Opinion
No. FSTCV09-5013017S
March 22, 2011
Memorandum of Decision on Motion to Strike (No. 125)
The issue before the court is whether to grant the apportionment defendants' motion to strike on the following grounds: (1) that the apportionment complaint fails to allege sufficient facts to support a claim against the apportionment defendants for negligence in their capacity as conservators; and (2) that the apportionment complaint fails to allege sufficient facts to establish that the apportionment defendants owed a duty to the decedent in their capacity as individuals and therefore they cannot be held liable for any damages suffered by the decedent.
Procedural/Factual Background
The plaintiff, Karl Bernard, has brought this wrongful death action in his representative capacity as the administrator of the estate of his deceased adult son Bob Anthony Bernard against the defendants, Amanda Baitch, Richard Istvan, The Stamford Emergency Medical Service, Inc., and Stamford Hospital. On February 23, 2010, the plaintiff filed an amended complaint against the defendants alleging the following facts relevant to the present action. Prior to the decedent's death, Karl Bernard had been appointed the conservator for the person and estate of the decedent due to psychological impairment suffered by the decedent. The decedent's psychological condition was managed on an outpatient basis through the F.S., DuBois Center, the Stamford location of the Southwest Connecticut Mental Health System.
The February 23, 2010 amended complaint will herein be referred to as the "original complaint" in order to clarify the distinction between the original complaint filed by the plaintiff and the apportionment complaint filed by the defendants, which is the subject of this motion to strike.
On December 15, 2007, at approximately 2:20 a.m., the decedent, then age thirty-two, fell in his bathroom and was discovered by his mother who called 911 for medical assistance because the decedent was exhibiting seizure-like symptoms. Baitch and Istvan responded to the call. At the time, Baitch was a paramedic licensed to provide paramedic services, and Istvan was an emergency medical technician of intermediate certification. Both Baitch and Istvan were agents, servants and/or employees of The Stamford Emergency Medical Service, Inc., and Baitch provided paramedic services by and through Stamford Hospital. Stamford Hospital established guidelines, policies and procedures for the provision of care and services in the field. During the field visit Karl Bernard informed the defendants that he was concerned that the decedent was seizing and needed to be transported to a hospital for appropriate care and treatment. The defendants did not transport the decedent to a hospital. At approximately 5:50 a.m. of the same day, EMS was dispatched to the decedent's residence again after the decedent was found unresponsive in bed. The decedent was subsequently pronounced dead by the Chief Medical Examiner, H. Wayne Carver, II, M.D. The plaintiff alleges that the injuries and damages suffered by the decedent were caused as a direct and proximate result of the negligence and malpractice of the defendants, in that the defendants failed to carry out the appropriate procedures in examining the decedent and determining whether to transport him to a hospital for additional treatment.
On March 12, 2010, defendants Amanda Baitch, Richard Istvan, and The Stamford Emergency Medical Service, Inc., filed an apportionment complaint pursuant to General Statutes §§ 52-102b and 52-572h seeking to add plaintiff Karl Bernard and his wife Julia Bernard as apportionment defendants in both their capacities as conservators and as individuals. The apportionment complaint alleges the following relevant facts in addition to those in the original complaint. According to a medical examiner upon post-mortem examination and analysis the decedent's cause of death was determined to be Clozapine toxicity. The apportionment complaint further alleges that the apportionment defendants knew or should have known the following about the decedent: that he was under the influence of Clozapine and/or other drugs and medications at the time of his death; that he had not been taking these drugs and medications in accordance with the instructions of his medical doctor; and that he had threatened to cause physical injury or harm to himself or others.
The complaint alleges that Karl Bernard had been appointed by the probate court as the conservator for his son before his death. The apportionment complaint alleges on information and belief that both parents had been appointed as the conservators. For purposes of this motion to strike, the allegation of the apportionment complaint must be taken as true.
The defendants, Amanda Baitch, Richard Istvan, and The Stamford Emergency Medical Service, Inc., will herein be referred to as "the apportionment plaintiffs." The defendant Stamford Hospital is not a party to the apportionment complaint. Karl Bernard and Julia Bernard will herein be referred to as "the apportionment defendants."
The apportionment complaint alleges that based on these facts the apportionment defendants were negligent in the following ways. Count one alleges that the apportionment defendants, in their capacity as conservators, had a duty to the decedent and that the injuries and damages suffered by the decedent were caused in whole or in part by the apportionment defendants' negligent failure to fulfill their duties to the decedent. Count two alleges that the apportionment defendants were the decedent's parents and that the injuries and damages suffered by the decedent were caused in whole or in part by the negligence of the apportionment defendants as parents, in that they failed to fulfill their duties to the decedent. Both counts assert that the apportionment defendants were negligent in the following ways. The apportionment defendants knew the decedent had been prescribed medications, including Clozapine, that could be potentially dangerous to the decedent if not taken properly. The apportionment defendants failed to properly monitor the decedent's ingestion of these medications, and they entrusted the decedent with control of the medications despite the fact that they knew or should have known this created an unreasonable risk of harm. The apportionment defendants failed to properly supervise the decedent's medical and psychiatric care, and they failed to ensure that he received appropriate medical treatment. The apportionment complaint further alleges that after the apportionment plaintiffs left the decedent's residence without taking him to the hospital, the apportionment defendants were negligent for failing to transport the decedent to a hospital themselves despite their belief that he was suffering from a medical condition, and that they were negligent for failing to adequately monitor the decedent's condition between 2:20 a.m. and 5:50 a.m., during the period after the apportionment plaintiffs left the residence and when the decedent was discovered unresponsive in bed and EMS was called a second time.
On May 26, 2010, the apportionment defendants filed the present motion to strike the apportionment complaint and an accompanying memorandum of law in support of the motion on the grounds that they cannot be sued as conservators for negligence, and that they cannot be sued in their individual capacity as parents as they did not owe a duty to the decedent, their adult son. On September 28, 2010, the apportionment plaintiffs filed a memorandum of law in opposition to the motion to strike, arguing that the motion to strike should be denied as to both counts because Connecticut law does not provide immunity for conservators and because the allegations are sufficient to establish that the parents owed the decedent a legal duty under the circumstances.
Discussion
"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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "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 in original; internal quotation marks omitted.) CT Page 7685 Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, supra, 292 Conn. 120. "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
General Statutes § 52-102b provides in relevant part: "(a) 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 . . . The person upon whom the apportionment complaint is served, hereinafter called the apportionment defendant, shall be a party for all purposes, including all purposes under section 52-572h . . ."
"(c) 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 . . ." General Statutes § 52-102b.
"Section 52-102b(a) grants the right to file an apportionment complaint to a defendant `in any civil action to which Section 52-572h applies . . . `The Supreme Court has stated that a civil action to which Section 52-572h applies' within the meaning of 52-102b, means a civil action based on negligence. Allard v. Liberty Oil Equipment Company, 253 Conn. 787, 793-95 (2000) See also the title of Conn. Gen. Stat. § 52-572h ("Negligence Actions. Doctrines Applicable. Liability of Multiple Tortfeasors for Damages") and Altavela v. Scott Swimming Pools, Inc., Superior Court, Judicial District of Danbury, Docket No. CV 03 0350723 (November 22, 2005, Schuman, J.) ( 40 Conn. L. Rptr. 322, 323).
General Statutes § 52-572h provides in relevant part: "(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or the person's legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought . . . (c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property . . . if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section . . ." General Statutes § 52-572h(b) and (c). General Statutes § 52-572h(k) provides: "This section shall not apply to breaches of trust or of other fiduciary obligation." General Statutes § 52-572h(k).
The apportionment defendants argue that the allegations in Count One of the apportionment complaint are legally insufficient because they cannot be sued for negligence in their capacity as conservators appointed by the probate court. They contend that as conservators they are entitled to immunity from apportionment under § 52-102b(c), because a conservator is an agent of the court and is therefore protected by quasi-judicial immunity. Apportionment plaintiffs argue that conservators can be sued for negligence in their capacity as a conservator because a conservator is not immune from liability. The apportionment plaintiffs are permitted to implead apportionment defendants under § 52-102b since the apportionment defendants are alleged to be liable on a negligence basis pursuant to § 52-572h. The facts alleged in Count One are sufficient to state a claim in negligence against the apportionment defendants as conservators unless they are protected from liability in negligence under the doctrine of quasi-judicial immunity as agents of the probate court that appointed them. The apportionment defendants admit that there is no Connecticut authority — statutory or caselaw — holding that conservators have that immunity under Connecticut law. They point out to the court, however, that the issue is presently before the Connecticut Supreme Court as a question certified to it by the United States Court of Appeals for the Second Circuit in Gross v. Rell, 585 F.3d 72 (2nd Cir., 2009) (affirming District Court's certification of the following question to the Connecticut Supreme Court: "Under Connecticut law does absolute quasi-judicial immunity extend to conservators appointed by the Connecticut Probate Court?" Id. 96). Since that certified question has not yet been answered by the Supreme Court, this court cannot strike count one of the apportionment complaint on the ground of immunity. Recognizing this, the apportionment defendants request that issue be put on hold until the Supreme Court makes its decision. There is no authority for such a procedure. Holding the decision of this motion in abeyance would delay the closing of pleadings in this case and possibly cause a delay in the trial. If the Supreme Court answers the certified question in the affirmative before this case is tried, the apportionment plaintiffs will very likely withdraw the first count of their complaint. If they do not, the apportionment defendants would likely be able to raise the legal issue by motion for summary judgment which can be raised "at any time." Practice Book § 17-43 (subject to scheduling order or standing order issues). See, Larobina v McDonald, 274 Conn. 394, 399 (2005) (Motion for summary judgment may be used to test the legal sufficiency of a complaint when re-pleading would not cure the defect). The motion to strike count one on the ground of immunity of conservators is therefore denied.
The apportionment defendants move to strike Count Two on the ground that they cannot be sued in their individual capacity as parents of their deceased son as there is no duty owned to him as a matter of law. Defendants claim that the apportionment complaint does allege sufficient facts to establish a negligence claim against the apportionment defendants in their individual capacity as parents based on an negligent entrustment theory, or in the alternative, that even if the negligent entrustment theory is found insufficient, the apportionment still pleads sufficient facts to establish that the apportionment defendants owed a duty to the decedent. The court agrees that they have sufficiently pleaded a cause of action under the theory of negligent entrustment based on Restatement (Second) of Torts § 390 (1965) which states that "[o]ne who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely, because of his youth, inexperience or otherwise to use it in a manner involving unreasonable risk of physical harm to himself . . . is subject to liability for physical harm resulting to them." See Dervil v. Perez, Docket No. FSTCV04-4001546S, Superior Court, Judicial District of Stamford/Norwalk at Stamford, (September 12, 2005, Lewis, J.) (Granting motion to strike a complaint for failure to sufficiently plead a cause of action for negligent entrustment under § 390 of the Restatement (Second) of Torts), and Shah v. Brooks, Docket No PJR05-01221S, Superior Court, Judicial District of Hartford at Hartford (September 27, 1999, Levine, J.). 1999 Ct.Sup. 13267, 25 Conn. L. Rptr. 554 (Denying prejudgment remedy for alleged negligent entrustment of a motor vehicle for lack of evidence that the defendant knew or ought to have known that the operator was incapable of operating it, citing § 390 of the Restatement (Second) Torts). Even before the Restatement, "[o]ur Supreme Court recognized the tort of negligent entrustment over seventy-five years ago in Greely v. Cunningham, 165 Conn. 515 . . ." Hollis v. Alamo Financing, LP, Docket No. CV08-5024043S, Superior Court, Judicial District of Hartford at Hartford (February 4, 2011, Robiana, J.) 2011 Ct.Sup. 4388. The following allegations of Count Two of the apportionment complaint, — construed most favorably to the pleader as they must be — sufficiently state a case of liability for negligent entrustment. "[The Apportionment defendants] entrusted the Decedent with dangerous drugs and medication, including Clozapine, when they knew or should have known that it created an unreasonable risk of harm and was otherwise unreasonable to do so." (¶ 14b.) Further allegations are that Apportionment defendants supplied to Bob Bernard the dangerous medication Clozapine and allowed him to possess and control it (¶ 19); that they were aware that Clozapine could be harmful if ingested in an improper dose (¶ 21); that they knew or had reason to know that Bob Bernard was likely to misuse the Clozapine in a manner involving unreasonable risk to him — specifically that they knew he had threatened and acted to harm himself in the past (¶¶ 15-16); that he [Bob Bernard] had been diagnosed and treated for mental illness (¶¶ 14, 17), and that he was not taking Clozapine in accordance with his prescription (¶ 22).
One such favorable construction for purposes of this motion to strike is that a prescription medication, Clozapine, would be a "chattel" for purposes of the doctrine of negligent entrustment. A "chattel" is defined as "an article of personal, moveable property." (The American Heritage Dictionary of the English Language.)
CONCLUSION
For all of the reasons stated above, the apportionment defendants' motion to strike is denied.
SO ORDERED.