Opinion
CV166027757
10-12-2017
Jonathan Roy v. Norwich Roman Catholic Diocesan Corporation
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#117)
Joseph Q. Koletsky, Judge Trial Referee.
The issue presented is whether the court should grant the defendants' motion to strike specific paragraphs of counts one, two, four, and five, and count seven in its entirety, on the ground that they fail to state legally sufficient claims upon which relief may be granted. For the reasons set out below, the court grants the motion to strike the specific paragraphs and also grants the motion to strike as to count seven.
FACTS
On May 4, 2017, the plaintiffs, Jonathan and Melissa Roy, filed a seven-count amended complaint against the defendants, the Norwich Roman Catholic Diocesan Corporation (Corporation), Bishop Daniel Reilly (Reilly), and the Most Holy Trinity Church (Church). The first six counts of the amended complaint are by Mr. Roy alleging negligence, recklessness, and breach of fiduciary duty against the defendants. The seventh count is by Mrs. Roy alleging loss of consortium against the defendants. The plaintiffs allege the following facts in their amended complaint. Jonathan was a parishioner at the Church in Pomfret, Connecticut. The Corporation controls, supervises, and is responsible for the actions and conduct of its personnel, including Father Paul Hebert. From 1975 through 1994, Reilly was Bishop and CEO of the Corporation, and from 1994 through 2003, Daniel Hart, now deceased, served as Bishop and CEO. Jonathan and his family were devout Catholics and attended mass frequently. From about 1990 to 1996, Father Paul Hebert, while under the supervision, employ, apparent authority, and control of the Corporation, the Church, and Reilly, personally picked Jonathan to be an altar boy and subsequently sexually assaulted him on hundreds of occasions on church grounds. The amended complaint further alleges that the Corporation and Reilly knew or should have known that Father Hebert had previously engaged in sexual assault, deviant sexual conduct, and improper activities with young boys at another church as they had transferred him to conceal his illegal acts, and allowed him to continue to engage in deviant behavior. As the result of the defendants' actions, Mr. Roy suffered and will continue to suffer serious and permanent injuries, emotional distress, anxiety, depression, low self-esteem, frustrations, fear, and psychological and psychiatric disorders.
The plaintiff filed the original complaint on August 22, 2016. The defendants filed a motion to dismiss with a memorandum in support on November 21, 2016, arguing that several specific allegations should be dismissed. On April 24, 2017, the court, Vacchelli, J., issued a memorandum of decision granting the motion to dismiss as to claims in several paragraphs, and denied the motion as to the other claims. Roy v. Norwich Roman Catholic Diocesan Corp., Superior Court, judicial district of New London, Docket No. CV-16-6027757-S (April 24, 2017, Vacchelli, J.) [64 Conn. L. Rptr. 349, ]. The plaintiffs then filed their amended complaint, the operative complaint, pursuant to the court's order. The Norwich Roman Catholic Diocesan Corporation, Bishop Daniel Reilly, and the Most Holy Trinity Church will collectively be referred to as the defendants.
On May 24, 2017, the defendants filed a motion to strike subparagraphs 16(h), (k), and (aa) of count one; 16(s) of count two; 14(h), (k), and (aa) of count four; and 14(r) of count five. The defendants' motion to strike also seeks to strike count seven in its entirety. The defendants posit that the claims are not legally sufficient upon which relief may be granted. The motion was accompanied by a memorandum of law. On June 12, 2017, the plaintiffs filed a memorandum of law in opposition. On July 11, 2017, the defendants filed a reply brief. Oral argument was heard on the motion at short calendar on July 31, 2017.
The relevant paragraphs and the subparagraphs at issue are the following. Count one, paragraph sixteen, states: " The injuries and damages sustained by the plaintiff were the result of the negligence and carelessness of the defendant [Corporation] and its said bishop, their agents, servants and/or employees, in one or more of the following particulars, in that they: . . . (h) failed to report to the appropriate authorities, in accordance with law, reasonable suspicions that the Father Paul Hebert, was engaging or had engaged in child abuse; . . . (k) failed to report suspicious conduct of the Father, Paul Hebert, to others in authority; . . . (aa) violated [General Statutes] § 17a-101a et seq. . . . by failing to report known or reasonably suspected acts of child abuse committed by the Father Paul Hebert, to the State of Connecticut Department of Children and Families, law enforcement agencies, or any other authority existing at said times, as mandated by state statute." Count two, paragraph sixteen, states: " The injuries and damages sustained by the plaintiff were the result of the reckless and wanton acts of said defendants, their agents, servants and/or employees, in one or more of the following particulars, in that they: . . . (s) violated [General Statutes] § 17a-101a et seq. . . . by refusing to report known or reasonably suspected acts of child sexual abuse committed by [Father Paul Hebert] to the State of Connecticut Department of Children and Families, law enforcement agencies, or any other authority existing at said times, as mandated by state statute." Count four, paragraph fourteen states: " The injuries and damages sustained by the plaintiff were the result of the negligence and carelessness of said defendant, its agents, servants and/or employees, in one or more of the following particulars, in that it: . . . (h) failed to report to the appropriate authorities, in accordance with law, reasonable suspicions that the Father Paul Hebert, was engaging or had engaged in child abuse; . . . (k) failed to report suspicious conduct of the Father Paul Hebert, to others in authority; . . . (aa) violated [General Statutes] § 17a-101a et seq. . . . by failing to report known or reasonably suspected acts of child sexual abuse committed by the Father Paul Hebert, to the State of Connecticut Department of Children and Families, law enforcement agencies, or any other authority existing at said times, as mandated by the state statute." Count five, paragraph fourteen, states: " The injuries and damages sustained by the plaintiff were the result of the reckless and wanton acts of the defendant, its agents, servants and/or employees, in one or more of the following particulars, in that it: . . . (r) violated [General Statutes] § 17a-101a et seq. . . . by refusing to report known or reasonably suspected acts of child sexual abuse committed by [Father Paul Hebert] to the State of Connecticut Department of Children and Families, law enforcement agencies, or any other authority existing at said times, as mandated by the state statute."
DISCUSSION
" 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.) Waters v. Autuori, 236 Conn. 820, 825, 676 A.2d 357 (1996). " 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.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " 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, 693 A.2d 293 (1997).
In Coe v. Board of Education, supra, 301 Conn. 121 n.5, the court cited Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) (17 Conn. L. Rptr. 296, 298 n.1, ) and quoted parenthetically the following language from that case: " Under prior case law and earlier versions of the Practice Book, it was generally improper to [move to strike] a paragraph of a complaint unless the paragraph purported to state a separate cause of action . . . Since 1978, however, the Practice Book has not contained such a constraint." (Internal quotation marks omitted.) The court in Coe v. Board of Education, also cited Cook v. Stender, Superior Court, judicial district of Middlesex, Docket No. CV-04-0104110-S (December 22, 2004, Silbert, J.) (38 Conn. L. Rptr. 439, 440, ), and quoted parenthetically the following language from that case: " Prior case law 'ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint . . . the proper course for the court is to strike those allegations only . . .'" Id.
I
COUNTS ONE, TWO, FOUR, AND FIVE
The defendants move to strike subparagraphs 16(h), (k), and (aa) of count one; 16(s) of count two; 14(h), (k), and (aa) of count four; and 14(r) of count five arguing that they fail to state a cognizable claim for the violation of General Statutes § 17a-101a et seq. Specifically, the defendants argue that the plaintiffs' allegations are predicated on theories of negligence and recklessness, theories which they argue are legally inconsistent with a claim for the violation of § 17a-101a, which they assert can only be violated by conduct in bad faith. The defendants' motion to strike essentially addresses whether a plaintiff must allege bad faith in order to base a negligence or recklessness claim on an alleged failure to report under § 17a-101a(a)(1).
The plaintiffs argue that the aforementioned subparagraphs of the plaintiffs' amended complaint are legally sufficient to state a claim for a violation of § 17a-101a et seq. The plaintiffs' position is that they do not need to allege bad faith in order to base their negligence and recklessness claim on the alleged failure to report. Additionally, the plaintiffs argue that a claim of immunity under General Statutes § 17a-101e(b) must be raised as a special defense, not in a motion to strike.
A
Special Defense
" Statutory immunity may be raised through a motion to strike where it is apparent from the face of the complaint that the defendant was acting as a mandated reporter when the alleged negligent acts or omissions occurred." (Emphasis added.) Doe v. Firn, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-06-5001087-S (June 12, 2007, Esposito, J.) (43 Conn. L. Rptr. 701, 705, ). In the present case, it is apparent from the complaint and seems undisputed by the parties that the defendants are members of the clergy under § 17a-101(b)(18) and, thus, are mandatory reporters under § 17a-101a. Accordingly, under Doe v. Firn, the defendants are not required to raise the defense of statutory immunity as a special defense and a motion to strike is an appropriate method for raising the defense.
B
Good Faith
Section 17a-101a(a)(1) provides in relevant part: " Any mandated reporter . . . who in the ordinary course of such person's employment or profession has reasonable cause to suspect or believe that any child under the age of eighteen years . . . has been abused or neglected . . . shall report or cause a report to be made . . ." General Statutes § 17a-101e(b) states that " [a]ny person, institution or agency which, in good faith, makes, or in good faith does not make, the report pursuant to sections 17a-101a to 17a-101d, inclusive, and 17a-103 shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed and shall have the same immunity with respect to any judicial proceeding which results from such report provided such person did not perpetrate or cause such abuse or neglect."
In Ward v. Greene, 267 Conn. 539, 839 A.2d 1259 (2004), " the issue was whether General Statutes § 17a-101 imposed a duty of care on child care providers, and ultimately, whether a violation of this statute constituted negligence per se or some other form of negligence." Pickering v. Aspen Dental Management, Inc., 100 Conn.App. 793, 801, 919 A.2d 520 (2007). The Supreme Court concluded that § 17a-101 was intended to protect identifiable victims, " those children who have been abused or neglected and are, or should have been, the subject of a mandated report." Ward v. Greene, supra, 267 Conn. 560. The court in Ward noted: " The public policy concerns inherent in the present case are of profound importance, namely, the protection of children's health and welfare, which may be affected adversely through injury and neglect. We are mindful, however, that extending liability to a mandated reporter for potential future abuse of children, unknown to the mandated reporter, may, in fact, undermine the salutary goals of the statutory scheme." Id., 558.
The defendants rely on Justice Palmer's concurring opinion in Ward . Joined by Justice Vertefeuille, Justice Palmer stated: " I write separately merely to note that the 1997 amendment to the immunity provisions of General Statutes § 17a-101 . . . casts serious doubt on whether § 17a-101 gives rise to a private cause of action for negligence in failing to report irrespective of whether the party seeking to invoke § 17a-101 falls within the class of persons that the legislature intended to protect. This doubt is predicated on the fact that the 1997 amendment affords immunity for any good faith failure to report under § 17a-101 . . . The legislature provided for such immunity because of the highly sensitive, and necessarily discretionary, nature of the report requirement . . . The imposition of civil liability on a mandated reporter for his or her negligence in failing to report under § 17a-101 seems antithetical to the legislative policy expressed in § 17a-101e(b), as amended." (Citations omitted; emphasis in original; footnote omitted.) Ward v. Greene, supra, 267 Conn. 561-62. Justices Palmer and Vertefeuille identified the conflict between the good faith immunity provision of § 17a-101e(b) and alleged violations of § 17a-101a that do not plead bad faith, but the Supreme Court did not decide this issue.
The defendants point out that other states have expressly held that good faith immunity provisions bar claims that do not allege bad faith. See, e.g., Michaels v. Gordon, 211 Ga.App. 470, 439 S.E.2d 722, 725 (1993) (" '[b]ad faith' is more than simply bad judgment or negligence, it implies a dishonest purpose or some moral deviance"); Doe v. Winny, 327 Ill.App.3d 668, 764 N.E.2d 143, 154, 261 Ill.Dec. 852 (2002) (" [A] plaintiff must show more than mere negligence to create a question of fact as to a reporter's good faith. To raise a question of fact, the plaintiff must show that the reporter has acted maliciously, dishonestly, or for some improper purpose."); Maples v. Siddiqui, 450 N.W.2d 529, 530 (Iowa 1990) (negligence will not negate good faith); Davis v. Durham City Schools, 91 N.C.App. 520, 523, 372 S.E.2d 318 (1988) (good faith immunity not overcome absent showing of malice); B.W. v. Meade County, 534 N.W.2d 595, 597 (S.D. 1995) (" Simply put, if good faith immunity can be overcome by establishing negligence, then good faith immunity is a meaningless concept as one would have to be free from negligence, and thus not liable in any event, to also avail one's self of the doctrine of good faith immunity. Acting in good faith denotes performing honestly, with proper motive, even if negligently").
Following Ward v. Greene, Superior Court decisions have split on whether a plaintiff must allege bad faith in order to sufficiently plead a violation of § 17a-101a. The defendants urge the court to follow Doe v. Firn, supra, 43 Conn. L. Rptr. 701, . Meanwhile, the plaintiffs suggest the court should follow Aspinwall v. Norwich Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X03-CV-15-6066535-S (January 17, 2017, Moll, J.).
In Doe v. Firn, supra, 43 Conn. L. Rptr. 706,, the court granted a motion to strike a claim that the defendant had violated § 17a-101a by reporting suspected child abuse in a negligent manner because the plaintiff failed to allege that the defendant did not act in good faith. The court also concluded that because the defendant was a mandated reporter under § 17a-101a, she was " not required to raise the defense of statutory immunity as a special defense and a motion to strike is an appropriate method for raising the defense." Id., 705, . The plaintiff's allegations that the defendant social worker failed to include in her report to the Department of Children and Families that the person committing the sexual assault on the student was the basketball coach was deemed insufficient to imply bad faith on the part of the defendant social worker because it did not pertain to dishonesty or intent to defraud. Id., 706, .
In Aspinwall v. Norwich Roman Catholic Diocesan Corp., supra, the court concluded that a plaintiff does not need to allege bad faith as a basis for stating a claim for the violation of § 17a-101a and that the defendant must raise good faith immunity by way of a special defense. The court based its decision on Justice Katz's dissent in Ward . Justice Katz stated in her dissent that she would have found that a duty of care extended to the child under a theory of negligence per se. Ward v. Greene, supra, 267 Conn. 570. Justice Katz also addressed the issue of where an allegation of a violation under § 17a-101a is a claim for negligence per se, and concluded that good faith may be asserted as an " excuse and thereby avoid liability" in a footnote. Id., 570 n.8. It is important to note, however, that the majority in Ward did not agree with Justice Katz, and concluded that the defendant did not owe a duty of care to the deceased child because the child was not within the class of persons protected by General Statutes § 17a-101. Id., 560.
Specifically, Justice Katz stated, in a footnote and without analysis, that " in cases involving negligence per se pursuant to § 17a-101 . . . the defendant may avoid liability upon proof of a valid excuse or justification . . . A mandatory reporter who negligently has failed to act in accordance with the statute may assert good faith as an excuse and thereby avoid liability." (Citation omitted.) Ward v. Greene, supra, 267 Conn. 570 n.8.
Furthermore, the Aspinwall court did not distinguish its reasoning from Doe, stating only that it saw Doe, a case where a defendant reported suspected abuse, as " analytically different" from a case where a defendant did not make a report. This court agrees with the defendant that this distinction is inconsequential. The immunity provided by § 17a-101e(b) is identical for those who, in good faith, report or do not report. General Statutes § 17a-101e(b); see also Ward v. Greene, supra, 267 Conn. 559 (" [w]ith the enactment of Public Acts 1997, No. 97-319, § 12, the legislature opted also to shield reporters from liability when they, in good faith, do not report suspected abuse or neglect"). Under § 17a-101e(b), there is no difference between one who reports and one who does not report because both are granted immunity absent bad faith. The court notes that the Legislature is well able to distinguish between a grant of immunity for an action for which liability may be imposed only upon allegations and proof of bad faith, and a grant of protection from another action where the right to that protection must be raised by special defense. For example, on October 1, 2017, number 17-134 of the 2017 Public Acts became effective and provides that a " Good Samaritan" who enters a car, forcibly or otherwise, to remove a child from imminent danger of serious bodily injury " shall have an affirmative defense against any civil damages or criminal penalties" resulting from that removal of the child. Under P.A. 17-134, the legislature obviously intended a person desiring to use the protection of that statute be required to plead the statute as a special defense. To permit the allegations of simple negligence through an alleged " violation" of the mandated reporter statute is to invite " confusion for the court, the parties and the jury." Cook v. Stender, supra, 38 Conn. L. Rptr. 440, . For the foregoing reasons, the plaintiffs must allege bad faith in order to state legally sufficient claims based on the alleged failure to report.
Public Acts 2017, No. 17-134 is the following: " AN ACT CONCERNING LEGAL PROTECTIONS FOR PERSONS ENTERING PASSENGER MOTOR VEHICLES TO RENDER EMERGENCY ASSISTANCE TO CHILDREN. Be it enacted by the Senate and House of Representatives in General Assembly convened: Section 1.
C
Negligence and Recklessness
The plaintiffs also argue in their memorandum that they have " alleged a violation of § 17a-101a as evidence of one of the ways the defendant was negligent and caused his injuries." The amended complaint alleges both negligence and recklessness. The defendants argue that because bad faith requires intentional conduct, negligence and recklessness cannot constitute bad faith. The court agrees with the defendant.
To plead bad faith, a plaintiff must allege that a defendant acted intentionally, with a dishonest purpose, or a state of mind affirmatively operating with some design or motive of interest or ill will. Buckman v. People Express, Inc., 205 Conn. 166, 171, 530 A.2d 596 (1987); Chapman v. Norfolk & Dedham Mutual Fire Ins. Co., 39 Conn.App. 306, 320, 665 A.2d 112 (1995). " In Buckman v. People Express, Inc., [ supra, the Supreme Court] stated that bad faith is defined as the opposite of good faith, generally implying a design to mislead or to deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation not prompted by an honest mistake as to one's rights or duties . . . [B]ad faith is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity . . . It contemplates a state of mind affirmatively operating with furtive design or ill will." (Internal quotation marks omitted.) Hutchinson v. Farm Family Casualty Ins. Co., 273 Conn. 33, 42 n.4, 867 A.2d 1 (2005). " The lynchpin of a bad faith claim is a state of mind characterized by an intent to mislead or deceive or defraud." Ravski v. Connecticut State Medical Society, IPA, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. CV-04-4000582-S, (January 26, 2005, Sheedy, J.).
In contrast, negligence is " an unintentional tort"; State Farm Fire & Casualty Co. v. Tully, 322 Conn. 566, 582, 142 A.3d 1079 (2016); an unintentional breach of duty. Farrell v. Waterbury H.R. Co., 60 Conn. 239, 246, 21 A. 675 (1891). " Negligence has been defined as the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances . . ." (Internal quotation marks omitted.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 220 n.6, 520 A.2d 217 (1987). " Bad faith means more than mere negligence; it involves a dishonest purpose." (Internal quotation marks omitted.) 19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 637, 987 A.2d 1009 (2010). " [T]he same conduct [cannot] reasonably be determined to have been both intentionally and negligently tortious . . . [I]ntentional conduct and negligent conduct, although differing only by a matter of degree . . . are separate and mutually exclusive. . . . . Although in a given case there may be doubt about whether one acted intentionally or negligently, the difference in meaning is clear." (Citations omitted; internal quotation marks omitted.) DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 693, 846 A.2d 849 (2004).
Recklessness is the conscious disregard of a substantial and unjustifiable risk, a state of mind short of intentional conduct. See Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 45, 492 A.2d 219 (1985) (recklessness " requires a conscious choice of a course of action either with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent" [internal quotation marks omitted]). Recklessness has been described " as a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. Reckless conduct must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . . or even of an intentional omission to perform a statutory duty . . ." (Citations omitted; internal quotation marks omitted.) Northrup v. Witkowski, 175 Conn.App. 223, 248, 167 A.3d 443 (2017). " Wilful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances . . . Not only the action producing the injury but the resulting injury also must be intentional." French Putnam, LLC v. County Environmental Services, Superior Court, judicial district of Stamford, Docket No. CV-98-0166445-S (July 21, 2000, D'Andrea, J.) (27 Conn. L. Rptr. 684, 692, ). " There is a wide difference between negligence and reckless or wanton misconduct." Sheiman v. Lafayette Bank & Trust Co., supra, 4 Conn.App. 45.
The plaintiffs' allegations that the defendants negligently or recklessly failed to report the alleged abuse per § 17a-101a are inconsistent with the defendants' good faith immunity. To plead bad faith, the plaintiffs must allege that the defendants acted intentionally. Negligent and reckless conduct, however, do not involve the element of intent. For these reasons, negligence and recklessness do not constitute bad faith for purposes of alleging a violation of § 17a-101a.
II
COUNT SEVEN--LOSS OF CONSORTIUM
The defendants argue that count seven of the amended complaint must be stricken because the plaintiffs were not married at the time of Jonathan's alleged injury and they have not alleged that they were. The plaintiffs counter this argument by inviting this court to rethink controlling case law, arguing that case law has not considered a situation like the one at hand, where a plaintiff was injured through sexual abuse over several years during childhood, and those injuries do not manifest for years, even decades, when such a plaintiff is grown and may be married, at which time his or her spouse is injured as a result of the defendants' negligence, even if the negligence was committed years earlier.
The Supreme Court in Gurliacci v. Mayer, 218 Conn. 531, 564, 590 A.2d 914 (1991), held that " a cause of action for loss of consortium does not exist where the injury occurred prior to the marriage of the parties." The Supreme Court stated that " [t]he rationale behind this requirement is that the formal marriage relation forms the necessary touchstone to determine the strength of commitment between the two individuals which gives rise to the existence of consortium between them in the first instance." (Internal quotation marks omitted.) Id. Despite the plaintiff making a valiant argument, Jonathan was injured before the plaintiffs were married and the complaint does not allege that the parties were married.
The plaintiffs further argue in a footnote in their memorandum of opposition that Gurlacci was recently abrogated in a limited context by Mueller v. Tepler, 312 Conn. 631, 95 A.3d 1011 (2014), where the court held that a same-sex couple could assert a loss of consortium claim despite not being married or in a civil union, because they had been barred from doing so under the laws of Connecticut at that time. The plaintiffs concede that Mueller does not control in this instance, but articulate that it is useful in that it demonstrates that our Supreme Court has not viewed Gurlacci as a rigid, bright line rule, but one that can be expanded. This court takes issue with the plaintiffs' position for two reasons. First, the court understands the Mueller decision differently and notes some important distinctions. The plaintiffs in Mueller were adults of age to consent to marriage and showed that but for the laws of the time, they would have been married. In the present case, Jonathan suffered his injuries as a young boy between the ages of eleven and sixteen or seventeen, which is much younger. Second, if an exception is to be had like the one the plaintiff is proposing, this court leaves it to the Supreme Court or the legislature to decide.
Connecticut's legal age to marry is eighteen. General Statutes § 46b-20a. Applicants under the age of majority, however, are eligible if they obtain parental consent, and those sixteen and younger also need approval from the probate judge for the district in which the minor resides. General Statutes § 46b-30(a), (b). On June 20, 2017, the Governor signed into law House Bill No. 5442, 2017 Sess., titled " An Act Concerning the Legal Age to Marry in this State" which serves to prohibit the issuance of a marriage license to any applicant under the age of eighteen years of age. Public Act No. 17-54 takes effect on October 1, 2017, and will change General Statutes § 46b-20a.
Indeed, Representative Prasad Srinivasan, 31st district, introduced a bill in January 2017 titled, " An Act Limiting Loss of Consortium Claims to Persons Who are Married, " and states " [t]hat chapter 925 of the general statutes be amended to limit a loss a loss of consortium claim to an individual who is married at the time an injury is alleged to have occurred." House Bill No. 6898, 2017 Sess.
As the plaintiffs do not allege they were married and this court declines the plaintiffs' invitation to carve out an exception to the current law regarding loss of consortium, the motion to strike count seven is granted.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike subparagraphs 16(h), (k), and (aa) of count one; 16(s) of count two; 14(h), (k), and (aa) of count four; and 14(r) of count five is granted. The defendants' motion to strike count seven in its entirety is also granted. The plaintiff may plead over within fifteen days, pursuant to Practice Book § 10-44.
(a) Notwithstanding any provision of the general statutes, a person who enters the passenger motor vehicle of another, including entry by force, to remove a child from the passenger motor vehicle shall have an affirmative defense against any civil damages or criminal penalties resulting from the acts or omissions by such person in removing the child from the passenger motor vehicle, if such person: (1) Has a reasonable belief, at the time such person enters the passenger motor vehicle, that such entry is necessary to remove the child from imminent danger of serious bodily injury; (2) Uses no more force than reasonably necessary under the circumstances to enter the passenger motor vehicle to remove the child from imminent danger of serious bodily injury based upon the circumstances known by such person at the time; (3) Reports the entry and the circumstances surrounding such entry to a law enforcement agency or other public safety agency within a reasonable period of time after entering the passenger motor vehicle; and (4) Takes reasonable steps to ensure the safety, health and well-being of the child after removing the child from the passenger motor vehicle. (b) The affirmative defense provided in subsection (a) of this section shall not apply to acts or omissions constituting gross, wilful or wanton negligence. (c) Nothing in this section shall affect a person's civil liability if the person attempts to render aid to the child in addition to the aid that is authorized under this section. (d) The provisions of this section are not exclusive, and the affirmative defense shall be in addition to any other defenses or immunities provided by state or federal law or which are available under common law. (e) As used in this section, 'passenger motor vehicle' has the same meaning as provided in section 14-1 of the general statutes and 'public safety agency' has the same meaning as provided in section 28-25 of the general statutes."