Opinion
CV176018578S
01-08-2020
Craig Salamone v. Wesleyan University et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Domnarski, Edward S., J.
MEMORANDUM OF DECISION RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (NO. 160)
DOMNARSKI, JTR.
I.
Facts & Procedural History
This action arises from alleged sexual assaults of minors by a university student, who was also allegedly a resident advisor and/or head resident of his dormitory hall.
On September 26, 2018, the plaintiffs Craig Salamone and Douglas Cartelli (plaintiffs) filed a revised, ten-count complaint alleging negligence against the defendant Wesleyan University (Wesleyan) and intentional sexual assault, reckless and wanton sexual assault, negligent infliction of emotional distress, and intentional infliction of emotional distress against the defendant, and alleged perpetrator, Andrew Barer (Barer) (No. 139). The operative revised complaint alleges the following facts. Barer, who was both a student and a resident advisor and/or head resident of a dormitory hall at Wesleyan, lured the plaintiffs, who were minors at the time, up to his dormitory room and sexually abused, sexually assaulted, and sexually exploited the plaintiffs on numerous occasions between 1982 and 1984.
Only counts one and six alleging negligence as against Wesleyan are at issue in this memorandum of decision. All other counts as against Barer are not relevant to this motion.
On April 15, 2019, Wesleyan filed the present motion for summary judgment as to counts one and six, along with a memorandum of law (No. 160). Wesleyan moves for summary judgment on the grounds that there is no genuine issue of material fact that (1) Barer was not an employee of Wesleyan when the alleged sexual assaults occurred, and (2) the alleged sexual assaults were not reasonably foreseeable. In support of its motion, Wesleyan submitted the following evidence: Barer’s responses to Wesleyan’s request for admissions (Def.’s Exhibit A); a copy of Chapter 10b24 of the United States Department of Labor Field Operations Handbook (Def.’s Exhibit B); the affidavit of Richard Culliton, the Associate Vice President and Dean of Students of Wesleyan University (Def.’s Exhibit C); Barer’s responses to Wesleyan’s interrogatories (Def.’s Exhibit D); Barer’s responses to Wesleyan’s requests for production (Def.’s Exhibit E); and the affidavit of Jonathan P. Ciottone, the counsel of record for Wesleyan in the present case.
On September 6, 2019, the plaintiffs filed an objection to the defendant’s motion for summary judgment, which was accompanied by a memorandum of law in opposition (No. 163) and the following evidence: the affidavit of Artie Carbo (Pls.’ Exhibit C); the affidavit of Neil Clouther (Pls.’ Exhibit D); and the affidavit of Daniel P. Sullivan (Pls.’ Exhibit E) (No. 164). The affiants state that they too were allegedly sexually assaulted by Barer in his dormitory room on numerous occasions in 1982.
Upon review of the pleadings, the court notes that the plaintiffs do not appear to have submitted an Exhibit A or an Exhibit B.
On September 20, 2019, the defendant filed a reply memorandum (No. 165), and on October 3, 2019, the plaintiffs filed their surreply (No. 168). The court heard argument on the matter at short calendar on October 7, 2019.
II.
Standard of Review
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Graham v. Commissioner of Transportation, 330 Conn. 400, 414-15, 195 A.3d 664 (2018). "[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which ... entitle[s] him [or her] to a judgment as a matter of law ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court ..." (Internal quotation marks omitted.) Fiano v. Old Saybrook Fire Co. No. 1, Inc., 332 Conn. 93, 101, 209 A.3d 629 (2019) (Fiano).
III.
Discussion
A. Parties’ Arguments
The defendant argues that there is no genuine issue of material fact that (1) Barer was not an employee of Wesleyan when the alleged sexual assaults occurred, and (2) the alleged sexual assaults were not reasonably foreseeable by Wesleyan. The plaintiffs argue in response that Wesleyan had a duty to supervise Barer in his role as resident advisor and/or head resident and that Wesleyan knew or should have known about Barer’s actions, particularly because there were allegedly instances of Barer taking similar actions on Wesleyan’s campus even before the occurrence of the events alleged in the plaintiffs’ complaint. The plaintiffs argue that Wesleyan should have known about Barer’s actions "through the exercise of reasonable caution" and should have "taken steps to alleviate the dangers raised by those actions." (No. 163, p. 7.)
Before raising its foreseeability argument, Wesleyan argues that it never "employed" Barer and that it does not have any records indicating that Barer ever held the positions of resident advisor and/or head resident in any capacity. The plaintiffs argue in response that Wesleyan’s reliance on the United States Department of Labor Field Operations Handbook for definitions of "residence hall assistants" and "dormitory counselors" and whether they are considered "employees" is unpersuasive and that this federal standard is inapplicable in the present case. Because the court resolves this motion for summary judgment on other grounds, which the court will discuss in further detail, the court does not address this issue of whether Barer was in fact considered an agent, servant, or employee of Wesleyan.
B. Applicable Law
"[T]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury ..." (Emphasis omitted; internal quotation marks omitted.) Klein v. Norwalk Hospital, 299 Conn. 241, 256, 9 A.3d 364 (2010). "The existence of a duty is a question of law and only 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 ... [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 ... The first part of the test invokes the question of foreseeability ..." (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 217-18, 905 A.2d 1135 (2006). Similarly, "[w]hether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of foreseeability." Gough v. St. Peters Episcopal, Superior Court, judicial district of Hartford, Docket No. CV-10-6012967-S (July 5, 2012, Domnarski, J.).
In Beach v. Jean, 46 Conn.Supp. 252, 746 A.2d 228 (1999) (Beach), the court granted summary judgment for a parish and diocese on theories of negligent hiring and supervision on the grounds that the misconduct of the employee, a member of the clergy, was not foreseeable. In that case, the parish and diocese submitted evidence indicating that they received written assurances of the alleged perpetrator’s fitness to serve as a priest, that they never received any complaints or information suggesting that he would commit sexual crimes, and that they maintained a policy of reporting, investigating, and dealing with any of their priests alleged to have engaged in misconduct. Id., 262-64. Because the plaintiff failed to offer any contradictory evidence, the court concluded that "[t]he defendants simply received no clues about [the perpetrator’s] alleged clandestine activities. The law does not require them to be clairvoyant ... Accordingly, the defendants had no duty to prevent harm to the plaintiff." (Citations omitted.) Id., 264-65. The Beach court relied on Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 989 F.Supp. 110, 118-20 (D.Conn. 1997) (Martinelli), another sexual abuse case involving clergy. In Martinelli, the Connecticut District Court granted summary judgment as to the count of negligent training and supervision, concluding that the plaintiff "ha[d] not offered evidence that could reasonably give rise to an inference that his sexual abuse was the foreseeable result of any action or omission by the Diocese." Id., 120.
More recently, the court in O’Connell v. Salon Shahin, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-6003571-S (December 3, 2013, Jennings, J.T.R.) (O’Connell), granted summary judgment as to the negligent hiring and negligent supervision and retention counts where the defendant salon presented evidence demonstrating that a massage therapist’s alleged sexual assault of a client was unforeseeable to it. In that case, the defendant salon submitted evidence indicating that the massage therapist had no prior criminal history, had a valid state license, and had never been accused of inappropriate conduct with a client before. Id. The defendant salon also submitted evidence indicating that it supervised the massage therapist, but that is was not customary in the spa business for anyone other than the therapist and client to be present in the room during a massage. Id. The court concluded that the defendant met its burden, the burden then shifted to the plaintiff to demonstrate the existence of a disputed factual issue as to foreseeability, and the plaintiff failed to submit such evidence. Id.
C. Analysis
In the present case, Wesleyan presents evidence indicating that it did not know and did not have reason to know that Barer would allegedly sexually assault the plaintiffs in his dormitory room. Specifically, Wesleyan submits evidence indicating that Barer had no criminal history before or during his enrollment as a student at Wesleyan or before or during his period of allegedly serving as a resident advisor and/or head resident at Wesleyan. See Def.’s Exhibit A. Moreover, Wesleyan also submits evidence indicating that it never received any complaints about Barer during his attendance at the university, and that it did not locate any disciplinary records concerning Barer during his attendance there. See Def.’s Exhibit C.
Given this evidence, viewed in the light most favorable to the plaintiff, the court concludes that Wesleyan has met its burden of demonstrating the absence of any genuine issue of material fact regarding the unforeseeability of Barer’s alleged sexual assaults. The burden, therefore, shifts to the plaintiffs to present evidence to demonstrate that there is indeed a disputed factual issue as to foreseeability. See Fiano, supra, 332 Conn. 101.
In rebuttal, the plaintiffs submit affidavits from three individuals who state that Barer also sexually assaulted them at Wesleyan, prior to the alleged similar sexual assaults of the plaintiffs. Specifically, these affidavits state that in 1982, when the affiants were young teenage boys, Barer brought them up to his dormitory room on a number of occasions "without concealing [their] presence and in plain sight" and sexually assaulted them.
The plaintiffs’ evidence fails to demonstrate the existence of any genuine issue of material fact as to the issue of foreseeability of Barer’s alleged assaults. With regard to the alleged negligent hiring of Barer, the plaintiffs’ evidence does not dispute that Barer did not have any criminal history or that Wesleyan never received any complaints about past instances of sexual assault or any inappropriate or unlawful conduct by Barer. See O’Connell, supra, Superior Court, Docket No. CV-10-6003571-S. Further, although the plaintiffs allege that Wesleyan failed to conduct a reasonable investigation of or a background check on Barer, and although Wesleyan concedes that it did not perform such background check, there is no evidence in the record to suggest that such background check would have uncovered any danger Barer allegedly posed to minors. With regard to the alleged negligent monitoring or supervision of Barer, the plaintiffs do not submit any additional evidence to suggest that anyone personally witnessed or would have witnessed Barer leading the boys to his dormitory room, that any particular campus security protocols were breached perhaps, or that anyone reported any suspicious behavior to Wesleyan that would have provided Wesleyan with the requisite knowledge to prompt an investigation.
Although the court has not encountered a case in Connecticut with these or similar factual circumstances, there have been examples of factually analogous cases decided in other jurisdictions. The closest analogous example appears to be Estevez-Yalcin v. Children’s Village, 331 F.Supp.2d 170 (S.D.N.Y. 2004). In that case, the New York trial court granted summary judgment as to claims of negligent hiring, retention, and supervision in a case involving the sexual abuse of two boys by a volunteer at a psychiatric institute and a residential treatment and rehabilitation facility for male juveniles. Id. Although the defendant conceded that it failed to do a background check on the volunteer, the court concluded that there was no evidence that the defendant knew or should have known that the volunteer posed a risk of injury to children and that the plaintiff failed to produce any evidence showing that if the defendant had done a background check, it would have discovered anything indicating the volunteer’s propensities. Id., 175. That case also involved the volunteer, on at least one occasion, allegedly touching one of the plaintiffs on the leg, hidden beneath a table, and on the shoulders and neck, which could not have been hidden beneath a table. Id., 176. In granting summary judgment, the court further concluded that this was not enough to put the defendant on notice of the volunteer’s propensity to sexually assault a child where the plaintiff admitted that he never told anyone about the physical contact and where there was no indication in the record that anyone saw or should have seen the physical contact. Id.
Therefore, it appears that the plaintiffs merely rely on (1) the affidavits stating that Barer brought teenage boys up to his dormitory room "without concealing [their] presence and in plain sight"; see Pls.’ Exhibits C, D, and E; and (2) the broad-brush allegation in their complaint that "administrators, professional staff, coaching staff, security officers and other employees knew, should have known or could have known upon investigation, that ... Barer ... took the plaintiff[s] ... into his dorm room ... on ... Wesleyan University’s campus." See No. 139. Without more evidentiary support to suggest that someone in particular witnessed the incidents or reported Barer’s improper conduct to the university, however, this is insufficient to dispute the defendant’s evidence demonstrating that Wesleyan had no knowledge that Barer allegedly had or would sexually assault the plaintiffs or anyone else. See CitiMortgage, Inc. v. Coolbeth, 147 Conn.App. 183, 193, 81 A.3d 1189 (2013) ("[m]ere statements of legal conclusions ... and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment" [internal quotation marks omitted]), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014).
Ultimately, the plaintiffs have "not offered evidence that could reasonably give rise to an inference that [the plaintiffs’] sexual abuse was the foreseeable result of any action or omission by" Wesleyan. See Martinelli, supra, 989 F.Supp. 120. Thus, there is no genuine issue of material fact as to the issue of foreseeability and Wesleyan is entitled to judgment as a matter of law. Accordingly, summary judgment is granted in favor of Wesleyan as to counts one and six.
IV.
Conclusion
For the foregoing reasons, the defendant Wesleyan University’s motion for summary judgment is granted as to counts one and six.