Opinion
No. WWMCV-09-5004896S
March 31, 2010
MEMORANDUM OF DECISION
The defendant, The Price Chopper, Inc., has moved to strike from the plaintiff's amended complaint of September 16, 2009 causes of action sounding in negligent training and negligent supervision, Count III, paragraph 9a and 9b. The defendant also moves that the court strike Count II, paragraph 9d insofar as this paragraph attempts to allege a theory of negligence based upon premises liability.
The plaintiff, Cheryl Dumas, commenced this action by service of process upon the defendant, The Price Chopper, Inc., on May 29, 2009. In the plaintiff's amended complaint, filed on September 16, 2009, she alleges the following facts. On May 23, 2007, the plaintiff, a business invitee, entered the defendant's store for the purpose of returning empty bottles and cans. After experiencing some trouble with the defendant's bottle redemption machines, the plaintiff was approached by Mary Citron, an employee of the defendant who served the defendant in a managerial or supervisory capacity. The plaintiff has alleged that Citron made a sweeping motion with her right hand toward the plaintiff which struck the plaintiff's hands and caused her to fall against a forklift that was located behind her in the bottle redemption area. On October 26, 2009, the defendant filed a motion to strike paragraphs 9a and 9b of the third count, and paragraph 9d of the second count of the amended complaint. The defendant's motion was accompanied by a memorandum of law in support, which was supplemented by another memorandum in support filed on December 14, 2009. The plaintiff filed a memorandum of law in opposition on December 1, 2009. The court took papers on the matter at short calendar held on February 16, 2010.
The defendant's motion to strike and initial memorandum of law in support do not identify the specific language that is allegedly insufficient, but rather request the court to grant the motion to strike language in the second count "so far as it attempts to allege a theory of negligence based on premises liability." (Defendant's Motion to Strike, #114.) The defendant's second memorandum of law in support clarifies that the contested language is contained in paragraph 9d of the second count.
"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]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court] assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court] read[s] the allegations broadly, rather than narrowly." (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003). Accordingly, "[in evaluating a motion to strike] the court must only look to [t]he substance of the allegations to see if they state the necessary elements of the claim." (Emphasis added; internal quotation marks omitted.) State v. Acordia, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X09 CV 07 4027314 (January 9, 2008, Shortall, J.). Finally, "[g]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
Count III: Plaintiff's Claim for Negligent Training and Negligent Supervision
In the third count of the amended complaint, paragraph 9, the plaintiff provides that "[her] injuries and damages were caused by the negligence, carelessness, and/or recklessness of the defendant, Price Chopper, Inc. in that Price Chopper, Inc.: a) failed to properly train its employees, agents and servants, such as Citron, in the appropriate manner of resolving customer service issues; b) failed to provide appropriate oversight and guidance for its employees, agents and servants, such as Citron, in order to ensure that customer service issues were dealt with in a professional manner . . ." The defendant argues that paragraphs 9a and 9b should be stricken because they are legally insufficient. The defendant maintains these paragraphs attempt to establish claims for negligent training and supervision respectively, but fail to allege facts demonstrating that the defendant knew or should have known that its employees had a propensity to engage in the alleged harmful conduct. The plaintiff counters that the defendant's motion to strike paragraphs 9a and 9b of the third count is procedurally defective because those paragraphs do not state separate causes of action.
It should first be noted that absent from the text of Practice Book § 10-39 is any express provision allowing a moving party to strike individual paragraphs from a complaint. Even though Practice Book § 10-39 does not explicitly provide that a defendant may strike individual paragraphs from a complaint or count, Connecticut trial courts have permitted defendants to do so in certain circumstances. See Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, Docket No. CV 06 5007079 (May 21, 2007, Tanzer, J.) ( 43 Conn. L. Rptr. 458). "Although there is a split of [opinion], most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all the essential allegations of a cause of action or defense . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense . . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count . . . However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action . . ." (Emphasis added; internal quotation marks omitted.) Id. Consequently, where a plaintiff has intermixed separate causes of action into one count and created paragraphs that by themselves stand to set forth separate causes of action, it is appropriate for a defendant to strike those paragraphs. Id.
As to the issue of the sufficiency of the plaintiff's claims, it is settled that "[u]nder Connecticut law, an employer may be held liable for the negligent supervision of employees." Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004). A claim for negligent supervision establishes direct liability for an employer who fails to exercise reasonable care in supervising an employee. Id. In establishing a claim for negligent supervision, therefore, "[the] plaintiff must plead and prove that she suffered an injury due to the defendant's failure to supervise an employee whom the defendant had [a] duty to supervise." (Emphasis added.) Id., 191.
In Seguro v. Cummiskey, supra, 82 Conn.App. 186, an employer in the business of operating a tavern was charged with the negligent supervision of an employee who, after drinking on the job, later struck the plaintiff in a car accident on his way home from work. In finding that the employer, under the circumstances, owed a duty to the third-party plaintiff to supervise its employees, the court noted that the general rule is that "absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another." Id., 193. In determining whether a sufficient relationship existed, therefore, turned on the court's analysis of "whether the specific harm alleged by the plaintiff was foreseeable to the defendant." Id., 193-94. Foreseeability, as explained by the court, rested on resolution of the question, "[w]ould 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?" Id., 494. The court did not hold that employers owe a general duty to supervise their employees in all circumstances, but, rather, under the facts of the case presented, held narrowly that "employers have a duty to supervise tavern employees at the workplace as to their consumption of intoxicating liquor." Id., 198.
Consistent with the Appellate Court's decision in Seguro, Superior Court decisions have required plaintiffs alleging negligent supervision to "plead injury by an employee whom the defendant had a duty to supervise, failed to supervise and whom the defendant knew or should have known would cause the injury." Vasudevan v. Pargosa, Superior Court, judicial district of Hartford, Docket No. CV 05 4012416 (January 23, 2006, Keller, J.) ( 40 Conn. L. Rptr. 617, 619); see also Meade v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 05 4016155 (September 7, 2006, Skolnick, J.T.R.); Companions Homemakers, Inc. v. Pogasnik, Superior Court, judicial district of Hartford, Docket No. CV 04 0834592 (June 7, 2005, Wagner, J.T.R.). Federal courts applying Connecticut law likewise have held that "[a] defendant does not owe a duty of care to protect a plaintiff from another employee's tortious acts unless the defendant knew or reasonably should have known of the employee's propensity to engage in that type of tortious conduct." Roberts v. Circuit-Wise, Inc., 142 F.Sup.2d 211, 214 (D.Conn. 2001). Accordingly, a count for negligent supervision is insufficient where a plaintiff has neglected to allege in his or her complaint that the defendant employer knew or should have known that the employee would cause injury. See Vasudevan v. Pargosa, supra, 40 Conn. L. Rptr. 617 (granting motion to strike where complaint contained no allegation that employer knew or should have known of employee's propensity to cause injury).
It is unclear whether Connecticut law recognizes a claim for negligent training distinct from one for negligent supervision. See Hearn v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 02 0466339 (April 2, 2007, Licari, J.). As a result of this uncertainty, Superior Court decisions dealing with negligent training claims have applied the standard applicable to a claim for negligent supervision. See, e.g., Seda v. Maxim Healthcare Services, Superior Court, judicial district of Hartford, Docket No. CV 07 5010811 (April 8, 2008, Elgo, J.) (using negligent supervision standard to dispose of motion to strike two counts alleging negligent training and negligent supervision, respectively); Hearn v. Yale-New Haven Hospital, supra, Superior Court, Docket No. CV 02 0466339 (addressing combined claim for negligent training and supervision using negligent supervision standard); Faggio v. Brown, Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 05 4003488 (May 17, 2006, Beach, J.) (evaluating allegations of negligent training and supervision with legal standard applicable to claims for negligent hiring, supervision and retention).
With the exception of paragraphs 9a and 9b, the third count contains only a recitation of facts imported from other portions of the complaint alleging that Citron made a sweeping motion with her hand, followed by a categorization of that action as either negligent, reckless, careless or intentional. (Plaintiff's Amended Complaint, third count, ¶ 8.) The count also alleges that to the extent that Citron's actions were intentional, they were within the scope of her duty to the defendant. (Plaintiff's Amended Complaint, third count, ¶ 8.) A reading of paragraph 9 indicates that the plaintiff's legal theory for the count rests on the defendant's alleged breach of duty to monitor and properly train its employees. A fair reading of paragraph 8, however, also establishes alternate theories of liability, namely one for respondeat superior. (See Plaintiff's Amended Complaint, second count, ¶ 8.) ("Said injuries and damages were caused by the negligence, carelessness, and/or recklessness of the defendant . . . (a) acting by or through its employee or agent . . . used unproved and inappropriate force on the person of the plaintiff . . .") The fact that the plaintiff has intermixed different legal theories in the third count, and that paragraphs 9a and 9b, standing alone, establish the sole basis in the complaint indicating that the plaintiff is attempting to put forth claims for negligent training and supervision, indicates that they may be independently stricken from the complaint. Consequently, it would appear that the plaintiff's motion to strike paragraphs 9a and 9b is procedurally proper. It is noted that the defendant previously attempted to have the plaintiff separate all her various of action via a request to revise (#103) which resulted in the present amended complaint (#111). Because the plaintiff failed to fully comply with the request to revise, the court also feels that it is appropriate to address the defendant's motion to strike the individual paragraphs of Count II and Count III.
The motion to strike paragraphs 9a and 9b is granted. Making a legally sufficient claim for either negligent training or negligent supervision requires that the plaintiff allege more than facts indicating the defendant's employee caused harm; a plaintiff alleging negligent training or supervision must also plead facts demonstrating that the conduct of the employee was foreseeable. This is because Connecticut recognizes no general duty for employers to supervise their employees without the existence of some special facts or circumstances indicating that such monitoring or training is necessary. In the present case, there are no allegations showing that the defendant should have been on notice that Citron, either in the past, or acting in her natural capacity as a grocery store manager, has or had a propensity to cause the general type of harm alleged. There are no allegations indicating that Citron's actions were the result of defective or insufficient training as well. Without any allegations establishing that Citron's actions were the foreseeable consequence of the defendant's failure to supervise or train, there can be no legally sufficient claim for negligence under this legal theory.
Count II: Premises Liability
In the second count of the amended complaint, the plaintiff alleges that the injuries she suffered when she fell on the forklift were caused by the negligence, carelessness, or recklessness of the defendant "in that it failed to protect business invitees, such as the plaintiff, from dangerous equipment stored in the redemption area." (Plaintiff's Amended Complaint, second count, ¶ 9d.) The defendant moves to strike this language from the complaint to the extent it states a claim for premises liability on the ground that the plaintiff has not alleged that the placement of the forklift constituted a defect rendering the premises unreasonably dangerous.
Premises liability is based on the general duty that defendants owe to business invitees to keep their premises in a reasonably safe condition. Martin v. Stop Shop Supermarket Cos., 70 Conn.App. 250, 251, 796 A.2d 1277 (2002). "To hold [a] defendant liable for . . . personal injuries, [a] plaintiff must prove (1) the existence of a defect, (2) that the defendant knew or in the exercise of reasonable care should have known about the defect and (3) that such defect had existed for such a length of time that the [defendant] should, in the exercise of reasonable care, have discovered it in time to remedy it." (Citation omitted; internal quotation marks omitted.) Id., 251. Alternatively, "a business invitee who is injured by a dangerous condition on the premises may recover without proof that the business had actual or constructive notice of that condition if the business' chosen mode of operation creates a foreseeable risk that the condition regularly will occur and the business fails to take reasonable measures to discover and remove it." Humphrey v. Great Atlantic Pacific Tea Co., 107 Conn.App. 796, 798-99, 946 A.2d 889 (2008). Moreover, "[i]t is within the province of the trier of fact to determine whether a defective condition existed." Martin v. Stop Shop Supermarket Cos., supra, 251. Whether a condition renders the premises unreasonably dangerous is likewise an issue of fact. Rahuba v. 5 D's Inc., Superior Court, judicial district of Waterbury, Docket No. CV 01 0164077 (September 16, 2004, Gormley, J.) ( 38 Conn. L. Rptr. 191, 193).
For reasons discussed earlier, the court is permitted to consider paragraph 9d separately in evaluating this motion to strike. With respect to the underlying challenge to the plaintiff's claim, the court denies the defendant's motion to strike paragraph 9d of the second count. Whether the location of the forklift in the bottle redemption area constitutes a defect sufficient to establish that the defendant is liable for premises liability is a question reserved for a finder of fact. The plaintiff has alleged that she fell on the forklift, and that the forklift's presence constituted an unreasonably dangerous condition. This is sufficient. Accordingly, because the defendant presents no additional arguments in support of their motion, the defendant has failed to meet its burden, and the motion to strike paragraph 9d of the second count is denied.
For the reasons provided above, the court grants the defendant's motion to strike paragraphs 9a and 9b from the third count. With respect to paragraph 9d of the second count, the motion to strike is denied.