Opinion
No. FST X08 CV 09-5012015S
May 19, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS #s 161, 163 and 166
INTRODUCTION
By complaint dated June 26, 2009, the plaintiff, Michael Vitale, as executor of the Estate of Alexandra Vitale filed an action in one count alleging negligence of the defendants Longshore Sailing School ("LSS") and Katherine Durie ("Durie"). The plaintiff is the father of the deceased, Alexandra Vitale. On August 26, 2008 Alexandra was one of three children who was taking a sailing lesson/ride with the defendant Katherine Durie on a Hobie catamaran when the boat capsized, throwing her into the water and resulting in her drowning. Alexandra Vitale was three years old at the time of her death. At the time of the incident, Durie was an employee, and/or agent of the co-defendant LSS. The owner of the vessel is the codefendant LSS.
On July 17, 2009, shortly after the filing of this action, the defendant LSS filed a notice of removal to the United States District Court of Connecticut in accordance with the federal rules for removal. The defendant contended that the action "concerns an incident which occurred on board a small sailboat on the navigable waters of the United States." The defendant contended that the federal court had jurisdiction pursuant to 28 U.S.C. § 1333 and that the alleged tort occurred in navigable waters and has a connection with traditional "maritime activity." Additionally, the defendant LSS filed a notice of complaint in the federal district court for "exoneration from or limitation of liability" pursuant to 46 U.S.C. § 30501 et seq. and Rule F for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure. The federal district court entered a stay of all matters during the initial review of the federal action. The parties entered into Stipulations which were incorporated into the federal court ruling dated January 19, 2010. This ruling found that the "stipulations adequately protect Longshore's right to seek limitation of liability." Thereafter, the federal court granted the motion to dissolve the restraining order against the Vitale action and to Stay the Limitation Action pending a remand to the state court in accordance with the "Saving to Suitors Clause." The court ordered security costs to be deposited. The defendant LSS deposited $6,000 in accordance with this ruling.
On March 5, 2010 the action was remanded from Federal District Court and restored to the active status docket in this court. The parties engaged in the pleading process with the defendant LSS filing an answer and special defenses on March 31, 2010. On the same date, LSS filed a motion to implead Andrea Vitale and Daniela Howell. The plaintiff, Michael Vitale, filed a memorandum in opposition to the motion to implead dated April 8, 2010. Thereafter, on April 28, 2010 the defendant Katherine Durie filed a motion to implead Andrea Vitale (Vitale) and Daniela Howell (Howell) to which the plaintiff, Michael Vitale also objected. On June 10, 2010, Judge Alfred Jennings granted both motions to implead stating that the: "Ruling is made without prejudice to the plaintiff's right to be heard as to the adequacy of any cause of action pleaded in the third-party complaint in connection with any motion to strike or motion for summary judgment which may hereafter be filed by the third-party defendants or either of them."
The third-party complaint filed by LSS is in four counts alleging negligent parental supervision and breach of contract as to each of the third-party defendants. The third-party complaint filed by Katherine Durie consists of three counts also alleging negligent parental supervision in separate counts and breach of contract against both third-party defendants in one count.
On November 12, 2010, the third-party defendant Daniela Howell filed two motions to dismiss. The first was directed to the second count of the third-party complaint filed by Katherine Durie and the second motion was directed to the third count of the third-party complaint of the defendant LSS. Each of the counts subject to the motion to strike contain allegations of negligence.
These motions to dismiss primarily addressed the argument that the third-party complaint was in the nature of an apportionment complaint and there is no contribution or indemnification action that could be properly filed in regard to the claims against Durie or LSS.
On November 12, 2010, the third-party defendant Andrea Vitale filed a motion to dismiss counts one and two of the third-party complaint of Katherine Durie and count three of the third-party complaint of LSS. These are also counts alleging negligence.
On January 20, 2011, the third-party plaintiff, Durie, filed memoranda in opposition to the motions to dismiss of third-party defendants Howell and Vitale.
On January 21, 2011, the third-party plaintiff Longshore Sailing School, LSS filed memoranda in opposition to the motions to dismiss by the third-party defendants Howell and Vitale.
The third-party defendants, Howell and Vitale, submitted memoranda in reply to the objections by third-party plaintiffs LSS and Durie on February 4, 2010. These memoranda raised the doctrine of parental immunity for the first time as to the negligence claims.
The third-party defendant also raised the issue that the written contract was never executed by her as a basis to dismiss the breach of contract claim for her. This is an issue that requires additional information and legal analysis regarding other counts which has not been properly raised and thus the court will not rule on this late argument.
The court scheduled and heard argument as to the motions to dismiss on March 22, 2011. Although there were four motions to dismiss filed by the third-party defendants, the issues and motions referred to the same counts and addressed similar issues within the third-party complaints. All of the motions and issues will be addressed in this memorandum.
DISCUSSION
GENERAL STANDARD
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Beecher v. Mohegan Tribe of Indians of Connecticut, 282 Conn. 130, 134, 918 A.2d 880 (2007). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638, (2007).
There have been four motions to dismiss filed by the third-party defendants Andrea Vitale and Daniela Howell. Each of the motions argue the same or similar legal issues with some small variations related to the individual's involvement with the instant action. The responses (objections) to the motions to dismiss likewise raise the same arguments with a slight variation in the approach or legal analysis. The court will address the motions to dismiss filed by each third-party defendant with the responses and replies thereto in this single memorandum of law that addresses all of the combined arguments.
TIMELINESS
The third-party plaintiffs Durie and LSS argue that the motions to dismiss were not timely filed because there is a lack of personal jurisdiction which must be addressed within thirty days. Practice Book § 10-32 provides in part: "[a]ny claim of lack of jurisdiction over the person . . . is waived if not raised by a motion to dismiss filed . . . within the time provided by Section 10-30." Practice Book § 10-30 provides in part: [a]ny defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." The third-party defendants argue that the motion to dismiss is not a lack of personal jurisdiction but subject matter jurisdiction therefore the thirty day requirement is not applicable. The third-party defendant, Howell, argues that her motion is based not on a lack of personal jurisdiction for failure to comply with the time limitation of § 52-102b, but on the fact that the third-party plaintiffs did not file consistent with the limitations of the apportionment statute at all and thus the court does not have subject jurisdiction.
"Jurisdiction of the subject matter is the power [of the court) to hear and determine cases of the general class to which the proceedings in question belong . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy . . . A defect in process, however, such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction . . . [W]hen a particular method of serving process is set forth by statute, that method must be followed . . . Unless service of process is made as the statute prescribes, the court to which it is returnable does not acquire jurisdiction . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter." (Citation omitted; internal quotation marks omitted.) Lostritto v. Community Action Agency of New Haven, Inc., CT Page 11998 269 Conn. 10, 31, 848 A.2d 418 (2004). A claim of a subject matter jurisdiction defect may not be waived and may be raised at any time. Lostritto v. Community Action Agency of New Haven, Id., 32. There is a presumption in favor of subject matter jurisdiction, and requiring a strong showing of legislative intent that a limit is jurisdictional. William v. Commission on Human Rights and Opportunities, 257 Conn. 258, 266, 777 A.2d 645 (2001).
The arguments of timeliness are two-fold. The first involves the issue of whether the motion is addressed to personal jurisdiction or subject matter jurisdiction. If as the third-party plaintiffs contend it is personal jurisdiction, the motion to dismiss must be served within 30 days of the filing of the appearance. If however, the motion to dismiss addresses subject matter jurisdiction the motion may be filed at any time. The second argument as to timeliness is raised by the third-party defendants contending that the action should be considered an apportionment action and thus the complaint must be served within 120 days of the appearance of the original action.
The third-party defendants take the position that the third-party complaint should be viewed not as a motion to implead but an apportionment complaint that would require service within 120 days of the appearance of the original action. The third-party defendants argue that if the court interprets this action as an apportionment complaint pursuant to C.G.S. § 52-102b, then the court must find that the complaint was not timely and dismiss the complaint as to the third-party defendants, Vitale and Howell. General Statute § 52-102b(a) provides: "A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability. Any such writ, summons and complaint, hereinafter called the apportionment complaint, shall be served within one hundred days of the return date specified in the plaintiff's original complaint."
This time limitation is not applicable if the action is one for contribution or indemnification under federal law as compared to an apportionment claim pursuant to Connecticut State law. The federal law for contribution does not establish a time limitation. The third-party plaintiffs have forcefully argued that the motion to implead was the proper procedure because their claims are contribution and indemnification pursuant to federal law. The third-party complaints each alleged that: "The dispute is governed by the federal admiralty and maritime law of the United States of America" and "The dispute is governed by federal maritime law." (LSS Third-party Complaint, paragraph 4 and Durie Third-party Complaint, paragraph 6.) Maritime law recognizes a cause of action for contribution or indemnification. As noted in the analysis below, the court finds that federal maritime law applies. As such, a cause of action for contribution and indemnification is recognized negating the third-party defendants arguments that these counts of the complaints must be dismissed for failing to serve within 120 days in accordance with the statute.
The third-party plaintiffs have also argued that the defendant has no authority to determine under what theory the plaintiffs have brought the legal action and that it is they and not the defendants who bring the cause of action under a stated theory. The admission by the third-party defendant that this is not an apportionment complaint could very well eliminate any argument and discussion as to whether it was timely filed because there is no such action. The court is cognizant of this claim but based on the above court decision, the court does not address this argument.
Therefore, the motion to dismiss on the basis that the third-party plaintiffs failed to serve within 120 days of the service is denied.
Because of the decision of the court as noted below ruling that the action is one pursuant to federal maritime law for contribution and indemnification, the argument of third-party plaintiffs that the motion must be denied as untimely because not filed within 30 days is moot.
If the court were to find that the third-party complaint is one for apportionment under Connecticut law, the court would then follow the argument of the third-party plaintiffs in denying the motion based upon a failure to file the motion to dismiss within 30 days. Pedro v. Miller, 281 Conn. 112, 116-17 (2007). However, the action filed is for contribution in accordance with federal law as noted below.
APPLICABLE LAW
As noted above, in the context of determining if the claims can survive the motions to dismiss, a necessary component is a determination whether the applicable law is federal maritime law or Connecticut law.
The third-party defendant, Vitale, argues that Connecticut law should be applied because her actions were not related to the activity that would invoke maritime law. The third-party defendants argue that the actions of putting the flotation device on the decedent which took place on the land and the decisions to permit the children to either take a lesson or ride on the sailboat, is not controlled by maritime law. The third-party plaintiffs contend that because the accident occurred on the navigable water and is related to traditional maritime activity the court should apply maritime law. The third-party plaintiffs further argue that federal maritime law permits the filing of a claim for joint and several liability and contribution among the tortfeasors.
The third-party complaints of both LSS and Durie contain the same causes of action, that is, negligence in parental supervision and breach of contract. Both third-party complaints allege that the dispute is governed by federal admiralty and maritime law of the United States of America. (Paragraph 4 of LSS and paragraph 6 of Durie.)
Whether the action is governed by federal law is contingent upon a number of factors. The determination of "the exercise of admiralty jurisdiction . . . does not result in automatic displacement of state law," but its application may be circumscribed in the interest of maritime uniformity. Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619 (1996). Historically, admiralty jurisdiction over torts depended solely upon the locality of the wrong. "[I]f the wrong occurred on navigable waters, the action [was] within admiralty jurisdiction, if the wrong occurred on land it [was] not." Executive Jet Aviation Inc. v. City of Cleveland, 409 U.S. 249, 253, 93 S.Ct. 493 (1972). In Executive Jet, the Supreme Court modified this "purely mechanical application of the locality test" and held that "the wrong [must also] bear a significant relationship to traditional maritime activity, "the nexus test. Id. at 261, 268, 93 S.Ct. 493.
Thus, we now apply a two-part test for determining when a tort action falls within the federal courts admiralty jurisdiction. First, the alleged tort must have occurred on or over navigable waters. Jerome B. Grubart, Inc. v. Great Lakes Dredge and Dock Co., 513 U.S. 527, 112 S.Ct. 1043 (1995). Second, the activity giving rise to the incidents must bear a sufficient nexus to traditional maritime activity. Foremost Ins. Co. v. Richardson, 457 U.S. 668, 672, 102 S.Ct. 674 (1982). The Second Circuit has applied the two-prong test enunciated in Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892 (1990), in determining if federal maritime law controls over tort claims. Vasquez v. GMD Shipyard Corp., 582 F.3d 293 at 298-99 (2nd Cir. 2009); LeBlanc v. Cleveland, 198 F.3d 353, 356-57 (2nd Cir. 1999). The first prong of the test is known as the "situs." This prong requires that the court determine if the tort occurred on navigable water. The allegations in the complaint before this court provide an abundant factual basis for the court to determine that the situs test is satisfied. The third-party complaint alleges that the third-party defendants placed three children aboard a catamaran that was to operate in the open waters in the area of Westport Harbor near Cockene Island and further that while the children were on the catamaran it capsized causing the decedent to be carried by the water current. As a result of the capsizing of the catamaran and the inability of the third-party plaintiff to right the boat and move it in the direction of Alexandra Vitale, she drowned. No one has argued that these events did not occur in the navigable waters. The issue argued by the parties is that the placement of the flotation device on Alexandra Vitale and the decisions to permit the three children to sail with only one eighteen-year-old on a sailboat occurred on land and not in navigable waters. However, these actions are not controlling in deciding the situs test as to the jurisdictional issue. In Donnelly v. Slingshot Sports LLC, 605 F.Sup.2d 613, 616 (D.Del. March 31, 2009), involving a products liability claim the court stated, "Indeed, the fact that the tort may have occurred on land is not dispositive if the `substance and consummation' of the tort takes place on navigable waters." (Citing 1 Benedict on Admiralty § 172 at 11-37 (7th ed. Rev. 2008) (quoting The Plymouth, 70 U.S. (3 Wall.) 20 (1865).) In determining the jurisdiction the Donnelly court followed the rationale of Bodnar v. Hi-Lex Corp., 919 F.Sup. 1234 (D.Ind. 1996), which found that, "The locality test is met despite the fact that the allegedly defective manufacture and repair of the boat occurred on land. The tort is properly considered to have occurred on Lake Michigan because the alleged defect did not manifest itself, and the injury did not occur, until the [plaintiffs] operated the vessel in the navigable waters of Lake Michigan." In following this theory, the court in Butler v. American Trawler Co., Inc., 887 F.2d 20 (1st Cir. 1989), ruled that the "controlling case law holds the tort occurs where the negligence `takes effect,' not where the negligent act occurred." The third-party complaint alleges the flotation device was picked out and placed on Alexandra by the third-party defendant, Vitale, at the building on shore. It was also on shore that the third-party defendants decided without any input from the third-party plaintiffs allowed the three children to leave the shore area with one eighteen-year-old to operate the boat and care for the three children. However, it was not until the catamaran had been sailing for some time before it capsized sending all aboard into the water. The law in this regard recognizes that the situs test is not simply where the alleged incident occurred but is where the negligence takes effect. This analysis is particularly significant in the facts alleged in the third-party complaints because the third-party plaintiffs contend that the placement of the flotation device and the actions of the third-party defendants actions on shore would not be the indicator of situs but instead this is controlled by the place where the act took effect. Butler v. American Trawler Co., Inc., 887 F.2d 20, 21 (1st Cir. 1989). In the instant case, the third-party complaints clearly allege that the acts took effect in navigable water off of Cockene Island when the boat capsized and the decedent was unable to keep her head above water because of the type of flotation device as well as the alleged improper placement of the device on her. Additionally, although the allegations are that the third-party plaintiff was negligent in taking three small children on the boat, this too is an allegation of a negligent act of allowing the unsafe placement of the three children on the catamaran that did not take effect until the boat capsized with only one adult to tend to the children who were thrown in the water. It was in that current off shore that Alexandra Vitale drowned because of the improper selection and placement of the flotation device. Viewing the allegations of the third-party complaints, the situs prong has been satisfied.
The second prong requires that the court determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. In analyzing this factor the court follows the approach set forth in Sisson v. Ruby, supra, 497 U.S. at 363-65, to evaluate whether the general features of the incident have a potentially disruptive impact on maritime commerce and whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.
The first assessment looks to potential effect, not to particular facts of the incident . . . whether the general features of the incident are likely to disrupt commercial activity. Jerome B. Grubart v. Dredging and Dock Inc., 513 U.S. at 538, 115 S.Ct. 1043 (internal quotations and citations omitted). Courts have an expansive view of whether an incident has the potential to disrupt maritime commerce. Foremost Ins. Co. v. Richardson, 457 U.S. 668, 677 (1982). In Foremost, id., the incident involved the collision of two pleasure boats. The court first found that there is no requirement that the vessels involved be commercial vessels nor that the activity involve solely a commercial activity. The court found that maritime law applies to all operators of vessels. The court was focused on developing a theory that would have uniform rules of conduct. In satisfying this goal the court encouraged a broad approach in determining a nexus. The court in Foremost applied the tests to determine that a collision with two pleasure boats could satisfy the Second step of Sisson. The third-party complaints in the instant action allege that Durie was employed by LSS which duties included the operation of a catamaran. Durie along with three children were involved in sailing on a catamaran in Long Island Sound near Cockene Island. The incident which gave rise to this legal action involved the capsizing of the catamaran as they were sailing in Long Island Sound. The incident was precipitated by a gust of wind or other force that resulted in the capsizing of the catamaran and throwing all of the occupants into the water. This incident led to the catamaran being carried without any control by the current and two of the children being drawn by the current into the open waters. The instant incident drew the attention of another boater who became involved in the rescue attempts of the children. This incident also brought in other boaters to take part in the rescue. In Re Aramark Sports and Entertainment Services, U.S. Dist. Court, D-Utah, Case No. 2:09Cv-637-TC (March 4, 2010, Campbell, J.), the court found passengers who need to be rescued are a potential to disrupt maritime commerce. The facts alleged in the third-party complaints which provide a scenario of at least two young children being carried by the current in the open water course with two others holding onto a sailing vessel that is also being carried uncontrollably by the current in Long Island Sound certainly presents a potentially disruptive impact on maritime commerce as the activity of boating ceased and gave way to the activity of rescue. The second assessment involves a determination that the incident must have a substantial relationship with traditional maritime activity. Grubart, 513 U.S. at 539, 115 S.Ct. 1043. The "general features" of an activity are ascertained by the "general conduct from which the incident arose." Sisson, Id. 497 U.S. at 364, 110 S.Ct. 2892. Here the general conduct or activity engaged in was the sailing or use of the vessel for pleasure activities. In Foremost, the vessels were pleasure boats with the court determining that such a use qualifies as a maritime activity. In the scope of the activities, it is common that during the summer months many individuals take part in water activity of sailing or in the instant set of facts learning to sail. Given the nature of the continuing activity at this sailing school directly connected to the activity alleged in the third-party complaints, there is no question but that the incident has a substantial relationship with traditional maritime activity.
Viewing the allegations of the third-party complaints, the claims provide a situs and a nexus that lead the court to determine that federal maritime law controls. It is not simply that the plaintiffs allege that the action is governed by the federal admiralty and maritime law but it is also that the factual allegations follow the law that supports such a finding.
CONTRIBUTION AND INDEMNIFICATION
The third-party defendants also argue that there is no federal contribution or indemnification action that can support this action. The defendant Howell argues that even if the claim is one for contribution, it would be subject to the Connecticut procedural requirements for filing an apportionment complaint and thus the action is not timely filed. This argument ignores the recognition of such a claim for contribution in the federal courts. Federal law and federal maritime law recognize a cause of action for contribution between joint tortfeasors. Eagle-Picher Indus., Inc. v. United States GAF Corp., 937 F.2d 625, 635 (D.C. Cir. 1991). However, federal maritime law in determining which law to apply looks to the concept of uniformity of the application of law to maritime actions. If this court accepts the defendants' argument that even though contribution and indemnification are recognized in the federal maritime law it should not be permitted in the instant case because of Connecticut procedural requirements relating to apportionment, there would be a lack of uniformity in the application of the law. State law is preempted if it would disrupt the uniformity of the substantive admiralty law. Romero v. Inter'l Terminal Operating Co., 358 U.S. 354, 373, 79 S.Ct. 468 (1950). The federal law clearly permits an action for contribution or indemnification. To dismiss the action for what the third-party defendants identify as a state procedural limitation permits the parties to preclude the application of federal maritime law and certainly creates the lack of uniformity intended by Romero, Id.
The third-party defendants have also argued that in the instant action, the federal court does not recognize a cause of action for contribution citing the case of Halycon Lines v. Haen Ship Ceiling and Refitters Corp., 342 U.S. 282, 72 S.Ct. 277 (1952). In Halycon, the court found that a claim for contribution was not permitted in a non-collision case. The third-party defendants' argument is that Halycon controls and limits third-party actions in non-collision cases. The defendants reading of Halycon is too broad. The Halycon court was confronted with a very limited set of facts that the court recognized applied to that particular set of circumstances. Thereafter, the court in Cooper Stevedoring Co. v. Kopke Fritz Inc., 417 U.S. 106, 94 S.Ct. 2174 (1974), distinguished the facts in Halycon and allowed a third-party action in a non-collision action. The real focus of the Halycon court and the Cooper court was the determination of whether there exists an exclusive remedy that would not permit contribution from other tortfeasors. In particular, the injured party in Halycon was an employee who was entitled to an exclusive remedy by the Longshoreman's and Harbor Workers' Compensation Act, 33 U.S.C. § 901-50 and thus prohibited from suing his employer for additional damages. The court determined that the liberal application of contribution was not available when there is a statutory right or claim that limits or excludes liability. The Cooper court clarified the narrow nature of the Halycon "no contribution" restriction. The Cooper court focused on the statutory restriction and stated: "Viewed from this perspective, and taking into account the factual circumstances presented in that case, we think Halycon stands for a more limited rule than an absolute bar against contribution in non-collision cases." Cooper Stevedoring Co. v. Kopke Fritz, supra, 417 S.Ct. 111. The Cooper court encouraged a broader reading of permitting contribution in non-collision cases. The other issue raised by the third-party defendant Vitale is the applicability of the contribution claim when there are contentions that there may be an immunity from liability in the form of parental immunity. This type of restriction to a contribution claim may not be applicable to the present set of facts because parental immunity is not a statutory immunity as was found in the Halycon case. However, even if the court should consider such an immunity, the facts as set forth in the complaint of the instant action may not lead to a finding that one or both of the third-party defendants are entitled to the defense as noted below.
Therefore the third-party plaintiffs' complaints should stand and the motion to dismiss is denied in this respect because the third-party plaintiffs have alleged a viable cause of action for contribution or indemnity.
PARENTAL IMMUNITY
The third-party defendant, Andrea Vitale, contends that she cannot be brought into the action because she has parental immunity.
The third-party defendant Vitale did not address the doctrine of parental immunity as a basis to dismiss the action until the Feb. 4, 2011 reply memorandum. This doctrine is recognized in Connecticut but with limitations that require factual inquiries.
The doctrine of parental immunity bars an unemancipated child from suing his or her parents for personal injuries. Ascuitto v. Farricielli, 244 Conn. 692, 697, 711 A.2d 708 (1998). "Under this doctrine a parent is not liable civilly to his child for personal injury inflicted during [the child's] minority . . . Mesite v. Kirchenstein, 109 Conn. 77, 82-83, 145 A. 753 (1929)." (In the case of Crota v. Home Depot, 249 Conn. 634 (1999), the plaintiff was the minor child for whom the action was filed.
The parental immunity doctrine was first applied in the United States as a common law principle in 1891 in Hewlett v. Ragsdale, 68 Miss. 703, 711, 9 So. 885 (1891). In Connecticut, the doctrine was adopted in Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753 (1929). The rule remains in Connecticut that unemancipated minor children and their parents may not sue one another for personal injuries. Squeglia v. Squeglia, 234 Conn. 259, 264, 661 A.2d 1007 (1995).
The case law addressing the doctrine of parental immunity involves actions that are a direct action of a child against a parent such as in Crota v. Home Depot, 249 Conn. 634, 732 A.2d 767 (1999), and Squeglia v. Squeglia, supra, 234 Conn. 259. The purpose of the doctrine is to preserve the integrity and unity of the family and to avoid unnecessarily injecting the machinery of the state into the day-to-day exercise of parental discretion. See Dubay v. Irish, 207 Conn. 518, 527, 542 A.2d 711 (1988). The court in Squeglia provides a well reasoned basis for the imposition of such a doctrine in its discussion as follows: "The State and society are vitally interested in the integrity and unity of the family and the preservation of the family relation. The obligation of the [parents] to care for, guide, control and educate their child, and the reciprocal obligation of the child to serve and obey the parent, are essentials of the family relationship. Authority in the parent to require obedience in the child is indispensable to the maintenance of the unity in the family. Anything [that] undermines this authority, brings discord into the family, weakens its government and disturbs its peace, is an injury to society and to the State. Few things could bring about this unhappy condition more quickly or weaken the breach between parent and child further than the bringing of an action at law for personal injuries by a minor child against the parent." Citing Mesite v. Kirchenstein, 109 Conn. 77, 84, 145 A. 753 (1929), Dzenutis v. Dzenutis, 200 Conn. 290, 293, 512 A.2d 130 (1986). The court recognizes the reality of how this type of action would affect the family when it stated: "The prospect of greeting an adolescent judgment creditor at the dinner table each day would likely strain the familial relationship even for the most saintly of parents." Dzenutis, supra., 296. Additionally, there are concerns about "[t]he danger of fraud . . . the possibility that the defendant might inherit the amount it recovered in the case of the plaintiff's death [and] that the family exchequer might be depleted at the expense of other children . . ." W. Prosser Keeton, Torts (5th Ed. 1984) § 122 p. 905. Ascuitto v. Farricielli, supra, 244 Conn. 697. The court also addressed the need to preserve the discipline in the family between a child and parent as well as avoiding a breach between a parent and child. Ascuitto, supra, 697-98.
The third-party defendant would have this court recognize parental immunity simply because the action includes both a child and parent. However, the context with which the parent was made a party to this action was not because the child chose to sue her but only because the non-related defendants to the action filed a motion to implead the parent for indemnification or contribution as to them. To allow the parental immunity doctrine to apply in an action where the child did not name the parent as a defendant but who may be liable for indemnification to another party may take the doctrine beyond the purposes recognized by our courts. The doctrine of parental immunity is not sacrosanct as the third-party defendants would like this court to find. Over the course of time, our legislature has addressed factual situations which have led to exceptions of this immunity. For instance, the legislature has abrogated parental immunity for actions involving "negligence in the operation of a motor vehicle, and in all actions accruing on or after October 1, 1979, for negligence in the operation of an aircraft or vessel, as defined in section 15-217, resulting in personal injury, wrongful death or injury to property . . ." The court in Dzenutis v. Dzenutis, supra, rejected the parental-child immunity as a defense in an action where the child received injuries as a result of a negligent act occurring in the course of the parent's business. The court in Dzenutis recognized the decline in parent child immunity and the total abrogation in many states. While not of the opinion to completely abrogate the immunity for well founded public policy reasons the Dzenutis court examined the affect that availability of liability insurance has upon the impact to the tranquility of the home that encouraged the recognition of the doctrine. The allegations of the instant action leave open the questions which proved essential in Dzenutis. Simply recognizing the purpose and intent of the parental immunity doctrine is not sufficient to determine its applicability. The application of the theory of Dzenutis and the factual distinctions of the instant action, leaves unsettled the issue of whether the parental immunity doctrine clearly presents a basis to grant a motion to dismiss for lack of subject matter. The actions of the defendants in choosing the flotation device, fitting the device on the decedent, placing each of the children on the sailboat and permitting them to sail without their direct adult supervision or an additional babysitter creates an issue that may result in denial of any parental immunity and liability to the third-party defendants pursuant to a judicial modification or Connecticut state law. In Ascuitto v. Farricielli, id., 244 Conn. 699, the court set forth a three-part test to determine if parental immunity applies, that is; "1) whether the allegedly negligent act concerns parental discretion and supervision; 2) whether liability insurance covering the injury in question is prevalent in the circumstances under which the injury in question is prevalent in the circumstances under which the injury occurred; and 3) whether the duty breached by the parent was a public one rather than one particularly owed to the child." (Citations omitted.) Ascuitto, Id.
Additionally, there is no certainty that federal maritime law will recognize the application of the law of parental immunity espoused in the Connecticut courts. In Szollosy v. Hyatt Corp., 396 F.Sup.2d 147 (Conn. 2005), the court addressed the claim by a third-party defendant parent that he was entitled to parental immunity in the tort action. The court examined the issue in light of the premise that uniformity of the decisions in maritime law is important. The court addressed the application of parental immunity throughout the courts in the nation to determine if it should be applied based upon the facts of Szollosy. The court found that a "national examination of parental immunity finds that doctrine edging toward disrepute." Szollosy v. Hyatt Corp., 396 F.Sup. 155. The court recognized that many states never adopted this immunity and that 26 states and the District of Columbia have abrogated parent-child immunity in part. The court further incorporated the Restatement (Second) of Torts that provides, "a parent or child is not immune from tort liability to the other solely by reason of that relationship." Restatement at § 895G(1). The Szollosy court denied the summary judgment based upon parental immunity because it determined that to do so "would detract from the uniformity of admiralty law, undermine the simplicity of the admiralty system, and too greatly impair admiralty's rule of contribution among joint tortfeasors." Given the uncertainty as to the law of parental immunity in a federal maritime action, it is improper to dismiss the claim based upon the third-party defendant's argument that she is immune from liability based upon the doctrine of parental immunity. Therefore, the motion to dismiss because of the doctrine of parental immunity is denied.
CONCLUSION
Based upon the above the court denies the motion to dismiss for failure to timely file an action pursuant to the apportionment statute or to file as an apportionment complaint because the court has determined that the action is in the nature of contribution or indemnification under the federal law. The action was properly served and filed in accordance with C.G.S. § 52-102(a) as a claim for contribution.
The motion to dismiss as to the claim that the third-party defendant is immune pursuant to the doctrine of parental immunity is also denied for the reasons set forth above.