Opinion
WWMCV146008377S
03-17-2016
Lillian Ledger v. Robert Plunkett dba McDonald's
UNPUBLISHED OPINION
MEMORANDUM (MOTION TO STRIKE, #129, SHORT CALENDAR, JANUARY 11, 2016)
Harry E. Calmar, J.
The plaintiff argues that the court should strike paragraphs (a) and (b) of the first special defense of the defendants' amended answer and special defense on the ground the paragraphs are legally insufficient because they only allege legal conclusions, unsupported by any facts. Second the plaintiff asserts the court should strike the second special defense of the defendants' amended answer and special defense entirely on the ground that it is barred by the parental immunity doctrine.
On January 5, 2016, the minor plaintiff, Lillian Ledger (minor plaintiff), through her mother, next best friend and legal guardian, Amy Ledger (plaintiff, and collectively with the minor plaintiff, the plaintiffs), and the plaintiff individually, filed a first amended complaint (amended complaint) against the defendants, Robert Plunkett d/b/a McDonald's (Robert), Janet Plunkett d/b/a McDonald's (Janet), and Robans Enterprises, LLC d/b/a McDonald's (Robans, and collectively with Robert and Janet, the defendants), alleging the following facts. On April 17, 2012, the minor plaintiff was lawfully at a McDonald's, a restaurant located at 796 Norwich Road in Plainfield, Connecticut (McDonald's), owned and/or controlled by one or more of the defendants, with the plaintiff, her siblings, and a friend. The minor plaintiff attempted to exit the women's restroom at the McDonald's whereupon the door suddenly and forcefully shut on her left middle finger causing her to suffer a severe crush injury to her left middle finger, which was caused by one or more of the defendants, their agents, employees, and/or servants, negligence and carelessness. Moreover, the plaintiff incurred monetary expenses for the minor plaintiff's treatment and care, and both parties seek monetary damages.
The parties agreed the plaintiffs could withdraw the action against the defendant, McDonald's USA LLC, on January 6, 2015.
The defendants filed an amended answer and special defense on September 18, 2015, which: (1) denies that Janet or Robert owned or controlled the McDonald's; (2) admits that Robans owned and operated the McDonald's; and (3) denies or leaves the plaintiffs to their proof on the remaining allegations. The first amended special defense (first special defense) alleges the minor plaintiff was contributorily negligent in one or more of the following ways: " a. She failed to exercise that degree of care as may be reasonably expected of children of similar age, judgment and experience; b. She failed to use that degree of care that may reasonably be expected of children of similar age, judgment and experience for her own safety under the circumstances and conditions present; c. She was inattentive and/or failed to make proper and reasonable use of her faculties as would reasonably be expected of children of similar age, judgment and experience; and d. She failed to be watchful and careful of her surroundings." See Am. Answer & Special Defense, pp. 2-3. The second special defense (second special defense) alleges the plaintiff was contributorily negligent for failing to properly supervise the minor plaintiff and for failing to accompany her to the restroom.
The plaintiffs filed a motion to strike the special defenses and a supporting memorandum of law on October 14, 2015, on the grounds that paragraphs (a) and (b) of the first special defense are legally insufficient because they allege legal conclusions, unsupported by any facts, and the second special defense is legally insufficient on the ground that it is barred by the parental immunity doctrine. In response, the defendants filed an objection to the motion to strike on January 7, 2016. The objection does not address the plaintiffs' motion to strike paragraphs (a) and (b) of the first special defense, but counters that the parental immunity doctrine does not bar the defendants from asserting the second special defense, and the motion to strike should be denied. This matter was heard at short calendar on January 11, 2016.
DISCUSSION
" A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . or any part of that answer including any special defense contained therein." Practice Book § 10-39. " Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). " [T]he trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint [or special defense] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
" [A]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph [or paragraphs] in a count . . . However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph [or paragraphs] attempts to state a cause of action . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph [or paragraphs] embodies an entire cause of action or defense." (Internal quotation marks omitted.) Weingarden v. Milford Anesthesia Associates, P.C., Superior Court, judicial district of New Haven, Docket No. CV-11-6016353-S, (May 30, 2013, Wilson, J.) .
In Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011), the court cited favorably Cook v. Stender, Superior Court, judicial district of Middlesex, Docket No. CV-04-0104110-S (December 22, 2004, Silbert, J.) (38 Conn. L. Rptr. 439, 440, *3), and quoted parenthetically: " Prior case law 'ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint . . . the proper course for the court is to strike those allegations only . . .'" Coe v. Board of Education, supra, 121 n.5. Similarly, the court quoted parenthetically the following language from Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) (17 Conn. L. Rptr. 296, 298, *2, n.1): " 'Under prior case law and earlier versions of the Practice Book, it was generally improper to [move to strike] a paragraph of a complaint unless the paragraph purported to state a separate cause of action . . . Since 1978, however, the Practice Book has not contained such a constraint.'" (Citations omitted.) Coe v. Board of Education, supra, 121 n.5.
A. First Special Defense
The plaintiffs argue that paragraphs (a) and (b) of the defendants' first special defense allege legal conclusions of the minor plaintiff's contributory negligence and fail to set forth plain and concise statements in accordance with Practice Book § § 10-1 and 10-50. The defendants did not object to the motion to strike these paragraphs of the first special defense. See Objection to Motion to Strike, p. 1. The court will consider whether it is appropriate to strike only part of a count and consider the motion to strike paragraphs (a) and (b) of the first special defense, even though they do not embody separate causes of action.
In MacLean v. Perry, Superior Court, judicial district of New London, Docket No. CV-11-6009597-S (February 16, 2012, Martin, J.) (53 Conn. L. Rptr. 497, 498, *1), the court denied a motion to strike a paragraph of a negligence special defense because it did not state an entire cause of action. In
As to the merits of the plaintiffs' argument concerning the first special defense, paragraph (a) alleges the minor plaintiff " failed to exercise that degree of care as may be reasonably expected of children of similar age, judgment and experience, " and paragraph (b) alleges the minor plaintiff " failed to use that degree of care that may reasonably be expected of children of similar age, judgment and experience for her own safety under the circumstances and conditions present." " Contributory negligence in the case of children is a question of fact to be determined by the jury, taking into consideration all the circumstances and the age, experience and judgment of the child." DiLeo v. Dolinsky, 129 Conn. 203, 205, 27 A.2d 126 (1942). Where contributory negligence is plead as a special defense, Practice Book § 10-53 provides in relevant part " the defendant shall specify the negligent acts or omissions on which the defendant relies." These paragraphs, as alleged, include no specific facts of acts or omissions as to the minor plaintiff's age, experience and judgment and do not explain how the minor plaintiff was negligent. Legal conclusions expressed in the pleadings are not deemed to be admitted when the legal sufficiency of the pleading is attacked. See Mingachos v. CBS, Inc., 196 Conn. 91, 108-09, 491 A.2d 368 (1985). Therefore, where a special defense is conclusory, it is legally insufficient. See Warner v. Liimatainen, 153 Conn. 163, 165, 215 A.2d 406 (1965). Here, the defendants only allege the standard of care which is a mere legal conclusion. Thus, the paragraphs are legally insufficient because they are merely legal conclusions and they do not conform with the fact pleading rules in § § 10-1, 10-50, and 10-53. See Arroyo v. Risk Retention Management, Superior Court, judicial district of Hartford, Docket No. CV-96-0563010-S, (July 3, 1997, Hale, J.T.R.) (granting motion to strike special defense sounding in contributory negligence as legally insufficient because allegation was conclusory and failed to allege acts or omissions relied upon to support each necessary element of negligence). Accordingly, the court grants the plaintiffs' motion to strike paragraphs (a) and (b) of the defendants' first special defense.
Practice Book § 10-53 provides: " If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant and the defendant shall specify the negligent acts or omissions on which the defendant relies." ---------
B. Second Special Defense
The plaintiffs move to strike the second special defense as legally insufficient on the ground that it is barred by the parental immunity doctrine as established in Crotta v. Home Depot, Inc., 249 Conn. 634, 732 A.2d 767 (1999). The defendants object on the ground that it is legally sufficient because the courts have allowed this special defense in Escourse v. 100 Taylor Avenue, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-11-6020040-S (September 10, 2012, Radcliffe, J.) (54 Conn. L. Rptr. 651), aff'd, 150 Conn.App. 819, 92 A.3d 1025 (2014) and Sedgwick v. Halfpenny, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-99-065513-S (August 15, 2000, Shay, J.) (28 Conn. L. Rptr. 42). Specifically, the defendants argue that the court should deny the plaintiffs' motion to strike the second special defense because (1) the minor plaintiff and the plaintiff are separate parties, (2) the second special defense only seeks to limit the plaintiffs ability to collect medical expenses she incurred as a result of the minor plaintiff's injuries, and (3) the second special defense does not seek to limit the minor plaintiff's recovery of damages.
The parental immunity doctrine was first adopted in Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753 (1929), and " it remains the general rule in this state that unemancipated minor children and their parents may not sue one another for personal injuries." Ascuitto v. Farricielli, 244 Conn. 692, 697, 711 A.2d 708 (1998). " The primary rationale . . . is the preservation of family harmony and the protection of the parent-child relationship." Id. " Because it is a common-law rule, the doctrine of parental immunity is subject to both legislative and judicial modification." Id., 698. " Connecticut law recognizes . . . exceptions to the parental immunity doctrine. First, an unemancipated minor can sue the employer of a parent whose negligence in the course of employment injured the child, thereby putting the parent at risk of an indemnity suit . . . Second, a minor can sue a parent if the child was emancipated prior to the tortious conduct . . . Third, an unemancipated minor can sue a parent for injuries received through the negligent conduct of a business enterprise conducted away from the home . . . Fourth, an unemancipated minor can sue a parent for injuries resulting from the negligent operation of a motor vehicle, aircraft or waterborne vessel." (Citations omitted.) Squeglia v. Squeglia, 34 Conn.App. 866, 869, 644 A.2d 378 (1994), aff'd, 234 Conn. 259, 661 A.2d 1007 (1995). Fifth, a minor can sue a parent for " personal injuries arising out of sexual abuse, sexual assault or sexual exploitation." (Internal quotation marks omitted.) Henderson v. Woolley, 230 Conn. 472, 486, 644 A.2d 1303 (1994).
" Prior to the Supreme Court's decision in Crotta v. Home Depot, Inc., [ supra, 249 Conn. 634] there existed [a] split of authority in the Superior Court . . . One line of cases [held] that the negligence of a parent is not imputable to a minor, and therefore, is not a legal barrier to the [minor's] action . . . The other line of cases [held] that the negligence of the parents may be considered for purposes of apportioning liability." (Internal quotation marks omitted.) Rumm v. Shack Restaurant, Superior Court, judicial district of New London, Docket No. CV-10-6005077-S (March 25, 2011, Cosgrove, J.) (51 Conn. L. Rptr. 608, 609).
In Crotta v. Home Depot, Inc., supra, 249 Conn. 635, the Supreme Court addressed whether a parent may be joined as a third-party defendant for purposes of indemnification, apportionment, or contribution on the basis of the parent's alleged negligent supervision of the minor child. In Crotta, the minor plaintiff, through his mother, commenced a two count action against the defendants for a fall he sustained from a shopping cart in a Home Depot store. Id., 636. The defendants attempted to implead the minor's parent into the action in order to apportion negligence on a claim that the parent negligently supervised the minor and was responsible for the accident. Id., 636-37. The Supreme Court held that the parental immunity doctrine " operates to preclude the parent of a minor plaintiff from being joined as a third party defendant for purposes of apportionment of liability, contribution or indemnification based on the parent's allegedly negligent supervision of the minor plaintiff." Id., 644-45. The Supreme Court reasoned that " [a]llowing a cause of action for negligent supervision would enable others, ignorant of a case's peculiar familial distinctions and bereft of any standards, to second-guess a parent's management of family affairs . . . Courts should not unnecessarily involve themselves in the day-to-day exercise of parental discretion regarding the upbringing and care of children. To do so would undermine parental authority in the very personal endeavor of child rearing and inject the machinery of the state into an area where its presence might be the occasion for family discord." (Citation omitted; internal quotation marks omitted.) Id., 643-44. The Supreme Court also reasoned that permitting such a recovery against a parent would economically diminish the minor's recovery because the reality of the family is that the minor and the parent are one " economic unit." Id., 644.
The Crotta court was silent, however, on whether a contributory negligence special defense can be raised against a parent, and the plaintiffs conceded this point at short calendar. " [N]o appellate case has considered whether a negligent supervision claim can be brought as a special defense . . ." Cohen v. Waller Bro. Express, Superior Court, judicial district of Hartford, Docket No. CV-11-6024030-S, (January 4, 2012, Woods, J.). Presently, there is a split in the Superior Court on whether a contributory negligence special defense is permissible against parents. The majority of post- Crotta Superior Court decisions have stricken contributory negligence special defenses against parents on the ground that the special defense " would . . . place at issue the nature and adequacy of the plaintiff's exercise of parental discretion" on matters that are protected by the parental immunity doctrine. (Internal quotation marks omitted.) Austin v. Rozmyslowicz, Superior Court, judicial district of New Britain, Docket No. CV-12-6016864-S (April 3, 2014, Abrams, J.) (57 Conn. L. Rptr. 854, 856, *9); see Cohen v. Waller Bro. Express, supra (granting motion to strike parental contributory negligence special defense because reasoning of majority of superior court cases is persuasive and to allow this special defense would unnecessarily inject " the machinery of the state into the day-to-day exercise of parental discretion" [internal quotation marks omitted]); Beverly v. Tarragon Management, Inc., Superior Court, judicial district of Fairfield, Docket No. CV-10-6006773-S (September 24, 2010, Dooley, J.) (50 Conn. L. Rptr. 650, 651-52, *4) (granting motion to strike parental contributory negligence special defense because reasoning of majority of superior court cases is sound and " to allow this special defense of negligence would be to place at issue the nature and adequacy of the [parent's] exercise of parental discretion"). If allowed, this recovery against a parent would diminish the minor's recovery because the family is a single " economic unit, " a unit that is protected by the parental immunity doctrine. See Austin v. Rozmyslowicz, supra, 57 Conn. L. Rptr. 854, at *16; see also Vargas v. Specialized Education Services, Inc., Superior Court, judicial district of Hartford, Docket No. CV-12-6028454-S (November 5, 2015, Wiese, J.) (61 Conn. L. Rptr. 234, 235-36, *12) (granting motion to strike parental contributory negligence special defense because parental immunity doctrine precludes allegations of parent's contributory negligence in action brought on behalf of minor, even if claims made in individual capacity of medical expenses); Ray v. Wal-Mart, judicial district of New Haven, Docket No. CV-08-5016956-S (April 9, 2009, Holden, J.) (47 Conn. L. Rptr. 499, 500, *5) (granting motion to strike parental contributory negligence special defense on claim seeking to recover medical expenses because special defense " would create an unnecessary anomaly in the law").
A minority of post- Crotta Superior Court decisions have permitted this special defense. In these cases, however, the court was presented with multiple count complaints, whereby one count was brought exclusively by the parent for reimbursement of the minor plaintiff's expenses. In Escourse v. 100 Taylor Avenue, LLC, supra, 54 Conn. L. Rptr. 651, Id. at*9, the court denied a motion to strike a contributory negligence special defense against a parent on the ground that the parent brought an " independent" claim against the defendant for the minor plaintiff's medical expenses, which was " not derivative" of the minor plaintiff's claim. In Escourse, the court found that the parental immunity doctrine did not bar the special defense because any recovery against the parent on the parent's claim would not diminish any recovery by the minor plaintiff on the minor plaintiff's claim. Id. In Sedgwick v. Halfpenny, supra, 28 Conn. L. Rptr. 43, Id. at*6, the court denied a motion to strike a contributory negligence special defense against a parent on the ground that the parent presented an " independent claim . . . which could result in a benefit to them." The court reasoned that " [l]ogic and equity dictate that [the parent] should not be able to loose their arrows at the defendants and then to hide behind the shield of legal theory clearly intended for another purpose." Id.
The present case is analogous to Austin v. Rozmyslowicz, supra, 57 Conn. L. Rptr. 854, at *1. In Austin, the minor plaintiff and the parent brought a two count negligence complaint against the defendants for the minor plaintiff's eyelid injury, which occurred on a defective chain link fence. Id. Like the present case, in Austin, the plaintiffs alleged a single cause of action against each defendant, and the parents individually claimed costs and expenses within that cause of action. Id. Similar to the present action, the defendant raised a contributory negligence special defense against the plaintiff for negligent supervision of the minor child and relied on Escourse and Sedgwick, Id., 856. The Austin court held that " [t]he reasoning of the cases disallowing the assertion of, parental negligence as a special defense, regardless of the absence or presence of a claim on behalf of the parent, is persuasive and consistent with the reasoning in Crotta ." Id., 857. The Austin court relied on the decision of Hart v. Torello, Superior Court, judicial district of New Haven, Docket No. CV-99-0421294-S (September 24, 1999, Devlin, J.) (25 Conn. L. Rptr. 506, 507, *5), which held that a special defense against the parents' claim for reimbursement of medical expenses is barred by the parental immunity doctrine. Id.; accord Browning v. Thomaston Comfort, Inc., Superior Court, judicial district of Litchfield, Docket No. CV-14-6010446-S (April 13, 2015, Marano, J.) (60 Conn. L. Rptr. 184, 185-86, *8) (granting motion to strike parental contributory negligence special defense because " [t]he reasoning of the cases barring parental negligence as a special defense regardless of whether the parent is bringing an action on his or her own behalf are persuasive and consistent with the ruling in Crotta "). The Hart court held that " whether the claim of parental negligence is raised by apportionment, contribution, indemnification or . . . special defense the effect is the same--it diminishes the child's recovery [and] [c]urrent law does not permit such diminution." (Emphasis added; internal quotation marks omitted.) Austin v. Rozmyslowicz, supra, 857; see Hart v. Torello, supra .
In the present case, the defendants do not assert any of the five recognized exceptions to the parental immunity doctrine for raising their second special defense. The defendants, rather plead contributory negligence against the plaintiff for negligent supervision of the minor plaintiff, and the defendants ask the court to adopt the minority position held in Escourse and Sedgwick . This court subscribes to the reasoning in the majority of post- Crotta Superior Court decisions and applies the rationale in Crotta to the present case. This court has determined that it is not appropriate for it to be involved in questioning the nature and adequacy of parental discretion through a special defense for negligent supervision. See Vargas v. Specialized Education Services, Inc., supra, 61 Conn. L. Rptr. 234-36; Austin v. Rozmyslowicz, supra, 57 Conn. L. Rptr. 857, at *8; Cohen v. Waller Bro. Express, supra, Superior Court, Docket No. CV-11-6024030-S; Beverly v. Tarragon Management, Inc., supra, 50 Conn. L. Rptr. 650-52. As stated in Crotta, supra, 249 Conn. 644, " [i]t is artificial to separate the parent and child as economic entities . . . The reality of the family is that, except in cases of great wealth, it is a single economic unit and recovery by a third party against the parent ultimately diminishes the value of the child's recovery." (Internal quotation marks omitted.) Therefore the court grants the plaintiffs' motion to strike the defendants' second special defense because it is barred by the parental immunity doctrine.
CONCLUSION
For the foregoing reasons, the court grants the plaintiffs' motion to strike paragraphs (a) and (b) of the defendants' first special defense and the entirety of the defendants' second special defense.
Bates v. De Asis, Superior Court, judicial district of Windham, Docket No. CV-15-6009554-S, (February 11, 2016, Calmar, J.), however, this court stated: " As a threshold matter, this court generally sides with the majority of Superior Court decisions in that, 'it is rarely appropriate to strike only part of a count.' Rose v. Cuadro, Superior Court, judicial district of New London, Docket No. CV-11-6011627-S, (October 21, 2013, Cole-Chu, J.); see Sheehy v. Big Y Foods, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X06-CV-12-6014260-S (October 31, 2012, Agati, J.) (54 Conn. L. Rptr. 887, 888, *5) ('[A]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . .') However, the circumstances of the instant matter allow the motion to strike to be considered." In the present case, the circumstances allow the court to overlook the procedural issues and consider the plaintiffs' motion to strike paragraphs (a) and (b) of the first special defense, even though they do not embody separate causes of action, because the defendants conceded at short calendar that they did not object to the plaintiffs' motion to strike paragraphs (a) and (b) of the first special defense. Moreover, the defendants stated during short calendar that if the court is inclined to strike paragraphs (a) and (b) of the first special defense, the defendants will re-plead the same.