Opinion
No. CV08-5010887S
May 28, 2009
MEMORANDUM OF DECISION
This matter is before the court on the defendant Jeffrey Woodward's motion to strike the second count of the complaint (No. 113), and the defendant Chris Perugini's motion to strike count three of the complaint (No. 117). The plaintiff, Julie Biron, filed an objection to Woodward's motion to strike (No. 116) and at oral argument directed the court to apply the same objections to Perugini's motion to strike. Perugini filed a reply to the plaintiff's objection April 29, 2009.
FACTS ALLEGED
The plaintiff alleges the following in its complaint. On October 14, 2006, Gem Manufacturing, a defendant, sponsored a golf outing at the Hawk's Landing Golf Course in Southington, Connecticut. The additional defendants, Woodward and Perugini, were employed by Gem Manufacturing. Patrick Brophy, another employee of Gem Manufacturing, picked up Woodward and Perugini at their homes in Brophy's automobile around 9:30 a.m. and transported them to the golf outing. At the conclusion of the golfing, a dinner was held at the golf course and alcoholic beverages were served. Woodward and Perugini observed the intoxicated state of Brophy. At some point Woodward, Perugini and Brophy decided to leave Hawk's Landing Golf Course together. Unlike their drive to the golf outing, on the way home Woodward drove Brophy's car with Brophy and Perugini as passengers, because Woodward and Perugini knew or should have known Brophy was intoxicated and incapable of driving, and if he drove out onto the roadway it was reasonably foreseeable he would drive recklessly and cause an accident. Woodward drove from the golf outing to his house. When the vehicle arrived at Woodward's house, Woodward exited the vehicle and Woodward failed to take action to prevent Brophy from driving under the influence of alcohol, which was reasonably foreseeable would cause an accident. After Woodward left, Perugini took control of the vehicle, with Brophy as passenger, and Perugini drove Brophy's car to Perugini's house. When the vehicle arrived at Perugini's house, Perugini exited the vehicle and failed to take action to prevent Brophy from driving under the influence of alcohol, which was reasonably foreseeable would cause an accident. Perugini gave the keys to Brophy who then drove away. After leaving Perugini's home Brophy was involved in a motor vehicle accident and this accident caused alleged injuries to the plaintiff.
The plaintiff has filed a separate action against Patrick Brophy which is currently pending in the Waterbury Superior Court.
LAW
"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). "[I]n 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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "[I]t does [not, however,] admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
DISCUSSION
The plaintiff alleges that Woodward and Perugini knew that Brophy was incapable of safely driving an automobile and actually insisted on driving Brophy's car to their own residences in order to arrive safely. The plaintiff further alleges that defendants, after arriving at their homes, failed to insist that Brophy not drive his automobile, failed and/or refused to take his keys away, failed to call a cab or family friend to drive Brophy home and thus failed and/or refused to provide adequate safety measures to protect other drivers on the road. The plaintiff alleges that the failure of Woodward and Perugini to take affirmative actions to insure the safety of others constitutes negligence on their part. Thus, the question for the court to decide is what duty, if any, did Woodward and Perugini owe to the plaintiff, put another way, were the injuries to the plaintiff foreseeable to the defendants.
In Murdock v. Croughwell, 268 Conn. 559, 848 A.2d 363 (2004), our Supreme Court 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 . . ."
"`Although it has been said that no universal test for [duty] ever has been formulated; W. Prosser W. Keeton, [Torts (5th Ed. 1984)] § 53, p. 358; our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The 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 . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? . . . Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254 (1981); Noebel v. Housing Authority, 146 Conn. 197, 200-01, 148 A.2d 766 (1959); Orlo v. Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402 (1941).' (Internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., ( 231 Conn. 381, 385, 650 A.2d 153 (1994).]
"`It is impractical, if not impossible, to separate the question of duty from an analysis of the cause of the harm when the duty is asserted against one who is not the direct cause of the harm. In defining the limits of duty, we have recognized that "[w]hat is relevant . . . is the . . . attenuation between [the defendant's] conduct, on the one hand, and the consequences to and the identity of the plaintiff, on the other hand." RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. at 387-88, 650 A.2d 153. Articulated another way, the attenuation between the plaintiffs' harm and the defendants' conduct is nothing more than a determination of whether the harm was a reasonably foreseeable consequence of the defendants' conduct. It is a well established tenet of our tort jurisprudence that `[d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable. See Palsgraf v. Long Island R. Co., 248 N.Y. 339, 345, 162 N.E. 99 . . .' (Citation omitted.) Noebel v. Housing Authority, 146 Conn. 197, 202, 148 A.2d 766 (1959); see also Edwards v. Tardif, 240 Conn. 610, 618, 692 A.2d 1266 (1997); Clohessy v. Bachelor, 237 Conn. 31, 46, 675 A.2d 852 (1996). `[A] defendant [is] not required to take precautions against hazards [that are] too remote to be reasonably foreseeable. Noebel v. Housing Authority, [ supra] at 202, 148 A.2d 766; Goldberger v. David Roberts Corp., 139 Conn. 629, 633, 96 A.2d 309. Due care is always predicated on the existing circumstances.' Roy v. Friedman Equipment Co., 147 Conn. 121, 124, 157 A.2d 599 (1960)." Lodge v. Arett Sales Corp., 246 Conn. 563, 572-77, 717 A.2d 215 (1998).
"With respect to 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). 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 . . . 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)." (Citations omitted; emphasis in original; internal quotation marks omitted.) Ryan Transportation, Inc. v. MG Associates, 266 Conn. 520, 525-26, 832 A.2d 1180 (2003).
Absent a legal duty, there can be no recovery in negligence. Murdock v. Croughwell, supra, 268 Conn. at 566. Our Supreme Court has held that "absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another." (Internal quotation marks omitted.) Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996). Examples of such a special relationship include parent-child, a possessor of land-licensee, and sheriff-detainee. Murdock v. Croughwell, supra, 568-69.
"`[The Supreme Court] noted in RK Constructors, Inc., quoting from the leading treatise on the law of torts, that the duty inquiry relating to the attenuation between the plaintiff's harm and the defendant's negligent conduct is "quite similar to the analysis that we engage in with respect to the third element of negligence, proximate causation. Indeed, as Professors Prosser and Keeton have noted, `[t]he question whether there is a duty has most often seemed helpful in cases where the only issue is in reality whether the defendant stands in any such relation to the plaintiff as to create any legally recognized obligation of conduct for the plaintiff's benefit. Or, reverting again to the starting point, whether the interests of the plaintiff are entitled to legal protection at the defendant's hands against the invasion which has in fact occurred. Or, again reverting, whether the conduct is the "proximate cause" of the result. The circumlocution is unavoidable, since all of these questions are, in reality, one and the same.' W. Prosser W. Keeton, [Torts (5th Ed. 1984)] § 42, p. 274.'" RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. at 387-88 n. 4.
"With respect to the question of a defendant's liability for the unforeseeable consequences of its negligent conduct, Professors Prosser and Keeton have noted that `[a]t the risk of becoming wearisome, it must be repeated that the question is primarily not one of causation and never arises until causation has been established. It is rather one of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results. In so far as the defendant is held liable for consequences which do not lie within the original risk which the defendant has created, a strict liability without fault is superimposed upon the liability that is logically to be attributed to the negligence itself. It is simpler, and no doubt more accurate, to state the problem in terms of legal responsibility: is the defendant legally responsible to protect the plaintiff against such unforeseeable consequences of the defendant's own negligent acts?' W. Prosser W. Keeton, Torts (5th Ed. 1984) § 43, pp. 280-81 . . .
"[T]he law has rejected a literal `foreseeability' test as the fulcrum of duty. See Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996); RK Constructors, Inc. v. Fusco Corp., supra, at 385-86, 650 A.2d 153. `[T]he conclusion that a particular injury to a particular plaintiff or class of plaintiffs possibly is foreseeable does not, in itself, create a duty of care. As we . . . stated in RK Constructors, Inc. v. Fusco Corp., supra, at 386, 650 A.2d 153: "Many harms are quite literally `foreseeable,' yet for pragmatic reasons, no recovery is allowed . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.'" Waters v. Autuori, supra, 827-28." Lodge v. Arett Sales Corp., 246 Conn. 563, 572-77, 717 A.2d 215 (1998).
The defendants claim no special relationships exist that would establish duty in the present case and that if the court establishes a duty, it would sweep too broadly. The plaintiff, nonetheless, argues that a person such as Woodward or Perugini, friends who accompanied Brophy for part of the evening had "control" over Brophy and did not take action to prevent the foreseeable risk of an accident. This control, and the allegations that Woodward and Perugini later allowed Brophy to drive, provided for a situation in the present case where the plaintiff became a foreseeable victim of Brophy, Woodward and Perugini's actions.
In Dennison v. Klotz, 12 Conn.App. 570, 582-83, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988) the Appellate Court held that absent some special relationship or joint enterprise, "inaction by a defendant passenger [in a motor vehicle] does not give rise to liability to a fellow passenger or other third party injured by the driver's conduct." The court also observed: "[i]f liability to an injured third party attached to the inaction of a passenger, we perceive no justifiable reason not to extend similar liability to third parties, such as witnesses or bystanders, who were or should have been aware of the danger posed by the driver's conduct but failed to take some preventive action." Id., 580. The court cited Martinson v. Cagle, 454 So.2d 1383 (Ala. 1984), noting that "any observer who knew the driver was intoxicated was in the same position as a passenger having no legal duty to take preventive action." Dennison v. Klotz, supra, 580-81. Other cases have held similarly. See Hawn v. Padgett, 598 N.E.2d 630 (Ind.Ct.App. 1992) (acquaintances who returned car keys to intoxicated driver without entering his car had no duty to injured third party); McGee v. Chalfant, 248 Kan. 434, 806 P.2d 980 (1991) (acquaintances who transported an intoxicated person to his car and allowed him to drive away assume no duty to injured third party). In other words the defendant argues that to create a duty in this situation would extend potential liability to a virtually infinite class of persons who might have had contact with the driver and raise unsolvable questions about what the law expected those persons to do in order to "control" the driver's behavior. The defendant argues that it is the "fundamental policy of the law that a tortfeasor's responsibility should not extend to the theoretically endless consequences of the wrong." (Internal quotation marks omitted.) First Federal Savings Loan Ass'n. of Rochester v. Charter Appraisal Co., 247 Conn. 597, 605, 724 A.2d 497 (1999). The defendants also point to a Gutierrez-Lopez v. DiCiccio, Superior Court, judicial district of New Britain, Docket No. CV 04 402055 (March 17, 2007, Schuman, J.) [ 43 Conn. L. Rptr. 104], where the court, in a similar case, granted a motion for summary judgment finding no legal duty existed. The facts in that case were the co-defendant never drove the intoxicated driver's car, never bought him any drinks, nor were they ever in possession of the keys to his automobile. Id.
In this case five men met at bar in New Britain, one of the group, Steve Carpio then drove the group to another bar in Hartford in DiCiccio's car because DiCiccio was too intoxicated to drive. Carpio then drove DiCicio's car back to New Britain, where DiCiccio left in his car and subsequently injured the plaintiff.
The plaintiff's argument is that both the Dennison and Gutierrez-Lopez cases are distinguishable from the present case. In both Dennison and Gutierrez-Lopez the defendants were passengers, as opposed to the present case, where both defendants took the affirmative action of actually taking the keys and driving Brophy in Brophy's car. The plaintiff points to another Superior Court decision; Cowart v. Grimaldi, 46 Conn.Sup. 248, 746 A.2d 833 (1997) [ 18 Conn. L. Rptr. 682]; where the court, in a similar case, denied a motion to strike.
The facts in Cowart are similar to the present case. In Cowart a third party assisted a minor in his negligence by taking charge of the minor after he became intoxicated at work. The third party then drove the minor to the home of another defendant, where the minor drank more alcohol, and thereafter, knowing he was intoxicated, the third-party drove the minor to his automobile thereby substantially assisting and encouraging him to operate his motor vehicle on the highway while under the influence of alcohol. He was thereafter involved in an accident which resulted in the death of the plaintiff.
In Dennison, however, "[t]he Appellate Court held that a non-driver such as a passenger . . . who has not committed some affirmative act . . . does not owe a legal duty to third persons injured by the driver's negligence." Dennison also holds that "inaction by a defendant passenger does not give rise to liability to a fellow passenger or other third party injured by the driver's conduct." Dennison v. Klotz, supra, 12 Conn.App. 583. On this basis the court further found that not only should liability not be attached to the inaction of a passenger, but it should also not attach to third parties such as bystanders or witnesses who failed to take preventive action.
In the present case, the plaintiff alleges that the defendant's failure to take preventive action after taking the affirmative action of taking the keys away from Brophy makes them liable to the plaintiff. In Dennison, the court specifically declined to address this theory of liability "because the complaint alleges no such affirmative conduct on the part of the defendants." Id. This is in sharp contrast to the amended complaint in the present case in which the plaintiff alleges a series of affirmative acts which substantially assisted Brophy in his negligence and recklessness. The Restatement (Second) of Torts provides that a person may be liable to a third person for the tortuous conduct of another if he "knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so conduct himself." 4 Restatement (Second), Torts § 876 (1979). The complaint in the present case alleges that Woodward and Perugini provided this exact type of substantial assistance and encouragement.
In Nolan v. Morelli, 154 Conn. 432, 443, 226 A.2d 383 (1967) the court drew a distinction between passive nonparticipation and active assistance in the commission of a tort. See Galvin v. Jennings, 289 F.2d 15, 17, (3d Cir. 1961) (tavern proprietor found liable when he actively assisted an intoxicated person in getting his car out of the parking lot and onto the public highway). The holding in Carney v. DeWees, 136 Conn. 256, 262-63, 70 A.2d 142 (1949) is also instructive. Applying the Second Restatement of Torts, the court found the driver of a vehicle in a street race to be liable even though it was the other driver who caused the injury because he had, by his affirmative conduct, encouraged the other driver to operate recklessly. The court finds that someone giving substantial assistance to the tortfeasor is also a tortfeasor. 4 Restatement (Second), supra, § 876. Further, the court finds in the present case as alleged in the complaint that the affirmative acts of the defendants, the taking of the keys, the failure to drive Brophy home, the failure to call a cab or friend, or in the very least refusing to give him the keys constitutes substantial assistance to Brophy, as found in the Restatement.
In deciding a motion to strike the court's review is limited to whether or not the allegations as found in the complaint are legally sufficient to state a claim upon which relief can be granted. The court must also "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 117.
The court finds that the allegations, if proven, are legally sufficient to state a claim upon which relief can be granted. The plaintiff alleges the defendants had a duty to the plaintiff, once they took the action of preventing Brophy from driving while intoxicated. The plaintiff alleges the defendants breached this duty when they failed to prevent Brophy from driving and this breach caused the harm to the plaintiff. Further, the harm to the plaintiff caused by the breach of the duty owed, was reasonably foreseeable to the defendants, as a car accident, causing injury, is a reasonably foreseeable consequence of allowing an intoxicated person to drive on the public roads and there is public policy for extending this duty of care. The question of whether or not the defendant's actions constitute "substantial assistance" is a question of fact to be resolved by the trier of fact.
Accordingly, the defendants Woodward and Perugini's motions to strike are denied.