Opinion
No. CV 07 5013480
July 18, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #115
In their second revised complaint, dated April 23, 2008, the plaintiffs, Joseph Ferrara, Karen Ferrara, and the estate of Adrienne Ferrara, allege that on December 19, 2006, their twenty-year-old daughter, Adrienne Ferrara, patronized the Side Street Grille, where she was served alcohol by Carl Walters, became patently crapulous, and was nevertheless permitted to drive home. During her trip home from the Side Street Grille, her car left the road and crashed into a tree, whereupon it burst into flames. She died from wounds sustained in that accident on December 31, 2006. Against this background, the plaintiffs filed an eight-count complaint against the defendants, Side Street Grille, LLC and Carl Walters, alleging violation of General Statute § 30-102, negligent service of alcohol, negligent supervision, recklessness, and one count of filial consortium by the defendants for each of these discrete causes of action.
Commonly known as Connecticut's "Dram Shop Act,"§ 30-102 reads in pertinent part: "If any person, by such person or such person's agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured . . . to be recovered in an action under this section . . ."
On April 30, 2008, the defendants filed a motion to strike counts five, six, seven, and eight, of the plaintiffs' second revised complaint on the ground that Connecticut law does not recognize a claim for filial consortium; this motion was supported by the requisite memorandum of law. The plaintiffs filed an objection on May 14, 2008, which was also supported by a memorandum of law. The substratum of the plaintiffs' objection is that claims of filial consortium should be recognized by this court because no Connecticut appellate court has yet to rule definitively that filial consortium cannot be grounded in Connecticut law and because such claims are supported by principled public policy. A reply was filed by the defendants on May 20, 2008.
The court pauses to observe that the defendants' motion to strike failed to state the reason for the alleged legal insufficiency of the plaintiffs' complaint in the motion itself, explicating its arguments regarding the legal insufficiency of the complaint in its memoranda of law only. "Simply stating that all of the counts are `legally insufficient' and that they `fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs' cannot be considered compliance with Practice Book § 10-41." Stuart v. Freiberg, 102 Conn.App. 857, 862, 927 A.2d 343 (2007). Indeed, Practice Book § CT Page 12014 10-41 "clearly places the burden on the party filing the motion to strike to state the grounds of the claimed insufficiency in the text of the motion . . . [I]f that procedure is not followed, it puts the party opposing the motion and the court to the task of trying to locate in the accompanying memorandum of law the various claims of insufficiency that are being made. In poorly organized briefs, such a hunt for grounds presents the hazard of missing claims or responding to observations that the movant does not actually assert as grounds." (Citation omitted; internal quotation marks omitted.) Stuart v. Freiberg, supra, 102 Conn.App. 862 n. 2. The court, nevertheless, considers the defendants' motion in the form presented due to the plaintiffs' failure to object to its form and the nonjurisdictional nature of Practice Book § 10-41. See, e.g., Bouchard v. People's Bank, 219 Conn. 465, 468 n. 4, 594 A.2d 1 (1991); Morris v. Hartford Courant Co., 200 Conn. 676, 683 n. 5, 513 A.2d 66 (1986).
Before addressing the merits of this motion, the court sets forth the applicable standard of review. "A motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court." Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly . . . rather than narrowly." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Finally, while "all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted"; Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006); "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
Mindful of these considerations, the court now considers whether Connecticut law recognizes a claim for loss of filial consortium. Although our appellate courts have not yet addressed directly the legal sufficiency of a filial consortium claim, our Supreme Court's previous dicta has made it clear that both our common law tradition and relevant public policy considerations counsel against such claims. See Mendillo v. Board of Education, 246 Conn. 456, 484-85, 717 A.2d 1177 (1998) (declining to recognize claim of parental consortium and noting that there was no principled distinction between a loss of parental consortium and a loss of filial consortium). Indeed, the Mendillo Court explained that, in the context of parental consortium claims, "the balance of policy considerations fails to establish the additional justification necessary to support recognition of a legal duty on the part of a tortfeasor to compensate the children of the person whom the tortfeasor has harmed directly for their loss of consortium with their parent. We reach this conclusion primarily on the basis of the fact that recognition of the cause of action would require arbitrary limitations; the additional economic burden that recognition would impose on the general public; the uncertainty that recognition would yield significant social benefits; the substantial risk of double recovery; and the weight of judicial authority." Id. 484-85. These same policy considerations apply with equal weight in the context of filial consortium claims because there is not a principled distinction available to reconcile a decision to prohibit children from recovering the lost consortium from a dead or injured parent while contemporaneously allowing parents to recover the lost consortium from a dead or injured child.
There is little to recommend the plaintiffs' rejoinder to these policy perspectives. The plaintiffs do not offer any Connecticut cases decided after Mendillo that have located a legal footing for filial consortium in our law, and they fail to offer a meaningful distinction between parental consortium claims, which were proscribed by the Mendillo Court, and filial consortium claims, which the Mendillo Court counseled against in its dicta. See Mendillo v. Board of Education, supra, 246 Conn. 485 n. 20. Similarly, the plaintiffs' argument that a parent's constitutional right to "the companionship, care, custody, and management of [their] child;" Weinberger v. Weisenfelder, 420 U.S. 636, 652, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); is at least as strong as the panoply of rights guaranteed by a marriage contract, thereby providing as strong an argument for filial consortium as for spousal consortium, is also of no moment. It bears emphasis that this very argument was stated in Mendillo, which reaffirmed that "[n]ot every constitutional right or relationship gives rise to tort liability for its violation." Mendillo v. Board of Education, supra, 246 Conn. 493. Moreover, our Supreme Court's focus in reaching its decision in Mendillo was the practical liability implications associated with allowing a cause of action for parental consortium. See Mendillo v. Board of Education, supra, 246 Conn. 456, 487-88 (evaluating economic burden placed on general public, uncertainty of social benefits, and risk of double recovery in expanding third party liability). The Mendillo Court noted that, unlike spousal consortium, parental consortium claims were not limited by the "natural boundary" of there being only one spouse; multiple children and stepchildren could have parental consortium claims, each of which would generate additional marginal and administrative costs in insuring and litigating. Id., 488. The same is equally true of filial consortium claims. Were multiple children to be injured or killed, both parents would have claims as to the loss associated with each child. Thus, while the type of foreseeable damage to personal interrelationships may be equally present in filial consortium claims as they are in spousal consortium claims, filial claims do not afford the same inherent limits on the number of potential claims that spousal consortium claims do.
This point was not lost upon our Supreme Court in Mendillo, which explicitly declined the invitation of various amici to expand the claim of parental consortium directly at issue there to include recognition of filial consortium claims as well. Mendillo v. Board of Education, supra, 246 Conn. 485 n. 20 (observing, "there is nothing in reason to differentiate, as a categorical matter, the emotional loss by a stepchild from that of his or her stepsibling whose natural parent was injured, and there is nothing in reason to differentiate the parent's loss of the joy and comfort of his child from that suffered by the child"). Additionally, the Court noted the vast array of different relationships within the constellation of American families, and expounded its concern that extending the scope of a tortfeasor's third party liability to include family members other than spouses could result in unlimited liability due to the large number of family relationships likely to be effected if pure rules of foreseeability alone were left to limit liability. Id., 482 (noting concern of "unlimited liability" due to the large number of family relationships that could be impacted by recognition of parental or filial consortium claims and that imposition of third party liability is granted in rare circumstances). Thus, our Supreme Court has already weighed the competing public policy considerations and found these types of third party liability to be undesirable.
Accordingly, this court joins that majority of other Superior Courts that have similarly concluded that Mendillo precludes recognition of a filial consortium claim, and grants the defendants' motion to strike.
See, e.g., Reardon v. Brown, Superior Court, judicial district of New Haven, Docket No. CV 07 6000950 (April 18, 2008, Robinson, J.); Thomas v. Trudeau, Superior Court, judicial district of Windham at Putnam, Docket No. CV 07 5001330 (December 11, 2007, Martin, J.); Dieresis v. Stamford Health Systems, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001340 (March 6, 2007, Tobin, J.); Fischer v. Dunn, Superior Court, judicial district of Waterbury, Docket No. CV 00 0160378 (August 14, 2001, Rogers, J.); Ward v. Greene, Superior Court, complex litigation docket at Norwich, Docket No. X04 CV 99 0120118 (March 22, 2001, Koletsky, J.); Mercede v. Kessler, Superior Court, judicial district of Stamford-Norwalk at Stamford, docket No. CV 99 0172682 (February 13, 2001, Karazin, J.) (29 Conn. L. Rptr. 246); Mirjavadi v. Vakilzadeh, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0166632 (Nov. 13, 2000, Lewis, J.T.R.) (28 Conn. L. Rptr. 524); Blanchette v. Desper, Superior Court, judicial district of Waterbury, Docket No. CV 98 0144050 (October 19, 1998, Shortall, J.) (23 Conn. L. Rptr. 321).
For the reasons set forth above, the court concludes that Connecticut law does not support a claim of filial consortium, and, therefore, grants the defendants' motion to strike counts five, six, seven, and eight of the plaintiffs' second revised complaint.