Opinion
No. NNI-CV-05-4004211-S
January 29, 2007
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE SPECIAL DEFENSE
This memorandum of decision addresses the plaintiff's Motion to Strike the Special Defense (#113) and the defendant's Objection to the Motion to Strike (#115). For the following reasons, the court finds the issues in favor of the plaintiff, and herein grants the motion to strike the special defense and overrules the objection thereto.
I. PROCEDURAL HISTORY
The pending action arises out of the death of Jeffery Littlejohn, the son of Theresa Littlejohn. On September 15, 2005, Theresa Littlejohn (the plaintiff-mother), as Administratrix of the estate of Jeffery Littlejohn (the child), filed an amended complaint against the defendant, Toni Ann Barillaro (the defendant). Sounding in negligence, the amended complaint alleges that on July 7, 2004, the plaintiff-mother was the mother and guardian of the child; that on that date the child drowned in an in-ground pool located on the defendant's property; that the defendant was negligent in that she failed to properly enclose the pool, failed to properly monitor the pool area, failed to maintain any warning devices around the pool area, and lacked the proper permits for the pool and surrounding patio and fence; and that as the result of the defendant's negligence, the child suffered various injuries and damages and then lost his life by drowning.
Under date of July 6, 2006, the defendant filed an answer and special defense (#111). Through the answer, she denied the operative allegations of the complaint or otherwise left the plaintiff-mother to her proof. Through the itemized special defense, she specifically alleges the various ways in which the child's mother was negligent, thereby causing "[t]he decedent's injuries and losses," asserting that she failed to supervise, observe, or watch the child; she allowed the child to leave her yard and enter the defendant's property; she knew or should have known that there was a swimming pool in the defendant's backyard and, that despite this, she allowed the child to enter the defendant's property without supervision (#111). Generally read, the special defense effectively asserts that the administratrix cannot recover in this action because her own negligence, as a parent, caused or contributed to the death of the child (#111).
Under date of July 17, 2006, the plaintiff-mother filed a motion to strike the special defense raising two claims (#113). First she represents that, "[a]s a matter of law, the negligence of a parent is not attributable to the minor child decedent" whose estate has brought the pending cause of action. Second, she represents that the special defense sounding in parental negligence is legally insufficient and inapposite in this case because the operation of the doctrine of parental immunity, or "parent/child immunity, which is recognized at common law makes the allegation of parent negligence alleged by the Defendants legally invalid" (#113). The plaintiff-mother also filed a written memorandum in support of her motion to strike the special defense (#114).
In her Memorandum in Support of the Motion to Strike, the plaintiff-mother argues that "[t]he Doctrine of Parental Immunity clearly prohibits the recovery for the alleged tortious conduct of a parent that causes personal injury to his child which is the very case presented here" (#114). The court declines to adopt the plaintiff-mother's broad, proposed construction of the special defense, and relies, instead, upon the cases and legal principles cited herein for resolution of the pending controversy.
Under date of August 23, 2006, the defendant filed an objection to the motion to strike on the grounds that Connecticut law has not extended the doctrine of parental immunity to bar a special defense alleging negligent parental supervision, and that the reasoning behind the parental immunity doctrine does not apply to the present case (#115). Specifically, the defendant argues that "the purpose of the parental immunity doctrine is to prevent a child from raising a cause of action against his or her parents. The purpose is not to immunize a parent from his or her own contributory negligence when raising a cause of action on behalf of his or her child" (#115). After due deliberation of the issues, including the subjects of the oral arguments presented by counsel at short calendar on November 13, 2006, the court declines to accept the defendant's construction of the parental immunity doctrine.
The pleadings in this case have been the subject of previous attention from the court. On February 2, 2006, the named defendant filed a statutory apportionment complaint sounding in negligence against Johnny Harris. Harris is alleged to have been the plaintiff-mother administratrix's boyfriend and/or fiancé at the time of the drowning at issue; it is further alleged that Harris's negligence caused or contributed to the child's death. On February 22, 2006, the plaintiff-mother moved to strike this apportionment complaint. The court issued a Memorandum of Decision on June 2, 2006, denying that motion to strike. Littlejohn v. Barillaro, Superior Court, judicial district of New Haven at Meriden, Docket No. CV05 4004211-S (Jun. 2, 2006, M. Taylor J.) [ 41 Conn. L. Rptr. 453].
II. ROLE OF THE SPECIAL DEFENSE
In addressing the parties' pending issues, the court has employed the method of legal factual analysis and applicable legal condoned for use when resolving like controversies. "A special defense generally permits a defendant to prove that, notwithstanding any negligence on their part, he or she should not be held liable as a matter of law." Lamothe v. Midstate Medical Center et al., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4002893 (October 4, 2006, M. Taylor J.) [ 42 Conn. L. Rptr. 139]. "A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff-mother has no cause of action . . . In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Citations omitted; internal quotation marks omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a . . . motion to strike, 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 and external citation omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). "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-mother has no cause of action . . . The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." (Emphasis added.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).
III. PRINCIPLES OF PARENTAL IMMUNITY AND THE SPECIAL DEFENSE
In opposing the special defense at issue, the plaintiff-mother's argument is derived from the legal thesis known as the doctrine of parental immunity, which establishes that a child cannot, under most circumstances, bring suit against a parent to recover damages for injuries caused by that parent's negligence. "This doctrine bars an unemancipated child from suing his or her parents for personal injuries. Ascuitto v. Farricielli, 244 Conn. 692, 697, 711 A.2d 708 (1998); Squeglia v. Squeglia, 234 Conn. 259, 264-65, 661 A.2d 1007 (1995); Dubay v. Irish, 207 Conn. 518, 523, 542 A.2d 711 (1988). `Under this doctrine a parent is not liable civilly to his child for personal injury inflicted during [the child's] minority . . . Mesite v. Kirchenstein, 109 Conn. 77, 82-83, 145 A. 753 (1929).' (Internal quotation marks omitted.) Dubay v. Irish, supra, 523." Crotta v. Home Depot, Inc., 249 Conn. 634, 638, 732 A.2d 767 (1999). In other words, the doctrine of parental immunity prohibits claims from being brought against a parent even where the parent's negligent supervision is alleged to have caused or contributed to the child's injuries. Id., 640-41 n. 8. In the case at bar, then, the doctrine of parental immunity precludes the child's estate from bringing a claim against his mother in an effort to recover damages from her, personally, based on allegations that her negligence in failing to provide appropriate supervision proximately caused his injuries and death. Id.
Here, however, by asserting the special defense of the mother's contributory negligence, the defendant effectively urges the court to disable or even reject the doctrine of parental immunity. As plead, the special defense would present the trier of fact with the opportunity to find that if the mother was in any way negligent in providing supervision for her child, she would be barred, as a matter of law, from recovering damages in her capacity as administratrix, acting on behalf of the child's estate. Claiming public policy as the basis for her argument, the defendant submits that a negligent parent, even as administratrix, should not be permitted to benefit from a lawsuit brought to recover damages for injuries to or the death of her child.
In considering the parties' pending claims, the court has remained mindful that "the doctrine of parental immunity operates to preclude the parent of a minor plaintiff-mother 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-mother." Crotta v. Home Depot, Inc., supra, 249 Conn. 644. However, our appellate courts have "yet to rule on a case involving the application of parental immunity to special defenses . . ." Lyons v. Morrocco, Superior Court, judicial district of New Britain, Docket No. CV 02 0515601 (February 2, 2004, Cohn, J.) [ 36 Conn. L. Rptr. 616]. The present case does not arise from the traditional parental immunity situation where a child is suing a parent, nor does it involve an attempt to secure monetary contribution or indemnification from the parent based on the parent's negligent supervision of the child. The special defense, as presented, does not merely call into question the extent to which the defendant may reduce the amount of economic damages for which she is liable by proving the degree of harm caused by the plaintiff-mother's negligent supervision of the child. Instead, the special defense contends that the defendant is not liable, as a matter of law, because the parent's negligent supervision of her child in this case erects a legal shield that is competent to absolutely defeat the allegations of the complaint.
Despite the vigor of the defendant's argument, the court finds that the very reasoning upon which the parental immunity doctrine is founded militates against permitting the notion of parental negligence to be used as an independent special defense in the present case. The primary functional goal of the parental immunity doctrine is "the preservation of family harmony and the protection of the parent-child relationship." Asciutto v. Farricielli, supra, 244 Conn. 697. Moreover, "[t]he purpose of the doctrine [of parental immunity] is to preserve the integrity and unity of the family and to avoid unnecessarily injecting `the machinery of the state' into the day-to-day exercise of parental discretion . . ." (Citations omitted; emphasis added.) Squeglia v. Squeglia, 234 Conn. 259, 265, 661 A.2d 1007 (1995).
At first blush, the principles of parental immunity may not appear to be directly implicated in the present case because no direct claim has been brought against the child's mother individually, either by the defendant nor on behalf of her deceased son. However atypical the plaintiff-mother's proposed application of the parental immunity doctrine may be, its use to strike the special defense is supported by the holdings enunciated in both Crotta v. Home Depot, Inc., supra, 249 Conn. 634, and Asciutto v. Farricielli, supra, 244 Conn. 692, seminal parental immunity cases. Both cases recognize the premise that to permit suits to be brought by a child against a parent under most circumstances would distort and devalue the orderly familial relationships that govern the peace of our society. Thus, even "[t]hird-party actions against a parent based on that parent's negligent supervision of his (or her) child would be no less disruptive of parental management of family affairs than would be a direct negligence action by the child against the parent . . . Permitting such actions would undermine parental authority." (Internal quotation marks omitted.) Crotta v. Home Depot, Inc., supra, 249 Conn. 644. See also Ascuitto v. Faricielli, supra, 255 Conn. 697-98 (similarly prohibiting suit to be brought against a non-custodial father on behalf of a child who was injured due to the father's negligent supervision). Using this authority, the court concludes that although Jeffrey Littlejohn no longer lives, his family remains, through the pending wrongful death action brought on his behalf, a entity entitled to the harmony, integrity and protection against self-directed litigation to which his parents would be entitled had the child survived the incident of July 7, 2004. That status includes freedom from unseasonable limitation upon any recovery to which the child's estate may be entitled if the plaintiff-mother-mother-administratrix fulfills her burden of presenting sufficient proof that the defendant was "legally at fault" for the death of her child, as contemplated by General Statutes § 52-555, enabling wrongful death actions.
Section 52-555(a) provided that "In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses . . ."
Applied to the facts of this case, then, the doctrine of parental immunity doctrine serves to prevent the special defense of parental negligence from being used to absolve the defendant of liability, or from abrogating the opportunity for a deceased child's legal representative, to prove that the tortfeasor caused the personal injuries and death alleged in the complaint. Whether the claim of parental negligence is raised by special defense, by apportionment, or even by counterclaim, "the effect is the same — it diminishes the child's recovery. Current law does not permit such diminution." Hart v. Torello, Superior Court, judicial district of New Haven, Docket No. CV 99 0421294, (September 24, 1999, Devlin, J.) ( 25 Conn. L. Rptr. 506, 507); see also Bartlett v. First Union Corp., Superior Court Judicial district of New Haven at Meriden, Docket No. CV00 02721085 (October 11, 2000, Robinson, J.); Tobin v. Connecticut Housing Finance Authority, Superior Court, judicial district of New Haven, Docket No. CV 333231 (June 17, 1997, Lager, J.). Thus, the proposed special defense is functionally and legally inapposite when used to bar the action as presented through the plaintiff-mother's complaint on behalf of the child. See Lyons v. Morrocco, supra.
As cogently reasoned by Judge Taylor when resolving a similar issue, "[i]f, under Almada [v. Wausau Business Ins. Co., supra], the fundamental purpose of a special defense is to apprise the parties of the issues to be presented at trial, [the contested] special defense does not necessarily meet this goal, because a denial would sufficiently and more appropriately apprise the parties of a factual issue for trial." Lamothe v. Midstate Medical Center et al., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4002893 (October 4, 2006, M. Taylor, J.) [ 42 Conn. L. Rptr. 139], citing Almada v. Wasau Business Ins. Co., supra, 274 Conn. 456. In reaching this conclusion, the court acknowledges that "[b]eyond the issue of fair notice of the claims for trial, pleading a special defense is also important to the admissibility of relevant evidence at trial. In Coughlin v. Anderson, 270 Conn. 487, 853 A.2d 460 (2004), the Supreme Court `recognized the difficulties that inhere in distinguishing between evidence that may be presented following a general denial and evidence that, because it is consistent with the allegations of a complaint but nevertheless tends to extinguish a cause of action, must have been specially pleaded as a defense in order to be admissible.' Coughlin v. Anderson, supra, 270 Conn. 502." Lamothe v. Midstate Medical Center et al., supra. As in the Lamothe case, the question of admissibility of evidence related to the participation any person may have played in the events leading to the injuries and death of the child should not be a contested issue at issue; such participation is part and parcel of the opposition the defendant would bring forth in response to the plaintiff-mother's evidence attempting to establish the pool owner's negligence, as alleged in the complaint. Id. The specifications of negligence set forth in the complaint, along with a general denial of those specifications, would be clearly sufficient to introduce "a broad panorama of evidence" related to the degree, if any, to which the defendant played a role in causing the child's death. Lamothe v. Midstate Medical Center et al., supra.
To paraphrase Lamothe v. Midstate Medical Center, Inc., supra, the court notes that by striking Barillaro's special defense, the court in no way prejudices her ability to present evidence that her conduct was neither negligent nor causally related to the death of Jeffrey Littlejohn. All relevant and probative evidence on the question of the defendant's acts or omissions should be admissible, as should evidence on the question of the role others may have played in causing the events giving rise to this litigation. Highlighting the issue of the mother's negligence in a special defense may be a trial tactic of some value to the defendant, but it is inconsistent with the evolving law of negligence in Connecticut applicable to cases where no claim is raised that a tort was caused by intentional conduct, by criminal act, or by force of nature. See Barry v. Quality Steel Products, Inc., supra, 263 Conn. 446; compare Sullivan v. Metro-North Commuter Railroad Co., 96 Conn.App. 741, 901 A.2d 1258 (2006) (special defense of superseding cause appropriate in responding to wrongful death claim against landowner, where the plaintiff-mother had been shot and killed by a third party on landowner's property).
The existence of evidentiary opportunities otherwise available to the defendant enhances the court's determination that permitting the special defense to stand in this case would, in effect, serve no other purpose than to allow the jury to find that any amount of negligence on the part of the child's mother is sufficient, at law, to totally preclude the child's estate from recovering in this action. Such a result would contravene the principles of the parental immunity doctrine as discussed above, tacitly allowing consideration of the mother's putative negligence as a superseding cause of the child's death. Such a result would be inappropriate under the circumstances of this case. Here, the special defense raises no claims akin to those sounding "unforeseeable intentional tort, force of nature, or criminal event," events that are still cognizable as superseding causes notwithstanding the general abolition of that doctrine in civil tort cases in this state through Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d 258 (2003), on appeal after remand, 280 Conn. 1, 905 A.2d 55 (2006) (abandoning the doctrine of superseding cause was to be abandoned in favor of a proximate cause analysis in most cases). Barry v. Quality Steel Products, Inc., supra, highlights the potential danger of allowing a special defense such as that at issue in the present case, teaching us that "in our modern system of torts . . . instruction on a superseding cause complicates what is essentially a proximate cause analysis and risks jury confusion. The doctrine [of superseding cause] . . . no longer serves a useful purpose in our tort jurisprudence, especially considering our system of comparative negligence and apportionment, where defendants are responsible solely for their proportionate share of the injury suffered by the plaintiff-mother." Id., 446.
In the case at bar, the special defense essentially presents "a direct factual challenge to an element of the plaintiff-mother's case that would negate the defendant's negligence, ab initio." Lamothe v. Midstate Medical Center et al., supra. That challenge is fully and fairly protected by the extant denials she has presented in response to the allegations of the complaint. Introducing the subject of legal parental immunity through the special defense would not clarify, but would confuse the issues of liability, complicating the process of measuring and determining the role, if any, the mother's negligence may have played in causing the death of her child, by suggesting that any negligence on the mother's part would bar recovery by the child's estate. Such a result is contrary to the legal tenets and to the principles of family integrity cited above. See Barry v. Quality Steel Products, Inc., supra; Crotta v. Home Depot, Inc., supra; Asciutto v. Farricielli, supra.
In reaching this determination, the court has acknowledged that the parental immunity doctrine does not provide absolute protection in all cases in which a child seeks to recover damages for personal injuries suffered due to parental acts or omissions. At present, however, parental negligence is not one of the legally specified exceptions to the rule establishing parental immunity in most cases. "The Connecticut courts have recognized four exceptions to the parental immunity doctrine. The first is where a minor is injured through the negligent operation of a motor vehicle, aircraft, or vessel by the parent . . . The second is where a suit is brought by a minor for sexual abuse, sexual assault or sexual exploitation by a parent. The third is where the minor child is emancipated prior to the tortious conduct. The fourth is the public duty exception." (Citations omitted.) Lyons v. Morrocco, supra.
If this court were to permit the special defense to stand as presented in this case, it would essentially allow a new exception to the parental immunity doctrine, unrecognized and unratified by our legislature, and unsupported by application of the appellate law in our state. Although "the doctrine of parental immunity is subject to both legislative and judicial modification," Asciutto v. Farricielli, 244 Conn. 692, 698, 711 A.2d 708 (1998), the defendant has presented no basis, in reason or law, enabling such an exception to be created at the Superior Court level. To the extent that the special defense, as presented, constitutes an "invitation to create an `exception' that would do away with the parental immunity doctrine," this trial court is constrained to decline to participate. Jeudy v. Jeudy, Superior Court, judicial district of New London, Docket No. CV 122624 (April 25, 2002, Corradino, J.) [ 32 Conn. L. Rptr. 43].
If there is to be a rule providing that where a parent represents a child's estate, parental immunity does not bar a claim of parental negligence, that rule must be created by other authorities. Here, as in CT Page 1915 Jeudy v. Jeudy, supra, the proponent's "well-crafted brief is really directed toward our Appellate Courts." Id.
III. CONCLUSION
Utilizing the principles of Barry v. Quality Steel Products, Inc., supra, Crotta v. Home Depot, Inc., supra and Ascuitto v. Farricielli, supra, the court is compelled to conclude that the special defense is inapposite under the circumstances of this case.
WHEREFORE, for the foregoing reasons, the court hereby GRANTS the motion to strike the special defense (#113) and OVERRULES the objection to the motion to strike the special defense(#115).
BY THE COURT,
N. Rubinow, J.