Opinion
No. CV99 036 58 02
July 21, 2003
MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (#110 AND 156)
This action arises as a result of a single-vehicle accident that occurred in New Mexico on August 14, 1997. On February 25, 2000, the plaintiffs, Jesus Medina, and his parents, Emily and Alejandro Medina, filed a seven-count amended complaint against the defendants, Father Joseph Karcsinski, Bridgeport Roman Catholic Diocese (the Diocese), St. Mary's Parish of Bridgeport (St. Mary's), and Heriberto Soler, as a result of injuries Jesus Medina allegedly suffered after being ejected from the vehicle involved in the accident. Presently before the court are St. Mary's and the Diocese's, separate motions for summary judgment.
On November 22, 1999, by order (Moran, J.) this case was consolidated for trial with Roman v. Soler, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99036027; Meuser v. Karcsinski, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0365667; Soto v. Karcsinski, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0366455; and Munoz v. Karcsinski, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 99 0366454.
See Footnote 3.
The defendant, St. Mary's asserts that the action against it is barred by the statute of limitations because it was served with process thirty-one months after the accident. The Diocese argues that at the time of the accident Karcsinski was not an employee of, or acting in any capacity for the Diocese, and therefore it cannot be held liable to the plaintiffs under the doctrine of respondeat superior or for failing to communicate with the plaintiff parents after the accident. Furthermore, the Diocese posits that the plaintiffs have not shown that prior to the accident, the Diocese had knowledge that Karcsinski had a behavioral disorder or predisposition to act in a manner that would require it to restrict his access to its parishioners.
For the reasons stated below, St. Mary's motion for summary judgment should be granted because the accident occurred on August 14, 1997, and St. Mary's was not served with process until March 21, 2000, clearly outside the two-year time limitation proscribed by General Statutes § 52-584. The Diocese's motion for summary judgment, however, is denied as to counts one, two, three, five and six, because there is a genuine issue of material fact as to whether at the time of the accident, Karcsinski was acting as its employee or agent; and as to the fourth count, because the Diocese has not met its burden of establishing that no genuine issue of material fact exists as to its notice. CT Page 8453-do
FACTS
The plaintiffs allege the following facts in their complaint. Karcsinski, while acting within the scope of his employment or agency with St. Mary's and the Diocese, invited Jesus Medina and seven other members of the St. Mary's youth group, including Soler, to participate in a cross-country trip that he was organizing and would supervise. While on a public highway in New Mexico, Karcsinski went against a promise he made to the plaintiff parents and permitted Soler, an unlicensed driver, to operate Karcsinski's vehicle. Soler lost control of the vehicle while attempting to pass another vehicle at a high rate of speed, and the vehicle left the road, rolled over and Medina was ejected.
The first, second and fifth counts of the amended complaint allege, inter alia, that St. Mary's and the Diocese are vicariously liable for Karcsinski's negligence under the doctrine of respondeat superior. The third count alleges that St. Mary's and the Diocese are vicariously liable for Karcsinski's breach of promise under the doctrine of respondeat superior. The fourth count alleges that St. Mary's and the Diocese were negligent for failing to adequately train and supervise Karcsinski to ensure the safety of the trip participants. The sixth count alleges that St. Mary's and the Diocese negligently inflicted emotional distress on the plaintiff parents by failing to communicate with them after the accident. The seventh count alleges a claim of negligence against Soler.
On November 4, 1999, Karcsinski filed an apportionment complaint CT Page 8453-eb against Soler. On February 25, 2000, the plaintiffs filed a request to amend and an amended complaint in which they added a seventh count of negligence against Soler. On March 8, 2000, Soler filed an objection to plaintiffs' request to amend. No other objections were filed. On November 27, 2000, the court (Moran, J.) dismissed the apportionment complaint against Soler, therefore, his objection to the amended complaint is moot. Accordingly, the operative complaint is the one the plaintiffs filed on February 25, 2000.
On January 15, 2003, St. Mary's filed a motion for summary judgment on all counts of the complaint on the grounds that the action against it is barred by the two-year time limitation of General Statutes § 52-584; it was not served with process until thirty-one months after the accident; and there is no genuine issue of material fact as to its non-liability. In addition to its motion, St. Mary's submits supporting memoranda, the January 15, 2003 affidavit of Father Matthew Bernelli, and refers the court to the affidavits and documentary evidence submitted in support of the Diocese's motion for summary judgment.
On November 3, 1999, the Diocese filed a motion for summary judgment on all counts on the ground that there is no genuine issue of material fact as to its liability. In support of its motion, the Diocese submits memoranda, the affidavits of Father Laurence R. Bronkiewicz, Bernelli, and Bishop Edward M. Egan, a copy of Karcsinski's answers to the Diocese's request for admissions dated October 29, 1999, and a statement of "uncontroverted facts" signed by its attorney. The plaintiffs object to both summary judgment motions on the ground that genuine issues of CT Page 8453-dp material fact exist as to the liability of both St. Mary's and the Diocese. In support, the plaintiffs submit memoranda, excerpts of the December 7, 2001 deposition of Bernelli, excerpts from the March 21, 2000, May 02, 2000, and October 19, 2001 depositions of Karcsinski, excerpts from the November 20, 2002 deposition of Emily Medina, affidavits from Yamil Gonzalez, Alejandro Mendina, Miguel Munoz, and Emily Medina, a copy of a Grand Canyon permit request form and reservation request form, and a copy of a letter dated July 6, 1997, that appears to be signed by Karcsinski and addressed to Ranger Dellaporta on St. Mary's letterhead.
The numerous materials submitted by the parties present three central issues; first, whether the applicable statute of limitations bars the plaintiffs' claim as to St. Mary's; second, whether the allegations and evidence are sufficient to establish an employment or agency relationship between St. Mary's, the Diocese and Karcsinski, such that, St. Mary's and the Diocese can be held vicariously liable for Karcsinski's negligence and breach of promise, and for the negligent infliction of emotional distress on the plaintiff parents; and third, whether the evidence establishes that St. Mary's and the Diocese can be held liable for the negligent supervision of Karcsinski.
STANDARD OF REVIEW
"In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "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." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 514 (2003). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citation omitted; internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 590-91, 804 A.2d 170 (2002).
"To satisfy his burden, the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the CT Page 8453-dq existence of any genuine issue of material fact." (Internal quotation marks omitted.) Witt v. St. Vincent's Medical Center, 252 Conn. 363, 373 n. 7, 746 A.2d 753 (2000). "To oppose a motion for summary judgment successfully the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents." (Internal quotation marks omitted.) Connecticut National Bank v. Great Neck Development Co., 215 Conn. 143, 148, 574 A.2d 1298 (1990).
"A `genuine issue' has been variously described as a `triable,' `substantial' or `real' issue of fact . . . [which] can be maintained by substantial evidence." United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969). "A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
"Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996).
DISCUSSION I. St. Mary's
St. Mary's contends that the plaintiff's claim is barred by the two-year statute of limitation applicable to negligence actions codified in General Statutes § 52-584 because it was not joined as a defendant in this civil action until March 21, 2000, thirty-one months after the August 14, 1997 motor vehicle accident. The plaintiffs argue that in their motion to cite in St. Mary's as an additional defendant and to amend the complaint, they invoked General Statutes § 52-592 and § 52-593, the accidental failure of suit statutes. They contend that because the court (Moran, J.) granted that motion, the statute of limitation issue is moot. Their argument is not persuasive because St. Mary's did not object to the plaintiffs' motion to cite in and the Diocese, which did object to the motion, did so on other grounds. Furthermore, "[i]n Connecticut, courts have found that it is generally improper to determine on a motion to cite in whether the statute of limitations has run against the parties to be cited in." Longhenry v. Groton, Superior Court, judicial district of New London, Docket No. CV 98 539211 (December 15, 1998, Martin, J.) ( 23 Conn.L.Rptr. 562, 565 n. 7); see also Martin v. O'Meara, Superior Court, judicial district of CT Page 8453-dr Stamford-Norwalk at Stamford, Docket No. CV 97 0160364 (March 18, 1998, Karazin, J.) ( 21 Conn.L.Rptr. 537). Accordingly, the issue has not been decided and is not moot.
The applicable statute of limitations for negligence actions, § 52-584 provides in pertinent part: "No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ." In the present case, the plaintiffs allege they were injured on August 14, 1997. St. Mary's was served with process on March 21, 2000, clearly beyond the two-year time limitation of § 52-584. Therefore, unless the plaintiffs can avail themselves of § 52-592 or § 52-593, their claim against St. Mary's will be barred by the statute of limitations.
Section 52-592 (a) provides in relevant part: "If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff . . . may commence a new action . . . for the same cause, at any time within one year after the determination of the original action or after the reversal of the judgment."
Section "52-592(a) operates to save actions that would be barred by otherwise applicable statutes of limitations." (Emphasis in original.) Bocchino v. Nationwide Mutual Fire Ins. Co., 246 Conn. 378, 385, 716 A.2d 883 (1998). "Section 52-592 by its plain language, is designed to prevent a miscarriage of justice if the plaintiffs fail to get a proper day in court due to the various enumerated procedural problems . . . It was adopted to avoid hardships arising from an unbending enforcement of limitation statutes . . . Its purpose is to aid the diligent suitor." (Citation omitted; internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 243-44, 789 A.2d 1142 (2002). "An action brought pursuant to § 52-592 must be commenced within one year after the determination of the original action . . . [T]his limitation period begins to run when the notice of dismissal is actually issued by the court." (Internal quotation marks omitted.) Id., 242. "It is axiomatic that the right to bring a new action under [§ 52-592] assumes that the . . . original action has been terminated." (Internal quotation marks CT Page 8453-ds omitted.) Id., 244.
Alternatively, § 52-593 (a) provides in pertinent part: "When a plaintiff in any civil action has failed to obtain judgment by reason of failure to name the right person as defendant therein, the plaintiff may bring a new cause of action and the statute of limitations shall not be a bar thereto if service of process in the new action is made within one year after termination of the original action." "General Statutes 52-593 (a) permits a plaintiff to bring a new action, regardless of the statute of limitations, if service of process in the new action is made within one year after the termination of the original action." Martin v. Bristol Associates, 22 Conn. App. 625, 626, 577 A.2d 1138 (1990). "The language of [§ 52-593] means that once the plaintiff discovered that she had filed a complaint against an improper party, she could file the claim against the correct party, and not be barred by the statute of limitations, only after the termination of the original action for failure to name the right person as defendant in the first action." (Internal quotation marks omitted.) Billerback v. Cerminara, 72 Conn. App. 302, 306, 805 A.2d 757 (2002).
"[T]he purpose and language of General Statutes §§ 52-592 and 52-593 are closely analogous." Henriquez v. Allegre, supra, 68 Conn. App. 244 n. 10. "[A]lthough [General Statutes] § 52-592 is a remedial statute and must be construed liberally . . . it should not be construed so liberally as to render statutes of limitation virtually meaningless . . . Similarly, we conclude that the same logic applies to § 52-593." (Citation omitted; internal quotation marks omitted.) Billerback v. Cerminara, supra, 72 Conn. App. 309.
Although the Appellate and Supreme Court have not determined the issue of whether a plaintiff can utilize these statutes to add otherwise belated claims to an action, as the Appellate Court has noted, according to their plain language, "[b]oth statutes clearly require that the new action be commenced within one year after the determination or termination of the original action." (Emphasis added.) Martin v. Bristol Associates, supra, 22 Conn. App. 626-27. Thus, in decisions addressing this issue, trial courts have held that "[s]ection 52-593 cannot apply to an `original action' which has not yet `failed' for any reason, but only to a `new action' which is commenced within one year of the termination of the original action . . . Until the instant action is `terminated' and a `new action' is begun, the protection of Section 52-593 will be unavailable to save the plaintiff's right, if any, to sue the defendant." (Internal quotation marks omitted.) Jandrok v. Naugatuck Savings Bank, Superior Court, judicial district of Waterbury, Docket No. CV 97 0137321 (January 2, 2001, Doherty, J.); see also Hoskinson v. Regional School CT Page 8453-dt District #1, Superior Court, judicial district of Litchfield, Docket No. CV 00 0083953 (November 16, 2001, Agati, J.).
The plaintiffs here cannot avail themselves of these statutes to save their claims against St. Mary's because this action is the original action and it has not been either determined or terminated. The protections available under both § 52-592 and § 52-593 only apply after the original action has failed. St. Mary's motion for summary judgment, therefore is granted.
II. The Diocese
The gravamen of the Diocese's argument as to the first, second, third, fifth and sixth counts is that, at the time of the accident, Karcsinski was an employee of St. Mary's, on a personal vacation with friends, and was not an employee of, or acting in any capacity for, the Diocese. As to the fourth count, the Diocese argues that the plaintiffs cannot show that prior to the accident, it had knowledge that Karcsinski had a behavorial disorder or predisposition for conduct that would require it to restrict his access to parishioners; and, notwithstanding any lack of such notice, it did not have a duty to supervise Karcsinski.
A. Vicarious Liability/Respondeat Superior
The Diocese argues that there is no evidentiary basis to show that Karcsinski had an employment or agency relationship with it, which is a prerequisite to invoking the doctrine of respondeat superior. Further, the Diocese argues, because Karcsinski was not its employee or agent, there is no basis for invoking any duty on its part to communicate with the plaintiff parents after the accident. In opposition, the plaintiffs argue that there is sufficient evidence to raise a question of fact on this issue.
"Vicarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of policy that one person should be liable for the act of the other. Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another." (Internal quotation marks omitted.) Alvarez v. New Haven Register, Inc., 249 Conn. 709, 720, 735 A.2d 306 (1999).
"The doctrine of respondeat superior rests on common law agency principles of vicarious liability." Nutt v. Norwich Roman Catholic Diocese, 921 F. Sup. 66, 70 (D.Conn. 1995). "[A] prerequisite to CT Page 8453-du establishing liability under the doctrine of respondeat superior is the existence of an employment or master-servant relationship . . ." Doe v. British Universities North American Club, 788 F. Sup. 1286, 1296 (D. Conn. 1992).
"Ordinarily, the determination of the relationship of master and servant is a question of fact." Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 180, 15 A.2d 17 (1940). This is typically so because "the relation of master and servant is one not capable of exact definition. It cannot . . . be defined in general terms with substantial accuracy . . . Many factors are ordinarily present for consideration, no one of which is, by itself, necessarily conclusive." (Citation omitted; internal quotation marks omitted.) Hanson v. Transportation General, Inc., 245 Conn. 613, 630, 716 A.2d 857 (1998).
"The Restatement (Second) of Agency, § 220 (1958) . . . defines the relationship of master and servant as: `(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right of control. (2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered: (a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer of the workman supplies the instrumentalities, tools, and the place of work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether the principal is or is not in business.'" Hanson v. Transportation General, Inc., supra, 245 Conn. 629-30.
The Diocese, as the party seeking summary judgment, has the burden of demonstrating that there is no genuine issue of fact as to the status of Karcsinski as its employee or agent. In order to prevail on their challenge to the summary judgment, the plaintiffs must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact as to whether Karcsinski was, at the time of the accident, acting as an employee or agent of the Diocese. CT Page 8453-dv
The evidence submitted by the Diocese shows the following: The Diocese oversees and provides services to St. Mary's; it formulates and administers personnel policies and practices relating to the priests affiliated with it, including their vacation policies; and, it is responsible for ordaining and licensing the priests working within its territorial limits. St. Mary's is responsible for providing living quarters, monthly salaries and supervising the day-to-day employment of the priests assigned to its parish, including Karcsinski.
The Diocese's records show that: Karcsinski was ordained as a Roman Catholic priest for service in the Diocese on October 20, 1979; the Diocese continually licensed and authorized him to exercise the priestly ministry within its territorial limits; he served as a priest on the staff of St. Mary's between June 7, 1991, and July 3, 1998; during that time, he was under the day-to-day direction of Father Bernelli of St. Mary's; and, St. Mary's provided Karcsinski with his living quarters and paid his monthly salary. In total, this evidence suggests that the question of the Diocese's right to control its priests seemingly manifests itself predominately in their licensing requirements and in the regulations and policies the Diocese creates and requires, and not in the day-to-day oversight that traditionally evidences an entity's right to control in employer-employee relations.
The evidence submitted by the plaintiffs shows the following: The Diocese was responsible for advertising, evaluating applications, selecting and assigning priests to a parish when a vacancy arose; the Diocese established the priests' salaries; it was in charge of establishing the vacation policies followed by the priests and parishes; it required the priests to participate in the health and auto insurance policies it selected; it required its priests to retire by the age of seventy-five, at which time it supplied them with a pension and retirement housing; and, although Bernelli is Karcsinski's immediate supervisor, Bernelli considers the Diocese to be Karcsinski's ultimate employer, as he does not have the authority to remove a priest from his parish.
The plaintiffs' evidence also shows that: The Diocese put a priority on the development of youth ministries in the local parishes; Karcsinski's responsibilities at St. Mary's included developing its youth ministry; he regularly contributed information about the youth ministry to the monthly newspaper published by the Diocese; and, Bemelli communicated with the Diocese about Karcsinski's role in the youth ministry. In total, the plaintiff's evidence indicates that although the Diocese delegated the day-to-day supervision of Karcsinski to St. Mary's, his progression as a priest was controlled by the Diocese. CT Page 8453-dw
The rather substantial materials submitted by the parties show that Karcsinski's relationship with St. Mary's and Bridgeport Diocese is complicated. While St. Mary's may have the right to control Kaircsinski's day-to-day actions, the Diocese is instrumental in selecting, guiding and overseeing his progress. Thus, the evidence demonstrates that there is a question of material fact as to whether Karcsinski is considered an employee of the Diocese, given that it is responsible for his licensing, placement and removal from local parishes, vacation policy, amount of his salary, health and auto insurance providers, mandated age of retirement and payment of a pension.
Moreover, the evidence also demonstrates a question of material facts as to whether Karscisnki was acting within the scope of his employment or in furtherance of the affairs of the Diocese while on the August 1997 cross-country trip. "Under the doctrine of respondeat superior, [a] master is liable for the [acts] of his servant committed within the scope of the servant's employment and in furtherance of his master's business." (Internal quotation marks omitted.) Mullen v. Horton, 46 Conn. App. 759, 764, 700 A.2d 1377 (1997). "[I]t 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.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990). "In most cases, it is the function of the jurors to determine from the facts before them whether . . . a servant was acting within the scope of his employment." Brown v. Housing Authority, 23 Conn. App. 624, 628, 583 A.2d 643 (1990).
Here, the Diocese points out that Karcsinski testified that: At the time of the August 1997 accident, he was on a vacation with his friends and he was not on duty or responsible for performing his priestly duties for St. Mary's; his sole purpose in inviting the young men on the trip was to share a meaningful travel experience as friends, and was not actuated by any motive to serve any purpose of St. Mary's or the Diocese; the vehicle used on the trip was Karcsinski's personal vehicle; and, St. Mary's did not provide any funding or other type of support for the cross-country trip.
On the other hand, the plaintiffs submit evidence that it was difficult for Bernelli to draw the line between what Karcsinski did as part of the youth ministry and what he did on his own, because Karcsinski spent his time off with the youth ministry participants. Further, Karcsinski testified that the purpose of the youth group was to offer young people safe and enriching activities and that he hoped that the cross-country trip would serve that purpose. CT Page 8453-dx
The plaintiffs also submitted the affidavit of Yamil Gonzalez, who avers that: Karcsinski invited her son, Reinaldo Soto, another trip participant, on the cross-country trip and informed her and the other parents that the trip was a St. Mary's youth ministry trip; and, Karcsinski promised that only he and another licensed driver would operate the vehicle. Gonzalez also avers that she participated with Karcsinski in a prayer circle in the parking lot of St. Mary's immediately before her son and the others departed on the trip and that her son told her Karcsinski would be conducting a mass at the Grand Canyon.
Further, the plaintiffs submit the deposition of Karcsinski, whereby he testified that: All the young men who accompanied him on the cross-country trip were current or former members of St. Mary's youth group; he had previously used the vehicle the group used on the cross country-trip to transport St. Mary parishioners to church activities; and, in his correspondence with the Grand Canyon National Park, regarding the trip, he represented that the group was a part of St. Mary's, and signed the correspondence as "(Rev.) Karcsinski" of St. Mary's.
Therefore, after examining the documentary evidence submitted by all parties, this court concludes that the plaintiffs have submitted sufficient evidence to show that a genuine issue of fact exists as to whether Karcsinski was acting within the scope of his employment or in furtherance of the affairs of the Diocese when the accident occurred. Accordingly, the Diocese's motion for summary judgment is denied as to counts one, two, three, five, and six.
B. Negligent Supervision
Count four of the amended complaint alleges that the plaintiff's parents as faithful members of St. Mary's and the Diocese, and having a special trust and confidence in Karcsinski because of his status as a priest with these entities relied on Karcsinski to keep his promises to act reasonably and to safeguard their son during the cross-country trip. The plaintiffs allege that the Diocese was negligent in its supervision of Karcsinski, because it failed to train, supervise or promulgate rules or policies to govern him in organizing and conducting the trip.
The Diocese argues that in order for it to be liable for the negligent supervision of Karcsinski, the plaintiffs must prove that prior to the accident, it had actual or constructive notice that Karcsinski had a behavioral disorder or predisposition which would indicate a reason or need to attempt to restrict or limit his social access to any persons CT Page 8453-dy whom he had met or might meet through his priestly ministry. The Diocese contends that its lack of prior notice precludes any negligent supervision liability from being imposed on it. Further, at oral argument, the Diocese argued that it never employed or supervised Karcsinski, but simply licensed and authorized him to exercise the priestly ministry within Fairfield County, in much the same way as the Connecticut state judicial department licenses attorneys to practice law in Connecticut, leaving their day-to-day work performance to be controlled by others.
"The existence of a duty of care is an essential element of negligence." Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982). "Where there is no legal duty, there can be no actionable negligence." Neal v. Shiels, Inc., 166 Conn. 3, 12, 347 A.2d 102 (1974). Generally, "absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another." Kaminski v. Fairfield, 216 Conn. 29, 33, 578 A.2d 1048 (1990); see also 2 Restatement (Second), Torts, § 315, p. 122 (1965). A special relationship exists between master and servant. 2 Restatement (Second), Torts, § 317, p. 125 (1965).
Restatement (Second), Torts, § 317 provides in pertinent part: "A master is under a duty to exercise reasonable care to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant . . . (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control."
"The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand . . . We have stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 478-79 (2003). "Thus, initially, if it is not foreseeable to a reasonable person in the defendant's position that harm of the type alleged would result from the defendant's actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff." Clohessy v. Bachelor, 237 Conn. 31, 45, 675 A.2d 852 (1996).
On the issue of foreseeability, the Diocese submits the affidavit of Bishop Edward Egan, who attests that he "examined the records of the Bridgeport Diocese relating to Father Karcsinski, and I do not find in those records any information indicating any behavioral disorder or CT Page 8453-ez predisposition in him indicating, at any time prior to Father Karcsinski's alleged New Mexico highway accident of August 14, 1997, any reason or need to restrict or to limit Father Karcsinski's social access to any persons whom he had met or might meet through his priestly ministry, and I have never personally perceived any such behavioral disorder or predisposition in him."
The plaintiffs have not filed any additional affidavits or evidence to dispute the Diocese's argument as to notice. When "there are no contradictory affidavits, the court properly [decides] the motion by looking only to the sufficiency of the [movant's] affidavits and other proof." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 795, 653 A.2d 122 (1995). "[I]t should be noted that in summary judgment procedure, although Practice Book § 17-45 requires the party opposing the motion to file counter affidavits, the party's failure to do so does not mean the sufficiency of the moving party's affidavits cannot be attacked." (Internal quotation marks omitted.) Perras v. Allstate Ins. Co., Superior Court, judicial district of Windham at Putnam, Docket No. CV 02 0067400 (January 6, 2003, Foley, J.).
Here, the Diocese, in addition to the affidavit of Bishop Edward M. Egan, also submitted the affidavits of Father Laurence R. Bronkiewicz and Father Matthew Bernelli, a copy of Karcsinski's answers to the Diocese's request for admissions dated October 29, 1999, and a statement of uncontroverted facts signed by the Diocese's attorney. The only one of these documents that addresses the issue of notice is the affidavit of Bishop Edward Egan. The fact that Egan was unaware of, or unable to find any record of conduct by Karcsinski that would warrant supervision does not establish that others at the Diocese did not have notice.
"The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Gaynor v. Payne, supra, 261 Conn. 590-91. "Affidavits containing self-serving and unsubstantiated allegations need not be viewed as persuasive by the court." (Internal quotation marks omitted.) Brennan v. Culligan Water Services, Superior Court, judicial district of Waterbury, Docket No. CV 00 0160170 (June 10, 2002, Wolven, J.). The issue of notice is a material issue in determining whether the Diocese can be held liable for the negligent supervision of Karcsinski. The Diocese has not offered any evidence, other than Egan's affidavit, to support the conclusion that it was without notice. As such, the Diocese has not met its burden of showing the absence of any genuine issue of material fact as to notice. CT Page 8453-ea
As to the Diocese's argument that it was more akin to a licensing agency than an employer or supervisor, if the Diocese "were only a licensing agency, then it presumably would not be liable any more than the grievance committee would be liable for the misdeeds of an attorney; if it were truly a supervising authority, then there may be substance to the [plaintiffs'] claim." Boscarino v. Jackson, Superior Court, judicial district at Hartford, Docket No. CV 99 0590885 (April 8, 2002, Beach, J.) ( 32 Conn.L.Rptr. 49, 52). However, the facts of the relationship between St. Mary's, the Diocese, and Karcsinski are in dispute.
Given that our Supreme Court has stated that summary judgment "is appropriate only if a fair and reasonable person could conclude only one way;" Miller v. United Technologies Corp., supra, 233 Conn. 751; and, "the trial court must view the evidence in the light most favorable to the nonmoving party;" Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 514, the Diocese's motion for summary judgment as to count four is denied.
CONCLUSION
St. Mary's motion for summary judgment is granted because the accident occurred on August 14, 1997, and St. Mary's was not served with process until March 21, 2000, clearly outside the two-year time limitation proscribed by General Statutes § 52-584. Further, the Diocese's motion for summary judgment is denied as to counts one, two, three, five and six, because there is a genuine issue of material fact as to whether at the time of the accident, Karcsinski was acting as its employee or agent; and as to the fourth count, because the Diocese has not met its burden of establishing that no genuine issue of material fact exists as to its lack of notice.
WOLVEN, J.