Opinion
No. CV 04-0489176 S
October 21, 2005
MEMORANDUM OF DECISION
On April 15, 2004, the minor plaintiff, Trevon Emery, brought various negligence claims through his mother, Denay Emery, against the city of New Haven, Robert D. Levine, city of New Haven department of parks, recreation, trees, David Belowski, and the city of New Haven board of park commissioners. Other defendants include the Hill Cooperative Youth Services, Kaye A. Harvey, Roger Robinson and Roger Robinson doing business as Panther Security.
The court notes that there is a misdescription in the plaintiff's caption in the complaint. The minor's name appears after the mother's name. "The process must run in the name of the infant by his next friend, and not in the name of the next friend acting for the infant . . . Where the summons names as the plaintiff the [parent] ppa the minor child, the infant child is not a party to the action." (Internal quotation marks omitted.) Aglan v. Matos-Matorelli, Superior Court, judicial district of New Haven, Docket No. CV 04 0491437 (December 21, 2004, Zoarski, J.). In the present case, "[t]he language of the complaint placed all defendants CT Page 13351-hn on notice that a minor child was bringing this action by the child's next friend. The term PPA is a rather obscure Latin phrase whose precise meaning is probably unknown to most people. By naming herself first in the case caption, the adult, next friend may have named the wrong person as plaintiff, but the transposition of names did not in any way confuse or prejudice the rights of others.
"In view of the lack of binding appellate authority on use of the PPA terminology . . . [t]his case qualifies as one in which the action was commenced in the name of the wrong party by curable mistake." (Internal quotation marks omitted.) Id. Any references in this memorandum to the plaintiff is to Trevon Emery and to the plaintiffs is to Trevon and his mother.
On December 13, 2003, the plaintiff attended a dance being held at a facility located at 158 Carlisle Street in New Haven. This facility is known by a variety of names, including the Hill Cooperative Youth Services building, the Trowbridge Community Center, the Trowbridge Recreation Center and "The Barbell." The plaintiffs allege that at approximately 10:30 p.m., a male carrying a firearm attending the dance at this facility discharged a firearm, from which a bullet struck the plaintiff in the back. This gunshot wound to the plaintiff is further alleged to be due to the negligent acts or omissions of the defendants in their failure to provide adequate security, supervision, and a policy to protect the safety of those attending the dance.
On July 26, 2004, the plaintiffs filed an amended complaint. On February 18, 2005, the defendants filed an answer and special defenses to the amended complaint. On March 11, 2005, the plaintiffs filed a motion to strike the eighth special defense, which alleges that the criminal act of the individual who shot the minor plaintiff was a superseding cause that relieves the defendants of any negligence. A memorandum of law in support of the motion was also submitted. On June 29, 2005, the defendants filed a memorandum in opposition to the plaintiff's motion.
Practice Book § 10-39 provides that "[w]henever any party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . or any part of that answer including any special defense contained CT Page 13351-hj therein, that party may do so by filing a motion to strike . . ." "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of [a pleading] . . ." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005). "In . . . ruling on the . . . motion to strike, the trial court [has] recognized its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
The plaintiffs move to strike the defendants' eighth special defense on three grounds. First, that the eighth special defense does not meet the definition of a special defense.
Second, the doctrine of intervening or superseding cause is no longer recognized in Connecticut tort law. Finally, the eighth special defense is inconsistent with General Statutes § 52-572h(o).
Section 52-572h(o) provides: "Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute, except that liability may be apportioned among parties liable for negligence in any cause of action created by statute based on negligence including, but not limited to, an action for wrongful death pursuant to section 52-555 or an action for injuries caused by a motor vehicle owned by the state pursuant to section 52-556."
In support of their motion, the plaintiffs argue that a superseding cause is not a special defense because the defendants are claiming that their negligence was not the proximate cause of the injury. The plaintiffs maintain that a superseding cause does not show that the plaintiff has no cause of action because the cause of action against the defendant still survives, regardless of actions of another. They assert that the proper legal response is a denial. Furthermore, the plaintiffs argue that the doctrine of intervening or superseding cause has been eliminated from Connecticut tort law by Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d 258 (2003), and, therefore, the defendants' reliance on this doctrine is inconsistent with Connecticut law. Finally, the plaintiffs argue that the defendants are essentially trying to apportion fault to the gunman and since an apportionment complaint, alleging fault on the part of an intentional tortfeasor must be stricken pursuant to 52-572h(o), then a special defense alleging the same must also be stricken.
The defendants counter that a special defense alleging a criminal act of a third person supersedes any negligence to be found on their part and, as a result, meets the criteria of a special defense. In addition, the defendants argue that the doctrine of superseding cause has not been eliminated, but limited by the Connecticut Supreme Court. The defendants contend that the doctrine is viable, where it is claimed that a CT Page 13351-hk deliberate criminal act extinguishes prior negligent conduct. Finally, the defendants assert that the eighth special defense is not trying to apportion fault, rather it is pleading facts consistent with the plaintiffs' complaint which demonstrates that the plaintiffs have no cause of action against them. In the present case the defendant's eighth special defense reads as follows: "The criminal act of the individual who shot the minor plaintiff was an intervening, superseding cause of harm to the minor plaintiff and the damages sustained by the plaintiffs, and such criminal act, assuming that the defendants were negligent, relieves them of their liability for such negligence."
Whether a matter "may be proved under a general denial [or as a] special [defense], which must be specially pleaded, was enunciated in Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 327 A.2d 583 (1973), where [the Supreme Court] observed . . . that [t]he issues to be tried may be framed in several ways. A denial of a material fact places in dispute the existence of that fact. Even under a denial, a party generally may introduce affirmative evidence tending to establish a set of facts inconsistent with the existence of the disputed fact . . . If, however, a party seeks the admission of evidence which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the new matter must be affirmatively pleaded as a special defense." (Citations omitted, internal quotation marks omitted.) Bernier v. National Fence Co., 176 Conn. 622, 629, 410 A.2d 1007 (1979).
The defendant's eighth special defense meets the definition of a special defense because it alleges evidence which is consistent with the complaint, namely that a gunman shot the plaintiff. Furthermore, the Superior Court has held that the doctrine of superseding cause is properly raised as a special defense; Johnson v. Burns, Superior Court, judicial district of Windham at Putnam, Docket No. CV 04 4000144 (April 28, 2005, Foley, J.); because "[t]he doctrine of superseding cause serves as a device by which one admittedly negligent party can, by identifying another's superseding conduct, exonerate himself from liability by shifting the causation element entirely elsewhere." (Internal quotation marks omitted.) Barry v. Quality Steel Products, Inc., supra, 263 Conn. 434. "The doctrine must be applied to the facts of a case . . . and therefore involves the resolution of questions properly left to the fact finder." (Internal quotation marks omitted.) Johnson v. Burns, supra, Superior Court, Docket No. CV 04 4000144.
"The doctrine of superseding cause no longer serves a useful purpose in our jurisprudence when a defendant claims that a subsequent negligent act by a third party cuts off its own liability for the plaintiff's CT Page 13351-hl injuries . . . [U]nder those circumstances, superseding cause instructions serve to complicate what is fundamentally a proximate cause analysis . . . [W]e conclude that, because our statutes allow for apportionment among negligent defendants . . . and because Connecticut is a comparative negligence jurisdiction . . . the simpler and less confusing approach to cases . . . where the jury must determine which, among many, causes contributed to the plaintiff's injury, is to couch the analysis in proximate cause rather than allowing the defendants to raise the defense of superseding cause."
(Citations omitted.) Barry v. Quality Steel Products, Inc., supra, 263 Conn. 436-39.
The court in Barry, however, also stated: "Our conclusion that the doctrine of superseding cause no longer serves a useful purpose is limited to the situation in cases, such as the one presently before us, wherein a defendant claims that its tortious conduct is superseded by a subsequent negligent act or there are multiple acts of negligence. Our conclusion does not necessarily affect those cases where the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supercedes its tortious conduct. See Doe v. Manheimer, 212 Conn. 748, 761, 563 A.2d 699 (1989) (concluding that criminal attack on plaintiff was superseding cause of plaintiff's injuries notwithstanding plaintiff's claim that defendant's allowed outgrowth of vegetation on property where attack occurred was substantial factor in both occurrence and duration of attack), overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995). Nor does our conclusion necessarily affect the doctrine of superseding cause in the area of criminal law." Barry v. Quality Steel Products, Inc., supra, 263 Conn. 439 n. 16.
The present case falls within the limited situation allowing the doctrine of superseding cause. Here, the defendants are claiming that an intentional criminal act superseded their conduct, not that a subsequent negligent act by a third party cut off their liability CT Page 13351-hm as in the Barry case. In addition, other Superior Courts have held superseding causes under similar situations to be valid. See Doe v. Lasaga, Superior Court, judicial district of New Haven, Docket No. CV 99 0430858 (March 10, 2004, Arnold, J.) (holding the superseding act of criminal sexual assaults, which were deliberate and intentional relieved the defendants from any negligence for which it may be responsible). In Holden v. Johnson, Superior Court, judicial district of Hartford, Docket No. CV 01 0811660 (April 15, 2005, Lavine, J.), the court held that a commission of a murder with a stolen gun is a superceding cause and extinguishes any potential civil liability of the gun owner, and stated " Barry cannot reasonably be read to abolish the doctrine of superseding cause in cases . . . in which it is claimed that a deliberate criminal act extinguishes prior negligent conduct."
Lastly, the defendants in the present case, are not trying to apportion fault to the individual who shot the plaintiff Instead, the defendants have asserted a special defense to plead facts consistent with the allegations of the complaint and which show that the plaintiffs have no cause of action against them. Therefore, the plaintiff's reliance on a statute that refers to apportionment is misplaced. See Bhinder v. Sun Co., 263 Conn. 358, 819 A.2d 822 (2003) (concluding that § 52-572h(o) precludes apportionment of damages between parties on any basis other than negligence).
For the foregoing reasons, the motion to strike the defendants' eighth special defense is denied.