Opinion
No. HHD CV-05-4012416
January 23, 2006
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE REVISED COMPLAINT
This is an action for personal injuries which was commenced by writ, summons and complaint with a return day of June 28, 2005. The plaintiffs, Arun Vasudevan and Shivani Malhotra, claim that they were assaulted and injured by certain unnamed agents, servants, and/or employees of the several defendants at a liquor establishment known as the Enchanted Garden. The defendants filed a request to revise the complaint, to which the plaintiffs filed objections, which were sustained in part, and overruled, in part. The plaintiffs subsequently filed a revised complaint dated October 11, 2005. The Defendants Jack Pragosa, Marie F. Saucier and T.J.Z. Entertainment Group, LLC ("T.J.Z."), now move, pursuant to Practice Book § 10-39, to strike the first, second and third counts of the plaintiffs' revised complaint. The plaintiffs have filed no written objection or memorandum in opposition to the motion to strike, and they did not appear to argue the motion at the January 9, 2006 short calendar.
I Standard of Review
"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.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d. 293 (1997). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Brackets in original; internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d. 859 (1997).
The revised complaint has three counts. The first count is an action on behalf of plaintiff, Arun Vasudevan, that alleges he was physically assaulted and injured by the "agents, servants and/or employees of defendant, Jack D. Pragosa, the Permittee for the liquor establishment" and the defendant, Maria F. Saucier, the "sole owner of T.J.Z. Entertainment Group, LLC, which operated the liquor establishment," and the "backer for the purposes of the Liquor Control Commission of the State of Connecticut," and who "managed and controlled" the defendant TJZ. The defendant TJZ is also a named defendant in the first count as "the aforesaid employees were the employees of the aforesaid club."
The second count alleges a cause of action on behalf of Shivani Malhotra, wife of plaintiff Vasudevan, on the basis of the same liabilities alleged as to each of the three defendants in the first count. In addition, in paragraph 11, the plaintiff asserts a claim for bystander emotional distress "as a result of assault delivered in her presence upon her husband," plaintiff Vasudevan.
The third count repeats the allegations as to all three defendants contained in the first and second count and also alleges additional liability for the assault to both plaintiffs by defendant, Maria F. Saucier. It is asserted, in paragraph 13, that Saucier is "personally liable since she has caused or allowed the limited liability company to be terminated or dissolved . . . on April 5, 2005 . . ."
II A. The Claim of Assault and Battery in Counts 1, 2 and 3 as to all Defendants
In Count 1, plaintiff Vasudevan has plead that he "was assaulted and injured by the acts of the employees of the aforesaid defendants . . ." "was physically assaulted by the agents, servants and/or employees" of defendant Pragosa, and that "these agents, servants and/or employees beat the plaintiff." (Revised Complaint, Count 1, paragraphs 7, 9, 10). In Count 2, plaintiffs alleged that plaintiff Malhotra . . . "was also attacked by the agents, servants and/or employees of the defendants . . ." and "was thrown into a wall . . ." (Revised Complaint, Count 2, paragraphs 8, 9). Count 3 repeats the allegations in Count 1 with respect to an assault on Vasudevan, and claims that plaintiff Malhotra was "attacked by the agents, servants and/or employees of the Defendants . . ." In all three counts, plaintiffs set forth a claim of assault and battery and seek to hold the three named defendants vicariously liable.
"`An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.' (Internal quotation marks omitted.) Alteiri v. Colasso, 168 Conn. 329, 334, n. 3, 362 A.2d 798 (1975), quoting 1 Restatement (Second) Torts § 13 (1965). Our law acknowledges the various degrees of intentionality that are attributable to tortious assault and battery. `[A]n actionable assault and battery may be one committed willfully or voluntarily, and therefore intentionally; one done under circumstances showing a reckless disregard of consequences; or one committed negligently.' (Internal quotation marks omitted.) Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985). `Not only the action producing the injury, but the resulting injury must be intentional . . . The intentional injury aspect may be satisfied if the bodily harm was the direct and natural consequence of the intended act.' (Citations omitted); internal quotation marks omitted.) Id. 77-78."
Agnes v. Grem, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 99 0587276S, (June 26, 2001, Rubinow, J.). The plaintiffs have failed to allege any facts as to the degree of intentionality (intentional, reckless, negligent) with which the alleged tortfeasors are claimed to have acted.
This omission itself renders the claim legally insufficient as against all the defendants. The degree of intentionality involved in an assault is determinative of the nature of the cause of action. There are actually at least three different possible causes of action for assault, each having a different requirement as to the pleading of the element of intent, and each requiring, if factually supportable, a different special defense be pleaded in opposition. A special defense sounding in "assumption of the risk" would be applicable, potentially, to a cause of action for assault sounding in negligence. See, Agnes v. Grem, supra. A special defense sounding in contributory recklessness is applicable to a cause of action for assault sounding in recklessness. Id.
All three counts of the revised complaint fail to sufficiently set forth a cause of action sounding in assault against any of the defendants.
B. The Alleged Vicarious Liability of the Defendant, Jack D. Pragosa, in Counts 1, 2 and 3
(i) The claims against the defendant, Jack D. Pragosa, in his capacity as the Permittee of the Enchanted Garden, (assuming such is his true status), is legally insufficient, by itself, to impose liability upon him for the injuries the plaintiffs allege they suffered. See Kendrick v. Daniel's, Inc., Docket No. 365929 Superior Court, judicial district of Hartford at Hartford (April 20, 1992, Wagner, J.) ( 16 Conn. L. Rptr. 322). In Kendrick, the court held that an individual defendant's status as a liquor permittee, alone, did not impose liability upon him in his individual capacity for injuries allegedly sustained by a patron who claimed he was assaulted by employees of the defendant discotheque. Id. Any duty owed by the defendant Pragosa by virtue of his status as a liquor permittee, and pursuant to regulations promulgated by the Liquor Control Commission, runs only to the Liquor Commission, not to the general public, nor to invitees. See, Id. The defendant Pragosa's status as a liquor permittee, as alleged in the first count, is insufficient to impose liability upon him and creates no cognizable claim.(ii) The plaintiffs have not alleged in any of the three counts that Pragosa took part in the assaults or controlled, supervised, hired, directed, monitored or in any way influenced the actions of the agents, servants or employees that are alleged to have assaulted the plaintiffs. The only allegation that might support a claim against the defendant Pragosa is the vicarious liability claim that the individuals who allegedly assaulted the plaintiff were this defendant's agents, servants or employees. This allegation alone, however is insufficient to impose liability upon him. The plaintiffs have failed to make out a legally sufficient claim of liability founded upon either the doctrine of respondeat superior, negligent supervision, or negligent hiring. The allegations that the persons who allegedly assaulted the plaintiff were the agents, servants or employees of Pragosa is insufficient to set forth a cause of action which could impose individual liability upon him.
"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.'" Terry v. Gumpton, Superior Court, judicial district of New London at New London, Docket No. 566207 (August 9, 2004, Harley J.T.R.), citing Mullen v. Horton, 46 Conn.App. 759, 764, CT Page 1352 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." Id., citing A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990). In order to plead a cause of action sounding in respondeat superior, plaintiff must allege that the employee was both acting within the scope of his employment and in furtherance of his employer's business. Id. "Unless [the employee] was activated at least in part by a purpose to serve a principal, the principal is not liable." A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 209-10. No such allegations appear in the revised complaint. The plaintiffs allege only that they were assaulted by agents, servants and/or employees of the defendants. The allegations are insufficient to set forth a cause of action in respondeat superior. Id. While it appears that where one alleges that an actor is an "employee and agent" of another, it may not be necessary to specifically state that one is proceeding in reliance upon the doctrine of respondeat superior, since the complaint must be construed "in the manner most favorable to sustaining its legal sufficiency," Doe v. Marselle, 236 Conn. 845, 862, 675 A.2d 835 (1996) citing Mahoney v. Lensink, 213 Conn. 548, 567-68, 569 A.2d 518 (1990), this does not eliminate the requirement that one plead all the requisite elements of the cause of action, although it may be unnecessary to specifically plead that the claim is one sounding in respondeat superior.
An employer, under appropriate circumstances, may also bear direct liability for the tortious acts of his or her employees and be held liable for the negligent supervision of an employee. Gutierez v. Thorn, 13 Conn.App. 493, 500, 537 A.2d 527 (1988); Seguro v. Coummiskeg, 82 Conn.App. 186, 191, 844 A.2d 224 (2004). In order to plead a cause of action sounding in negligent supervision, a plaintiff must plead injury by an employee whom the defendant had a duty to supervise, failed to supervise and whom the defendant knew or should have known would cause the injury. Companions Homemakers, Inc. v. Pogasnik, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 04-0834592 (June 7, 2005, Wagner, J.T.R.). No allegations claiming that Pragosa knew or should have known that any of the alleged agents, servants or employees would cause injury to the plaintiffs appear in the Revised Complaint. Nor are there any allegations in any of the three counts of the revised complaint that state Pragosa had a duty to supervise the agents, servants or employees who were alleged to have assaulted the plaintiffs.
In order to plead a cause of action sounding in negligent hiring, a plaintiff must plead facts demonstrating not only that the defendant had hired the alleged tortfeasor, but also that the defendant knew or should have known that the alleged tortfeasor had a propensity to engage in the alleged conduct and that he was reasonably likely to engage in such conduct. Terry v. Gumpton, supra. No such allegations appear in the revised complaint.
All three counts, for the reasons set forth above, fail to set forth causes of action against Jack Pragosa. The plaintiffs fail to set forth a cause of action sounding in either respondeat superior, negligent supervision, or negligent hiring.
C. The Alleged Vicarious Liability of the Defendant, Maria Saucier in Counts 1, 2 and 3
(i) The first and third counts of the revised complaint set forth a cause of action on behalf of Vasudevan and Malhotra, respectively, against defendant Saucier in her capacity as a member, owner, or manager of defendant T.J.Z., which was a limited liability company, as follows:
The Defendant TJZ Entertainment Group, LLC, owned and operated the aforesaid liquor establishment and was managed and controlled by the defendant Maria Saucier and the aforesaid employees were the employees of the aforesaid club. In this capacity, the defendant Maria F. Saucier is liable to the plaintiff for the injuries caused to him.
(Count 1, Paragraph 11; Count 3, Paragraph 12).
In paragraph 6 of counts 1, 2 and 3, the plaintiffs also allege that Saucier is liable as the "sole owner" of "the limited liability company known as T.J.Z . . ." Connecticut General Statutes § 34-133 provides that no member or manager of a Limited Liability Company shall be liable, solely by reason of being a member or manager of such limited liability company, for any liability of the limited liability company, or any acts or omissions of any other member or manager of the limited liability company. Further, Connecticut General Statutes § 34-134 provides that a member of a limited liability company is not a proper party to an action against a limited liability company solely by being a manager or member of such limited liability company. The plaintiffs have failed to set forth any legally sufficient basis to establish that they have a cognizable cause of action against defendant Saucier. They have alleged only that she was a manager of the T.J.Z. and that she "owned" and "controlled" it. These allegations are insufficient as a matter of law to impose personal liability upon her for the alleged acts of any agents, servants or employees of the co-defendants TJZ, or Jack Pragosa.
(ii) In paragraph 6 of the first, second and third counts of the revised complaint, the plaintiffs allege that the defendant Saucier, is the "backer for the purposes of the Liquor Control Commission . . ." However, as explained above in Section B(i) with respect to defendant Pragosa's status as the liquor permittee, Saucier's status as the backer does not impose liability upon her for the type of conduct alleged in the plaintiff's revised complaint. Any duty owed by Saucier, as a backer, is owed to the Liquor Control Commission, not to invitees of the premises. Kendrick v. Daniel's, Inc., supra. The Kendrick court found, in construing regulations of Connecticut State Agencies §§ 30-6-A9 and 30-6-A24, which refer to both permittees and backers, and permittees, respectively, that these provisions do not impose any liability upon a permittee for an alleged assault upon a patron by an employee of the establishment. Id. R.C.S.A. § 30-6-A9 imposes identical responsibilities upon both a backer and a permittee. The holding in Kendrick, is therefore, equally applicable to the defendant Saucier as the backer. No liability to the plaintiffs, members of the general public, is imposed upon Saucier by this regulation. Id.
Even if the revised complaint were construed to allege that the defendants Pragosa and Saucier had a duty to supervise the agents servants or employees who are alleged to have assaulted the plaintiff, as explained above, any such duty, created by R.C.S.A. §§ 30-6-A9 and 30-6-A24, runs only to the Liquor Control Commission, and not to the plaintiffs, or persons similarly situated as patrons of the premises. Thus, even if such duty were found to have been alleged, such allegation would not be legally sufficient to support a cause of action for negligent supervision.
(iii) For the same reasons set forth above in Section B(ii), the first, second and third counts of the revised complaint, on behalf of both plaintiffs, also fail to set forth legally sufficient causes of action sounding in vicarious liability under the theory of respondeat superior against defendant Saucier.
D. The Claim of Plaintiff Malhotra for Bystander Emotional Distress in Count 2 As To All Defendants
Paragraph 11 of the second count of the revised complaint alleges a cause of action for bystander emotional distress on behalf of plaintiff Malhotra against all three defendants. While it is usually improper for a single paragraph of a count to be stricken, where that paragraph can be construed as an attempt to state a separate claim, a motion to strike may be granted. Zamstein v. Mavasti, 240 Conn. 549, 553, 692 A.2d 781 (1997); Correia v. Massa, Superior Court, judicial district of Waterbury, Docket No. CV 01-0163848, (October 1, 2001, Pittman, J.). The first ten paragraphs of the second count of the revised complaint address the alleged assault upon, and physical injuries suffered by, the plaintiff, Shivani Malhotra. Only in paragraph 11, the final paragraph of the second count, do the plaintiffs refer to injuries suffered by plaintiff Vasudevan, and the plaintiff Shivani Malhotra's emotional distress as a result of being present while her husband was assaulted. This is an attempt to set forth a separate cause of action for bystander emotional distress.
In order to state a legally sufficient claim for bystander emotional distress, a plaintiff must allege that:
(1) he or she is closely related to the injury victim . . .; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving at the scene soon thereafter and before substantial change has occurred in the victim's condition or location; (3) the injury of the victim must be substantial, resulting in his death or serious physical injury; and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of abnormal response.
Clohesy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996). While plaintiff Malhotra has satisfied the first two required elements to set forth a claim for bystander emotional distress, she has failed, even construing the revised complaint in her favor, to allege sufficient facts to support the third and fourth elements. The allegations of the first count, incorporated by reference, do not establish that the plaintiff, Vasudevan suffered either death or serious physical injury. While it has been alleged that Vasudevan was physically injured, the detailed factual description of the injuries he is alleged to have sustained cannot be construed to be "severe" within the meaning of the elements necessary to support a claim for bystander emotional distress. (Revised Complaint, Count 1, paragraph 12.) Further, there are no allegations in the revised complaint stating that plaintiff Malhotra's emotional distress was serious and beyond simple mental pain and anguish.
E. The Alleged Vicarious Liability of the Defendant, T.J.Z. Entertainment Group, LLC in Counts 1, 2 and 3
For the same reasons set forth above in Section B(ii) above, all three counts of the revised complaint, are legally insufficient to set forth causes of action sounding in vicarious liability against the defendant limited liability company, T.J.Z.
In paragraph 13 of the third count, plaintiff alleges personal liability against Maria Saucier as a result of the dissolution of the limited liability company, T.J.Z.
While a claim against an LLC may be enforced against a dissolved LLC or a member or manager of a dissolved LLC pursuant to C.G.S. § 34-214, no cognizable claim against the defendant, T.J.Z., has been set forth in the revised complaint. Since no cognizable claim has been alleged against T.J.Z., no claim has been alleged with legal sufficiency against the individual defendant Saucier in her capacity as a member or manager of a dissolved limited liability corporation.
CONCLUSION
For all of the foregoing reasons, the Defendants' Motion to Strike is hereby granted as to all counts of the Plaintiffs' revised complaint. Counts 1, 2 and 3 are hereby stricken in their entirety.