Opinion
No. CV 05-5000743 S
June 12, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#115)
This is a personal injury lawsuit wherein the plaintiff seeks damages arising from a knife wound injury. The plaintiff has brought this action against three defendants: Daniel O'Mara, IV (grandson), Daniel O'Mara, III (father) and Daniel O'Mara, Jr., (grandfather). The gist of the plaintiff's complaint is that he attended a party at the invitation of grandson's high school age sister. The guests at the party were all minors and the party was held at grandfather's residence. During the party, grandson, who was thirteen years old, obtained a hockey mask and knife from grandfather's residence and went to a location about 100 yards from the residence near a road leading to a boat launch. In an effort to frighten the other minors, grandson hid behind some vegetation and emerged brandishing a knife. In the process of doing this, he slashed the hand of the plaintiff causing injuries.
In the present motion, the grandfather moves to strike the third count of the Substituted Revised Complaint directed against him on the grounds that it fails to adequately allege (1) a negligent supervision cause of action or (2) that he owed a duty of care to the plaintiff. For the reasons set forth below, the motion to strike is denied.
DISCUSSION
The operative complaint for purposes of the present motion to strike is the Substituted Revised Complaint (#114). Paragraph four of that complaint which is incorporated into the Third Count, alleges the following:
The only adult supervision for the minors at said premises was the responsibility of the defendant, Daniel O'Mara, Jr.
For purposes of a motion to strike, the moving party admits all facts well pleaded. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2 (1994). Construing this allegation in favor of the plaintiff, it, together with the rest of the Third Count supports the claim that Daniel O'Mara, Jr. (grandfather) was the only adult supervising the minors at the party and was negligent in not reasonably supervising his grandson.
The fact that Daniel O'Mara, Jr. is grandfather to the alleged tortfeasor does not, on the facts alleged, undermine his duty to prevent injury to the plaintiff.
The general rule is that absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another. Fraser v. United States, 236 Conn. 625, 632-33 (1996); 2 Restatement (Second) Torts § 315 (1993). An exception to this general rule recognizes a cause of action for negligent supervision of a minor child by the child's parents. 2 Restatement (Second) Torts § 316. Moreover, in limited circumstances trial courts have determined that a party who assumes a custodial relationship with a minor can be held liable for the minor's conduct. Trinkaus v. Mohawk Mountain Ski Area, 34 Conn. L. Rptr. 27 (January 30, 2003, Lager, J.); Grosso v. DiMassq, Superior Court, judicial district of New Haven at New Haven, Docket No. CV02 0468226, (October 20, 2003, Zoarski, J.) ( 35 Conn. L. Rptr. 670).
In the present case, the plaintiff has alleged that the grandfather had assumed responsibility to supervise the minors at the party. This is sufficient to plead a cause of action for negligent supervision of his grandson.
The defendant's brief seems to be premised on the fact that only Daniel O'Mara, III (father) was alleged to be the supervising adult at the party. As noted above, the Second Revised Complaint expressly alleges that Daniel O'Mara, Jr. had that responsibility. Whether plaintiff can prove such supervisory responsibility is, of course, an issue of fact beyond the scope of a motion to strike.
The motion to strike is denied.
So Ordered.