Opinion
No. 567597
August 17, 2004
MEMORANDUM OF DECISION
The defendant, Mary M. Reed, moves to strike the entire complaint of the plaintiffs, Kimberly Melin, Estate of Telisha Hill and Estate of Mary Lewis, on the ground that under Connecticut law there is no cause of action against a landlord for injuries caused by a tenant that did not occur on the landlord's premises.
The plaintiffs allege the following relevant facts in their complaint. The defendant leased property to a series of businesses including a topless dance club, Silk, LLC d/b/a Silk Stockings (Silks). On October 28, 2001, Telisha Hill and Mary Lewis were minor girls working at Silks who were served a substantial amount of alcohol, left the bar, and died in an automobile accident as a direct result of consuming alcohol at Silks. On April 25, 2002, Kimberly Melin was a minor girl working at Silks who was served a substantial amount of alcohol, left the bar, and was severely and permanently injured in a substantial automobile accident as a direct result of consuming alcohol at Silks.
The plaintiffs allege that their injuries and damages were caused by the negligence and carelessness of the defendant. The plaintiffs allege that the defendant is liable to the plaintiffs because the defendant knew or should have known that Silks: (1) hired minor girls as its employees; (2) served alcohol to its minor employees; (3) had a past criminal history of murders, shootings, knifings, assaults and liquor violations; and (4) was engaged in the sale or distribution of alcohol to the minor plaintiffs. The plaintiffs allege that the defendant profited from payments by Silks and other similar related businesses, and profited directly or indirectly from the sale of alcohol to minors. The plaintiffs further allege that the defendant had a duty to ensure that Silks did not engage in repeated illegal activity of which the defendant knew or reasonably should have known. The plaintiffs allege that the defendant failed to enforce a provision of the lease between the defendant and Silks that prohibited illegal activity from occurring on the premises.
Specifically, the plaintiffs allege that the defendant was negligent in that she: "(1) failed [to] commence eviction proceedings or otherwise force her tenants to cease and desist their illegal activities when she knew or reasonably should have known of the repeated illegal activities occurring on her property; (2) failed to commence eviction proceedings or otherwise force her tenants to cease and desist their illegal activities when she exercised control over the business and knew or reasonably should have known of the repeated illegal activities occurring on her property; (3) failed to properly monitor her property for illegal activity; and (4) failed to inform her tenant that they needed to cease the illegal activity."
On March 18, 2004, the defendant filed a motion to strike the plaintiffs' entire complaint, supported by a memorandum of law. The plaintiffs filed a memorandum in opposition to the defendant's motion to strike on April 5, 2004.
DISCUSSION
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book 10-39; see also Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[I]f facts provable in the complaint support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000).
The defendant moves to strike the entire complaint on the ground that there is no allegation that the defendant participated in the alleged illegal activity or that the plaintiffs were injured on the subject premises. The defendant relies on Spencer v. Nesto, 46 Conn.Sup. 566, 764 A.2d 224, 27 Conn. L. Rptr. 212 (2000), for the principle that no cause of action exists against a landlord for the criminal acts of its tenants absent a special relationship. The defendant further argues that the case of Kargul v. Sandpiper Dunes Limited Partnership, Superior Court, judicial district of New London, Docket No. 505600 (January 29, 1991, Axelrod, J.) ( 3 Conn. L. Rptr. 154), on which the plaintiffs heavily rely, is distinguishable from the present case because the plaintiffs were not the defendant's tenants nor did their injuries occur on the subject premises.
The plaintiffs counter that a landlord owes a duty to third parties, and that as a matter of public policy, a landlord owes a duty to minors who become intoxicated on the landlord's premises. In this case, the plaintiffs argue that the landlord knew how strip clubs operate and could reasonably anticipate that the harm suffered by the plaintiffs was likely to result. The plaintiffs further argue that the defendant is liable because she was engaged in a "joint venture" with the owners of Silk. The plaintiffs also contend that the substantial assistance doctrine supports a cause of action against the defendant.
The court's inquiry begins with an analysis of whether the defendant owes a legal duty to the plaintiffs. Whether a duty exists is a question of law for the court. Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). "[T]he 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." (Internal quotation marks omitted.) Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004). "The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 250, 765 A.2d 505 (2001).
"Connecticut has recognized only a limited duty to take action to prevent injury to a third person. [The] point of departure has been that absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another . . . In any determination of whether even a special relationship should be held to give rise to a duty to exercise care to avoid harm to a third person, foreseeability plays an important role . . . Although . . . no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant . . . 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." (Citation omitted; internal quotation marks omitted.) Seguro v. Cummiskey, 82 Conn.App. 186, 193-94, 844 A.2d 224 (2004); Fraser v. United States, 236 Conn. 625, 632-33, 674A.2d 811 (1996).
"The test that is often applied in determining whether there exists a duty to use care is the foreseeability of harm. Would the ordinarily prudent man in the position of the defendant, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? This does not mean foreseeability of any harm whatsoever or foreseeability that the particular injury which resulted would occur. It is, in short, the foreseeability or anticipation that harm of the general nature of that suffered would be likely to result, which gives rise to a duty to use due care, breach of which might constitute negligence." (Internal quotation marks omitted.) Seguro v. Cummiskey, supra, 82 Conn.App. 194.
Here, the plaintiffs are alleging that the defendant's failure to: (1) commence eviction proceedings or otherwise force her tenants to cease and desist their illegal activities; (2) properly monitor her property for illegal activity; and (3) inform her tenants that they needed to cease the illegal activity that caused the plaintiffs' injuries. The ordinary landlord in the defendant's position, knowing what this defendant knew or should have known about the operation of strip clubs, would anticipate that the plaintiffs would suffer the harm they did because the landlord did not commence eviction proceedings or otherwise force her tenants to cease the illegal activity.
The complaint alleges that the defendant knew or should have known that Silks served alcohol to its minor employees. The plaintiffs sufficiently allege that it was foreseeable to the defendant that the harm suffered by the plaintiffs was likely to result. While "[i]t is a well established tenet of our tort jurisprudence that [d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable"; Lodge v. Arett Sales Corp, 246 Conn. 563, 575, 717 A.2d 215 (1998); the type of harm that resulted in the present case was foreseeable. Furthermore, the defendant could have foreseen that the intentional criminal acts of her tenants would lead to injury of the minor plaintiffs.
With respect to the second inquiry, the Connecticut Supreme Court has held that generally there is no duty that obligates one party to aid or to protect another party. Fraser v. United States, supra, 236 Conn. 632; see also Restatement (Second), Torts § 314, p. 116 (1965). "One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another." Ryan Transportation, Inc. v. MG Associates, 266 Conn. 520, 526, 832 A.2d 1180 (2003); see also W. Prosser W. Keeton, Torts (5th Ed. 1984) § 56, pp. 373-74; 2 Restatement (Second); Torts §§ 314A, 315, pp. 118, 122 (1965). "In delineating more precisely the parameters of this limited exception to the general rule, this court has concluded that, [in the absence of] a special relationship of custody or control, there is no duty to protect a third person from the conduct of another." (Internal quotation marks omitted.) Ryan Transportation, Inc. v. MG Associates, supra, 266 Conn. 526.
"As a general rule, a private person does not have a duty to protect another from a criminal attack by a third person . . . [T]his rule has sometimes in the past been applied in landlord-tenant law . . . Among the reasons for the application of this rule to landlords are: judicial reluctance to tamper with the traditional common-law concept of the landlord-tenant relationship; the notion that the act of a third person in committing an intentional tort or crime is a superseding cause of the harm to another resulting therefrom; the oftentimes difficult problem of determining foreseeability of criminal acts; the vagueness of the standard which the landlord must meet; the economic consequences of the imposition of the duty; and conflict with the public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector." (Internal quotation marks omitted.) Kargul v. Sandpiper Dunes Ltd. Partnership, supra, Superior Court, Docket No. 505600 ( 3 Conn. L. Rptr. 154).
The plaintiffs rely on §§ 315, 344, 448, 449 of the Restatement (Second) of Torts to support its argument that the defendant owes a duty to the plaintiffs. Section 315 provides that: "There is no duty so to control the conduct of a third person to prevent him from causing physical harm to another unless: (a) a special relation exists between the actor and third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and other which gives to the other a right to protection."
Section 344, entitled "Business Premises Open to Public: Acts of Third Persons or Animals," provides: "A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it."
Section 448, entitled "Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actor's Negligence," provides: "The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime."
Lastly, Section 449, entitled "Tortious or Criminal Acts the Probability of Which Makes Actor's Conduct Negligent," provides: "If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby."
The plaintiffs also rely on cases such as Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), and Bohan v. Last, 236 Conn. 670, 674 A.2d 839 (1996), that impose liability on individuals who provide alcohol to intoxicated minors, to support the proposition that the defendant landlord as a matter of public policy owes a duty to the plaintiffs. "The Ely court created a limited exception to the common-law rule that no cause of action in negligence arises from the furnishing of alcohol to intoxicated adults by holding that the consumption of alcohol by a minor does not constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury . . . In breaking with the common-law rule, the exception created by the Ely court left in place the requirement that the host actually purvey or supply the alcohol consumed." (Citation omitted; internal quotation marks omitted.) Rangel v. Parkhurst, 64 Conn.App. 372, 379-80, 779 A.2d 1277 (2001).
Lastly, the plaintiffs cite Kargul v. Sandpiper Dunes Ltd. Partnership, supra, Superior Court, Docket No 505600 ( 3 Conn. L. Rptr. 154), in support of their argument that "[i]t is not an expansion of policy or law to hold landlords liable for the crimes of others that are committed on their premises." In Kargul, the plaintiff was sexually assaulted by the defendant's guest. See id. The defendant and the plaintiff were cotenants in a residential apartment building, and the defendant knew that the assailant had a history of sexual assault. See id. The plaintiff claimed that the defendant had a duty to warn her or otherwise take measures to protect her from the assailant. See id. The defendant claimed that there was no such duty. See id. The court held the defendant liable to the plaintiff for the defendant's failure to warn the plaintiff of the presence of a known dangerous person.
The Kargul court stated that "a duty to warn is needed for the mutual protection of all tenants. The ability of the plaintiff to provide for her own protection is limited to the control which the defendant has over her apartment. A duty is therefore imposed upon the one possessing control and thus the power to act to take reasonable precautions to protect the other from assaults by third parties which could reasonably have been anticipated." Id.
The rationale of the Kargul court is that the exercise of some significant degree of control, over either the victim or the perpetrator, is essential to create a duty. In Kargul, there was an exercise of control by affirmatively allowing the perpetrator to live in the premises and thus have the opportunity of access. Here, there is a nexus between the defendant and the owners of Silks. The defendant is alleged to have exercised "control" over the business and to have profited from the sale of alcohol to minors. Moreover, the defendant allegedly failed to commence eviction proceedings or otherwise force her tenants to cease and desist their illegal activities when she knew or reasonably should have known of the repeated illegal activities occurring on her property. Therefore, the plaintiffs allege with legal sufficiency that a legal duty existed between the defendant and the plaintiffs.
The defendant relies on the holding of Spencer v. Nesto, supra, 46 Conn.Sup. 566, 27 Conn. L. Rptr. 212, to support its argument. The court specifically held that "Connecticut does not recognize a duty between a landlord and a third party who is injured by the negligent and/or criminal acts of the landlord's tenants." Id. In Spencer, the plaintiff was assaulted by the defendant landlord's tenant near the defendant's property. See id., 567. The plaintiff alleged that the landlord was liable to the plaintiff, a passerby, because the defendant knew or should have known that the tenants at his property presented a danger to "innocent members of the community as the victims of the assaults perpetrated" by the defendant's tenants. Id., 572. The court granted summary judgment in favor of the defendant, holding that no duty exists between a landlord and a third party where the landlord could not foresee the assault that ensued, and absent information regarding the tenant's specific dangerous behaviors. See id., 579. Thus, the court concluded that the landlord could not have controlled his tenants' behavior.
Unlike the defendant in Spencer, the defendant in the present case, knowing what she knew or should have known, could have foreseen the harm suffered by the plaintiffs. Spencer is further distinguishable from the present case because the defendant is alleged to have had control over her tenants. "[A] property owner should not be held responsible for failing to warn others about or protect them from the potential negligent conduct of a tenant absent some evidence [that] a landlord exercised direct control over the instrumentality that caused the injury." Murphy v. Eddinger, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 98 0086973 (November 30, 1999, Robaina, J.) ( 26 Conn. L. Rptr. 8). Here, taking "all well-pleaded facts and those facts necessarily implied from the allegations . . . as admitted"; Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001); the court finds that the complaint sufficiently alleges that the landlord exercised control over the tenants' business, which is the "instrumentality" that caused the plaintiffs' injuries.
Viewing the allegations in the light most favorable to the plaintiffs and taking the allegations as true, the court finds that the plaintiffs have sufficiently alleged a cause of action for negligence against the defendant. Therefore, the defendant's motion to strike the plaintiffs' entire complaint is denied.
D. Michael Hurley, JTR