Opinion
No. CV08-5009309S
February 22, 2011
Memorandum of Decision on Motion for Summary Judgment (No. 147.00)
PROCEDURAL AND FACTUAL BACKGROUND
This is an action by Saima Loglisci (the plaintiff) and her husband, Andrew Loglisci, against Preston Goldsmith (Goldsmith) and The Stamford Hospital (the defendant) for injuries sustained by the plaintiff resulting from the alleged theft of an epidural pump by Goldsmith while the plaintiff was in the defendant's hospital preparing to give birth. In her March 9, 2010 sixth revised complaint (complaint), the plaintiff alleges facts that are described in the following two paragraphs. The plaintiff was admitted to the defendant's maternity ward on October 2, 2006. On the following morning, her water broke, and the plaintiff requested an epidural. When the plaintiff was alone, Goldsmith entered her hospital room in such a way as to appear to be part of her medical team. After the plaintiff woke up, Goldsmith told her to rest and said that "everything was fine." He removed the epidural out of her body "while she lay unsuspecting in her hospital bed" and left the room, after which the plaintiff "began to experience excruciating pain."
Although Andrew Loglisci is a party to the operative complaint in this matter, only counts fourteen and fifteen, which sound in loss of consortium, allege injury to him. The defendant does not move for summary judgment of those counts. Because all of the relevant facts involve alleged injuries to Saima Loglisci, this memorandum will refer to her as "the plaintiff."
After unsuccessfully trying to activate her epidural device, the plaintiff called for nurses to come to her room. After the nurses arrived and discovered that the epidural pump had been removed, they "discussed the theft of her epidural in the [p]laintiff's presence, and as the [p]laintiff lay untreated, in panic and pain, hospital security staff posed questions to her regarding the stolen epidural." The plaintiff's "medical condition was left untreated for a substantial period of time during said questioning" until an anaesthesiologist came to administer another dose of medicine. The new medicine "caused substantially more numbness to the [p]laintiff's lower half, as compared to the original epidural and dose, thus further alarming the [p]laintiff, and increasing her anxiety level prior to giving birth." She "became completely numb and . . . was dilated to the `pushing point,'" at which time hospital security staff approached her and asked her to identify a photograph of Goldsmith. Because the plaintiff was going into labor and "was frightened by the events occurring around her, she sought reprieve from the request by hospital security," but she acknowledged Goldsmith due to the hospital security staff's "persistence and insistence." The replacement epidural caused "substantial numbness" that delayed birth. Goldsmith confessed to stealing the epidural pump, with a motive towards extracting the pain medicine from the epidural and using it to treat his dog. On June 19, 2007, the Connecticut medical examining board (CMEB) revoked Goldsmith's physician's assistant license. On May 7, 2008, Goldsmith pled guilty to larceny in the fourth degree, General Statutes § 53a-125, reckless endangerment in the first degree, General Statutes § 53a-63, and breach of peace, General Statutes § 53a-181, in the Superior Court for the judicial district of Stamford-Norwalk, geographical area number one. The plaintiff alleges that she suffered various injuries due to this set of events, including pain, birthing complications and mental and emotional distress.
The complaint contains fifteen counts. Seven are against Goldsmith, and eight are against the defendant. The counts sound in negligence (against both); negligence per se (against Goldsmith); vicarious liability (against the defendant); negligent infliction of emotional distress (against both); negligent hiring, supervision and retention (against the defendant); premises liability (against the defendant); recklessness (against both); assault (against Goldsmith); intentional infliction of emotional distress (against both); and loss of consortium (against both). On March 24, 2010, Stamford Hospital moved to strike counts four, ten and thirteen, which sound in vicarous liability, recklessness and intentional infliction of emotional distress, respectively. On May 11, 2010, the court, Karazin, J., denied the motion to strike in its entirety.
The defendant filed its answer to the complaint on July 6, 2010. On October 1, 2010, the defendant moved for summary judgment on counts four (vicarious liability), seven (negligent hiring, supervision and retention), eight (premises liability), ten (recklessness) and thirteen (intentional infliction of emotional distress). Attached to the motion is a memorandum of law and exhibits. The exhibits consist of excerpts of the deposition of the plaintiff; excerpts from the testimony of Stamford Hospital registered nurse Judith Ahern before the CMEB in a hearing pertaining to Preston Goldsmith; the affidavit of Joseph Hines, the director of safety and security for the defendant; the affidavit of Salvatore Mancino, the director of human resources for the defendant; and excerpts from the CMEB testimony of Joseph Hines.
On October 18, 2010, the plaintiff filed a memorandum in opposition to the motion for summary judgment. The exhibits attached to the plaintiff's memorandum include the deposition of the plaintiff, an application for an arrest warrant pertaining to Preston Goldsmith and an excerpt from the CMEB hearing on Preston Goldsmith. On October 22, 2010, the defendant filed a reply to the plaintiff's memorandum in opposition, attaching a sworn statement by the plaintiff on department of consumer protection letterhead. The matter was heard on the short calendar on October 25, 2010.
STANDARD OF REVIEW
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Brown Brown, Inc. v. Blumenthal, 297 Conn. 710, 721, 1 A.3d 21 (2010). "[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Weiss v. Weiss, 297 Conn. 446, 471, 998 A.2d 766 (2010).
DISCUSSION
A. Vicarious Liability
The defendant moves for summary judgment on count four, the vicarious liability claim, on the ground that there is no genuine issue of material fact. In essence, the defendant argues that Goldsmith's actions in stealing the epidural pump are such a clear departure from the scope of his employment as to preclude any liability on behalf of his former employer.
"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 . . . The master is not held on any theory that he personally interferes to cause the injury. It is simply on the ground of public policy, which requires that he shall be held responsible for the acts of those whom he employs, done in and about his business, even though such acts are directly in conflict with the orders which he has given them on the subject . . . [I]n order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer's business . . . But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply." (Internal quotation marks omitted.) Cornelius v. Dept. of Banking, 94 Conn.App. 547, 557, 893 A.2d 472, cert. denied, 278 Conn. 913, 899 A.2d 37 (2006). Vicarious liability "refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment." (Internal quotation marks omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 505, 656 A.2d 1009 (1995).
"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." (Internal quotation marks omitted.) Mullen v. Horton, 46 Conn.App. 759, 764, 700 A.2d 1377 (1997). "In determining whether an employee has acted within the scope of employment, courts look to whether the employee's conduct: (1) occurs primarily within the employer's authorized time and space limits; (2) is of the type that the employee is employed to perform; and (3) is motivated, at least in part, by a purpose to serve the employer." Harp v. King, 266 Conn. 747, 782-83, 835 A.2d 953 (2003).
"While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful . . . that does not end the inquiry. Rather, the 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." (Internal quotation marks omitted.) Mullen v. Horton, supra, 46 Conn.App. 764 (1997). "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 . . . [b]ut there are occasional cases [in which] a servant's digression from [or adherence to] duty is so clear-cut that the disposition of the case becomes a matter of law." (Internal quotation marks omitted.) Harp v. King, supra, 266 Conn. 783.
The defendant cites several cases in its memorandum of law in favor of summary judgment on the vicarious liability count. In Brown v. Housing Authority, 23 Conn.App. 624, 625, 583 A.2d 643 (1990), cert. denied, 217 Conn. 808, 585 A.2d 1233 (1991), the plaintiff alleged that Jones, an employee of the defendant, struck him with a hammer after an argument following a traffic dispute. The trial court granted summary judgment to the defendant on the plaintiff's action, which was brought under the theory of respondeat superior. Id., 625-26. The Connecticut Appellate Court affirmed the trial court's ruling, opining that "[i]t is clear . . . that Jones was not furthering the defendant's business interests when he assaulted the plaintiff. His intentional, criminal acts were in no way connected to the defendant's business. The mere fact that Jones was driving from one job site to another when the assault took place does not change this analysis." Id., 628.
In Gutierrez v. Thorne, 13 Conn.App. 493, 497, 537 A.2d 527 (1988), the plaintiff alleged that an employee of the defendant commissioner of mental retardation, also named Jones, sexually assaulted her in her apartment, to which he was given a key so that he could access the apartment in case of emergency. The Appellate Court agreed with the trial court's determination "that the defendant could not be found vicariously liable based solely upon Jones' conduct . . ." Id., 499. The Appellate Court reasoned that "it is clear that Jones was not furthering the defendant's business interests when he sexually assaulted the plaintiff. He was engaging in criminal conduct which had no connection to the defendant's business of providing supervision and training to mentally retarded persons regarding daily living skills . . . The plaintiff's statement in her affidavit that Jones was `on duty' at the . . . time of each assault . . . does not alter this conclusion, because his tortious conduct while on duty is not susceptible of an inference that he was acting to further his employer's interest." (Citation omitted.) Id.
Several Superior Court decisions involving alleged assaults by employees have reached similar conclusions in cases implicating respondeat superior. In Doe v. Talabi, Superior Court, judicial district of Hartford, Docket No. CV 07 5009974 (May 12, 2008, Bentivegna, J.), the plaintiff, a special education student, alleged that Talabi, a school bus driver, drove the bus off its designated route to his own home and had her enter his home where he sexually assaulted her, after which she re-boarded the bus and he drove her to her destination. The driver's employer, Laidlaw, moved for summary judgment on the claim for respondeat superior for negligence. Id. In granting Laidlaw's motion, the court reasoned as follows: "Viewing the circumstances on summary judgment in the light most favorable to the plaintiff, any injury incurred by the plaintiff in this matter, at least as it pertains to the defendant Laidlaw's alleged culpability, resulted from Talabi acting outside the scope of his employment. There are no facts before the court from which it could conclude that Talabi was furthering Laidlaw's interests. He was not motivated by a purpose to serve the employer. His alleged activities constituted abandonment of Laidlaw's business. As in Gutierrez and Brown, Talabi was not furthering Laidlaw's business interests when he sexually assaulted the plaintiff. He was engaging in criminal conduct that had no connection to the defendant's business of providing transportation to special education students." Id.
In Shippee v. Caswell, Superior Court, judicial district of New London, Docket No. 559094 (July 26, 2002, Hurley, J.T.R.) ( 32 Conn. L. Rptr. 611, 611), the plaintiff alleged that he was rear-ended by a vehicle driven by Caswell, an employee of the defendant Fall River News Company, after which Caswell "exited his vehicle, walked up to the plaintiff's vehicle, opened the driver's side door and punched the plaintiff in the face." In granting summary judgment on counts seeking recovery through respondeat superior, the court opined: "There is no evidence suggesting that Caswell, when he struck the plaintiff after the collision, was disobediently or unfaithfully conducting Fall River's business. On the contrary, . . . Caswell's criminal act of striking the plaintiff, like the acts of the defendant in Brown, constituted an abandonment of his employer's business." Id., 613. Similarly, the court granted summary judgment in favor of the defendant in Hawes v. Gartrell, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 96 565933 (July 31, 1997, Aurigemma, J.), in which the plaintiff claimed that the alleged superintendent of a building owned by the defendant stabbed him in the chest. The court explained its decision as follows: "The plaintiff has merely alleged that the assailant was employed by the defendant. He has not supplied any evidence whatsoever from which it can be concluded that the assailant was acting in furtherance of the defendant's business when he assaulted the plaintiff." Id.
While the previously mentioned cases address vicarious liability in the context of assaults by employees, at least one Superior Court decision has addressed vicarous liability arising out of theft. In Rheaume v. FleetBoston Financial Corp., Superior Court, judicial district of New London, Docket No. CV 03 0564496 (November 16, 2005, Leuba, J.T.R.), the plaintiff, who was suing as the administrator of the decedent's estate, alleged that an employee of the defendant stole money from the decedent. In ruling for the defendant, the court opined that, "(i)t is difficult to see how the theft of the customer's money, even if it had been established by the evidence . . . could be found to be done `in the service of the master.'" Id.
The plaintiff directs the court's attention to several appellate decisions finding that employees' wrongdoing subjected their employers to vicarious liability. In Mullen v. Horton, supra, 46 Conn.App. 760-61, the plaintiff sued religious institutions for actions arising out of the conduct of a priest (who was also a practicing psychologist) who was ordained by, and an agent of, the institutions. The plaintiff claimed that she came to the priest for "professional care and treatment . . . for psychological, emotional and marital problems," but that she and the priest entered into a sexual relationship that lasted two and one-half years. Id., 761-62. While the trial court rendered summary judgment for the defendants, finding that there was no genuine issue of material fact as to the lack of vicarious liability, the Appellate Court reversed; id., 760-61; reasoning as follows: "[The priest's] alleged sexual exploitation of the plaintiff occurred during his church sanctioned pastoral-psychological counseling sessions and while he staffed church retreats. Thus, a trier of fact could reasonably determine that [the priest's] sexual relationship with the plaintiff was a misguided attempt at pastoral-psychological counseling, or even an unauthorized, unethical, tortious method of pastoral counseling, but not an abandonment of church business." Id., 765-66. As the defendant argues in its reply brief, the Appellate Court's ruling was premised on evidence submitted at trial court that showed that "sexual relations often mistakenly arise out of an emotional therapeutic relationship" and that "the emotional nature of the therapeutic relationship caus[ed] the parties to displace feelings and confuse the therapeutic relationship with an intimate sexual relationship." Id., 766. Thus, the Appellate Court ruled that "a trier of fact could reasonably find that the sexual relations between [the priest] and the plaintiff directly grew out of, and were the immediate and proximate results of, the church sanctioned counseling sessions." Id.
In Glucksman v. Walters, 38 Conn.App. 140, 142-43, 659 A.2d 1217, cert. denied, 235 Conn. 914, 665 A.2d 608 (1995), another case cited by the plaintiff, a part-time employee of the Stamford YMCA (Walters) was alleged to have attacked a man playing pickup basketball (Glucksman) after the commission of a foul. In ruling that the trial court improperly granted a directed verdict for the YMCA on the respondeat superior counts, the Appellate Court opined as follows: "If the jury found the plaintiffs' evidence credible, it could reasonably find that, but for his position as an employee, Walters would not have been on the basketball court, that Walters had been responsible for helping to maintain order on the basketball court, that the YMCA benefited when Walters played basketball because it had an employee on the court to help keep order, that the commission of fouls disrupts a basketball game, and that Walters attacked Glucksman in a misguided effort to prevent Glucksman from committing fouls and disrupting the game." Id., 145. The Court further observed that the jury could have found that "[a]t the YMCA, professional employees were expected to maintain order and to conduct themselves in accordance with the YMCA's policies whether on duty or not" and that "[o]ther part-time employees, with positions similar to Walters, considered themselves to be on duty, ready to help maintain order in the facility, during work and off hours." Id., 143.
In Pelletier v. Bilbiles, 154 Conn. 544, 546, 227 A.2d 251 (1967), the defendant father, who was the proprietor of a confectionary, instructed his son, William, "neither to permit horseplay on the premises nor to allow anything to be thrown around inside the store" while William was working part-time at the confectionary. The plaintiff, a customer of the confectionary, blew a paper sheath onto the floor, after which William asked him to leave the store with him "and, at a point about fifty feet from the threshold of the [confectionary], he commenced to batter the plaintiff severely." Id., 546-47. In overturning a judgment notwithstanding the verdict in favor of the defendant confectionary proprietor, the Connecticut Supreme Court opined that "[t]he beating of an unruly customer, if the plaintiff can be so characterized, is an extremely forceful, although misguided, method of discouraging patrons of the [confectionary], including the plaintiff, from causing disturbances on the premises in the future." Id., 548. Furthermore, "[t]he fact that the specific method a servant employs to accomplish his master's orders is not authorized does not relieve the master from liability," and "the fact that the battery by William may have been motivated by personal animosity as well as by an overzealous regard for his duties as an employee does not exonerate the defendant." Id. Because "William's loss of temper and the subsequent battery were the immediate and proximate results of William's attempts to carry out the defendant's instruction not to permit mischief on the premises . . . the battery was merely the culmination of a transaction related directly to William's duties, and the defendant could properly be found liable." Id., 548-49.
In the present case, the defendant argues that the plaintiff cannot prove that the theft of the epidural was related to the scope of Goldsmith's employment and was in furtherance of the hospital's business. The defendant refers to Goldsmith's motivations in stealing the epidural, and specifically, to the complaint, which alleges that Goldsmith stole the medication for his sick dog. The defendant argues that the theft of the epidural is inconsistent with the hospital's purpose of providing patient care, and that the plaintiff admitted in her complaint that Goldsmith was not part of the plaintiff's medical team.
The plaintiff argues that Goldsmith was acting within the scope of his employment because he appeared to be part of her caregiving team, namely that he wore a doctor's uniform, asked her about her well-being and told her to rest. Also, the plaintiff submits an application for an arrest warrant filled out by Pallavi Kansal, a drug control agent for the state department of consumer protection, drug control division, in which Goldsmith told investigators, in response to whether he remembered the plaintiff as a patient, that "all patients on the floor are mine." (P's Exh. B.) The plaintiff points to the fact that Goldsmith had access to an otherwise restricted area of the hospital and that he was able to transport the epidural pump in his backpack from the plaintiff's room to his locker without anyone inquiring as to what he was doing, suggesting that he was acting within the scope of his employment.
The court finds that there is no genuine issue of material fact as to whether Goldsmith was acting within the scope of the hospital's employment and in furtherance of the hospital's business. The plaintiff has alleged in her pleadings that Goldsmith's purpose in stealing the epidural was to help his sick dog. The fact that Goldsmith appeared to be part of the plaintiff's caregiving team and that he represented to investigators that she was among his patients is insufficient to override proof of Goldsmith's intent. Under Connecticut law, the test for vicarious liability does not take into account the victim's perceptions but instead focuses on the actions and motivations of the perpetrator-employee. The evidence before the court affirmatively shows that Goldsmith's criminal conduct was in no way related to the hospital's purpose of providing patient care and was in fact detrimental to the care of Mrs. Loglisci. Unlike the employees in Mullen, Pelletier and Glucksman, Goldsmith cannot be said to have engaged in a misguided method of performing his work duties. Rather, the theft is a complete abandonment of hospital business. Accordingly, court grants the motion for summary judgment on count four.
B. Negligent Hiring, Supervision and Retention
The defendant moves for summary judgment on count seven, the claim for negligent hiring, supervision and retention. The defendant argues that it was not foreseeable that Goldsmith would engage in criminal conduct.
Although the plaintiff has shoehorned negligent hiring, retention and supervision into one count, these are different causes of action. Faggio v. Brown, Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 05 4003488 (June 12, 2007, Beach, J.) ( 43 Conn. L. Rptr. 643, 647). The tort of negligent hiring "extends to any situation where a third party is injured by an employer's own negligence in failing to select an employee fit or competent to perform the services of employment." Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982).
"The claim of negligent retention has been recognized by the Superior Court, but not by the appellate courts of the state . . . It requires a plaintiff to plead and prove that an employer, during the course of employment, became aware of problems that indicate a lack of fitness for the position, that the unfitness was likely to cause the sort of harm incurred by the plaintiff[,] and that the employer failed to take action." (Citation omitted; internal quotation marks omitted.) Otis v. Montesi, Superior Court, judicial district of Middlesex, Docket No. CV 07 5002196 (October 10, 2008, Jones, J.).
"Under Connecticut law, an employer may be held liable for the negligent supervision of employees." Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004). "In order to plead a cause of action sounding in negligent supervision, a plaintiff must plead injury by an employee whom the defendant had a duty to supervise, failed to supervise and whom the defendant knew or should have known would cause the injury." (Internal quotation marks omitted.) Andreoni v. Forest Enterprises, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 6000743 (April 21, 2010, Brazzel-Massaro, J.).
The parties agree that the legal standard for these torts is expressed in Elbert v. Connecticut Yankee Council, Inc., Superior Court, judicial district of New Haven, Docket No. CV 01 0456879 (July 16, 2004, Arnold, J.). "Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of [foreseeability]. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . It is well settled that defendants cannot be held liable for their alleged negligent hiring, training, supervision or retention of an employee accused of wrongful conduct unless they had notice of said employee's propensity for the type of behavior causing the plaintiff's harm." (Citations omitted; internal quotation marks omitted.) Id. "By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008).
In his affidavit, Salvatore Mancino, the defendant's human resources director, attests that prior to Goldsmith being hired by the hospital, a background employment check, a criminal records check and a drug screening were performed. (D's Exh. F.) These measures failed to reveal any negative employment information and indicated that Goldsmith did not have a criminal record and that he tested negative for drug use, according to Mancino. (D's Exh. F.) Goldsmith's reputation came up several times during the course of the plaintiff's deposition:
Q: Did you have any conversation with Dr. Hoffmann about what had occurred?
A: I did. As soon as she came in, I told her what had happened. And her response was, "That guy never belonged here at Stamford Hospital. I never trusted him. Nobody knows what he's doing here. I've never allowed him in on any of my procedures because he plainly doesn't know what he's doing."
(P's Exh. A, p. 51.)
Q: Do you have any knowledge or evidence that anyone at Stamford Hospital knew that Mr. Goldsmith had a proclivity for taking medications from patients or any conduct similar to that?
A: I can't say what the conduct was because they didn't say what the actual conduct was, but what the nurses had said was that he was a bad apple and that he — they actually said the exact same thing what Dr. Hoffmann said, that he should not have been in that hospital. No one knew what he was doing there. He didn't know what he was doing.
Q: Who said that?
A: That was the original nurse that was in the room before I actually started pushing, so the nurse from the morning. She said that, actually, in front of my entire family. (P's Exh. A, p. 75.)
Q: Okay. I'm going to turn a little bit back and talk about what the nurses had told you about this fellow Goldsmith, that he was a bad apple. And I believe your in-laws were in there, your husband's siblings were there. And you also mentioned — you used the word red flags, that there were red flags, as far as he was concerned. What did you mean by that?
A: That within a couple of minutes of me describing who could have been anyone, these nurses knew exactly who I was talking about. That shortly thereafter there were several comments made between — by the doctor, by the nurse, about the issues that he had or that — that there was something wrong with him, that there was something shady and sketchy and they were aware of this and that there were people in the hospital that didn't know why he was there because he never seemed to know what he was doing.
(P's Exh. A, p. 144.)
In addition, at the CMEB hearing on Goldsmith, Stamford Hospital registered nurse Judith Ahern testified as follows:
Q: Okay. And what was your first thought when you saw the pump missing?
A: I was really angry because I thought one of the people had come in and taken it to use not realizing that she was on it, because people have a habit of doing that, you know, going from room to room because they're looking for a pump.
(D's Exh. B, p. 43.)
Viewed in the light most favorable to the nonmoving party, the evidence before the court shows that while the defendant's pre-hiring vetting of Goldsmith did not reveal anything problematic, during the course of his employment numerous hospital employees began to view him with suspicion and distrust and questioned his competence to do his job. Furthermore, certain employees had a "habit" of going between hospital rooms to look for medical pumps. Accordingly, there exists a genuine issue of material fact as to whether it was foreseeable to the defendant that Goldsmith would engage in criminal conduct or that an employee would take an epidural pump being used for patient. Dr. Hoffman's statement that she never trusted Goldberg is most telling in this regard. The motion for summary judgment denied on count seven.
The evidence before the court on this motion is more supportive of a finding of a genuine issue of material fact as to negligent retention and supervision than as to negligent hiring. Although some Connecticut trial courts have granted summary judgment as to a part of a single count within one complaint; National Grange Mutual v. Mallozzi, Superior Court, judicial district of Fairfield, Docket No. CV 05 4011341 (December 12, 2006, Matasavage, J.) ( 42 Conn. L. Rptr. 499, 501-02 n. 3); the defendant has not moved to do so here, and the court will not dissect count seven sua sponte.
C. Premises Liability
The defendant moves for summary judgment on count eight, which states a cause of action in premises liability. The plaintiff argues that she was a business invitee of the defendant and that the defendant had a duty to prevent injury to the plaintiff but failed to properly maintain its premises. The defendant argues that no information was available that would have put it on notice that Goldsmith posed a danger to patients such that a duty arose to prevent theft. The defendant also argues that its labor and delivery unit was not inherently dangerous such that it would put the plaintiff at risk of injury of the general nature of that which allegedly occurred.
"Typically, [for [a] plaintiff to recover for the breach of a duty owed to [him] as [a business] invitee, it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice . . . [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it . . . In the absence of allegations and proof of any facts that would give rise to an enhanced duty . . . [a] defendant is held to the duty of protecting its business invitees from known, foreseeable dangers." (Internal quotation marks omitted.) Kelly v. Stop Shop, Inc., 281 Conn. 768, 776, 918 A.2d 249 (2007). "An occupier of land is chargeable with constructive notice of defects when dealing with invitees . . . The determinative question is whether the defective condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have discovered it and remedied it." (Internal quotation marks omitted.) Grignano v. Milford, 106 Conn.App. 648, 652, 943 A.2d 507 (2008).
In his affidavit, Joseph Hines, the defendant's director of safety and security, attests that "[p]rior to this incident there had been no reported incident of theft of a medical device from a patient by a healthcare provider or any member of the public." (D's Exh. D.) Furthermore, Salvatore Mancino, the defendant's director of human resources, attests in his affidavit that "Goldsmith was never written up for any misconduct at The Stamford Hospital prior to the underlying incident" and that "Stamford Hospital never received any complaints regarding Mr. Goldsmith's performance at the Hospital." (D's Exh. F.) Thus, the defendant argues, there was nothing that could have alerted it that its employees posed any imminent danger.
In Monk v. Temple George Associates, LLC, 273 Conn. 108, 869 A.2d 179 (2005), the Connecticut Supreme Court examined the issue of premises liability in the context of criminal actions by third parties. In Monk, the plaintiff was physically attacked in a parking lot owned by the defendant. Id., 110-11. During the time of the attack, the lot was unattended. Id., 111. The defendant moved for summary judgment, and the plaintiff presented evidence that showed the parking lot was in a high-crime area. Id., 111-12. The trial court granted summary judgment, but the Supreme Court reversed, noting that "[i]t seems quite foreseeable that, under these circumstances, an attack on a patron of the premises could occur, whether spontaneously or as precipitated by an argument at one of the neighboring nightclubs" and "[i]t also is probable that the presence of a parking attendant would have decreased the likelihood that such an attack would occur." (Emphasis in original.) Id., 115. The defendant distinguishes Monk from the present case on the ground that circumstances in Monk created foreseeability of criminal conduct.
Furthermore, in Gonzalez v. Martinez, Superior Court, judicial district of Fairfield, Docket No. CV 08 5019323 (March 8, 2010, Arnold, J.), also cited by the defendants, a barbershop employee filed a premises liability action against the owner of the building housing the barbershop, claiming that while he was working at the barbershop the barbershop owner's brother stabbed him. The court granted the defendant's motion for summary judgment, noting as follows: "The operation of a barbershop in a fully enclosed premises is normally a mundane business operation. Such establishments are not normally associated with dangerous and criminal activity. They do not require unusual or extraordinary security measures or security systems other than a locked door or the buzzer system, which was already in place." Id.
The defendant has established that there is no genuine issue of material fact as to whether it had actual or constructive notice that Goldsmith would commit a crime against the plaintiff. The plaintiff has not provided any evidence to establish a genuine issue of material fact. Accordingly, summary judgment is granted on count eight.
D
Recklessness
The defendant moves for summary judgment on count ten, which states a cause of action in recklessness. The plaintiff's theory of recklessness rests on two separate chains of events. The first involves the defendant's alleged failure to prevent Goldstein from stealing the epidural, and the second involves the method in which the defendant investigated the theft. The defendant argues that its actions both before and after the theft of the epidural do not indicate a conscious disregard of the plaintiff's safety.
"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 . . . 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." (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 277, 823 A.2d 1172 (2003). Whether someone's conduct is reckless is typically a question of fact. Brock v. Waldron, 127 Conn. 79, 83, 14 A.2d 713 (1940). "Accordingly, a claim of recklessness is unsuitable for summary judgment, unless no reasonable mind can differ as to the conclusion." (Internal quotation marks omitted.) Lindie v. Avino, Superior Court, judicial district of New London, Docket No. CV 07 5004246 (March 31, 2009, Devine, J.).(Internal quotation marks omitted.) Doe v. Talabi, Superior Court, judicial district of Hartford, Docket No. CV 07 5009974 (August 7, 2009, Sheldon, J.) ( 48 Conn. L. Rptr. 382).
The plaintiff attests in her affidavit that several minutes after she woke up and saw that the epidural was missing, a nurse walked in and the plaintiff asked her "why the doctor had felt that I didn't need the epidural anymore because I was in a lot of pain." (P's Exh. A, p. 44.) Afterwards, according to the plaintiff's affidavit, "[the nurse] looked at where the apparatus for the epidural was and, as she saw that it was gone, she got very upset and ran out of the room." (P's Exh. A, p. 44.) At this time, the plaintiff "was focused on the fact that [she] was in pain and just waiting for the epidural to return." (P's Exh. A, p. 44-45.) After "a few minutes," the nurse returned with several other nurses and two hospital security officers, and one of the officers "began to question me as to whether I had seen anything or anybody . . ." (P's Exh. A, p. 45-46.) The plaintiff described Goldsmith's appearance to the officer, who proceeded to leave the room to get a picture of Goldsmith. Id., 46. Before the officer returned with the picture, the "childbirthing coach teacher," who was standing at the plaintiff's bedside, "noticed the catheter line to [the plaintiff's] spine was left open and uncapped and laying on the side of the bed . . . [a]t which point . . . she held it high up in the air and [the plaintiff] was able to see an air bubble that had black in it that she was squeezing and holding up very high . . ." (P's Exh. A, p. 47.) At this time, the plaintiff, who "was still in pain" "kind of began to panic a little bit." (P's Exh. A, p. 47.) The plaintiff also attests that "[d]uring this time, [she] was shaking and vomiting, dry heaving and shaking very hard" and "couldn't get [her]self under control." (P's Exh. A, p. 48.) The "childbirthing coach teacher" "indicated to one of the nurses to go and get the anesthesiologist as soon as she could" when she observed the black bubble. (P's Exh. A, p. 47.) The plaintiff's deposition testimony is not clear on whether the officer returned with Goldsmith's picture before or after the anaesthesiologist arrived to assist the plaintiff with her pain. (P's Exh. A, p. 48.)
This evidence establishes that there is a genuine issue of material fact as to whether the defendant was reckless in its immediate response to the theft of the epidural. The plaintiff's affidavit shows that the defendant appeared to put a greater emphasis on identifying the culpable party than on treating the defendant's pain. Therefore, the motion for summary judgment is denied on count ten.
E. Intentional Infliction of Emotional Distress
The defendant moves for summary judgment on count thirteen, which states a cause of action in intentional infliction of emotional distress. In her complaint, the plaintiff alleges that the "[d]efendant's interrogation of the [p]laintiff while she was in labor about the theft of her epidural" and "[d]efendant's failure to investigate the theft of [the p]laintiff's epidural in a manner suitable to and/or in keeping with the sensitive nature of [its] patient's purpose in utilizing hospital facilities" caused her severe emotional distress. The defendant argues that the plaintiff has not raised a genuine issue of material fact as to whether its conduct was extreme and outrageous.
"To prove intentional infliction of distress, the plaintiff must demonstrate (1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result [from] his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 182-83 n. 9, 994 A.2d 666 (2010). "Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn.App. 436, 448, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).
"Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citation omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).
Although the defendant cites to numerous appellate decisions that address the second element of intentional infliction of emotional distress, which requires conduct to be extreme and outrageous, none of those decisions involves a plaintiff who was in the particularly vulnerable and stressful situation of a woman in a hospital about to give birth to a child. The plaintiff attests in her affidavit that she was shaking and vomiting during the incident and that the defendant's staff concentrated on investigating the cause of the missing epidural pump instead of treating her pain. Thus, there is a genuine issue of material fact as to whether the alleged conduct was extreme and outrageous. Accordingly, summary judgment is denied on count thirteen.
V
Conclusion
For the reasons stated above, the court grants summary judgment on counts four and eight and denies summary judgment on counts seven, ten and thirteen.