Opinion
No. 566207
August 9, 2004
MEMORANDUM OF DECISION
The matter before the court is a motion to strike/objection to the plaintiff's motion to amend the complaint filed by the defendant, McDonald's Restaurants of Connecticut, Inc. (McDonald's). On December 19, 2003, the plaintiff, Daniel Terry, filed a motion to amend his second amended complaint together with a third amended complaint. McDonald's now objects to the plaintiff's request to amend his complaint on the grounds that the proposed third amended complaint does not cure any of the defects raised in McDonald's motion to strike the second amended complaint. McDonald's also moves to strike counts four through seven of the plaintiff's third amended complaint and the plaintiff's claim for punitive or exemplary damages as set forth in his prayer for relief. The court hereby overrules McDonald's objection to the plaintiff's motion to amend his complaint, and grants the plaintiff's motion to amend his complaint.
The plaintiff alleges the following facts. On or about June 13, 2001, the defendant, Willie Gumpton (Gumpton), was an employee of McDonald's and acting in the course of his employment at the McDonald's restaurant located in North Stonington, Connecticut. On the same date, the plaintiff, hired by McDonald's to perform plumbing work at this McDonald's restaurant, engaged in a conversation with Gumpton regarding the location of another McDonald's employee. During the course of their discussion, Gumpton caused injury to the plaintiff and his property.
Counts one through three of the plaintiff's third amended complaint allege claims against Gumpton, and counts four through seven allege claims against McDonald's. In count four, the plaintiff alleges that McDonald's is vicariously liable for the negligent conduct of its employee Gumpton who was "acting within the scope of his employment" and "in furtherance of his employer's business." In count five, the plaintiff alleges that McDonald's is vicariously liable for the reckless and wanton misconduct of Gumpton who was "acting within the scope of his employment" and "in furtherance of his employer's business." In count six, the CT Page 11232-gc plaintiff alleges that McDonald's is vicariously liable for the intentional assault by its employee Gumpton who was "acting within the scope of his employment" and "in furtherance of his employer's business." In count seven, the plaintiff alleges negligence by McDonald's insofar as the defendant failed to provide adequate supervision and security, failed to promptly notify the police of the assault, failed to render prompt assistance to the plaintiff, failed to provide adequate training and supervision of its employees, and failed to perform a proper background check on Gumpton prior to hiring him.
On January 15, 2004, McDonald's filed a motion to strike counts four through seven of the plaintiff's third amended complaint, as well as the portion of the prayer for relief in which the plaintiff seeks exemplary or punitive damages, supported by a memorandum of law. The plaintiff filed a memorandum in opposition to McDonald's motion to strike on March 2, 2004.
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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). 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.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[I]f facts provable in the complaint support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003).
McDonald's moves to strike counts four through six of the plaintiff's third amended complaint on the ground that the plaintiff has failed to plead facts to support his claim for relief under a respondeat superior theory for the negligent, reckless and wanton, and intentional assault by Gumpton. For each of these counts, McDonald's argues that the plaintiff's respondeat superior claims are insufficient because the plaintiff has failed to allege facts to demonstrate that Gumpton committed the assault while acting within the scope of his employment and in furtherance of McDonald's business of operating a restaurant.
The plaintiff counters that he has specifically pleaded facts to support the plaintiff's claim that Gumpton was acting within the scope of his employment and in furtherance of McDonald's business. Specifically, CT Page 11232-gd the plaintiff alleges that he and Gumpton were engaged in a conversation regarding the location of one of Gumpton's coworkers. The plaintiff also argues that "[t]his coworker was apparently needed by another coworker or supervisor and the plaintiff and Gumpton became engaged in this conversation in an effort to locate this worker." This argument, however, refers to facts not alleged in the plaintiff's complaint.
Under the doctrine of respondeat superior or vicarious liability, "[an employer] is liable for the wilful torts of his [employee] committed within the scope of the [employee's] employment and in the furtherance of his [employer's] business." Mullen v. Horton, 46 Conn.App. 759, 764, 700 A.2d 1377 (1997); Pelletier v. Bilbiles, 154 Conn. 544, 547, 227 A.2d 251 (1967); "[I]t must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine [of respondeat superior] to apply." (Internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990).
"A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phase during the period covered by his employment . . . While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful . . . that does not end the inquiry. Rather, the vital inquiry . . . is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business . . . Unless [the servant] was actuated at least in part by a purpose to serve a principal, the principal is not liable." (Citations omitted; internal quotation marks omitted.) Id., 209-10.
"Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant's employment and was done to further his master's business . . . But there are occasional cases where a servant's digression from duty is so clear-cut that the disposition of the case becomes a matter of law." (Citation omitted; internal quotation marks omitted.) Id., 207.
The plaintiff relies on Jones v. Harry's Taxi, Inc., Superior Court, judicial district of New London, Docket No. 559315 (June 24, 2003, Leuba, J.) ( 34 Conn.L.Rptr. 749), to argue that even though Gumpton lost his temper and conducted himself in a way that was not authorized by McDonald's, that conduct does not "allow McDonald's to escape liability." In Jones, the plaintiff taxi driver entered the dispatch office although there was an office policy that drivers were not allowed in the office. See id., 750. The defendant dispatcher subsequently lost his temper and CT Page 11232-ge assaulted the plaintiff. See id. The court found that the employee's conduct was in furtherance of the employer's policy of not allowing drivers into the dispatch office, and held that "an employer is liable for torts committed by its employee in furtherance of the employer's instructions, even if the employee's method of carrying out the employer's policy is wholly unauthorized or forbidden." Id., 751. The court cites the Supreme Court case of Pelletier v. Bilbiles, supra, 154 Conn. 548, for the principle that "[a] master does not escape liability merely because a servant loses his temper while he is conducting the master's business," for which the plaintiff also relies upon to support his argument. See id.
In Pelletier, the defendant's employee had been instructed by the defendant "neither to permit horseplay on the premises nor to allow anything to be thrown around inside the store." Pelletier v. Bilbiles, supra, 154 Conn. 546. When the plaintiff blew the paper sheath off a straw onto the floor, the employee assaulted the plaintiff outside the store. See id. The trial court set aside a judgment in favor of the plaintiff against the defendant on grounds that the battery occurred outside the store, but the Supreme Court set aside the judgment and remanded the case with direction to render judgment for the plaintiff. See id., 549. The court stated that "the jury could reasonably have concluded, on the basis of the evidence, that [the employee's] loss of temper and the subsequent battery were the immediate and proximate results of [the employee's] attempts to carry out the defendant's instruction not to permit mischief on the premises. As such, the battery was merely the culmination of a transaction related directly to [the employee's] duties, and the defendant could properly be found liable." Id., 548.
Unlike the cases of Jones and Pelletier, the plaintiff's complaint here does not allege that McDonald's had policies governing the conduct of its employees. While it may have been permissible for Gumpton to lose his temper, there is no allegation that he, unlike the employees in the above cases, assaulted the plaintiff in an attempt to carry out a policy or instruction of McDonald's. Neither are there allegations that the assault was related directly to Gumpton's duties as an employee of McDonald's.
Thus, the alleged fact that Gumpton engaged in a conversation with the plaintiff in order to locate a coworker, even if proven, is insufficient to constitute actions within the scope of Gumpton's employment or in furtherance of McDonald's business. From the allegations of the complaint, it does not appear that there was a business purpose underlying the alleged conduct of Gumpton or that the conduct had any connection to McDonald's business. Absent these facts, the plaintiff has failed to support a cause of action for respondeat superior. "A motion to CT Page 11232-gf strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. Accordingly, McDonald's motion to strike counts four through six is granted.
McDonald's also moves to strike count seven on the ground that the plaintiff has failed to plead facts to support a cause of action for negligent hiring. The plaintiff disputes McDonald's claim that the allegation regarding negligent hiring does not set forth sufficient facts to support this cause of action. The plaintiff also argues that not only does McDonald's improperly attempt to strike count seven in its entirety based on one paragraph concerning negligent hiring, but it also fails to challenge the sufficiency of the other allegations of negligence.
In Connecticut, the Supreme Court recognized a common-law claim of negligent hiring when it held that this tort applies "to any situation where a third party is injured by an employer's own negligence in failing to select an employee fit or competent to perform the services of employment." Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982); Demaria v. Country Club, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 392621 (January 17, 2003, Thim, J.). "In such instances, the [employer's] liability is not vicarious, but direct and personal." Surowiec v. Security Forces, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0547875 (May 24, 1995, Sheldon, J.). To survive a motion to strike, the plaintiff must allege facts that McDonald's knew or should have known that Gumpton had a propensity to engage in the alleged conduct and that he was reasonably likely to engage in such conduct. Doe v. Bradley Memorial Hospital, Superior Court, judicial district of New Britain, Docket No. CV 01 0509999 (July 24, 2003, Bryant, J.).
"Negligence is a breach of duty . . . The existence of a duty is a question of law." (Citations omitted; internal quotation marks omitted.) Shore v. Stonington, supra, 187 Conn. 151. "Existing Connecticut precedents impose only a limited duty to take action to prevent injury to a third person." Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996). "In order for such a duty to arise, there must be a special relationship of custody and control."(Internal quotation marks omitted.) Beach v. Jean, 46 Conn.Sup. 252, 261, 746 A.2d 228 (1999).
"In any determination of whether a special relationship should give rise to a duty to exercise care to avoid harm to a third person, the key element is foresceability . . . The threshold inquiry is whether the specific harm alleged by the plaintiff was foreseeable to the defendant . . . The specific test entails: (1) a determination of whether an ordinary CT Page 11232-gg 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." (Citations omitted; internal quotation marks omitted.) Id., 261-62; see also Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717 A.2d 215 (1998).
As McDonald's correctly argues, the plaintiff's complaint is devoid of any factual allegations that it knew or should have known of Gumpton's propensity to engage in the alleged conduct, and that it could have foreseen that Gumpton would engage in the conduct complained of by the plaintiff. In paragraph 9(f) of count seven, the plaintiff merely alleges that McDonald's "failed to reasonably and adequately investigate Gumpton's background prior to July 21, 2004 hiring him, although they knew or should have known a proper background investigation was necessary and would have revealed that Gumpton presented an unseasonable risk that he would engage in the behavior alleged or similar behavior." Absent factual allegations to support this legal conclusion, the plaintiff's claim for negligent hiring fails. This conclusion, however, does not end the court's inquiry.
The plaintiff also argues that count seven sets forth specific factual allegations of negligence other than negligent hiring, which McDonald's does not challenge in its motion to strike. It is well settled that "[i]f a motion to strike is directed to an entire complaint, the motion must fail if any of the plaintiff's claims is legally sufficient." (Emphasis added.) Kovacs v. Kasper, 41 Conn.Sup. 225, 226, 565 A.2d 18 (1989). A review of count seven in its entirety reveals that the plaintiff again has alleged mere conclusions of law that are unsupported by any facts. As noted above, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498, Thus, the plaintiff's other claims of negligence are legally insufficient. Accordingly, the motion to strike count seven is granted.
Paragraph nine alleges the following: "The plaintiff's injuries . . . were caused by the negligence and carelessness of [McDonald's], its agents, servants and employees in that it or they: (a) [f]ailed to provide adequate supervision and security on their premises, when they knew or should have known that same was reasonably necessary; (b) [f]ailed to promptly notify the police of said assault; (c) [f]ailed to render prompt assistance to the plaintiff; (d) [f]ailed to provide adequate training and supervision of its agents, employees, and servants, including Gumpton, on said premises in order to prevent them from harming persons on said premises; (e) [f]ailed to hire security and/or police to monitor the premises; (f) [f]ailed to reasonably and adequately investigate Gumpton's background prior to hiring him, although they knew or should have known a proper background investigation was necessary and would have revealed that Gumpton presented an unreasonable risk that he would engage in the behavior alleged or similar behavior."
McDonald's further moves to strike the plaintiff's prayer for punitive or exemplary damages on the ground that "common law does not impose punitive or exemplary damages against a principal based solely on vicarious liability." McDonald's also argues that none of the four exceptions to this common-law prohibition against awarding punitive damages has been pleaded by the plaintiff in counts four through seven. The plaintiff in his memorandum of law has failed to object or otherwise CT Page 11232-gh address this argument.
It is well settled that punitive damages are not available under common-law agency principles of vicarious liability. Maisenbacker v. Society Concordia, 71 Conn. 369, 380, 42 A. 67 (1899); see also Van Eck v. MBNA America Bank, Superior Court, judicial district of New Haven, Docket No. 424382 (September 28, 1999, Levin, J.); Kalinowski v. Waddell Reed, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. CV 97 0146924 (October 14, 1998, Sheldon, J.) ( 23 Conn.L.Rptr. 172, 173). Furthermore, "[t]he cases in which punitive damages may be awarded are only those actions of tort founded on the malicious or wanton misconduct of the defendant or upon such culpable neglect of the defendant as is tantamount to malicious or wanton misconduct." (Internal quotation marks omitted.) Maisenbacker v. Society Concordia, supra, 71 Conn. 378. Accordingly, the motion to strike the plaintiff's prayer for punitive damages is granted.
Based on the foregoing, the motion to strike counts four through seven of the plaintiff's third amended complaint is granted. The motion to strike the prayer for relief requesting exemplary or punitive damages is granted as to counts four through seven.