Opinion
No. CV-10 6007924S
August 18, 2010
RULING ON MOTION TO STRIKE (#106)
This action in three counts against First Student Transportation, LLC (First Student) arises from an alleged assault of the minor plaintiff Claudia Roach, a student, on January 25, 2008, by other students while they were riding on the defendant's school bus in the City of New Haven. In the first count, Claudia Roach, through her parent and next friend Hazel Roach, seeks damages for personal injuries she alleges resulted from First Student's negligence. In the second count, Hazel Roach, and in the third count, Charles Roach, seek to collect damages for medical expenditures they incurred, or may incur in the future, in providing care and treatment to their daughter.
First Student has moved to strike the second and third counts in their entirety on the ground that the parents' claims for medical expenditures are barred by General Statutes § 52-204. First Student has also moved to strike paragraphs 8[k] and 9[k] of the first count, asserting that those paragraphs fail to allege any legally sufficient basis upon which it can be held liable.
"The purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint for failure to state a claim on which relief can be granted. Practice Book § 10-39. The motion admits all facts that are well pleaded . . . but does not admit legal conclusions or the truth or accuracy of opinions . . . On a motion to strike, the trial court's inquiry is to ascertain whether the allegations . . . if proven, would state a claim on which relief could be granted. Practice Book § 10-39(a)." (Citations omitted.) Bennett v. Connecticut Hospice, Inc., 56 Conn.App. 134, 136-37, 741 A.2d 349 (1999), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000). The court must deny the motion to strike if the facts fairly provable under the allegations of the complaint support a cause of action, but must grant it if they do not. See Doe v. Yale University, CT Page 16628 252 Conn. 641, 667, 748 A.2d 834 (2000); Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
I.
Under the common law of Connecticut, two causes of action arise when a minor is injured by the negligent act of a third party: the minor's action to recover for the personal injuries she sustained and the parents' action to collect for damages resulting from the injury to the child, such as medical expenditures. See Dzenutis v. Dzenutis, 200 Conn. 290, 308, 512 A.2d 130 (1986); Krause v. Almor Homes, Inc., 147 Conn. 333, 335-36, 160 A.2d 753 (1960). "The right of the parent to recover is independent of the right of the child, and the judgment in an action brought by the child would not preclude the parent from recovery in an action brought by him unless . . . [a parent] brought the action as next friend of his daughter and the entire damages were claimed in it. The parent is not regarded in law as either a party or privy to an action brought by a child and hence is not bound by the judgment thereunder." Shiels v. Audette, 119 Conn. 75, 77, 174 A. 323 (1934). Historically, it has been common for parents to assert their common-law right to damages at the same time their minor child has brought a claim. See e.g., Falleo v. Byrolly Transportation Co., 109 Conn. 500, 147 A. 16 (1929) (error for trial court to set aside judgments in favor of minor plaintiff and parent plaintiff); Tristram v. Shepard, 91 Conn. 211, 99 A. 510 (1916) (Separate actions by minor plaintiff and parent plaintiff consolidated in single trial, verdicts of $900 and $615 respectively upheld); Wennell v. Dowson, 88 Conn. 710, 92 A. 663 (1914) (upholding a verdict in favor of the parent plaintiff for $275 and the minor plaintiff for $700).
The common law also permitted a parent to waive the right to recover damages in favor of the child by bringing an action for the minor alone as next friend. Carangelo v. Nutmeg Farm, Inc., 115 Conn. 457, 461, 162 A. 4 (1932); Kenure v. Brainerd Armstrong Co., 88 Conn. 265, 267, 91 A. 185 (1914). In addition, by statute a parent could consent to the minor plaintiff's direct recovery of damages based on the parent's past and future expenditures on behalf of the minor. See, e.g., General Statutes § 7947 (Rev. 1949); General Statutes § 842d (Cumulative Supplement 1937) General Statutes § 602a (Cumulative Supplement Jan. Sess. 1931). In 1951, this statutory authority was amended to add language that would bar double recovery by both the parent and the child. General Statutes § 7947 as amended by Sec. 1369b (Cumulative Supplement 1951).
The legislative history of this amendment is set forth in Langlois-Clishman v. McNulty, Superior Court, Judicial District of Waterbury, Docket No. CV 990144267 (Dec. 16, 1999, Doherty, J.) [ 26 Conn. L. Rptr. 96], as follows: "This statute was formerly Senate Bill 630 and it was the subject of some debate on June 6, 1951 in the legislature. On that date there was an amendment to the bill . . . The bill was amended by the addition of the following language. `After the word "plaintiff" was added provided a recovery by the plaintiff shall be a bar to any claim by such husband or parent.'" The author of that amendment commented on the effect of the amendment by stating `It merely bars a husband or parent from making a claim if recovery is made by plaintiff.' The bill was then adopted as amended. House Amendment Schedule `A' to Senate Bill No. 630. Appendix p. 121 (Vol. 4, Part 6) June 6, 1951." The amended statute applied to all actions pending as of October 1, 1951. See Sec. 1369b (Cumulative Supplement 1951).
The language of present General Statutes § 52-204 is identical to the 1951 revision. It provides, in pertinent part, that: "In any civil action arising out of personal injury . . . as a result of which personal injury . . . the . . . parent of the plaintiff has made or will be compelled to make expenditures or has contracted indebtedness, the amount of such expenditures or indebtedness may be recovered by the plaintiff, provided a recovery by the plaintiff shall be a bar to any claim by such . . . parent . . ." The Supreme Court had an opportunity to review the statutory language in Dzenutis v. Dzenutis, supra, 200 Conn. 290, 308, a two-count action in which both the minor plaintiff and his mother sought to recover damages as result of severe burns that the minor sustained when he tripped over an unguarded bucket of hot tar. There, the court made it clear that "[a]lthough General Statutes § 52-204 authorizes the recovery of medical expenses in an action solely in behalf of the injured child and makes the recovery in such an action a bar to any claim by the parent for such expenses, the statute does not mandate that procedure," in upholding recovery by the mother of medical expenses for the treatment of her son.
Thus, although § 52-204 prohibits double recovery of the same damages for medical expenditures by both parent and child, it does not bar the two independent causes of action. See Mercede v. Kessler, Superior Court, Judicial District of Stamford, Docket No. CV 990172682 (Feb. 13, 2001, Karazin, J.) [ 29 Conn. L. Rptr. 246]; Melhado v. Saint Francis Hospital, Superior Court, Judicial District of Hartford, Docket No. CV 990591284 (July 7, 2000, Wagner, J.) [ 27 Conn. L. Rptr. 492]; Burns v. Stauder, Superior Court, Judicial District of Tolland, Docket No. CV 9970421 (Oct. 13, 1999, Zarella, J.); Duncan v. Snow, Superior Court, Judicial District of Waterbury, Docket No. CV 0101485 (Oct. 9, 1991, Blue, J.) [ 5 Conn. L. Rptr. 105]. The parents and their injured minor child may choose to elect to bring their claims in this manner even if it does not make practical sense to the defendant. Section 52-204 bears on this case only to prescribe the amount of damages that can be awarded if liability is found. Therefore, the motion to strike the second and third counts is denied.
CT Page 16630
II.
In paragraphs 8[k] and 9[k] of the first count, the minor plaintiff alleges that First Student "VIOLATED [sic] C.G.S. 10-222(d)[sic]." General Statutes § 10-222d requires local and regional board of education to "develop and implement a policy to address the existence of bullying in its schools." First Student asserts that this statute does not impose liability on it as a private company arguing that not only is its mandate directed to boards of education but also that courts have concluded that the statute does not create a private cause of action against those boards. See, e.g., Karlen v. Westport Board of Education, 638 F.Sup.2d 293, 302 (D.Conn. 2009), Santoro v. Hamden, Superior Court, Judicial District of New Haven, Docket No. CV04488583 (Aug. 18, 2006, A. Robinson, J.) [ 41 Conn. L. Rptr. 850]. In response, the minor plaintiff maintains that she is alleging a violation of this statute only as evidence of a standard of care to support her claim of negligence against First Student."The existence of a duty of care is a prerequisite to a finding of negligence." Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614, 783 A.2d 462 (2001). Whether § 10-222d sets forth a standard of care that applies to First Student is a question of law for the court. See e.g., Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 593, 945 A.2d 388 (2008).
Section 10-222d clearly and unambiguously applies only to each local and regional boards of education, acting as agents for the state Department of Education, for the purpose of creating policies to address bullying behavior consistent with the provisions of the statute. See Esposito v. Bethany, Superior Court, Judicial District of New Haven, Docket No. CV 065002923 (May 3, 2010, Corradino, JTR) (The statute does not impose any duty on towns; the specific mandate is directed to boards of education only). While the statute requires the board's policy to address repeated "overt acts by a student or group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while . . . on a school bus," the legislative intent was for the board to create policy, not to impose punishment on the board, or its agents, for the violation of that policy. Dornfried v. Berlin Board Of Education, Superior Court, Judicial District of New Britain, Docket No. CV 064011497 (Sep. 26, 2008, Trombley, J.) [ 46 Conn. L. Rptr. 706]. It would be irrational to conclude that the statute imposes a duty of care on First Student, the school bus operator, when it does not impose such a duty on the New Haven Board of Education. The court concludes, as a matter of law, that the statute does not impose a duty on First Student and does not provide evidence of a standard of care. Accordingly, the motion to strike paragraphs 8[k] and 9[k] of the first count is granted.
Judge Trombley quotes from the legislative history in Dornfried v. Berlin Board Of Education, supra, as follows: "In referring to the statements made by Representative Mushinksy (35th) a major sponsor of the bill, as to the omission of any penalties for the failure to follow the policy and procedures contained therein, Representative Green (1st), a major supporter of the bill, stated: `I appreciate Representative Mushinsky . . . wants us to be aware of this issue. It is not a punitive kind of thing . . . That is not what the intent of the bill is . . . It is not to look for blame on anybody's part. It is to come up with policies . . ." 45 H.R. Proc., Pt. 10, 2002 Session, p. 3212."
III.
For the reasons stated above, the motion to strike the second and third counts is denied. The motion to strike paragraphs 8[k] and 9[k] of the first count is granted.