133 Wn.2d 192, 943 P.2d 286 (1997), the court states: " [R]elationships deemed special for purposes of tort law include, at least on occasion, the school-student relationship; the hotel guest relationship; the hospital-patient relationship; the employer-employee relationship; and the store-customer relationship." " [T]he stated relationships fall into at least two groups. In one group are relationships that are both custodial and protective, such as the school-student relationship and the hospital--patient relationship. In another group are relationships that are protective but not custodial, such as hotel-guest relationship and the store-customer relationship. In the first group, one party is typically incapacitated, as for example by immaturity or illness. In the other, each party is typically a fully functioning adult." Id. It follows that an employer-employee relationship can create a protective relationship but not a custodial one. See Id. The laws in Connecticut follow this line of reasoning. The laws permit the employment of minors who range in age from fourteen to eighteen. The laws in Connecticut do not create a custodial relationship but provide parameters for the health and welfare of those employed while under eighteen and also attending school. The laws set hours for work including the length and the time of day and days of work permitted as well as prohibition from dangerous professions. Connecticut has addressed the employment of minors in a number of ways and in a number of statutes that protect the minor from harm in employment for certain occupations such as manufacturing, mechanical, mercantile or theatrical industry, restaurant or public dining room, or in any bowling alley, shoe-shining establishment or barber shop, except the Labor Commissioner may authorize employment between 14 and 16 under certain circumstances. C.G.S. § 31-23. There are no employment statutes or regulations which speak to an additional duty to supervise the minors as a result of their age. There are no parental approvals needed for work. In Dupont v. Aavid Thermal Technologies, Inc., 147 N.H. 706, 798 A.2d 587 (2002), the court " explicitly disavowed attempts to liken the employer-employee relationship to the school-student relationship." It specifically stated, " [e]mployees are not children and employers do not play the role of parental proxy. Employment unlike school, is not compulsory. Employees are generally free to terminate their employment relationship at any time and for any reason." Dupont Id., 711. The oversight referred to in the complaint is not a subject of statute or case law that would address this duty to protect an employee under the age of eighteen to any additional considerations of employment. The law in Connecticut readily recognizes that for certain jobs the hours of employment and the number of days working per week should be controlled. However, once employed and following the labor criteria there is no additional requirement to act as a guardian for the child. In the present case, the plaintiff alleges that she was employed by the defendants to work at the McDonald's. The employer-employee relationship does not create a custodial relationship, and just because the employee is a minor does not automatically necessitate a custodial relationship. An employer-child relationship is different from a hospital-child, school-child, or camp-child relationship. Adults, hospitals, schools, camps are charged with the care of a minor in their custody. Indeed, school attendance by minors is compulsory. Employment is not mandatory for minors and is normally restricted to ages between sixteen and eighteen without additional criteria. The plaintiff provides no law in support of the action that (1) employers stand in the shoes of parents or guardians of minors in the workplace; (2) employers can deprive minor employees of their normal powers of self-protection; (3) minor employees are not free to quit their jobs at any time. Accordingly, the plaintiff has not provided any law which would support the extension of the special duty to children doctrine to this factual scenario. An extension of this duty as noted above, would lead to or result in detrimental consequences greatly impacting the employment of minors as permitted by statutes of this state. As Connecticut law currently permits minors to begin working with some restrictions at fourteen years of age, if this court were to adopt the plaintiffs' position, then there exists the possibility that employees could be subject to ever greater liability, resulting in fewer jobs being available to minors who would require supervision beyond the employer-employee relationship. Connecticut has not recognized this cause of action in the employment scenario and these facts do not provide a sufficient basis for this court to find otherwise. The plaintiffs' argument ignores the distinction in maturity that controls when a fourteen- to seventeen-year-old is able to accept the tasks and responsibilities of employment versus the young child who requires oversight and direction in the everyday affairs of life.
At oral argument, the parties stated that they were unaware of a definition for " tender years" in this context. A survey of Connecticut cases and statutes suggest that 'tender years' means ages thirteen and younger. See e.g., Doe v. Saint Francis Hospital & Medical Center, supra, 309 Conn. 151 (eight year old considered child of tender years); Knybel v. Cramer, 129 Conn. 439, 440, 29 A.2d 576 (1942) (eleven year old considered child of tender years); Lutteman v. Martin, 20 Conn.Supp. 371, 372, 135 A.2d 600 (1957) (nine year old considered child of tender years); Doe v. Daniels, Superior Court, judicial district of Hartford, Docket No. CV 12-5036226- S (July 23, 2014 Huddleston, J.) (598 Conn.L.Rptr. 662, ) (between nine and eleven year old child considered child of tender years). Moreover, § 8-10 of the Connecticut Code of Evidence provides that the tender years hearsay exception is for those thirteen years old and younger, and General Statutes § 54-86l provides that tender years are those children twelve years old and younger. However, the case of Bacote v. New Haven, Superior Court, judicial district of New Haven, Docket No CV 06-5005855-S, (April 16, 2010, Wilson, J.), in which the court considered tender years to include fourteen and fifteen years old, is dissimilar in that it involved " circumstances under which she was injured, that is, doing what fifteen year olds do when they are out on a playground for recess, namely they play, this court cannot find unreasonable."
The Connecticut statutes do prohibit minors from such jobs that are defined as hazardous, C.G.S. § 31-24. There are no allegations contained in the complaint for this action that would apply to these statutory restrictions.
See e.g., Burns v. Board of Education of the City of Stamford, 228 Conn. 640, 649, 638 A.2d 1 (1994), overruled on other grounds by Haynes v. Middletown, 314 Conn. 303, 101 A.3d 249 (2014) (school superintendent found to have duty to protect students statutorily in custody); Doe v. Talabi, Superior Court, judicial district of/Hartford, Docket No. CV 07-5009974-S (August 7, 2009, Sheldon, J.) (48 Conn.L.Rptr. 382, 385, ), representative of company providing transportation monitoring services for local high school assumed parental proxy role when transporting students to and from school); Greene v. Cheshire Academy, Superior Court, judicial district of New Haven, Docket No CV -02-0279414-S (October 1, 2004, Tanzer, J.) (39 Conn.L.Rptr. 52, 53, ) (special relationship existed between private school in exercising custody over the students and plaintiff).
See C.G.S. § 31-12 and 31-13 (hours of labor), 31-14 and 31-16 (night work of minors in messenger service), 31-18 (hours of labor in certain establishments), 31-23, (employment of minors prohibited in certain occupations), 31-24 (employment in hazardous condition), and 31-25 (Prohibition of operation of elevators).
" [Schoolchildren] [are] legally required to attend school rather than being there voluntarily; their parents [are] thus statutorily required to relinquish their custody to those officials during those hours . . ." (Internal quotation marks omitted.) Strycharz v. Cady, 323 conn. 548, 576, 323 Conn. 548, 148 A.3d 1011 (2016); see also General Statutes § 10-184 (" each parent or other person having control of a child five years of age and over and under eighteen years of age shall cause such child to attend a public school regularly during the hours and terms the public school in the district in which such child reside is in session, unless such child is a high school graduate or the parent or person having control of such child is able to show that the child is elsewhere receiving equivalent instruction in the studies taught in the public schools" [emphasis added]).
This is indeed a strong argument that differentiates this claim from a situation where the minor is a mandated student and cannot simply walk out or a minor who was placed in a study such as in the Doe v. St. Francis Hospital action or a child in an overnight camp with adult counselors who are taking the place of the parents.
" General Statutes § 31-23(a) provides: " No minor under sixteen years of age shall be employed or permitted to work in any manufacturing, mechanical, mercantile or theatrical industry, restaurant or public dining room, or in any bowling alley, shoe-shining establishment or barber shop, provided the Labor Commissioner may authorize such employment of any minor between the ages of fourteen and sixteen who is enrolled in (1) a public school in a work-study program as defined and approved by the Commissioner of Education and the Labor Commissioner or in a program established pursuant to section 10-20a, or (2) a summer work-recreation program sponsored by a town, city or borough or by a human resources development agency which has been approved by the Labor Commissioner, or both, and provided the prohibitions of this section shall not apply to any minor over the age of fourteen who is under vocational probation pursuant to an order of the Superior Court as provided in section 46b-140 or to any minor over the age of fourteen who has been placed on vocational parole by the Commissioner of Children and Families." Section 31-23(b) further provides in relevant part: " (1) Notwithstanding, the provisions of subsection (a) of this section, a minor who has reached the age of fourteen may be employed or permitted to work as a caddie or in a pro shop at any municipal or private golf course, and a minor who has reached the age of fifteen may be employed or permitted to work in any mercantile establishment, as a bagger, cashier or stock clerk, provided such employment is (A) limited to periods of school vacation during which school is not in session for five consecutive days or more except that such minor employed in a retail food store may work on any Saturday during the year; (B) for not more than forty hours in any week; (C) for not more than eight hours in any day; and (D) between the hours of seven o'clock in the morning and seven o'clock in the evening, except that from July first to the first Monday in September in any year, any such minor may be employed until nine o'clock in the evening. (2)(A) Each person who employs a fourteen year-old minor as a caddie or in a pro shop at any municipal or private golf course pursuant to this section shall obtain a certificate stating that such minor is fourteen years of age or older, as provided in section 10-193 . . ."
IV. CONCLUSION
Based upon the above, the court grants the motion to strike counts four and six alleging a breach of a special duty to children in an employer-employee relationship.