Opinion
No. CV04-0184342S
April 29, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The plaintiff, Michael Diorio, filed an amended complaint dated October 13, 2004, against the defendants Jason Kellas, a minor, Elisabeth Martorelli, administratrix of the estate of Marianne Kellas, Jason's mother, and Brian Kellas, Jason's father. Count one sounds in battery against the minor "through his father and legal guardian." In count two, Diorio alleges facts consistent with a claim of negligent supervision against the Estate of Marianne Kellas. Counts three and four contain claims against the estate of Marianne Kellas and Brian Kellas, respectively, based on Connecticut General Statutes § 52-572, which permits a direct cause of action against the parent or legal guardian of a minor who causes injuries as a result of willful and malicious conduct. Before the court is Martorelli's motion to strike count two on the ground that it is legally insufficient as pleaded.
Section 52-572 states that: "(a) The parent or parents or guardian, other than a temporary guardian appointed pursuant to section 45a-622, of any unemancipated minor or minors, which minor or minors wilfully or maliciously cause damage to any property on injury to any person, or, having taken a motor vehicle without the permission of the owner thereof, cause damage to the motor vehicle, shall be jointly and severally liable with the minor or minors for the damage or injury to an amount not exceeding five thousand dollars, if the minor or minors would have been liable for the damage or injury if they had been adults. (b) This section shall not be construed to relieve the minor or minors from personal liability for the damage or injury. (c) The liability provided for in this section shall be in addition to and not in lieu of any other liability which may exist at law. (d) As used in this section, "damage" shall include depriving the owner of his property or motor vehicle or of the use, possession or enjoyment thereof."
FACTS
The following facts are alleged by Diorio in his complaint. Jason Kellas was, at the time of the incident, the minor son of Marianne (now deceased) and Brian Kellas and residing in his mother's home. During the morning of July 27, 2003, Diorio received a telephone call from his nephew, Shawn Kellas, the younger brother of Jason. Shawn reported that he and Jason were alone and unattended at their mother's house. Shawn told Diorio that he was fearful for his safety and requested that his uncle come to the house. Diorio came to the house where he became engaged in a verbal argument with Jason Kellas. Diorio proceeded to leave. As he was walking away from the house, he was struck in the head with a bottle thrown by Jason Kellas. Diorio sustained head injuries and cuts to his left ear that required stitches as a result of the incident. He continues to experience symptoms and have medical expenses related to the injury and will likely do so in the future.
DISCUSSION
"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." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).
Martorelli contends that the parental immunity doctrine renders count two legally insufficient. She cites Crotta v. Home Depot, Inc., 249 Conn. 634, 732 A.2d 767 (1999), in support of her argument. In Crotta, the Connecticut Supreme Court held that a parent seeking damages from a store where his child was injured may not be joined as a third-party defendant for purposes of asserting claims for apportionment of liability, contribution and indemnification based on the parent's negligent supervision of the minor child. Based on the holding in Crotta and other cases discussing the doctrine, Martorelli concludes that "[t]he allegations of the second count of the plaintiff's amended complaint directly implicate the parental immunity doctrine as they seek to invoke liability on the part of a parent for the tortious conduct of an unemancipated child." Essentially, Martorelli argues that a claim for negligent supervision is barred by the doctrine of parental immunity.
Diorio counters that Martotelli has entirely misstated, and presumably misapplied, the parental immunity doctrine. Diorio argues that the doctrine prohibits a minor child from bringing a negligence action for personal injuries against the child's own parent, not for the proposition that a parent cannot be sued for the torts of his or her child. Diorio concludes that count two is legally sufficient because the second count of the complaint is not a negligence action brought by a minor against the minor's parent; rather, it is an action by a third party against a parent based on negligent supervision of the minor.
"At common law, the torts of children do not impose vicarious liability upon parents qua parents . . ." Kaminski v. Fairfield, 216 Conn. 29, 34 (1990). "However, parents are liable for their own `independent' negligent conduct such as the failure to supervise their children reasonably which failure proximately causes harm to others." Id.
"In recognizing a cause of action for negligent supervision of a minor child by the child's parents, Connecticut trial courts follow the 2 Restatement (Second), Torts, Standard of Conduct § 316, p. 123 (1965), whereby: A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control . . . See Robyn v. Palmer-Smith, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0174453 (February 20, 2001, D'Andrea, J.) (motion to strike denied where plaintiff alleged that parents failed to exercise reasonable care in controlling son they knew or should have known was abusing illegal substances so as to prevent him from harming others); Murphy v. LaChapell, Superior Court, judicial district of Waterbury, Docket No. CV 97 142410 (May 23, 1999, Pellegrino, J.) ( 24 Conn. L. Rptr. 567) (motion to strike denied where plaintiff alleged that parents knew or should have known their daughter would hold a party involving alcohol while they were away and failed to prevent her from doing so); Jarboe v. Edwards, 26 Conn.Sup. 350, 223 A.2d 402 (1966) (parents liable for torts of minor son because they had ability to control him and knew or should have known of the need to do so because of his fascination with fire and propensity to play with matches). Accordingly, [t]o allege a common law claim, a plaintiff would need to allege that the parent failed to restrain a child they knew or should have known had dangerous propensities, or that the parent negligently entrusted a dangerous instrumentality to the child. Without such an allegation, the complaint would be open to a motion to strike." (Citation omitted; internal quotation marks omitted.) Doe v. Favreau, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 393019, (March 7, 2003, Thim, J.) ( 34 Conn. L. Rptr. 276, 277).
Count two of Diorio's amended complaint specifically alleges the following facts relevant to a claim for negligent supervision. That "[t]he injuries, losses and damages suffered by . . . Diorio, were caused by the negligence of Marianne Kellas in any one or more of the following ways . . . she knew or should have known that . . . Jason Kellas, had in the past engaged in violent and disruptive behavior, yet left him alone in the home unattended . . . she knew or should have know that . . . Jason Kellas, was under the age of 18 years and would be consuming alcoholic beverages in the home . . . she permitted or encouraged . . . Jason Kellas to drink alcoholic beverages in the home unattended . . . she was not present during the morning hours of July 27, 2003 and/or she provided no adult supervision under circumstances which called for adult supervision." Diorio has clearly pleaded facts consistent with a failure on the part of Marianne Kellas to restrain her child who she knew or should have known had dangerous propensities because Jason Kellas had engaged in violent and disruptive behavior in the past and illegally consumed alcoholic beverages. Diorio has alleged sufficient facts to support a common-law claim sounding in negligent supervision.
"Parental immunity was first recognized by Connecticut in Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753 (1929) . . . The doctrine prohibits the bringing of an action at law for personal injuries by a minor child against the parent." (Citation omitted; emphasis added; internal quotation marks omitted.) Palacios v. Children's Place Retail Stores, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 04 0411076 (Levin, J., November 18, 2004) ( 38 Conn. L. Rptr. 291, 292). Martorelli's discussion of Crotta and her arguments relating to the parental immunity doctrine do not provide a sound basis for the motion to strike. Neither Crotta, nor any of the cases cited by Martorelli, stands for the proposition that a parent cannot be found liable for damages caused by his or her child's torts. In the present case the minor tortfeasor's uncle is suing the minor, the estate of the deceased minor's mother and the minor's father. The plaintiff uncle is not a minor and not the child of any of the defendants.
The defendant is not the first movant to mistakenly attempt to apply Crotta in this manner. In Robyn v. Palmer-Smith, supra, Superior Court, Docket No. CV 99 0174453, the plaintiff sued the minor defendant and his mother, the latter based on a theory of negligent supervision, after the minor defendant, while high on hallucinogenic drugs, perceived the plaintiff to be out of control and proceeded to punch and kick the plaintiff, hit him with a shovel and bash his head into a tree. The defendant mother filed a motion to strike the count sounding in negligent supervision and, like Martorelli in the present case, argued that Crotta's holding barred the claim. The court did not find the defendant's argument persuasive. "In Crotta, the Connecticut Supreme Court held that the doctrine of parental immunity operates to preclude the parent of a minor plaintiff from being joined as a third-party defendant for purposes of apportionment of liability, contribution or indemnification based on the parent's allegedly negligent supervision of the minor plaintiff. [Parental immunity] bars an unemancipated child from suing his or her parents for personal injuries. Here, unlike in Crotta, the plaintiff is not bringing this action against his parent, but rather, the plaintiff is bringing this action against the defendant parent. Furthermore, in this case, unlike in Crotta, there are no issues regarding apportionment of liability, contribution or indemnification being brought by a third party. Consequently, this court does not find the holding of Crotta applicable in the present case." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id. The facts in the present case, likewise, do not implicate the parental immunity doctrine.
The facts alleged in count two of the complaint, if proven, support a cause of action sounding in negligent supervision.
Accordingly, the motion to strike count two is denied.
GALLAGHER, J.