Opinion
No. HHD CV-07-5009974S
August 7, 2009
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT OF DEFENDANT LOGISTICARE SOLUTIONS, LLC
This action was brought on behalf of the plaintiff, Jane Doe, by the conservator of her estate, claiming that she was sexually assaulted and physically harmed by one Yemi Talabi, the driver of a school bus carrying her home from Hartford Public High School ("HPHS"), where she was a special education student. The assault allegedly took place on April 28, 2005 in Mr. Talabi's private residence, where he took Ms. Doe from the school bus upon her request to use the bathroom. Clarence Hendricks, a bus monitor employed by LogistiCare Solutions, LLC ("LogistiCare"), which had contracted with the City of Hartford to provide transportation monitoring services to all HPHS special education students, was on board the school bus carrying Ms. Doe and other special education students on the day of the incident, but allegedly did nothing to prevent Ms. Doe from leaving the bus with Mr. Talabi or to report her departure to anyone. As a result of Mr. Hendricks' conduct, Ms. Doe claims that she was assaulted by Mr. Talabi and suffered physical, mental and emotional harm for which she now seeks money in this case.
At the time this action was brought, Madeleine Lemieux, a resident West Hartford, Connecticut, was designated as the conservator for plaintiff Jane Doe. Subsequently, Lisa Barnett was substituted as the conservator of the estate of Ms. Doe and, pursuant to the court order issued on October 16, 2007, named as a party to this action in place of Madelein Lemieux.
The plaintiff's ten-count Complaint, which was filed on April 12, 2007, states: claims of assault, recklessness and negligence against Mr. Talabi (Counts One, Two and Three); claims of vicarious liability and negligence against Laidlaw Transit, Inc., the employer of Mr. Talabi and the provider of transportation services to HPHS (Counts Four and Five); claims of negligence and recklessness against Mr. Hendricks, the bus monitor (Courts Six and Seven); and claims of vicarious liability, negligence and recklessness against LogistiCare, the employer of Mr. Hendricks and the provider of the monitoring services on school buses carrying HPHS special education students (Counts Eight, Nine and Ten).
The Eighth Count of the plaintiff's Complaint, incorporating by reference paragraphs one through twenty-two of the Sixth Count, alleges that at all times relevant to this case, Mr. Hendricks was an agent, servant and/or employee of LogistiCare acting within the scope of his employment duties. In that capacity, Mr. Hendricks was allegedly negligent in failing properly to monitor the safety of Ms. Doe while she was a passenger on the school bus to which he was assigned. In particular, it is claimed that Mr. Hendricks was negligent by allowing the driver to drive the school bus off its designated route and take the plaintiff with him into his home without questioning or trying to stop him or the student, and by failing to alert his supervisor and/or the police about the driver's suspicious conduct as it took place before him. As a direct and proximate result of Mr. Hendricks' negligence, which occurred within the course and scope of his employment, Mr. Talabi removed Ms. Doe from the bus to his own home where he sexually assaulted Ms. Doe and caused her injury. Therefore, it is claimed that LogistiCare is vicariously liable for Mr. Hendricks' conduct under the doctrine of respondeat superior.
In the Ninth Count, which also incorporates by reference paragraphs one though twenty-one of the First Count, the plaintiff alleges that LogistiCare was directly negligent in failing to properly select, train, supervise and adequately equip its employees, particularly Mr. Hendricks, to monitor and protect special education students, and that such negligence was a substantial factor in causing Mr. Hendricks to fail to protect Ms. Doe, and thus for her to be sexually assaulted and injured on the day in question, as alleged in Count Eight.
The Tenth Count, which also incorporates paragraphs one through twenty-one of the First Count, alleges that LogistiCare's conduct was reckless and wanton in several ways. The plaintiff alleges that LogistiCare knew or should have known that, given the particular vulnerability of Ms. Doe and other special education students in its care, harm to her or others like her of the kind she suffered in this case was likely to result from its failure to properly hire, train and equip its bus monitor employees.
On June 1, 2009, defendant LogistiCare filed a Motion for Summary Judgment ("Motion"), claiming that it is entitled to judgment as a matter of law on the claims presented in the Eighth, Ninth and Tenth Counts of the plaintiff's Complaint. LogistiCare has supported its Motion with a Memorandum of Law and accompanying materials, including a copy of the plaintiff's Complaint; certified excerpts from Ms. Doe's deposition; a sworn affidavit from Maribel Diaz, a project manager for LogistiCare; and a copy of the job description for bus monitors employed by LogistiCare. The crux of LogistiCare's argument as to all three Counts is that there is no genuine issue of material fact that: (1) neither it nor its employee, Mr. Hendricks, owed Ms. Doe a duty of care under the factual circumstances of the case; and that (2) neither its actions nor those of Mr. Hendricks were a proximate cause of the plaintiff's alleged injuries. As for the Tenth Count of the plaintiff's Complaint, defendant LogistiCare also contends that there is no evidence to support the plaintiff's claim that its alleged conduct indicated a reckless disregard for the safety of Ms. Doe.
The plaintiff has opposed the defendant's Motion with a legal memorandum of her own, which she supported with: certified excerpts from the deposition of Mr. Hendricks; certified excerpts from the deposition of Maribel Diaz; a copy of defendant LogistiCare's certified responses to her first set of interrogatories and requests for production, including copies of the "bus incident report" filled out by Mr. Hendricks, the "employee warning notice" he received from LogistiCare after the event, and LogistiCare's correspondence concerning the termination of his employment; copies of LogistiCare's employee manual and a job description for its bus monitors; and a copy of portions of LogistiCare's contract with the City of Hartford for the provision of monitoring services on school buses carrying special education students. On the basis of those submissions, the plaintiff argues that LogistiCare's Motion should be denied because there is at least a genuine issue of material fact in support of the propositions that LogistiCare, directly and through its employee Hendricks, breached a duty of care owed by it to plaintiff Ms. Doe, that harm of the same general nature as which she suffered in this case was a foreseeable result of that breach, and that LogistiCare's conduct constituted actionable recklessness.
I. SUMMARY JUDGMENT STANDARD
"Summary judgment is a method of resolving litigation when 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. The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279 (1989). (Citations omitted.)
A party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact. Dougherty v. Graham, 161 Conn. 248, 250 (1971). "[T]he trial court must review the evidence in the light most favorable to the nonmoving party. (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399 (2005). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500 (1988).
II. THE DEFENDANT'S CLAIM THAT THE EIGHTH, NINTH AND TENTH COUNTS OF THE PLAINTIFF'S COMPLAINT SHOULD FAIL BECAUSE THERE IS NO GENUINE ISSUE OF FACT THAT THE DEFENDANT OWED NO DUTY OF CARE TO PLAINTIFF JANE DOEIn its Memorandum of Law, LogistiCare argues that Connecticut, by adopting the approach set forth by the Restatement (Second) of Torts, only recognizes liability for failure to prevent harm inflicted by third persons in very limited circumstances involving special relations. LogistiCare relies specifically on the case of Murdock v. Croughwell, 268 Conn. 559 (2004), for the conclusion that no such special relation existed between itself and its employee, Mr. Hendricks, on the one hand, and Mr. Talabi or Ms. Doe, on the other. In addition, LogistiCare contends that the harm alleged by the plaintiff was not foreseeable to Mr. Hendricks or LogistiCare. In the absence of a special relation and of an ability to foresee that harm of the same general nature as that sustained by the plaintiff would occur, Logisticare argues that neither Mr. Hendricks nor itself owed a duty of care to Ms. Doe to prevent her from exiting the school bus or accompanying Mr. Talabi into his house or to report what was then occurring to the appropriate authorities.
It is correct that Connecticut courts follow the Restatement (Second) of Torts, which instructs that, except in limited circumstances, a person has no duty to take actions in order to aid another person or to control the conduct of a third person to prevent harm to the other person. On this score, Section 314 of the Restatement (Second) of Torts provides as follows: "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." Similarly, Section 315 of the Restatement limits one's duty to control the conduct of a third party for another's protection as follows:
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.
Restatement (Second) Torts § 315 (1965).
Both Section 320 and comment a to Section 314 of the Restatement make it clear that a legal duty of care can only be imposed when such a "special relation" exists. Connecticut courts have consistently followed this rule. In Murdock, for example, the Supreme Court reviewed an appeal from the trial court's judgment against a police detective who had brought a negligence action against the police chief and the City for injuries sustained in an off-duty physical altercation with a police sergeant. The Court held that there was no special relation between the chief of police and the plaintiff, or between chief of police and the defendant police sergeant, which would justify the imposition of a duty of care upon the chief to protect the plaintiff from acts of his fellow off-duty police officer.
This, of course, does not mean that no duty to protect others from the acts of third parties is ever owed. Because the plaintiff did not plead the existence of a special relation between Mr. Hendricks, LogistiCare and Mr. Talabi which would impose upon them a duty to control Mr. Talabi's conduct, but rather focused on the nature of the relation between the defendant and the plaintiff, the subsequent legal analysis will only concern the character of the relation between Mr. Hendricks, LogistiCare and Mr. Doe at the time of the incident.
Sections 314A and 320 of the Restatement (Second) of Torts list special relations which, if existing, require one party to that relation to render protection to the other. The most important and widely recognized relation of this kind is that between an adult and a child in his custody. The duty of the adult to protect the child from harm is enhanced when the child is of tender years or is otherwise incapable of managing his own affairs. We learn this from comment b to Section 320 of the Restatement, which states that "[t]he actor who takes custody . . . of a child is properly required to give him the protection of which the custody or manner in which it is taken has deprived him." This understanding is confirmed by comment 1 to the proposed version of Section 40 of the Restatement (Third) of Torts, which as adopted (though not yet published) states that" [w]hat constitutes reasonable care is contextual — the extent and type of supervision required of young elementary school pupils is substantially different from reasonable care for college students." We also learn this from Murdock, which, in declining to find a duty running from the chief of police to one of his off-duty police detectives, expressly distinguished the factual situation before it from previous cases in which it had taken the position that children outside the supervision of their parents require special protection. Id. at 572.
(1) A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.
One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor
(a) knows or has reason to know that he has the ability to control the conduct of the third persons, and
(b) knows or should know of the necessity and opportunity for exercising such control.
The public policy embodied in the rule imposing a duty on adults to protect children in their custody is reflected in substantial case law which has dealt with the issue. The following cases show that this duty arises not only in the public school settings, but in private and other settings. In Burns v. Bd. of Educ. of City of Stamford, 228 Conn. 640 (1994), for example, the Supreme Court reversed the Appellate Court, holding that a school superintendent did not have qualified governmental immunity from a suit brought by a student who had been injured in a fall on ice in a school yard. The Court there explained that "school children attending public schools during school hours are intended to be the beneficiaries of certain duties of care" and in that case, the superintendent was found to have a duty to protect students in the board's custody from dangers that may reasonably have been anticipated.
In Greene v. Cheshire Academy, 2004 WL 2441881 (Conn.Super.Ct., Oct. 1, 2004), an action was brought by a minor student against a private boarding school for injuries allegedly sustained by him in a student dormitory, where he was the victim of a battery committed by a fellow student. The Court denied the defendant's motion for summary judgment based upon its conclusion that there was indeed a special relation between Cheshire Academy, in exercising custody over its students, and the minor plaintiff, and that there remained a genuine issue of material fact as to whether the harm caused by the fellow student was foreseeable.
Furthermore, in Applebaum v. Nemon, 678 S.W. 533 (Tex.App. 1984), the Texas Court of Appeals held that day care centers have a duty to render aid to children in their custody. In John Doe v. Goff, 716 N.E.2d 323 (Ill.App.Ct. 1999), the organization which operated a Boy Scout camp was determined, as a voluntary custodian of the plaintiff and other Scouts, to have a legal duty to protect the plaintiff from foreseeable harm.
Furthermore, the need for protection has been held to exist when minor children are being transported on a school bus. In Todd M. v. Richard L., 44 Conn.Sup. 527 (1995), an elementary school student sued his school bus driver and the director of transportation for his town board of education for negligence to recover damages for injuries he sustained when he was physically and sexually abused by fellow students while riding on a town school bus. The Court there granted the plaintiff's motion to strike the defendant's special defense, which alleged that the intentionally tortious conduct of other students on the bus was a superseding cause of the plaintiff's injuries. The Court's holding was based upon its recognition of the special relation that existed between the defendants in the case and the minor plaintiff, which bound the defendants to protect the plaintiff from the intentional acts of others, including other school children on the school bus while he was being transported to and from school. The Court explained that the defendants "stood in the shoes of the parents" of the children when the children were on the school bus, and thus that the defendants had a legal duty to protect them.
In the present case, Ms. Doe was not only a child, but a special education child. Defendant LogistiCare, according to its contract with the City of Hartford, was providing transportation monitoring services to HPHS special education students. While on the bus on the day of the incident, Ms. Doe was under the supervision of Mr. Hendricks, an adult employee of LogistiCare whose own job description, as supplied by LogistiCare, contemplated that he was on board the bus to insure the children's safety. Similarly to the defendants in the above described cases where a duty of care was recognized, LogistiCare and Mr. Hendricks had stepped into the roles of parental proxies for Ms. Doe and other special education students on the bus when they were being transported back and forth from school. Therefore, there is at least a genuine issue of material fact as to whether the relationship between Mr. Hendricks and LogistiCare, on the one hand, and Ms. Doe on the other, involved a custodial relation between an adult and a child of the sort that gives rise to a duty of care under the Restatement (Second) of Torts.
LogistiCare, of course, is correct in its argument that the existence of a special relation does not automatically establish a duty of care. Both the Restatement (Second) of Torts and Murdock require that the defendant be able to foresee that harm of the same general nature as that which occurred would result from its failure to exercise due care. In particular, LogistiCare contends that neither it nor Mr. Hendricks knew or had reason to know that Mr. Talabi was going to assault Ms. Doe when she entered his home.
A review of the evidence presented by the parties on this Motion raises a reasonable inference that both LogistiCare and Mr. Hendricks could and should have foreseen that harm of the same general nature as that suffered by Ms. Doe would befall her if they failed to exercise due care to protect her from third parties. After Ms. Doe and other students were picked up at HPHS but before Ms. Doe was dropped off at her final destination, the bus driver, Mr. Talabi, drove the bus off its usual route to his private residence at 92 Homestead Avenue in Hartford, CT. The bus monitor, Mr. Hendricks, testified at his deposition that before Mr. Talabi took Ms. Doe off the bus, he told Mr. Hendricks that he wanted to show her a room in his house. Mr. Hendricks' own job description expressly stated that "[b]us Monitors are not to enter student's home or leave the immediate vicinity of the bus to escort students inside buildings without the consent of the school Board of Education." Although that should have warned Mr. Hendricks about the inappropriateness of the situation developing in his presence, Mr. Hendricks did not question Ms. Doe or Mr. Talabi at the point she left the bus together with him and did not try to convince her not to go into the driver's home. According to Mr. Hendricks, Ms. Doe and Mr. Talabi returned to the bus 20 or 25 minutes after they had left it. In response to a question about his observations of Mr. Talabi's usual interactions with the students on the bus, Mr. Hendricks testified that before the incident took place, he had witnessed Mr. Talabi talking to Ms. Doe on a cell phone. Given this evidence, the jury should be allowed to decide whether, in view of the particular vulnerability of Ms. Doe, the unusual conduct of the bus driver on the day of the incident, as observed by Mr. Hendricks, LogistiCare's policy warning against entering students' homes, and Mr. Hendricks' observations of private interactions between the Ms. Doe and Mr. Talabi on the bus, Mr. Hendricks should reasonably have foreseen that harm of the same general nature as that which was suffered by Ms. Doe would result from his failure to take action to protect her.
Mr. Hendricks noted the fact of a prior cell phone conversation between Mr. Talabi and Ms. Doe in the "bus incident report" he completed on April 28, 2005. At his deposition, he stated that his conclusion about the occurrence of that prior conversation between the two was based on his observation of the behavior of Mr. Talabi and Ms. Doe.
Similarly, there is sufficient evidence for the fact finder to consider whether LogistiCare knew or should have known that harm of the same general nature of that which was suffered by Ms. Doe would result from its failure to properly select, train and equip its bus monitor employees to perform their protective duties. The contract between the City of Hartford and LogistiCare expressly requires that all transportation monitors be specially trained in the management of special education students. This requirement, at least in part, comes from an understanding that special education students, like Ms. Doe, are especially vulnerable to predatory behavior and are prone to become victims of third party abuse and overreaching during the period of their custody. Mr. Hendricks, however, testified at his deposition that he did not receive any training from LogistiCare and did not even know that all of the students on the bus he monitored were special education students. Maribel Diaz, the project manager for LogistiCare, testified that the only record of in-service training she had for Mr. Hendricks was of a single session conducted by American Red Cross in 2001. In fact, the only way LogistiCare tracked the performance level of its bus monitors was through day-to-day casual conversations with them. Given the challenges of and risks associated with managing special education students, the minimum level of training required for the proper performance of that work would seem to be far higher than that provided by LogistiCare to its bus monitors. There is, therefore, a genuine issue of material fact which the jury must decide as to whether the LogistiCare knew or should have known that risks of harm of the same general nature as that which occurred might result from its failure to train and supervise Mr. Hendricks.
The foregoing analysis demonstrates that there is a genuine issue of material fact as to whether the nature of the relation between LogistiCare and Mr. Hendricks, on the one hand, and Ms. Doe, on the other, as well as the ability of Mr. Hendricks and LogistiCare to foresee the kind of harm that resulted to her, justify the imposition upon them of a duty of care to protect her from third parties while she was in their custody. Accordingly, LogistiCare's argument that it is entitled to summary judgments as to the Eighth, Ninth and Tenth Counts of the Complaint because it had no duty to protect Ms. Doe must fail.
III. DEFENDANT'S CLAIM THAT THE NINTH, EIGHTH AND TENTH COUNTS OF PLAINTIFF'S COMPLAINT SHOULD FAIL BECAUSE ANY PURPORTED BREACH OF DUTY OWED BY THE DEFENDANT TO THE PLAINTIFF WAS NOT A PROXIMATE CAUSE OF MS. DOE'S INJURIES The defendant further argues that it is entitled to summary judgment on the Eighth, Ninth and Tenth Counts of the plaintiff's Complaint because the plaintiff cannot prove that the defendant's conduct was a proximate cause of Mr. Talabi's alleged assault of Ms. Doe and of her resulting injuries. The defendant contends that Mr. Hendricks' conduct "was too inconsequential to the ultimate alleged harm to the plaintiff in light of the many other variables that could have occurred." (Defendant's Memorandum of Law (06/01/09), p. 17.)The question of proximate cause is ordinarily a question of fact for the trier. Burns v. Gleason Plant Security, Inc., 10 Conn.App. 480, 485 (1987). "The test is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." Id. It only becomes a question of law "when the mind of a fair and reasonable man could reach only one conclusion" (internal quotations omitted) Trzcinski v. Richey, 190 Conn. 285, 295 (1983).
In the present case, although neither LogistiCare nor its employee, Mr. Hendricks, may in fact have foreseen that by engaging in their negligent conduct Ms. Doe, would become the victim of sexual assault, sufficient facts are set forth in the previous part of this opinion to require the jury to determine whether Mr. Hendricks and LogistiCare should have known that letting a female special education student be taken from the school bus alone, without a chaperone, into the private home of the male driver, would create a foreseeable risk of sexual abuse and resulting injury to Ms. Doe.
IV. DEFENDANT'S CLAIM THAT THE TENTH COUNT OF PLAINTIFF'S COMPLAINT SHOULD FAIL AS A MATTER OF LAW BECAUSE THERE IS NO GENUINE ISSUE OF MATERIAL FACT THAT ITS CONDUCT DOES NOT INDICATE A RECKLESS DISREGARD FOR THE SAFETY OF OTHERSIn its memorandum, defendant LogistiCare argues that it is entitled to summary judgment on the Tenth Count of the plaintiff's Complaint because, in addition to the purported lack of duty on behalf of LogistiCare and the plaintiff's claimed inability to prove causation, the plaintiff has presented no evidence to establish that its alleged conduct indicated a reckless disregard for the safety of Ms. Doe.
An allegation of recklessness usually presents a question of fact. See Frillici v. Westport, 264 Conn. 266, 277 (2003). Therefore, a claim of recklessness is typically "unsuitable for summary judgment, unless no reasonable mind can differ as to the conclusion." (Internal quotation marks omitted.) Richardson v. Hoffenbacher, 2007 WL 2039106 (Conn.Super.Ct., June 26, 2007).
In the Tenth Count of the Complaint, the plaintiff pleads eight different reasons why LogistiCare's conduct was allegedly reckless and wanton. She claims, for example, that LogistiCare knew that its failure to equip its employees, particularly Mr. Hendricks, with appropriate communications equipment so that they could contact their supervisors in the event of an emergency was likely to result in harm to the plaintiff and other special education students. In support of its objection to the defendant's Motion, the plaintiff submitted an excerpt from the deposition of LogistiCare's project manager, Maribel Diaz, who testified that LogistiCare's monitors were not provided with either radios or cell phones to report emergencies while on the bus. Even so, the "employee warning notice" issued to Mr. Hendricks after the incident noted his failure to call in the incident while the student was in the driver's home as one of the reasons for his suspension. A reasonable juror could infer from this official criticism of Mr. Hendricks' conduct by LogistiCare itself that LogistiCare knew that its own failure to equip its monitors with the necessary equipment needed to report such incidents was likely to result in harm to special education students since their exposure to dangerous situations could not be reported to anyone who could intervene and render timely assistance.
The plaintiff also claims that LogistiCare knew or should have known that its failure to establish proper training for its employees, particularly Mr. Hendricks, was likely to result in harm to Ms. Doe and other special education students. As mentioned above, Mr. Hendricks received no training at the time he was hired by LogistiCare as a school bus monitor. In fact, Mr. Hendricks stated that he was not aware that all the students on the bus to which he was assigned on the day of the incident were special education students. Maribel Diaz testified that the only documented in-service training for Mr. Hendricks was a single session conducted by the American Red Cross in 2001. Yet, according to its contract with the City of Hartford, LogistiCare had agreed to fully train its employees on the management of the special education students. Accordingly, this too could raise an inference that LogistiCare knew that its own failure to properly train its transportation monitors was likely to result in harm to the special education students in their care and custody.
Therefore, this evidence, viewed in the light most favorable to the plaintiff, is sufficient to raise a genuine issue of material fact as to the Tenth Count of the plaintiff's Complaint asserting that defendant LogistiCare acted with reckless and wanton disregard of the safety of the plaintiff.
For all of the reasons set forth above, the defendant's Motion for Summary Judgment as to Counts Eight, Nine and Ten of the plaintiff's Complaint is hereby DENIED.