Opinion
No. TTD CV 09 5005112
June 8, 2010
MEMORANDUM OF DECISION
The plaintiff, Brian Specyalski, is the administrator of the estate of his deceased son, Brandon Specyalski. The plaintiff applies for prejudgment remedies against the defendant, Heather Specyalski, who is the plaintiff's former wife and mother of the decedent.
The complaint comprises two counts which allege that the defendant is legally culpable for the wrongful death of the parties' son through reckless and/or negligent conduct, respectively. In her answer, the defendant denies acting recklessly or negligently and asserts a special defense of parental immunity.
A prejudgment remedy hearing occurred on March 19 and April 21, 2010. Such a hearing is limited to a determination of whether there is probable cause to believe that a judgment of at least the amount sought in the application will be rendered in the applicant's favor. General Statutes § 52-278d. The hearing "is not a full-scale trial on the merits." Chen v. Bernadel, 101 Conn.App. 658, 661-62 (2007). Under § 52-578d(a), a prejudgment remedy shall be granted if upon consideration of the facts before the court and taking into account any defenses countervailing claims, set-offs, exemptions, and the adequacy of insurance, probable cause exists that judgment will be rendered in the applicant's favor. Cahaly v. Benistar Property Exchange Trust Co., Inc., 268 Conn. 264, 271-72 (2004). The court must gauge the applicant's future success or failure by weighing the probabilities surrounding both factual and legal issues. Doe v. Rapoport, 80 Conn.App. 111, 116-17 (2003).
Probable cause is "a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it." J.K. Scanlon v. Construction Group, Inc., 80 Conn.App. 345, 350 (2003). The concept of probable cause embraces a "flexible common sense standard" which demands neither that a belief be "correct [n]or more likely true than false." Id.
The court determines, after consideration of the evidence, that probable cause to believe the following facts exist in this case. On August 23, 2008, the defendant drove her fifteen-year-old son to pick up his fifteen-year-old friend, Christopher Whitehouse. The two boys asked the defendant to purchase alcoholic beverages for them, and the defendant acceded to this request. Around 5:00 p.m., she purchased a cooler of beer for the boys. She had purchased alcohol for the teenagers on about ten previous occasions that summer. After the purchase, she drove them back to her home.
The youths began consuming the beer and some vodka, which was already in the home, at around 8:00 p.m. The drinking began in the kitchen of the defendant's home. Brandon and Christopher each drank nine or ten beers along with four or five shots of vodka over a three-hour period. The defendant remained in her bedroom throughout this period.
Near 11 p.m., Christopher decided he needed to sleep, and he joined the defendant, who was fast asleep, in her bed. Around 12:30 a.m., Brandon awakened Christopher and requested that Christopher rejoin him in the kitchen. Brandon had been communicating with another friend, Travis Neborsky, who was fourteen at the time. Brandon drove his mother's car to Travis's location and returned home with Travis.
At a campfire area at the defendant's residence, Brandon and Travis consumed beers for awhile. Later, they reentered the house and drank some vodka.
Then, Brandon entered his mother's bedroom and attempted to take her purse. This awakened the defendant who, jokingly, asked if her son was going shopping. Brandon replied affirmatively and kept the purse. Within the purse were the defendant's 100 mg morphine pills. A few weeks before, Brandon had taken some of his mother's morphine pills, and, in the past, Brandon had also purloined prescription drugs from his grandmother.
Brandon and Travis engaged in a drinking game whereby each boy tried to chug a can of beer as fast as possible. After a few beers, Brandon rummaged through his mother's purse and retrieved the morphine pills. Travis ingested one pill, while Brandon took one pill orally and crushed nine more pills, which he formed into three lines, and "snorted" the lines of morphine.
Travis wanted to return home, but he refused to allow Brandon to drive because Brandon was so inebriated he could barely stand. Brandon became indignant at Travis's reluctance, and he struck out at Travis. This commotion roused the defendant and Christopher Whitehouse. The defendant urged Travis to take no offense at Brandon's actions because he frequently became belligerent when drunk.
Around 2:30 a.m., the defendant drove Travis home. Brandon sat in the backseat for this trip, and he sang along with the music from the radio. Upon returning home, the defendant parked her car in the garage and left her son, who by then had passed out, in the backseat.
Christopher Whitehouse informed the defendant that he discovered the remnants of the three morphine lines on the kitchen counter. The fifteen-year-old suggested to the defendant that they take Brandon to the hospital. The defendant declined this suggestion, and, instead, decided to let Brandon sleep. She noted that they could check on his condition every fifteen minutes or so. If Brandon's condition worsened, they would transport him to the hospital. The defendant then brought a blanket and a pillow to the car for Brandon.
Being concerned, Christopher checked on Brandon about fifteen minutes later. Brandon was responsive, and Brandon told his friend that he was okay. About one-half hour later, Christopher checked again. This time, Brandon was less responsive but still able to converse. Christopher returned to bed.
Around 9:30 a.m., Christopher awakened and saw that the defendant had arisen, before him. Christopher inquired about Brandon, but the defendant responded that she never checked in on her son. Christopher went to the car and found that Brandon was not breathing, was nonresponsive, and appeared bluish. Christopher rushed to the defendant with the dire news.
The defendant ran to the car, but she too failed to awaken Brandon. She had Christopher call for emergency assistance. While awaiting the arrival of that aid, the defendant directed Christopher to hide the beer cans in the woods, and the boy complied.
After ten minutes, emergency personnel were at the scene, and they transported Brandon to the hospital, where he was pronounced dead at 11:30 a.m. on August 24, 2008. The autopsy revealed the cause of death as morphine and alcohol toxicity. Brandon's blood-alcohol level when he was pronounced dead at the hospital was .12.
Had the defendant followed Christopher Whitehouse's advice and taken Brandon to the hospital while he was still rousable, the likelihood is high that the depressive effects of morphine and alcohol would have been reversed with medical treatment. However, once breathing ceased, unless resuscitation and reversal occur within ten to fifteen minutes, brain death is ensured. Brandon died while in the backseat of his mother's car.
The plaintiff learned of his son's demise while the plaintiff was at work on August 24, 2008. When he spoke to the defendant, she was hysterical and stated that she had killed their son. When the plaintiff arrived at her residence, the defendant cradled Brandon's body in her arms and repeatedly screamed that she had killed him.
Clearly, the circumstances recounted above satisfy the elements of wrongful death either by negligent or reckless behavior.
Reckless misconduct implies a conscious disregard of a high risk, such as embarking on a particularly dangerous course of action after actual warning. Id., 83-84. Recklessness involves ignoring a perceived risk, Sheiman v. LaFayette Bank and Trust Co., 4 Conn.App. 39, 45 (1985); or egregious conduct that includes an extreme departure from ordinary care and where danger is apparent. Dubay v. Irish, 207 Conn. 518, 533 CT page 7362 (1988). A reckless actor is one who recognizes a substantial risk of harm to others and consciously chooses to act despite such knowledge. Mooney v. Wabrek, 129 Conn. 302, 308 (1942). The essence of recklessness is the conscious choice to engage in dangerous behavior.
In the present case the defendant supplied her fifteen-year-old son with a large quantity of beer, allowed him to consume that beer and vodka without supervision, cavalierly ignored his use of her morphine pills in conjunction with alcohol, spurned the warning of her son's fifteen-year-old friend to seek medical attention for her unconscious son, and failed to check on her son's condition for several hours. A person of ordinary intelligence and understanding would be warranted in harboring the belief that these actions and inactions by the defendant constituted recklessness and that this recklessness was a substantial factor in causing Brandon's death.
That same conclusion applies to negligence and needs no further comment.
The remaining issue as to potential liability rests squarely on whether parental immunity insulates the defendant from legal responsibility for the reckless and/or negligent wrongful death of her son, an unemancipated minor.
Parental immunity was a bar to suit for negligent, reckless, and wanton misconduct which injured a child under the common law of Connecticut. Mesite v. Kirchenstein, 109 Conn. 77, 86-87 (1929). "Considering the situation of the child in its broadest aspects, free from the individual case of injury, the rule of the courts, that the maintenance of an action of tort by a child against his parent for injuries suffered through the negligent, wilful or wanton conduct of the parent is against sound public policy, cannot be held to be so unwise as to make necessary our departure from it at this late day." Id.
The principal just stated was reiterated in 1942 in Shaker v. Shaker, 129 Conn. 518, 523 (1942). In 1969, our Supreme Court noted, "[n]o Connecticut case has been cited by the plaintiffs as authority for the claim of law," that a son could sue his father for wanton misconduct." Begley v. Kohl and Madden Printing Ink Co., 157 Conn. 445, 450 (1969). In 1988, in footnote 7, our Supreme Court recognized that its earlier decisions had held that the doctrine of parental immunity applied even against claims of "wilful, wanton and/or reckless conduct" by a parent. Dubay v. Irish, 207 Conn. 518, 532 fn 7 (1988).
The Appellate Court observed, in 1994, that a plaintiff was wrong in arguing that parental immunity only prevented liability for negligent acts. Squeglia v. Squeglia, 34 Conn.App. 866, 870 (1994), affirmed 234 Conn. 259 (1959). "The plaintiff's assertion is incorrect: the parental immunity doctrine bars all parental civil liability to an unemancipated minor for personal injuries inflicted during minority . . ." Id., 870-71 (emphasis added).
In Squeglia, the Appellate Court added: "Connecticut law recognizes only four exceptions to the parental immunity doctrine. First an unemancipated minor can sue the employer of a parent whose negligence in the course of employment injured the child, thereby putting the parent at risk of an indemnity suit . . . Second, a minor can sue a parent if the child was emancipated prior to the tortious conduct . . . Third, an unemancipated minor can sue a parent for injuries received through the negligent conduct of a business enterprise conducted away from the home . . . Fourth, an unemancipated minor can sue a parent for injuries resulting from the negligent operation of a motor vehicle, aircraft or waterborne vessel. General Statutes § 52-572c." Id., 869, (citations omitted).
Our Supreme Court affirmed the Appellate Court holding that parental immunity protected a parent from legal responsibility even for a cause of action for strict liability created by statute, 234 Conn. 259, 270-71 (1995).
However, a little more than a month after the Appellate Court rendered its decision in Squeglia v. Squeglia, supra, our Supreme Court carved out a new exception to parental immunity in the case of Henderson v. Woolley, 230 Conn. 472 (1994). The Supreme Court held that the public policy supporting the parental immunity doctrine were absent in the situation where a parent sexually abused or exploited a child. Id., 482. That decision cited approvingly cases from other jurisdictions which had ruled that "[w]here a parent has injured his or her child through a wilful and malicious act, any concept of family harmony has been destroyed." Id. Thus, "there is no reason to extend the doctrine's protection to such acts." Id.
The conduct for which probable cause has been found in the present case fails to constitute intentional, deliberate, or malicious child abuse. The plaintiff does not claim that the defendant intended to harm their son. Instead, the circumstances recited above establish the defendant's reckless supervision of her son's activities and well being.
In Squeglia v. Squeglia, supra, the Supreme Court identified several factors which come into play when it decided to limit the doctrine of parental immunity, 234 Conn. 259, 266-69. These factors are where the parent acted in a nonparental capacity, such as the employment situation; where the duty breached was one owed to the public at large, and the parent-child relationship was merely coincidental; where the action under scrutiny occurred away from the home; where "the heinous nature of the parent's misconduct had already destroyed familial harmony"; and where insurance coverage was readily available. Id. None of these factors worked to avoid the application of the doctrine in Squeglia v. Squeglia, supra, 268-69.
In the present case, the defendant's misconduct arose out of her delinquency in fulfilling her supervisory role as the mother and custodial parent of a fifteen-year-old boy. Most of the untoward behavior transpired at the defendant's residence. The availability of insurance coverage is questionable with respect to recklessness.
Our legislature has declined to alter the common-law doctrine of parental immunity except with respect to motor vehicles, aircraft, and watercraft. This inactivity is of some importance. Squeglia v. Squeglia, 34 Conn.App. 866, 870. Consequently, if our common law of parental immunity is to be further restrained by eliminating its protection for recklessness, that tightening must emanate from an appellate tribunal rather than the trial court.
Similarly, as to wrongful death, a cogent argument can be made that there is no familial relationship to preserve. Again, if such an additional exception is to be recognized, that exception must issue from an appellate level court where the various permutations and public policy considerations can be more expansively debated and weighed. The court feels constrained to follow the dictates of Squeglia v. Squeglia, supra, which, as noted above, states that the doctrine immunizes a parent from liability for "all parental civil liability." Id., 870-71.
For these reasons, the application for prejudgment remedies is denied.