Opinion
CV-06-5001065-S
May 4, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUNMARY JUDGMENT
The defendant, Beverly Powers, has moved for summary judgment on the grounds that the claims are barred by the applicable statute of limitations and the defendant owed no duty to the plaintiffs.
Facts
The plaintiffs' complaint alleges the following. The plaintiff, Lisa Wilderman, and her husband, Scott Wilderman, were neighbors of the defendant and her husband, Gregory Powers, in Clinton, Connecticut. On the evening of August 5, 2004, Gregory Powers entered the plaintiffs' property and photographed and videotaped Lisa Wilderman as she stood in her bathroom in a partial state of undress. Lisa Wilderman became startled and contacted the police. This resulted in the arrest of Gregory Powers.
The complaint further alleges that on and prior to the evening of his arrest, Gregory Powers had been engaged in repeated acts of surveillance or voyeuristic activities directed towards Lisa Wilderman. These activities occurred in or near the defendant's home while she resided with Gregory Powers.
The plaintiffs have presented evidence of facts in support of their claim that the defendant knew or should have known of her husband's voyeuristic behavior, including the following
1. Mr. Powers watched Mrs. Wilderman in a voyeuristic manner for several months before his arrest.
2. The defendant had been married to Mr. Powers for 32 years at the time of his arrest.
3. Several days before Mr. Power's arrest, Mr. Powers was on the plaintiffs' property at night taking pictures and video of Mrs. Wilderman through her bathroom window at a time when the defendant was at home.
4. The police observed two dozen photographs of Lisa Wilderman taken by Gregory Powers outside of her home. The photographs were taken between July 22, 2004 and August 5, 2004.
5. Several days before Mr. Powers was arrested, the defendant came to the Wildermans' house to babysit for their children instead of Mr. Powers who was supposed to babysit even though Mr. Powers was at home at the time.
6. When visiting the Powers, the Wildermans were not allowed to enter the room containing various computers and equipment. At least one of the computers used by Mr. Powers to access "pornographic and voyeurism sites" was registered in the name of the defendant.
The complaint further alleges that Lisa Wilderman suffered emotional distress as a result of Mr. Power's actions and that her injuries and losses were caused by the negligence of the defendant in that the defendant failed to stop her husband's voyeuristic conduct and/or failed to warn Lisa Wilderman of that conduct.
In her affidavit, the defendant has averred that she was an inpatient at Yale-New Haven Hospital from 10:00 a.m. on August 5, 2004 until 10:00 a.m. on August 6, 2004 and that she had no knowledge of the activities attributed to her husband in the plaintiff's complaint prior to being informed of her husband's arrest on the morning of August 6, 2004.
Discussion of the Law and Ruling
Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003); Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Co. v Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stam, 224 Conn. 524, 530, cert denied, 114 S.Ct. 176, 126 L.Ed.2d 136(1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
The defendant advances the statute of limitations as the first ground for summary judgment. Connecticut General Statutes § 52-584 provides in relevant part that "No action to recover damages for injury to the person caused by negligence shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered." The complaint alleges that actionable conduct of the defendant's husband occurred on and prior to August 5, 2004. The action was commenced against the defendant on July 27, 2006. Since the action was commenced within the two-year period from August 5, 2004, the date on which Lisa Wilderman allegedly sustained her injuries, it is not barred by the statute of limitations.
The second ground advanced by the defendant in support of summary judgment is that Beverly Powers owed no duty to Lisa Wilderman. The Supreme Court in Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004), stated:
The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care . . . [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary 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 . . .
With respect to the second inquiry, namely, the policy analysis, there generally is no duty that obligates one party to aid or to protect another party. See 2 Restatement (Second), Torts § 314, p. 116 (1965). [fn 5.] One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another. See W. Prosser W. Keeton, Torts (5th Ed. 1984) § 56, pp. 373-74; see also 2 Restatement (Second), supra, §§ 314A, 315.[fn 6.] . . . In delineating more precisely the parameters of this limited exception to the general rule, this court has concluded that, [in the absence of] 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, 674 A.2d 811 (1996). (Emphasis in original.)
In Murdock, the Court held that a police chief owed no duty to a police officer who was injured in an off-duty altercation with another police officer. This holding was based on 2 Restatement (Second), Torts § 315 which provides:
CT Page 6417
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.
The Court in Murdock emphasized that the § 314 of the Restatement set forth the general rule that there is no duty to control the conduct of a third person to prevent him from harming another. It then reviewed the exceptions to that rule contained in Restatement § 315:
The text of § 315(a) of the Restatement (Second) does not define the special relationships that give rise to a duty to control the conduct of a third party. [fn 12] The comments to § 315(a), [fn 13] however, are particularly enlightening in this regard because they reference corresponding Restatement (Second) sections that delineate precisely those relationships that fall within the purview of § 315(a). See 2 Restatement (Second), supra, § 315, comments (a) through (c). `The relations between the actor and a third person which require the actor to control the third person's conduct are stated in §§ 316-19." Id., comment (c).
Sections 316, 318 and 319 of the Restatement (Second) all identify specific relationships that give rise to a duty to control a third party pursuant to § 315(a). Section 316 [fn 14] imposes a duty on a parent to prevent his minor child from intentionally harming a third party. Section 318 [fn 15] imposes a duty on the possessor of land or chattels to control the conduct of a licensee. Finally, § 319 [fn 16] requires those exercising custodial control over an individual such as sheriffs or wardens, to prevent such an individual from harming third parties. An employment relationship, such as that between Croughwell and Cancel, is not within the scope of these sections.
Murdock, supra, at 568-69.
The relationship between Beverly Powers and her husband does not fall within any of the special relationships enumerated in §§ 316, 318 or 319.
The plaintiffs have provided no authority that the relationship between husband and wife gives rise to a wife's duty to protect third persons from the voyeuristic conduct of her husband. The only case provided by the plaintiffs is J.S. and M.S. Guardians ad Litem v. R.T.H. et al, 155 N.J. 330, 714 A.2d 924 (1998), which is inapposite to the present case. That case involved repeated sexual abuse of two children and turned on public policy considerations favoring the protection of children from sexual abuse.
The defendant had no duty to protect the plaintiffs from the conduct of her husband. Therefore, the motion for summary judgment is granted.