Opinion
No. CV 09 5013821
March 24, 2011
MEMORANDUM OF DECISION
RE: MOTION FOR SUMMARY JUDGMENT (NO. 116) Facts and Procedural History
This action arises from an accident involving an all-terrain vehicle ("ATV") that occurred on May 24, 2008, in Salem, Connecticut. The plaintiffs, Amber Arsenault, a minor, and her mother, Katrina Arsenault, filed a complaint alleging negligent supervision against the defendants, Stanley, Donna and Spencer Adelstein. The accident occurred on the defendants' property while Amber was riding on their ATV. The defendants filed their motion for summary judgment and memorandum in support on January 14, 2011. The plaintiff's filed their objection and memorandum in opposition on February 10, 2011. The parties appeared for oral argument at short calendar on March 21, 2011.
Discussion
"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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
First, the defendants argue that Stanley and Donna Adelstein are entitled to summary judgment because General Statutes § 52-557j immunizes them from liability. The court rejects this argument for all of the reasons previously discussed by this court in striking the defendants' special defense, which alleged their immunity from liability on the basis of § 52-557j. The statute does not bar the plaintiffs' negligent supervision claim against the defendants. See Galinski v. Neukom, supra, CT Page 7920 37 Conn. L. Rptr. 508; Coombe v. Kovach, supra, 42 Conn. L. Rptr. 472.
Next, the defendants argue that Spenser Adelstein is entitled to summary judgment because there is no evidence that he breached any duty to the minor plaintiff. Specifically, the defendants argue that Spenser did not give the minor plaintiff permission to use the ATV. The plaintiffs counter that there is a genuine issue of fact as to whether the minor plaintiff had the defendants' permission to ride the ATV.
Based upon the affidavits and depositions presented by the parties, the court is satisfied that there exists a genuine issue of material fact as to whether the defendants gave the minor plaintiff permission to use the ATV on the date of the accident. Specifically, the deposition of Donna Adelstein demonstrates that she was aware that Spenser and his minor guests were riding ATVs on the property and that she gave him permission to do so.
Conclusion
For all of the foregoing reasons, the defendants' motion for summary judgment is hereby denied.
MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 112) Facts and Procedural History
This action arises from an accident involving an all-terrain vehicle ("ATV") that occurred on May 24, 2008, in Salem, Connecticut. The plaintiffs, Amber Arsenault, a minor, and her mother, Katrina Arsenault, filed a complaint alleging negligent supervision against the defendants, Stanley, Donna and Spencer Adelstein. The accident occurred on the defendants' property while Amber was riding on their ATV. The defendants filed an amended answer and special defenses on August 13, 2010. Their second special defense alleges that they are immune from liability on the basis of General Statutes § 52-557j.
On October 14, 2010, the plaintiffs filed a motion to strike this special defense. The defendants filed their objection on October 18, 2010. The parties appeared for oral argument at short calendar on February 7, 2011.
Discussion
"[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978). "In . . . ruling on the . . . motion to strike, the trial court recognized its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "[T]he total absence of any factual allegations" specific to the dispute "renders [the special defense] legally insufficient." U.S. Bank National Ass'n. as Trustee v. Ascenzia, Superior Court, judicial district of New Haven, Docket No. CV 08 5022527 (July 30, 2009, Abrams, J.) ( 48 Conn. L. Rptr. 345, 346).
Section 52-557j states: "No landowner may be held liable for any injury sustained by any person operating a snowmobile, all-terrain vehicle, as defined in section 14-379, motorcycle or minibike or minicycle, as defined in section 14-1, upon the landowner's property or by any passenger in the snowmobile, all-terrain vehicle or motorcycle, minibike or minicycle, whether or not the landowner had given permission, written or oral, for the operation upon his land unless the landowner charged a fee for the operation, or unless the injury is caused by the wilful or malicious conduct of the landowner."
The plaintiffs argue that § 52-557j does not apply to cases in which a plaintiff claims negligent supervision by a landowner. The plaintiffs rely on Galinski v. Neukom, Superior Court, judicial district of Litchfield, Docket No. CV 03 0090491 (July 19, 2004, Brunetti, J.) ( 37 Conn. L. Rptr. 508), and Coombe v. Kovach, Superior Court, judicial district of New London, Docket No. 5001474 (December 5, 2006, Hurley, J.T.R.) ( 42 Conn. L. Rptr. 472), in support of their argument.
In Galinski v. Neukom, supra, 37 Conn. L. Rptr. 508, the court denied the defendant's motion for summary judgment where the complaint alleged that the plaintiff, who was a minor at the time, was invited onto the defendant's property to ride an off-road motorcycle (a minibike) owned by the defendant. Specifically, the complaint alleged negligent supervision by the defendant. The defendant claimed that § 52-557j barred the cause of action. See id. The Galinski court denied the defendant's motion.
"In construing a statute the court must look to plain meaning of the statute. Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct . . . General Statute 52-557j clearly bars actions against a landowner for injuries that are a result of the operation of a vehicle. However, in this action the plaintiff . . . specifically alleges that his injuries were a result of negligent supervision of the plaintiff by the defendant, not operation on the defendant's land. There is no language in 52-557j barring actions for injuries caused by negligent supervision. The purpose of 52-557j is to insulate owners of land from liability by recreational users of the land. In this action the claimed liability is not based on the use of the land, but on negligent supervision of the plaintiff by the defendant." (Citations omitted; internal quotation marks omitted.) Id., 509. Therefore, the court concluded that § 52-557j did not apply and there existed a genuine issue of material fact as to the supervision of the plaintiff. See id.
Subsequently, in Coombe v. Kovach, supra, 42 Conn. L. Rptr. 472, the plaintiffs' action arose out of injuries and losses allegedly sustained by Krystal Coombe, a minor, who was invited to a gathering at the defendants' house and occupied an all-terrain vehicle provided by the defendants for their guests' use. The plaintiffs specifically alleged that the defendants were negligent in allowing Coombe to ride an all-terrain vehicle on their property without any warning of artificial terrain changes and any instruction of how to navigate the vehicle and in failing to provide adequate safeguards or protection from falls off the vehicle. In reliance on Galinski v. Neukom, supra, 37 Conn. L. Rptr. 509, the Coombe court denied the defendants' motion to strike, finding that § 52-557j may not apply to those cases in which a plaintiff claims negligent supervision by a landowner. See id., 474.
The court explained: "Negligent supervision requires pleading that the defendant had a duty to supervise and knew or should have known that a particular behavior would have caused injury of the general nature of the kind suffered by the plaintiff . . . In general, [t]he ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . Would the ordinarily prudent man in the position of the defendant, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? This does not mean foreseeability of any harm whatsoever or foreseeability that the particular injury which resulted would occur. It is, in short, the foreseeability or anticipation that harm of the general nature of that suffered would be likely to result, which gives rise to a duty to use due care, breach of which might constitute negligence . . . Thus, as a matter of law, a duty to supervise an adult invitee may exist in certain situations." (Citations omitted; internal quotation marks omitted.) Id., 474.
Specifically, the court noted that the plaintiffs alleged that the defendants failed "to warn of any artificial terrain changes," "to instruct of proper occupying techniques, and how to navigate any artificial terrain changes," "to provide any adequate safeguards" or "protection from falls off of the all-terrain vehicle," and "to maintain and inspect any artificial terrain encountered by the all-terrain vehicle." Additionally, they alleged that the defendants failed to exercise due care "to guard against all dangers, which might reasonably and naturally be expected to arise in view of the circumstances." As a result, the court reasoned that "§ 52-557j should not apply . . . because the plaintiffs sufficiently allege that the defendants were negligent in supervising Coombe's occupation of the all-terrain vehicle . . . Sufficient facts relating to the defendants' duty to supervise have been pleaded. In light of the inherently dangerous nature of an all-terrain vehicle and the alleged artificial terrain changes, the defendants knew or should have known that their failure to supervise Coombe would cause the kind of injury that she suffered. Her injuries were the type of general harm that was reasonably foreseeable under the circumstances . . . [T]he plaintiffs have pleaded sufficient facts to claim negligent supervision by the defendants." Id.
The defendants simply contend that Galinski and Coombe were wrongly decided. They argue that the statute's broad language immunizes them from liability and as a result, their special defense should not be stricken. In Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 133-35, 479 A.2d 231 (1984), the Supreme Court rejected the argument that § 52-557j affords immunity only for operation of a motorcycle on unimproved portions of land. In doing so, the court emphasized that § 52-557j "states in plain language that no landowner will be liable for any injuries to operators or passengers arising from the operation of certain vehicles including motorcycles on the landowner's property `unless the landowner charged a fee for the operation, or unless the injury is caused by the wilful or malicious conduct of the landowner.' . . . This language is clear and unambiguous." (Citation omitted.) Id., 133.
Decisions of the Superior Court have relied upon the statute's broad scope. By example, in Smith v. Country Scents Candle, Inc., Superior Court, judicial district of Tolland, Docket No. CV 01 75706 (November 27, 2001, Sferrazza, J.) ( 30 Conn. L. Rptr. 717, 718), the court ruled that § 52-557j conferred immunity to landowners against claims of injury arising from the operation of a motorcycle in a parking area. The court reasoned: "Our Supreme Court has held that the language of § 52-557j is plain, clear, and unambiguous and needs no interpretation. Warner v. Leslie Elliot Constructors, Inc., 194 Conn. 129, 133 (1984). In that case, the Supreme Court rejected the argument that this statute affords immunity only for operation of a motorcycle on unimproved portions of land . . . The Court further held that use of the term `property' in § 52-557j is `all encompassing' and includes improved areas such as private roads . . . This ruling applies with equal vigor to parking lots. Courts cannot create exceptions to statutes which the legislature had overlooked in writing the statute . . ." (Citations omitted.) Id., 718.
In Roy v. Green Valley Developers, Superior Court, judicial district of Hartford, Docket No. CV 92 0515475 (June 30, 1993, Hennessey, J.), the court granted the defendant's motion to strike count one of the plaintiff's complaint, alleging negligence, and count three, alleging attractive nuisance. As to the plaintiff's attractive nuisance claim, the court stated: "[T]he clear and unambiguous language of General Statutes § 52-557j provides that `no landowner will be liable for any injuries to operators . . . of . . . motorcycles on the landowner's property `unless the landowner charged a fee for the operation, or unless the injury is caused by the wilful or malicious conduct of the landowner.' . . . General Statutes § 52-557j does not shield the landowner from liability solely in cases of negligence. Section 52-557j does not specify any limitation on its application to any common law theory of recovery. General Statutes § 52-557j makes no distinctions based upon the age of the motorcycle operator or passenger who is injured on the landowner's property . . . [T]he plaintiff has not alleged any facts which would support his conclusory allegation that [the defendant's] omissions or inaction `constituted wilful misconduct.' The plaintiff has not alleged sufficient facts to show that he falls within either exception to the shield from liability in General Statutes § 52-557j." (Citation omitted.) Id.
Finally, in Oliver v. Meadowview, Inc., Superior Court, judicial district of New Haven, Docket No. 307442 (August 11, 1992, Hadden, J.) ( 7 Conn. L. Rptr. 188), the court granted the defendant's motion for summary judgment as to the plaintiff's allegations of negligence and nuisance. The court stated: "Section 52-557j bars the liability of landowners for injuries arising out of the operation of motorcycles unless the landowner charged a fee or acted wilfully or maliciously. In this case, the plaintiff has alleged that the roadway on which the motorcycle accident occurred was owned by the defendant and that the accident was caused by the defendant's negligence and creation of a nuisance, but has alleged neither that the defendant charged a fee for the operation nor that the injury was caused by the wilful or malicious conduct of the defendant . . . [Section 52-557j] does not make an exception for liability for nuisance. It authorizes recovery only where the plaintiff has shown that a fee was charged or the landowner acted wilfully or maliciously. Therefore, it is clear that § 52-557j also bars liability for nuisance claims." Id., 189-90.
These cases are distinguishable from the case at bar. The court agrees with the plaintiffs' argument that § 52-557j does not bar the defendants' liability. Statutes that limit liability should be construed narrowly. See e.g., Sandor v. New Hampshire Ins. Co., 241 Conn. 792, 797, 699 A.2d 96 (1997) ("the legislature's broad policy of holding lenders responsible for injuries associated with the use of their automobiles directs us to construe narrowly those statutes that limit lender liability").
The court agrees with and adopts the court's reasoning in Coombe v. Kovach, supra, 42 Conn. L. Rptr. 474. "§ 52-557j should not apply . . . because the plaintiffs sufficiently allege that the defendants were negligent in supervising [the minor plaintiff's] occupation of the all-terrain vehicle . . . In light of the inherently dangerous nature of an all-terrain vehicle . . . the defendants knew or should have known that their failure to supervise [the minor plaintiff] would cause the kind of injury that she suffered. Her injuries were the type of general harm that was reasonably foreseeable under the circumstances." . . . [T]he plaintiffs have pleaded sufficient facts to claim negligent supervision by the defendants." Id. As in Coombe, the plaintiffs in the present case have plead sufficient facts relating to the defendants' duty to supervise the minor plaintiff.
Moreover, the cases relied upon by the defendant; Warner v. Leslie-Elliott Constructors, Inc., supra, 194 Conn. 129; Smith v. Country Scents Candle, Inc., supra, 30 Conn. L. Rptr. 717; Roy v. Green Valley Developers, supra, Docket No. CV 92 0515475; and Oliver v. Meadowview, Inc., supra, 7 Conn. L. Rptr. 188; are factually distinguishable from Coombe v. Kovach, supra, 42 Conn. L. Rptr. 472, and Galinski v. Neukom, supra, 37 Conn. L. Rptr. 508. The plaintiffs in Warner, Smith, Roy, and Oliver, were riding motorcycles that were not owned or provided by the defendants when they were injured on the defendants' property. In Coombe and Galinski, as in the present case, the minor plaintiffs were invited on the defendants' property for the purpose of using a minibike or ATV that was owned or provided by the defendants. The court finds this distinguishing factor significant in striking the defendants' special defense and allowing the plaintiffs' negligent supervision claims to proceed.
Conclusion
For all of the foregoing reasons, the plaintiffs' motion to strike the defendants' special defense, alleging immunity from liability pursuant to § 52-557j, is hereby granted.