Opinion
AANCV126009636S.
12-28-2012
Luigi OSSO et al. v. MARC AUTOMOTIVE, INC. et al.
UNPUBLISHED OPINION
RICHARD E. ARNOLD, Judge.
Pursuant to Practice Book § 17-34 et seq., The Children's Center of Hamden, Inc. has moved to strike the claims against it as contained in Counts Three and Four of the plaintiffs' Complaint. The plaintiffs are Luigi Osso and his spouse, Maria Osso. The defendants are Marc Automotive, Inc. and The Children's Center of Hamden, Inc. (" Center"). Count Three, alleging negligence against the Center, is brought by the plaintiff Luigi Osso and Count Four, alleging a loss of consortium, is brought by Maria Osso.
The plaintiffs' complaint contains four counts. Counts One and Two are against the defendant Marc Automotive, Inc., and Counts Three and Four are against The Children's Center of Hamden, Inc. Counts One and Three allege negligence and Counts Two and Four are claims of loss of consortium.
I
The Complaint
The Complaint dated April 3, 2012 alleges that the Center was a corporation that received payment for taking custody of and assuming responsibility for the housing and safety of minor children. The Complaint further alleges that prior to April 20, 2010, the Center had assumed responsibility for a minor child, Brian Sabia, in exchange for financial consideration. Said minor had eloped from the Center without permission on approximately four prior occasions. On one of those prior occasions, the minor, after eloping from the Center, stole an automobile from the defendant Marc Automotive and operated it negligently and recklessly, ultimately crashing said automobile into a fence.
On April 20, 2010, the minor eloped from the Center for a fifth time, and for the second time, stole an automobile from the sales lot of the defendant Marc Automotive. On April 21, 2010, Sabia was operating the stolen automobile on Route 9 in the Village of Irvington, New York, when he crossed the double yellow line of Route 9 into the northbound lane and collided with the motor vehicle operated by the plaintiff, Luigi Osso. At the time of said collision, Sabia was fleeing from police in a high speed chase, operating the stolen Ford Mustang automobile in a negligent and reckless manner. As a result of the collision the plaintiff Luigi Osso suffered serious physical injuries.
The complaint alleges that as of April 20, 2010, the date of the fifth incident, the Center knew or should have known that the minor had a propensity to elope from the custody of the Center and engage in activities dangerous to himself and third parties. The Center knew or should have known that the minor was likely to cause bodily harm to others if not properly controlled or maintained in custody and failed to use reasonable care to control and maintain custody over the minor Brian Sabia.
The defendant, Center, has moved to strike Count Three and also Count Four, the loss of consortium count of Maria Osso, arguing that these claims are not cognizable as a matter of law. Specifically, this defendant argues that the defendant did not breach any duty to the plaintiffs, as no special relationship, sufficient to give rise to a duty, existed at the time of the accident. Moreover, the plaintiff was not an identifiable victim subject to imminent harm. Additionally, any duty did not extend to these circumstances because the facts of this case were not, and should not have been forseeable to the defendant. Finally the defendant, Center, argues its actions were not the proximate cause of the plaintiff, Luigi Osso's injuries.
The plaintiffs, in objecting to the motion to strike, argue that they have alleged a valid claim under Section 319 of the Restatement (Second) of Torts, which provides that " [o]ne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm." Restatement (Second) of Torts § 319 (1965). The plaintiffs argue that the Center incorrectly argues that it did not take charge of Sabia, and that it did not know he was " likely to cause harm to others." The plaintiffs state that the Center's arguments are premature at the motion to strike stage during which the plaintiffs' allegations must be taken as true. The plaintiffs claim they have plainly alleged sufficient facts to establish the elements of a claim pursuant to § 319 of the Restatement (Second) of Torts.
The Center filed a memorandum of law in support of its motion to strike. The plaintiffs then filed their opposing memorandum of law. The Center then filed a reply to the plaintiffs' objection. The plaintiffs then filed a sur-reply in further opposition. The defendant, Center, then filed a sur-reply to the plaintiffs' sur-reply. The Center's sur-reply is dated September 14, 2012.
II
Standard of Law: Motion to Strike
" The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). " The motion to strike challenges the legal sufficiency of a pleading ... and, consequentially, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commission of Public Health, 281 Conn. 277, 294 (2007). In ruling on a Motion to Strike the trial court examines 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 (1997). " In ruling on a motion to strike, the Court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). " Grounds other than those specified should not be considered by the Trial Court in passing on a Motion to Strike ..." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259 (2001). " If facts provable in the complaint would support a cause of action, the motion to strike must be denied." Violano v. Fernandez, 280 Conn. 310, 318 (2006).
III
Discussion
The defendant, Center, argues that the defendant did not breach any duty to the plaintiffs, as no special relationship, sufficient to give rise to a duty, existed at the time of the accident. The test for determining legal duty is a two-pronged analysis that includes: (1) a determination of foreseeability; and (2) public policy analysis. Monk v. Temple George, 273 Conn. 108, 115, 869 A.2d 179 (2005); Jaworski v. Kiernan, 241 Conn. 399, 406-07, 696 A.2d 332 (1997).
" Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action ... 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 ... [In other words], 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?" (Citations omitted; internal quotation marks omitted.) Id., quoting, Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997). " The existence of a duty is a question of law and ‘ [o]nly 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.’ " Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990). If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85 (1994)650 A.2d 153. " Duty is a " legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." Id.; 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 25:05, p. 25-7. " [N]o universal test for [duty] ever has been formulated"; W. Prosser & W. Keeton, supra, § 53, p. 358.
" [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 ..." Murdock v. Croughwell, 268 Conn. 559, 556, 848 A.2d 363 (2004).
" With respect to the second inquiry, namely, the policy analysis, there generally is no duty that obligates one party to aid or to protect another party. See 2 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. See W. Prosser & W. Keeton, Torts (5th Ed.1984) § 56, pp. 373-74; see also 2 Restatement (Second), supra, §§ 314A, 315 ... 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 ... Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996)." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id.; Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 525-26, 832 A.2d 1180 (2003).
The defendant, Center, argues that in order for it to be held liable for the injuries to the plaintiffs, even arguably, there must either be a special relationship between the minor, Sabia, and the Children's Center or between Sabia and the plaintiffs. See. Restatement (Second) Torts § 315. This is because the Center's actions did not harm the plaintiffs directly. Rather the allegations are that the Center failed, somehow, to prohibit Sabia from harming the plaintiffs. As there was no relationship between the plaintiffs and Sabia, the only relationship in dispute is one between Sabia and the Center. The Center argues that this relationship does not qualify under Connecticut law to create a duty to prevent harm to third persons.
Section 315 of the Restatement (Second) of Torts provides:
The Center also argues that Restatement (Second) Torts § 319 is not applicable because the plaintiffs have not sufficiently alleged facts to support a claim that the Center maintained custodial control over the minor, Sabia, and even if the plaintiffs have sufficiently alleged custodial control, Connecticut only recognizes § 319 as being applicable where the defendant is a sheriff or warden. See Murdock v. Croughwell, supra, 268 Conn. at 569.
The plaintiffs, in opposing the motion to strike, argue that they have sufficiently alleged a cause of action under § 319. They note that they have alleged the Center obtained financial remuneration in exchange for taking custody of the minor and the Center assumed responsibility for the housing and safety of the minor child, Brian Sabia. They allege the Center " took charge" of Sabia. They additionally allege that Sabia's multiple elopements and prior auto crash while eloping, means that the Center knew or should have known that Sabia had a propensity to engage in activities dangerous to himself and third parties. Lastly, they alleged that the Center knew or should have known that Sabia was likely to cause bodily harm if not properly controlled or maintained while in the custody of the Center.
The plaintiffs argue the Center provides psychiatric inpatient services to juveniles and is most closely analogized to a hospital, and a hospital has the type of formal custodial relationship with its patients that satisfies the requirements of § 319. See. Kaminski v. Fairfield, 216 Conn. 29, 33, 578 A.2d 1048 (1990) (noting the Comments to § 319 in Restatement (Second) Torts that § 319 can be applicable to determine the " liability of institutions, such as hospitals, that have formal custodial relationships for those in their charge"). The illustrations to the Comments for § 319 list two different types of hospitals as classic examples of entities subject to a duty pursuant to § 319. The court notes that Connecticut has yet to apply § 319 to any hospitals, despite the Comments to Restatement (Second) Torts § 319.
The Comments to Restatement (Second) Torts § 319 read as follows:
The plaintiffs are correct in that the Kaminski court discussed the potential application of Restatement (Second) Torts § 319. " Section 319 provides: ‘ One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.’ This court has not previously considered whether to adopt 319 as an exception to the common law rule that, 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, supra, 216 Conn. at 33-34; See 2 Restatement (Second), Torts 315 (1965); F. Harper, F. James & O. Gray, The Law of Torts (2d Ed.1986) 18.7; W. Prosser & W. Keeton, Torts (5th Ed.1984) 56.
While the court found that § 319 was not applicable to the facts and issues in the Kaminski case, our Supreme Court specifically left the question of whether to adopt § 319 to other circumstances to another day. Kaminski v. Fairfield, supra, 216 Conn. at 29, 33-34. " [W]e will postpone further inquiry into the adoption of 319 to another day." Id., at 36. Our Supreme Court has not declined to adopt § 319 under any circumstances as the defendants have argued. " [I]n the proper factual circumstances, this court may want to consider whether to recognize the principles of § 319 insofar as they impose a special duty upon custodians to control the behavior of their wards." Id., at 33.
Our Supreme Court has stated that § 319 imposes no duty to control the conduct of another in any relationships other than those involving professional custodians with special competence to control the behavior of those in their charge, including those relationships arising in institutions, and in other relationships involving legally designated custodians. Bebry v. Zanauskas, 81 Conn.App. 586, 591 (2004); see also, Kaminski v. Fairfield, supra, 216 Conn. at 33-34. The circumstances under which § 319 has been held to impose a duty to control the conduct of another deal with the liability of institutions, such as hospitals, that have formal custodial responsibility for those in their charge.
" The reported cases that have recognized a duty to control have generally done so in the context of professional custodians with special competence to control the behavior of those in their charge. Citing 319, courts have found that third parties have stated a cause of action in negligence against: a prison warden; Frett v. Government of Virgin Islands, 839 F.2d 968, 975 (3d Cir.1988); security guards; Karbel v. Francis, 103 N.M. 468, 471, 709 P.2d 190 (1985); a mental hospital and its personnel; White v. United States, 780 F.2d 97, 103 (D.C.Cir.1986); Johnson v. Village of Libertyville, 146 Ill.App.3d 834, 839, 496 N.E.2d 1219 (1986); Allentown State Hospital v. Gill, 88 Pa.Commw. 331, 488 A.2d 1211, 1213 (1985); a children's center; Nova University, Inc. v. Wagner, 491 So.2d 1116, 1118 (Fla.1986); and a retirement home. Garrison Retirement Home Corporation v. Hancock, 484 So.2d 1257, 1261 (Fla.App.1985)." Id., at 34-35.
" These cases suggest that, in the proper factual circumstances, this court may want to consider whether to recognize the principles of 319 insofar as they impose a special duty upon custodians to control the behavior of their wards ... Arguably, legally designated custodians may also have a common law duty to protect foreseeable third parties from their wards' aggressive behavior." (Emphasis added.) Id., at 35.
In Nova University, Inc. v. Wagner, 491 So.2d 1116 (Fla.1986), the facts alleged were that Nova University operated a residential rehabilitation program, Living and Learning Center that accepted children whose continued residence with parents, foster parents or legal guardians had been determined to be against the best interests of the general public because of behavior problems. The children attended local public schools but are not otherwise allowed to leave the premises without permission. No security measures were maintained to enforce that policy, however. Id., at 1117.
Two Center residents, on numerous occasions while at the Center, exhibited a propensity toward physical violence, on occasion injuring younger children. They also frequently ran away from the Center. The defendants allegedly observed the boys' violent propensities and knew or should have known they had a propensity to commit acts which could normally be expected to cause harm to others.
The boys ran away from the Center on February 16, 1975, and remained at large for several days. On February 17, 1975, at approximately 6 p.m., they encountered two children, ages 4 and 6, and beat them, killing one child and leaving the other with serious permanent injuries. The complaints allege that the defendants were negligent in failing to supervise and control the two resident minors. Id. The trial court granted the defendants' motions for summary judgment, finding that as a matter of law they owed no duty to the plaintiffs. On appeal the district court reversed, finding that the Center stood in loco parentis to its residents and that the proper application of that theory precluded summary judgment for the defendants.
The Fourth District Court of Appeals certified the following question to the Florida Supreme Court:
Does a child care institution that accepts as residents delinquent, emotionally disturbed and/or ungovernable children have a duty to exercise reasonable care in its operation to avoid harm to the general public?Id., at 1118
For the purposes of its opinion the Florida Supreme Court re-stated the Fourth District Court of Appeals question which was:
The Florida Supreme Court answered in the affirmative, stating that it did not believe that the question of the defendants' duty did not have to rest on the presumed existence of an in loco parentis relationship. " The Nova Living and Learning Center, for a fee, undertakes to rehabilitate children with emotional and behavior problems. We do not think it too onerous a burden to place upon it the duty to exercise reasonable care in carrying out its efforts ... We find section 319, a statement of traditional tort principles, applicable." (Citations omitted) Id., at 1118.
The Florida Supreme Court in Nova, additionally expressed no view as to whether the defendants were negligent and did not pass judgment on the issue of proximate causation. " We merely hold that a facility in the business of taking charge of persons likely to harm others has an ordinary duty to exercise reasonable care in its operation to avoid foreseeable attacks by its charges upon third persons. If reasonable care is exercised, there can be no liability. The alternative, the exercise of no care or unreasonable lack of care, subjects the facility to liability." Id., at 1118.
The Center argues that it did not take charge of the minor, Brian Sabia, and it did not know he was likely to cause bodily harm to others. The Center also argues that it was not aware of the dangerous propensities of Sabia. These arguments along with the issues of (1) whether a special relationship existed; (2) causation; (3) forseeability; (4) identifiable victim and imminent harm; and (5) superseding cause; and public policy considerations are premature for a motion to strike, where a plaintiff's factual allegations must be taken as true. " [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... It is fundamental that in determining the sufficiency of a complaint [or a count in a complaint] challenged by a defendant's motion to strike, all well pleaded facts and those facts necessarily implied from the allegations are taken as admitted ." Doe v. Board of Education, 76 Conn.App. 296, 299-300 (2003). " [W]e assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly ... rather than narrowly." Sturm v. Harb. Dev., LLC, 298 Conn. 124, 130 (2010).
This court is aware of the recent decision in Jarmie v. Troncale, 306 Conn. 578 (2012), an action alleging medical negligence and common-law negligence and the court's discussion of a health care provider's duty to warn third parties. Our Supreme Court discussed, at length, the issues of medical negligence, common-law negligence, forseeability and public policy considerations. The court decision cited many of the cases cited herein, including Kaminski v. Fairfield, supra, 216 Conn. at 29; Fraser v. United States, supra, 236 Conn. at 625 (considering whether psychotherapist owed duty to third party harmed by patient to control and prevent patient from causing harm); RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. at 381, (forseeability and identifiable victims); Jaworski v. Kiernan, supra, 241 Conn. at 399 (public policy). The facts are not similar. The plaintiff's action in Jarmie was not brought pursuant to Restatement (Second) Torts, § 319; nor did the Supreme Court discuss § 319 in the majority opinion or the dissent.
While the court found that § 319 was not applicable to the facts and issues in Kaminski, supra, our Supreme Court specifically left the question of whether to adopt § 319 to other circumstances to another day. Kaminski v. Fairfield, supra, 216 Conn. at 29, 33-34. The plaintiffs have alleged facts sufficient to establish elements of a claim brought pursuant to Restatement (Second) Torts, § 319. Accordingly, the motion to strike the Third Count is denied.
Additionally, because it is a derivative cause of action, Maria Osso's loss of consortium claim in Count Four is dependent on the legal existence of the predicate negligence action of her husband. Accordingly, as the motion to strike Luigi Osso's negligence claim has been denied, the motion to strike Maria Osso's loss of consortium claim, as alleged in Count Four, is also denied.
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless:
(a) a special relation exists between the actor and the 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 the other which gives to the other a right to protection.
a. The rule stated in this Section applies to two situations. The first situation is one in which the actor has charge of one or more class of persons to whom the tendency to act injuriously is normal. The second situation is one in which the actor has charge of a third person who does not belong to such a class but who has peculiar tendency to act of which the actor from personal experience or otherwise knows or should know.
Illustrations:
1.A operates a private hospital for contagious diseases ... 2. Operates a private sanitarium for the insane ...
DOES KNOWLEDGE OF A CHILD'S VIOLENCE REQUIRE A PARENT TO EXERCISE CONTROL TO AVOID INJURY TO ANOTHER CAUSED BY SUBSEQUENT VIOLENCE WHICH IS MORE SEVERE?
Nova University, Inc. v. Wagner, supra, 491 So.2d 1117-18.