Opinion
No. CV06-5003179S
August 7, 2007
MEMORANDUM OF DECISION
The minor plaintiff, John Tili, through his father, Alfredi Tili, has brought this action against the defendant, Wal-Mart Stores, Inc. The plaintiff alleges the following facts. On September 25, 2005, the plaintiff, accompanied by his parents, Alfredi and Majlinda Tili, was a business invitee of the defendant. While the plaintiff was being taken to the restroom by his mother, an employee allegedly placed a maintenance cart in the hallway immediately outside the restroom. When the plaintiff exited the restroom, he tripped and fell into the janitorial cart causing him to sustain injuries.
On March 9, 2007, the defendant filed a two-count apportionment complaint against the plaintiff's parents. In the apportionment complaint, the defendant alleges that Majlinda Tili went to the ladies room alone, leaving the plaintiff and another minor child unsupervised. While unsupervised, the other child "struck, assaulted, pushed, or picked up" the plaintiff causing him to impact the maintenance cart. As a result, the defendant is seeking to apportion liability against the plaintiff's parents on the ground that they failed to supervise their other child, and that it was this child who caused the plaintiff's injuries.
On March 15, 2007, the plaintiff filed a motion to strike the apportionment complaint. On April 3, 2007, the defendant filed a memorandum of law in opposition to the motion to strike. On April 9, 2007, the plaintiff filed a memorandum of law in response to the defendant's opposition to the motion. Oral argument as heard on June 4, 2007.
DISCUSSION
When a parent or guardian brings a complaint on behalf of a minor child as a "next friend" the parent or guardian is not considered a party to the action, and, therefore, is not barred from being joined as a party by General Statutes § 52-102b(a), which prohibits "a party" from being joined in an apportionment action. However, § 52-102b(c) provides in relevant part: "No person who is immune from liability shall be made an apportionment defendant nor shall such person's liability be considered for apportionment purposes pursuant to section 52-572h."
The plaintiff seeks to strike the apportionment complaint on the ground that it is barred by the doctrine of parental immunity. The defendant argues this case is distinct from typical parental immunity cases, including Crotta v. Home Depot, Inc., 249 Conn. 634, 732 A.2d 767 (1999), because the subject of the apportionment complaint is the negligent supervision of the child who caused the injury, not the child who suffered the injury.
The defendant is correct that this case does not involve the typical application of the parental immunity doctrine. Construing the allegations of the apportionment complaint in favor of the apportionment plaintiff, as the court is required to do on a motion to strike; Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997); the plaintiff has a cause of action against his minor sibling, and the only way for him to recover would be for the parents to be brought into the case. However, this court is bound by precedent, and that precedent makes it clear that the doctrine of parental immunity bars the joinder of a parent of a minor plaintiff through an apportionment complaint. See Crotta v. Home Depot, Inc., supra, 249 Conn. 644-45.
In Crotta, our Supreme Court addressed the question of whether, in an action brought by the parent seeking damages for his child's injury, a defendant may join the parent as a third-party defendant for the purposes of asserting claims of apportionment of liability, contribution and indemnification based on the parent's negligent supervision of the minor child. Crotta v. Home Depot, Inc., supra, 249 Conn. 644-45. The court held that the doctrine of parental immunity operated to preclude the parent of a minor plaintiff from being joined as a third-party defendant for purposes of apportionment of liability based on the parent's allegedly negligent supervision of a child. Id., 644-45. The court's reasoning was that "[t]he supervision, care and instruction of one's child involves issues of parental control, authority and discretion that are uniquely matters of a very personal type . . . Each parent has unique and inimitable methods and attitudes on how children should be supervised. Likewise, each child requires individualized guidance depending on intuitive concerns which only a parent can understand." (Internal quotation marks omitted.) Id., 643. Furthermore, the court expressed its view that "allowing such third party claims would have a detrimental affect on the injured child. It is artificial to separate the parent and the child as economic entities by the assertion that the recovery of the non-parent defendant from the negligent parent does not technically diminish the injured child's recovery. The reality of the family is that, except in cases of great wealth, it is a single economic unit and recovery by a third party against the parent ultimately diminishes the value of the child's recovery." (Internal quotation marks omitted.) Id., 644.
Connecticut has recognized certain exceptions to the doctrine which are set forth in Squeglia v. Squeglia, 34 Conn.App. 866, 809. "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. Chase v. New Haven Waste Material Corp., 111 Conn. 377, 380 (1930). Second, a minor can sue a parent if the child was emancipated prior to the tortious conduct. See Wood v. Wood, 135 Conn. 280, 283 (1948). Third, an unemancipated minor can sue a parent for injuries received through the negligent conduct of a business enterprise conducted away from the home. Dzenutis v. Dzenutis, 200 Conn. 290, 300 (1986). 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."
Another exception was recognized in Henderson v. Wooley, 230 Conn. 472, 486 (1994) which held "the doctrine does not bar a suit by a child for sexual abuse, sexual assault or sexual exploitation by a parent."
Although "the doctrine of parental immunity is subject to both legislative and judicial modification;" Asciutto v. Farricielli, 244 Conn. 692, 698, 711 A.2d 708 (1998); the foregoing are the only exceptions recognized by Connecticut and the defendant has presented no legal authority for the proposition that parental immunity does not apply under the facts alleged in the apportionment complaint. Although the defendant validly claims that the fact pattern of this case differs from the typical parental immunity matter, this court is not at liberty to create an additional exception and as the court observed in Jeudy v. Jeudy, Superior Court, judicial district of New London, Docket No. CV 122624 (April 25, 2002, Corradino, J.) (32 Conn. L. Rptr. 43), to the extent that the present case presents an invitation to create a new exception to the doctrine of parental immunity, any such invitation is "better addressed to the Appellate Court."
CONCLUSION CT Page 13979
For the preceding reasons, the plaintiff's motion to strike the apportionment complaint is granted.