Lyons v. Morrocco

Full title: WALTER M. LYONS ET AL. v. BRANDON B. MORROCCO ET AL

Court: Connecticut Superior Court, Judicial District of New Britain at New Britain

Date published: Feb 2, 2004

2004 Ct. Sup. 2981 (Conn. Super. Ct. 2004)

36 CLR 616

Opinion

No. CV02-0515601S

February 2, 2004

MEMORANDUM OF DECISION ON PLAINTIFFS' MOTIONS TO STRIKE SPECIAL DEFENSES

COHN, JUDGE.

In this suit, the plaintiffs, Walter and Lisa Lyons, seek damages against the defendants Brandon Morrocco and Alfred Morrocco, his father, alleging that Brandon Morrocco negligently caused the death of the plaintiffs' daughter Darleen. The defendants have separately answered the complaint and have each set forth an identical special defense — a claimed lack of attentiveness by the plaintiff parents. The plaintiffs have moved to strike this special defense.

The plaintiff Walter Lyons, as administrator, in the first count of the complaint principally claims damages for the wrongful death of Darleen Lyons against Brandon Morrocco. The specific allegations are that Darleen was struck by Brandon as she rolled on her scooter down a driveway into the road and that Brandon was driving his father's automobile at an excessive rate of speed. Walter Lyons additionally asks individually that the court award him reimbursement for medical and funeral expenses relating to Darleen's death. The second count is an action for recklessness against Brandon, also incorporating reimbursement allegations. In the fifth, sixth and seventh counts, actions for bystander emotional distress are brought by the plaintiffs on behalf of themselves and their son for the alleged wrongful death of Darleen.

The third count incorporates the allegations of the first count, including those relating to reimbursement, in seeking recovery against Alfred Morrocco under the "family car doctrine," § 52-182. The fourth count against Alfred Morrocco, is, like the second count, based on the alleged recklessness of Brandon Morrocco; it also incorporates the allegations on reimbursement.

On November 7, 2003, the defendants presented separate answers to the complaint. Each answer, however, contained the same special defense. "The plaintiffs, Walter M. Lyons and Lisa Lyons were themselves negligent in . . . [in that] [t]hey failed to properly . . . supervise . . . Darleen . . . under the circumstances then and there existing." The plaintiffs moved to strike the special defense in the answers of Brandon and Alfred Morrocco on two grounds. The first, was that the defendants did not plead any facts in support of the special defense alleged, but merely stated assumptions and/or legal conclusions. The second, was that the doctrine of parental immunity barred claims against a minor child's parents for negligent supervision.

This court heard oral arguments on the motion on December 1, 2003, and permitted the filing of supplemental briefs. On December 9, 2003, the court ruled that the defendants in their special defenses did not set forth any facts at all other than general conclusions, and made no allegations relating to negligent supervision or public duty. On that ground alone the plaintiffs' motion to strike was granted without prejudice.

Subsequently, on December 22, 2003, both defendants filed a substitute special defense that alleges the following: The plaintiffs, Walter M. Lyons and Lisa Lyons, were themselves negligent and their negligence was a substantial factor in causing the accident, the injuries suffered by Darleen E. Lyons, and the injuries which they themselves complain. The plaintiffs, Walter M. Lyons and Lisa Lyons, were themselves negligent in one or more of the following ways:

1. They failed to supervise, observe, watch, or ensure the safety of Darleen E. Lyons while she was riding her scooter;

2. They allowed Darleen E. Lyons to leave their yard with her scooter without any supervision or observation, and failed to ensure her safety;

3. They allowed Darleen E. Lyons to ride her scooter; unsupervised, onto their neighbor's driveway, when it was unreasonable to do so;

4. They knew or should have known that their neighbor's driveway was steep and ran downhill into West Washington Street; and allowed Darleen E. Lyons to ride her scooter without supervision on the neighbor's driveway when it was unreasonable to do so;

5. They knew or should have known that there were numerous parked cars located on West Washington Street that blocked the view of anyone operating a vehicle on West Washington Street of their neighbor's driveway and any person or vehicle, including a scooter, exiting that driveway;

6. They allowed Darleen E. Lyons to leave their yard, ride her scooter down their neighbor's driveway, and onto West Washington Street in Bristol, Connecticut; and

7. They had a public duty to the defendants and the public in general to keep or prevent Darleen E. Lyons from riding her scooter on a busy public street, such as West Washington Street in Bristol, Connecticut.

The plaintiffs have moved to strike this defense in the answers of Brandon and Alfred Morrocco on the grounds of insufficiency of the pleadings and parental immunity.

The court must again analyze the sufficiency of the pleadings in the substituted special defense. "In ruling on a motion to strike, the court is limited to the facts alleged in the [special defense]." Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997), quoting Waters v. Autuori, 236 Conn. 820, 825-26 (1996). The trial court must "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 (1992). A motion to strike does "not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." Faulkner at 580.

Here, the defendants have alleged facts within the special defense relating to both negligent supervision and public duty. They have alleged that: (i) the minor plaintiff was riding her scooter, (ii) the plaintiffs' neighbor's driveway was steep and ran downhill to a busy street, (iii) there were numerous parked cars that blocked the view of anyone operating a vehicle near their neighbor's driveway; and (iv) that the minor plaintiff was not prevented from riding her scooter into the street. These amended allegations are sufficient. See County Federal Savings and Loan Association v. Eastern Associates, 3 Conn. App. 582, 585-86 (1985). Accordingly, the court denies the plaintiffs' motions to strike as to their first ground.

The plaintiffs' second ground for their motions to strike is that the special defense is barred by the doctrine of parental immunity. The defendants have filed objections arguing that (a) parental immunity does not apply to special defenses, (b) parental immunity does not apply when a parent has an independent claim in the action, and (c) the public duty exception to the parental immunity doctrine applies.

The law in Connecticut regarding parental immunity has been established by the Supreme Court in Crotta v. Home Depot, Inc., 249 Conn. 634 (1999). In Crotta, the Supreme Court relied on parental immunity to disallow an apportionment claim based on negligent supervision of a child. The court held "the doctrine of parental immunity operates to preclude the parent of a minor child 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. at 644-45. "The primary focus of the parental immunity doctrine in Connecticut is the protection of the relationship between the parent and the child." Id. at 643. The court limited its decision to "the circumstances presented." Id. at 635.¹

1 While the defendants argue that this last sentence supports allowing a special defense to be filed, the court disagrees that this language has application to the issue.

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. See Connecticut General Statutes § 52-572(c). The second is where a suit is brought by a minor for sexual abuse, sexual assault or sexual exploitation by a parent. See Ascuitto v. Farricielli, 244 Conn. 692, 699 (1998). The third is where the minor child is emancipated prior to the tortious conduct. See Wood v. Wood, 135 Conn. 280, 283 (1948). The fourth is the public duty exception. See Dzenutis v. Dzenutis, 200 Conn. 290, 297 (1986).

The Connecticut Supreme Court has yet to rule on a case involving the application of parental immunity to special defenses. Connecticut Superior Court decisions have been split. In Sedgwick v. Halfpenny, Superior Court, judicial district of New Haven at New Haven, Docket No. CV99-065513S, 28 Conn. L. Rptr. 42 (Aug. 15, 2000, Shea, J.), a minor plaintiff brought suit against the defendants for the negligent operation of a motor vehicle. The defendants filed special defenses alleging that the plaintiffs' parents were negligent in failing to supervise the minor child. The court denied the plaintiffs' motions to strike the defendants' special defenses.

However, other courts have ruled that parental immunity may be used to strike a special defense claiming contributory negligence. In Hart v. Torello, Superior Court, judicial district of New Haven at New Haven, Docket No. CV99-0421294S, 25 Conn. L. Rptr. 506 (September 24, 1999, Devlin, J.), the court granted the plaintiff's motion to strike the defendant's special defense claiming parental negligence. Id. at 1. "Whether the claim of parental negligence is raised by [apportionment], or as here, . . . special defense the effect is the same — it diminishes the child's recovery. Current law does not permit such diminution." Id. at 3. See also Bartlett v. First Union Corp., Superior Court, judicial district of New Haven at Meriden, Docket No. CV00-0272108S (Oct. 11, 2000, Robinson, J.) (disallowing the assertion of parental negligence as a special defense); Tobin v. Connecticut Housing Finance Authority, Superior Court, judicial district of New Haven at New Haven, Docket No. 333231 (June 17, 1997, Lager, J.) (holding that parental immunity bars claims alleging parental contributory negligence whether raised as a special defense or counterclaim).

In Kuzoian v. Saybrook Country Barn Inc., Superior Court, judicial district of New Britain at New Britain, Docket No. CV00-0501052S (January 22, 2001, Shapiro, J.), the court granted the plaintiff's motions to strike special defenses claiming assumption of risk in a products liability case where defendant alleged the plaintiff's parents allowed the minor plaintiff to improperly use the product. The court concluded that it found most persuasive those cases which have held that parental negligence is not a valid special defense regardless of whether the plaintiff is the minor or the parent. Thus the majority trend since Crotta has been to uphold the parental immunity doctrine when applied to both complaints and special defenses.

The court next analyzes the defendants' claim that their special defenses are appropriate because the parents, in addition to the child, have asserted a cause of action. The plaintiffs Walter Lyons and Lisa Lyons have each asserted a claim of bystander emotional distress in counts five and six, respectively. In addition, the plaintiff Walter Lyons has asserted a claim for reimbursement of medical expenses he incurred as a result of his child's injuries in counts three and four.

"Before Crotta, there was a split of authority among the Connecticut superior courts that had addressed this question." Hart at 1. Since Crotta, one superior court case that denied the parental immunity claim was Sedgwick v. Halfpenny, Superior Court, judicial district of New Haven at New Haven, Docket No. CV99-065513S, 28 Conn. L. Rptr. 42 (Aug. 15, 2000, Shea, J.). There, the court denied the plaintiffs' motion to strike the defendants' special defenses, ruling that "in the case before this court, the parents have chosen to institute an independent claim and to make themselves party to the action . . . Logic and equity dictate that they should not be able to loose their arrows at the defendant and then hide behind the shield of (a) legal theory clearly intended for another purpose." Id. at 2.

However, in Hart, supra, the court granted the plaintiff's motion to strike the defendant's special defense where the defendant father sought medical expenses incurred in the care and treatment of his child. The Hart court interpreted Crotta as being more consistent with cases permitting parental immunity even if a parent is a party to the action. Id. at 2. The Crotta court held "It is artificial to separate the parent and child as economic entities by the assertion that the recovery of the non-parent defendant from the negligent parent does not technically diminish the injured child's recovery. 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." Crotta at 644. Again: "The primary focus of the parental immunity doctrine in Connecticut is the protection of the relationship between the parent and the child." Crotta at 643.

See also, Feer v. Santini, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 531207 (June 13, 1997, Sullivan, J.) (since medical services are rendered to child it doesn't matter that a parent brings a claim for medical expenses, special defense of parent's comparative negligence stricken); Bartlett v. First Union Corp., Superior Court, judicial district of New Haven at Meriden, Docket No. CV00-0272108S (Oct. 11, 2000, Robinson, J.) (disallowing the assertion of parental negligence as a special defense regardless of the absence or presence of a claim on behalf of the parent); and Wright v. Rogers, Superior Court, judicial district of New Haven at New Haven, Docket No. 417078 (August 4, 1999, Lager, J.) (parental negligence cannot be used as a special defense to a claim for medical expenses brought by a parent).

In Tobin v. Conn. Housing Finance Authority, Superior Court, judicial district of New Haven at New Haven, Docket No. 333231 (June 17, 1997, Lager, J.), the court granted a motion to strike special defenses claiming parental negligence where plaintiffs sued for their emotional distress and to recover for personal injuries sustained by their daughter after exposure to lead paint declaring: "The purposes of the parental immunity doctrine would be defeated if the . . . special defense were allowed to stand." Id. at 5. In Courchesne v. Dickau Bus Inc., Superior Court, judicial district of New Britain at Hartford, Docket No. CV93-0527989, 14 Conn. L. Rptr. 130 (March 8, 1995, Wagner, J.), the court denied defendant's motion to cite in deceased child's father as a defendant for purposes of apportionment, where the child's mother and sister both claimed emotional distress and medical expenses.

Finally, the defendants raised the public duty exception to parental immunity. The public duty exception is based on the "incongruity of denying recovery because of a familial relationship between the child victim and the parent tortfeasor for injuries caused by the breach of a duty owed to the general public upon which the relationship has no bearing." Dzenutis v. Dzenutis, 200 Conn. 290, 297 (1986). In Dzenutis, the court allowed a fifteen year old to plead the public duty exception, to a defense claiming the parental immunity doctrine, and sue his father after sustaining severe burns from tripping over an uncovered bucket of tar at his father's place of business. The court stated that since the father had liability insurance, the threat of familial discord was minor. Id. at 297-300. Furthermore, the court held that because the bucket of hot tar was placed on a public sidewalk, the plaintiff's father had breached a duty not just to the son, but rather to the public as a whole. Id. The duty breached was owed to the public generally because [t]he mishap might well have occurred to any other member of the public who passed that way. (Citations omitted; internal quotations omitted.) Id. at 300.

Henderson v. Woolley, 230 Conn. 472, 486 (1994), involved the sexual assault of a minor by a parent. The court held "[w]hen a parent perpetrates such a crime upon his or her child, that act constitutes a breach of the duty owed not only to the child, but to the public at large, and there is no reason to immunize such conduct from a civil action in damages merely because of the familial relationship." Id. at 483.

However, the court found no public duty exception to the parental immunity doctrine in Squeglia v. Squeglia, 234 Conn. 269 (1995). The case involved a minor who was bitten by her parent's dog. The court maintained that "the dog was in the home and posed no menace to the general public, as did the can of hot tar on the sidewalk in Dzenutis and the alleged criminal conduct of the defendant in Henderson." Squeglia at 268-69.

The present case is much more analogous to the Squeglia case. Just as the parent in Squeglia took no affirmative steps to create a public duty, the parents of Darleen E. Lyons took no affirmative steps with regard to their daughter to create a public duty. Simply allowing a child to play with a scooter on a private driveway involves no public duty. Furthermore, this court is bound, by the legal authority set forth in Crotta, to maintain the parent-child relationship.

For these reasons, the plaintiffs' motions to strike the defendants' special defenses are granted.

Henry S. Cohn, J.