Opinion
No. CV 08 5007342
June 16, 2009
MEMORANDUM OF DECISION
FACTS
The plaintiff, Allison Patterson, the administrator of the estate of the decedent, Bruce Patterson, alleges the following facts in her amended four-count complaint against the two defendants, Andrew Foley and his mother, Georgene Didato. Foley, who was eighteen years old in 2007, was legally incompetent and had several mental disabilities, including mild mental retardation, anxiety disorder and other behavioral and emotional issues. At times, several drugs had been prescribed to Foley for his disabilities. During the relevant time, Didato had assumed responsibility for taking care of Foley's daily needs, including administering and regulating his medications. Didato was aware of Foley's disabilities and his behavioral and emotional issues, and she had the ability to control Foley's behavior and to restrain him.
In her original complaint, the plaintiff also named Michael Didato as a defendant. On December 19, 2003, the plaintiff withdrew her claim against this defendant.
On June 22, 2007, while the decedent was outside his house, Foley rode by on his bicycle and shouted profanities. When the decedent told Foley to leave the area, Foley threw down his bicycle and challenged the decedent to a fight. Foley threw the decedent to the ground, causing the decedent to break his hip and suffer other injuries. The decedent received treatments for his injuries that eventually resulted in his death five months after the incident. In December 2007, Foley was found to be incompetent by the Superior Court for the judicial district of New London.
In the first count of the amended complaint, the plaintiff alleges a claim for negligence against Foley. In counts two though four, respectively, she alleges the following claims against Didato, all of which are premised on Foley's conduct: negligent supervision by a parent of her child, as recognized in § 316 of the Restatement (Second) of Torts; negligent supervision by a custodian of her ward, as recognized in § 319 of the Restatement (Second) of Torts; and common-law negligence.
On December 15, 2008, Didato filed a motion to strike counts two, three and four on the ground that they fail to state a claim upon which relief can be granted in that she did not owe a duty of care to the decedent, as she was not legally responsible for protecting the decedent from Foley, because Foley was an adult, and he was not her ward. On February 3, 2009, the plaintiff filed a memorandum in opposition to the motion to strike in which she argues that she has properly stated causes of action against Didato in the challenged counts, in that Foley's conduct and the nature of the relationship between Foley and Didato show that she owed the decedent a duty of care. Didato filed a reply on February 18, 2009 and Didato filed a surreply on March 4, 2009. The court heard the matter on short calendar on March 9, 2009.
DISCUSSION
In considering a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff 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). "It is fundamental that in determining the sufficiency of 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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Id.
On the other hand, while "[a] motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Therefore, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
The Connecticut Supreme Court has stated that "[t]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care . . . [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 existence of a duty [of care] is a question of law." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988). Therefore, the question of whether a defendant owed a duty of care to an injured party is properly decided in the context of a motion to strike. Id., 171-72.
Here, the parties focus on the second element of the test for a cognizable duty of care. "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 . . . 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." (Citation omitted; emphasis in original; internal quotation marks omitted.) Murdock v. Croughwell, supra, 268 Conn. 566. Section 315 of the Restatement (Second) of Torts sets out this limited exception as follows:
Section 314 provides: "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." 2 Restatement (Second), supra, § 314, p. 116.
"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." 2 Restatement (Second), supra, § 315, p. 122.
The present case implicates the exception stated in subsection (a) of § 315, as the plaintiff's claims against Didato are premised on her relationship with Foley. "The [recognized] relations between the actor and a third person which require the actor to control the third person's conduct are stated in §§ 316-19 [of the Restatement (Second) of Torts]." Murdock v. Croughwell, supra, 268 Conn. 568, quoting 2 Restatement (Second), supra, § 315, comment (c), p. 123. The plaintiff relies on two of these exceptions in counts two and three of the complaint.
In the second count, the plaintiff refers to § 316 of the Restatement (Second) of Torts, and alleges that Didato had a special relationship with Foley in that he was incompetent and she controlled, supervised or influenced almost every aspect of his life. Thus, she alleges that Didato had a duty to use reasonable care to prevent Foley from intentionally harming others and from engaging in conduct that created an unreasonable risk of harming others. By incorporation, the plaintiff also alleges that Didato was aware that Foley had a tendency to engage in verbal confrontations and physical violence, and that he had a history of panicking and losing control of himself, and causing disruptions in the neighborhood, including incidents involving the decedent's household. She further alleges that on the date of the incident, Didato knew or should have known that there was an imminent risk that Foley would harm someone in the neighborhood, and that she was negligent in failing to adequately supervise, monitor and control Foley, failing to provide him with medications that would reduce his inappropriate conduct and failing to meet the standard of care required of a parent with an incompetent child. Finally she alleges that the decedent's injuries were the proximate result of Didato's negligence.
Didato moves to strike this count on the ground that she cannot be held liable for Foley's conduct under the theory set out in § 316 in that he was not a minor or adjudged incompetent on the date of the incident. The plaintiff counters that although § 316 refers to a parent's duty to control the conduct of a minor child, courts in other jurisdictions have extended the duty to parents of adult children with mental deficiencies, such as Foley. She further contends that Didato's relationship with Foley as his caretaker was not significantly different on the date of the incident, and six months later when he was declared incompetent.
Section 316 provides: "A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control." 2 Restatement (Second), supra, § 316, pp. 123-24. The comments to this section indicate that parents are responsible for the conduct of their minor children "in so far as [they have] the ability to control it." Id., comment (a), p. 124. "Indeed, the very youth of the child is likely to give the parent more effective ability to control its actions and to make it more often necessary to exercise it." Id., comment (c).
The Connecticut appellate courts have not expressly recognized that parents can be held liable for the negligent supervision of their minor children pursuant to the common law as stated in § 316, but numerous judges of the Superior Court have done so. See Doe v. Favreau, Superior Court, judicial district of Fairfield, Docket No. CV 020393019 (March 7, 2003, Thim, J.) ( 34 Conn. L. Rptr. 276, 277), and cases cited therein. According to these judges, in order "[t]o allege a common-law claim, a plaintiff would need to allege that the parent failed to restrain a child [that he or she] knew or should have known had dangerous propensities, or that the parent negligently entrusted a dangerous instrumentality to the child." (Internal quotation marks omitted.) Id. As noted by one judge, one of the principles underlying the liability of parents stated in § 316 is that "[a]n adult dealing with children is bound to bear in mind the characteristics of young children in respect to their nonappreciation of danger, and reasonable care on his [or her] part under the circumstances require[s] greater care to avoid injury to them than if they were adults better able to help themselves." (Internal quotation marks omitted.) Donahue v. Czaja, Superior Court, judicial district of Tolland, Docket No. CV 075001514 (January 2, 2008, Vacchelli, J.).
The provision plainly states that it only applies to minor children and research did not reveal any case in which a Connecticut court has decided that it should be extended to any other category of children. The Connecticut cases that have decided that parents were not liable for their allegedly negligent supervision of their adult children did so in the context of §§ 318 or 319 of the Restatement (Second) of Torts, and did not discuss § 316. See Kaminski v. Fairfield, 216 Conn. 29, 578 A.2d 1048 (1990); Bebry v. Zanauskas, 81 Conn.App. 586, 841 A.2d 282 (2004); Kennedy v. Norwalk, Superior Court, judicial district of Fairfield, Docket No. CV 900273508 (November 6, 1991, Katz, J.) ( 6 C.S.C.R. 1065); Price v. Steiger, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 0361987 (November 21, 1990, Hennessey, J.).
The one case in which the court determined that the parents of an adult child could be liable for his conduct did so on the basis of the principles of premises liability, which are not implicated in this case. See Irons v. Cole, 46 Conn.Sup. 1, 734 A.2d 1052 (1999).
As discussed below in regard to count four, a few courts in other jurisdictions have held that parents can be liable for the intentional torts for their adult children in certain circumstances. Nevertheless, the majority of courts have declined to do so. As one such court explained, "in those instances where a special relationship has been found imposing liability on a parent for [the] conduct of a child, the duty to exercise control is limited to a minor child . . . See . . . Restatement (Second) of Torts § 316. Certainly, where there is no legal right to control a child, there can be no liability imposed on the parent . . . Nor Florida decision has imposed liability upon the parents of an adult child for intentional acts simply because the child may be financially depend on, or needs to reside with, his or her parents . . . We need not speculate on circumstances under which a parent might incur liability for intentional acts of . . . an adult dependent child over whom they have accepted a lawfully designated responsibility due to the child's incompetency, as such is not alleged here." (Citations omitted; emphasis in original.) Carney v. Gambel, 751 So.2d 653, 654 (Fla.App. 1999).
This indicates that the exception stated in § 316 does not extend to adult children. Therefore, Didato did not owe the decedent a duty of care under this provision. For this reason, Didato's motion to strike count two is granted.
In count three, the plaintiff alleges that her damages were proximately caused by Didato's negligence pursuant to § 319 of the Restatement (Second) of Torts in that she had taken charge of Foley, she knew or should have known that he was likely to harm others if he was not controlled, she failed to adequately supervise, monitor, control or provide him with appropriate medication, and she failed to meet the standard of care required of a custodian in the circumstances. Didato moves to strike count three on the ground that she cannot be liable to the plaintiff for Foley's conduct under § 319 as it has been interpreted in this state, because she did not, at the time of the incident, have a formal custodial relationship with Foley. The plaintiff responds that § 319 applies in this case in that she expressly alleges in the complaint that, as of the date of the incident, "Didato had taken charge of Foley and was his custodian" and that she "controlled or influenced" almost every aspect of his life. Although the plaintiff also alleges in the complaint that on the date of the incident, Foley was "legally incompetent," this is a legal conclusion that is belied by her factual allegation that Foley was found to be incompetent on December 21, 2007, which was six months after the incident.
The two Connecticut appellate cases discussing parents' liability for the conduct of their adult children under § 319 are Kaminski v. Fairfield, supra, 216 Conn. 29, and Bebry v. Zanaukas, supra, 81 Conn.App. 586. In Kaminski, "[t]he sole issue . . . [was] whether a request [by the parents] for mental health assistance to control the behavior of [their] adult son [while he was living at their home] supports the imposition of tort liability on his parents for injuries inflicted by the son on a police officer [who accompanied] the requested mental health workers to the parents' home." Kaminski v. Fairfield, supra, 216 Conn. 30. The issue arose in the context of a counterclaim for negligence that the police officer filed in the wrongful death action that the parents brought against the town and the officer. The parents moved to strike the counterclaim on the ground that the officer failed to allege a common-law or statutory basis for holding parents liable for the torts of their child. The officer objected to the motion on the basis that he sufficiently alleged that the parents had a duty under § 319. The trial court granted the motion.
On appeal, the Supreme Court first noted that the officer "[c]orrectly . . . does not assert that the plaintiffs' alleged duty of care arises directly out of their parental relationship [with their son]. At common law, the torts of children do not impose vicarious liability upon parents qua parents, although parental liability may be created by statute; see General Statutes § 52-572; or by independently negligent behavior on the part of the parents. LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970). The defendant alleges, therefore, that the plaintiffs are liable to him . . . because they are independently responsible for not having prevented [their son's] assault [on the officer]." Kaminski v. Fairfield, supra, 216 Conn. 34.
The court stated that "[t]he circumstances under which § 319 has been held to impose a duty to control the conduct of another are far removed from the facts of this case. Both of the official illustrations to § 319 deal with the liability of institutions, such as hospitals, that have formal custodial responsibility for those in their charge. Similarly, the reported cases [from other jurisdictions] 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 . . . 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 . . . The present circumstances are, however, markedly different . . . A familial relationship does not, per se, establish the capacity to control that § 319 envisages as a basis for liability . . . On the facts alleged in this case, therefore, § 319 would not furnish a basis for the defendant's counterclaim. Lacking an appropriate factual predicate, we will postpone further inquiry into the adoption of § 319 to another day. We affirm the judgment of the trial court striking the defendant's counterclaim insofar as that counterclaim rested on § 319," (Citations omitted.) Kaminski v. Fairfield, supra, 216 Conn. 34-36.
The plaintiff points out that in Kaminski, the court also stated that "[i]t would be anomalous, to say the least, to hold that the plaintiffs in this case had `take[n] charge' of [their son] at the very moment when, acknowledging their limited ability and opportunity to control his behavior, they had called the mental health center crisis team for assistance. That call for help distinguishes this case from Estate of Mathes v. Ireland, 419 N.E.2d. 782, 784 (Ind.App. 1981), in which family members were held to have a duty to prevent a deranged and dangerous twenty-year-old man from abducting and drowning a member of the general public." Kaminski v. Fairfield, supra, 216 Conn. 36.
According to the plaintiff, the parents' call for help in Kaminski is also what distinguishes this case from Kaminski. Indeed, the relationship between the family members and the adult tortfeasor in Estate of Mathes is similar to Didato's relationship to her son in that they both resided and cared for the adult tortfeasor, and there were no allegations showing that they had legal control over him. Nevertheless, as indicated in Bebry v. Zanaukas, supra, 81 Conn.App. 586, the Appellate Court has not interpreted the parents' call for help in Kaminski as a crucial factor in such cases, and has instead relied on the language in which the Supreme Court, after surveying numerous other cases, emphasized that liability under § 319 was limited to those that have "formal custodial responsibility for those in their charge" or "professional custodians with special competence to control the behavior of those in their charge." Kaminski v. Fairfield, supra, 216 Conn. 33-35.
In Bebry, the plaintiffs were injured in a motor vehicle accident with an intoxicated driver, who was the adult child of the other two defendants. In their appeal, the plaintiffs argued that the trial court improperly granted the defendant parents' motion for summary judgment on the basis of its conclusion that the parents did not owe the plaintiffs a duty of care under § 319 arising from their alleged ability to control their adult son's behavior in operating a motor vehicle while he was intoxicated. The plaintiffs presented evidence that the parents had signed their son "out of some sort of institution" and thus argued that the parents "`took charge' of him and incurred liability for his actions under § 319." Bebry v. Zanaukas, supra, 81 Conn.App. 590. The Appellate Court, relying on Kaminski, disagreed, explaining, "[w]e begin with the proposition that absent a special relationship of custody and control, there is no duty to protect a third person from the conduct of another at common law. Kaminski v. Fairfield, [ supra, 216 Conn. 33]. Likewise, `[a]t common law, the torts of children do not impose vicarious liability upon parents [as] parents . . .' Id., 34. The plaintiffs, by way of exception to the common-law rule, cite 2 Restatement (Second), supra, § 319, in support of their claim against the defendants . . . The plaintiffs' reliance on § 319 is misplaced.
"Our Supreme Court 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. See Kaminski v. Fairfield, supra, 216 Conn. 34-35. The court further remarked that `[a] familial relationship does not, per se, establish the capacity to control that § 319 envisages as a basis for liability.' Id., 36.
"Absent evidence of the defendants having assumed guardianship or some other form of legal custody of [their adult son], the defendants cannot be said to have incurred the requisite legal responsibility for [their son] that would give rise to a duty to third persons under § 319. Parents' knowledge of their emancipated adult son's record of driving while intoxicated alone is insufficient for them to incur a legal duty to control their son's behavior for the benefit of third persons under § 319. Likewise, parents, by the mere act of signing their son out of an institution, do not incur the kind of liability contemplated under § 319.
"We conclude that the [trial] court correctly decided as a matter of law that none of the defendants `took charge' of [the adult son] or otherwise owed a duty of care to the plaintiffs within the meaning of § 319." (Emphasis added.) Bebry v. Zanaukas, supra, 81 Conn.App. 591-92. See also Torres v. Dept. of Correction, 50 Conn.Sup. 72, 88, 912 A.2d 1132 (2006) (trial court concluded proper circumstance existed for it to recognize principles of § 319 where defendant state institution "had formal, custodial responsibility for [inmate who escaped from custody and murdered a child], as its ward").
Here, the plaintiff does not allege facts that show that Didato had legal custody or guardianship over Foley at the relevant time. Therefore, she did not owe the decedent a duty of care under § 319. For this reason, Didato's motion to strike count three is granted.
In count four, the plaintiff alleges that Didato was negligent in that she had a duty under the common law to protect third parties from Foley to the extent that they were foreseeable targets of his aggressive behavior, she breached that duty in failing to supervise, monitor and control him, and the decedent's injuries were proximately caused by the breach. According to Didato, this count is legally insufficient in that Connecticut has adopted the rule stated in §§ 314 and 315 of the Restatement (Second) of Torts that, absent specific exceptions that are not applicable, a person does not have a duty to protect another person from the harmful conduct of a third person. The plaintiff counters that, under Connecticut common law, a duty of care to a third person may arise outside of the exceptions recognized in the Restatement, and that she alleges facts that give rise to such a duty.
Aside from the limited exceptions recognized in §§ 316 and 319 of the Restatement, the plaintiff's allegations of negligence fall under the general common-law rules that "there is no duty to control the conduct of a third person"; Murdock v. Croughwell, supra, 268 Conn. 567; and that "the torts of children do not impose vicarious liability upon parents qua parents, although parental liability may be created by statute . . . or by independently negligent behavior on the part of parents." Kaminski v. Fairfield, supra, 216 Conn. 34. Again, the latter circumstance forms the basis for the causes of action that the plaintiff alleges in counts two and three.
In deciding whether policy considerations would justify holding a parent liable for the negligent supervision of a mentally impaired adult child apart from the exceptions stated in §§ 316 and 319, the court must consider the following factors: whether the recognition of the cause of action would (1) require arbitrary limitations, (2) impose additional economic burdens on the general public, (3) yield significant social benefits, (4) increase the risk of double recovery, and (5) be in accord with the weight of judicial authority. Mendillo v. Board of Education, 246 Conn. 456, 485, 717 A.2d 1177 (1990). In Mendillo, the court considered these factors and determined that "the balance of interests lies in declining to recognize a cause of action for loss of parental consortium by a minor child." Id., 495-96.
As to the first factor, when a cause of action such as the one suggested by the plaintiff, would apply to "a practically unlimited class of potential plaintiffs," i.e., anyone who came into contact with such a child, or a potentially large number of defendants, the court "would have to impose arbitrary limitations on the scope of the cause of action" to avoid such a result. Id., 485. For example, the court would have to consider how much of a mental impairment the child would have to be under for the parent to be liable, and how to measure the degree of the child's impairment. While some mentally impaired adults may, like minor children, lack the capacity to use reasonable care or to appreciate the consequences of their conduct, that is not the case for all of them. Moreover, a parent may be less physically able to control the conduct of an adult child than that of a minor child. Courts "should be very cautious about recognizing a new cause of action that would require [them] to impose arbitrary conditions on its scope, and should demand a very strong showing of policy reasons before doing so." Id., 487.
The second and third factors require the court to consider "not only [the benefits of the proposed cause of action] to those who will assert it, but its costs to those who will pay for it." Id. Here, as in Mendillo, although to a lesser extent, "[i]t cannot be denied that recognition of this cause of action, although creating considerable value to the [potential plaintiffs], will impose an added economic burden upon society . . . Magnification of damage awards to a single family derived from a single [incident] might well become a serious problem to a particular defendant as well as in terms of the total cost of such enhanced awards to the insured community as a whole." Id., 487-88. The same may be true of awards from a single family. Moreover, exposing the parents of such children to liability for their conduct might make the parents less willing to provide a home for their children, which would ultimately have a negative impact on society. On the other hand, recognition of the cause of action may cause the parents to reassess their ability to control the children's conduct, and to pursue alternative remedies if they conclude that their control may not be adequate.
These considerations must be weighed against the value of the cause of action to plaintiffs, who already may bring a cause of action against the child. A mentally impaired adult defendant may not, however, have sufficient resources to satisfy a personal injury award, thus impairing a successful plaintiff's ability to recover his or her damages.
The fourth factor, the risk of double recovery, is not implicated, because, according to the principle prohibiting duplicative recovery, a successful plaintiff will only be allowed "one satisfaction . . . for a loss that is the subject of two or more judgments." (Internal quotation marks omitted.) Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 112, 952 A.2d 1 (2008).
Lastly, the weight of authority in Connecticut and in the nation does not support the recognition of this cause of action. As previously noted, the Connecticut Supreme Court has pointed out that "[e]xisting Connecticut precedents impose only a limited duty to take action to prevent injury to a third person. Our 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. See 2 Restatement (Second), Torts § 315 (1965) . . ." (Citations omitted.) Fraser v. United States, 236 Conn. 625, 632-33, 674 A.2d 811 (1996).
In Kaminski v. Fairfield, supra, 216 Conn. 29, the court only considered whether the parents could be held liable for their son's conduct under § 319 of the Restatement. The court specifically noted, however, that "[n]either the [officer] nor our own research has disclosed any case in which a parent, merely by making a home for an adult child who is a mental patient, has been held to be `[o]ne who takes charge of a third person' for the purposes of § 319 . . . Id., 36. Although the court mentioned that "[a]rguably, legally designated custodians may also have a common law duty to protect foreseeable third parties from their wards' aggressive behavior"; id., 35; that statement does not further the plaintiff's argument given the inclusion of the term "legally designated." See also Bebry v. Zanaukas, supra, 81 Conn.App. 586, discussed above.
Citing to Kaminski and Bebry, a federal district court summarized the law as follows: "Under Connecticut law, parents have no duty to protect others from the conduct of their adult children in the absence of `a special relationship of custody and control.' . . . Such a special relationship does not exist unless a person assumes `guardianship or some other form of legal custody.' . . . Merely sharing a residence with an adult child does not create such `a custodial relationship.'" (Citations omitted.) Rhea v. Uhry, United States District Court, Docket No. 3:05 CV189 (RNC) (D.Conn. November 28, 2005). Where "there is no allegation of the type of custodial relationship Bebry requires in order to hold a parent legally responsible for failing to control the conduct of an adult child [and] it is undisputed that defendant did not have legal custody of his daughter at the pertinent time . . . under Bebry, defendant is entitled to summary judgment." Id. For similar reasons, in Kennedy v. Norwalk, supra, 6 C.S.C.R. 1065; and Price v. Steiger, supra, Superior Court, Docket No. 0361987, the trial court granted defendants' motions to strike causes of actions against parents that were premised on their duty to control the conduct of their adult children.
The Connecticut Supreme Court also indicated its reluctance to expand the liability of a third person for that person's failure to control another in Murdock v. Croughwell, supra, 268 Conn. 561, in which the court decided that a city's police chief did not owe a duty to one police officer to protect him from the off-duty conduct of another officer under § 315 of the Restatement (Second) of Torts. The court reiterated that "§ 315, by its express terms, is an exception to the general rule that there is no duty to control the conduct of a third person . . . [Thus], the starting point of our analysis is the general prohibition against imposing upon an individual a duty to control the conduct of a third party . . . Section 315 provides in relevant part: `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 . . .' 2 Restatement (Second), supra, § 315(a) . . . The text of § 315(a) . . . does not define the special relationships that give rise to a duty to control the conduct of a third party. The comments to § 315(a), however, are particularly enlightening in this regard because they reference corresponding Restatement (Second) sections that delineate precisely those relationships that fall within the purview of § 315(a). See 2 Restatement (Second), supra, § 315, comments (a) through (c). `The relations between the actor and a third person which require the actor to control the third person's conduct are stated in §§ 316-19.' Id., comment (c). Sections 316, 318 and 319 of the Restatement (Second) all identify specific relationships that give rise to a duty to control a third party pursuant to § 315(a)." (Citations omitted.) Murdock v. Croughwell, supra, 268 Conn. 567-68. The court determined that the chief did not owe the plaintiff's duty of care under § 315(a) in that "[a]n employment relationship, such as that between [the chief] and [the other officer], is not within the scope of these sections." Id., 569.
The court added that although § 317 addresses duties of care that may arise out of employment relationships, it did not apply under the circumstances of that case in that the altercation between the officers occurred off the department's premises and did not involve any property belonging to the chief or the city. Murdock v. Croughwell, supra, 268 Conn. 569-70.
No footnote text.
Furthermore, according to a treatise on the issue, "[t]ypically, courts are reluctant to find family members liable for an assailant's actions when the liability is premised on negligence-based actions which charge the family member with such things as failure to warn of the assailant's dangerous propensities or failure to control the assailant . . . Though courts are generally reluctant to find parents liable, under general negligence principles, for the actions of their adult children, one court found a father liable for his son's assault where the son had a criminal record . . . Several other courts found parental liability where the children in question exhibited emotional problems or violent tendencies . . . Likewise, another court found the parents of an autistic child liable for the child's assault on his therapist . . . Most courts, however, did not find parental liability where children with emotional problems or violent tendencies committed assaults . . . or where assaults were committed by mentally disturbed children . . ." (Citations omitted.) Annot., Liability of Adult Assailant's Family to Third Party for Physical Assault, 25 A.L.R, 5th 1, 11 (1994). "In actions concerning parents' liability for the torts of their children, the age of the child makes a great difference in whether courts find the parents liable for the acts of the child. Once a child has reached the age of majority, courts almost unanimously find that the parent or parents are not liable for the torts of their children . . . Courts . . . rarely find justification for imposing liability on parents for the conduct of their adult, emancipated children and hold that where there is no legal right to control the children, there can be no liability imposed on the parent." Id., 12-13.
One court offered the following summary of the issues: "In all of the cases imposing liability for the failure to control the conduct of a third party, there are similar factors supporting the imposition of a duty . . . There is a dependency, that is, a person in need of special supervision or protection from someone who is in a superior position to provide it . . . The other part of this special relationship is the right to intervene or control the actions of a third person . . . We know of no case from any jurisdiction which imposes a duty to control a third person when no right to control exists." (Citations omitted; internal quotation marks omitted.) Heck v. Stoffer, 752 N.E.2d 192, 203 (Ind.App. 2001), rev'd on other grounds, 786 N.E.2d 265 (Ind. 2003). "[T]he [plaintiff] alleged no special relationship between [the twenty-seven year old defendant] and his parents that would impose a duty upon [the parents] to control [their son's] conduct. Without such allegations, the dismissal of the duty-to-control issue was appropriate." Id., 204.
The plaintiff's reliance on Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998), for her argument that Didato has a common-law duty to control Foley apart from the exceptions recognized in the Restatement is misplaced. The plaintiff in Murdock v. Croughwell, supra, 268 Conn. 574, raised a similar argument, to which the court responded as follows: "While this court has recognized a duty of protection [from the conduct of third parties] in certain factual circumstances, the cases cited by the plaintiff are unavailing on the facts of the present case. As we already have noted, Purzycki is readily distinguishable because it involved the special relationship between a school board and the minor students under its care." In Purzycki, the Supreme Court was discussing the relationship between the defendant and an injured student, and not, as here, the defendant's relationship with the alleged tortfeasor. Moreover, although the court did not discuss the Restatement in its decision, the relationship at issue in Purzycki is one of the special relationships recognized in § 320 as giving rise to a duty of a person who had custody of the injured party to control the conduct of a third person. Thus, it does not support the plaintiff's argument that this court should recognize an exception to the rule that a person is not liable for the conduct of a third party beyond those already recognized in the Restatement. Considering these factors, the policy considerations weigh against recognizing that a parent has a legal duty to control the conduct of an adult child who, although he is mentally disabled, has not been found to be legally incompetent and placed in the care of the parent at the time that the conduct at issue occurs. Therefore, the court declines to conclude that, under the circumstances in this case, Didato had a duty to control Foley, who, on the date of the incident, was an adult, and had not been found to be legally incompetent. For these reasons, Didato's motion to strike count four is granted.
As noted in the comments to § 315, "The relations between the actor and the other [injured person] which require the actor to control the conduct of third persons for the protection of the other are stated in §§ 314A and 320." 2 Restatement (Second), supra, § 315, comment (c), p. 123.
Section 320 of the Restatement (Second) of Torts, which is entitled "Duty of Person Having Custody of Another to Control Conduct of Third Persons," provides: "One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor (a) knows or has reason to know that he has the ability to control the conduct of the third persons, and (b) knows or should know of the necessity and opportunity for exercising such control." 2 Restatement (Second), supra, § 320, p. 130.
According to the comments to this section, "[t]he rule stated in this Section is applicable to . . . teachers or other persons in charge of a public school." Id., comment (a).