Opinion
No. CV-08-5023505
January 22, 2009
MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE (#108)
The plaintiff, a minor who brings this suit through his mother, as next best friend, has alleged negligence action against the defendant for injuries he suffered while a resident of the defendant's facility. The defendant filed a revised answer and special defenses on November 13, 2008. It is the second affirmative defense that the plaintiff seeks to strike. In the second affirmative defense, the defendant alleges negligent supervision by the plaintiff's mother. The matter was before the court on January 12, 2009 for short calendar argument; there was no appearance by counsel for the defendant, nor did counsel file any brief in opposition.
Although there is a split of authority on whether the failure to file a memorandum in opposition to a motion to strike signifies acquiescence, the majority of courts holds that it does not. This court will follow the majority position.
"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). "[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike." Vertex v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).
"Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
"[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). "In . . . ruling on the . . . motion to strike, the trial court 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 plaintiff argues that the second affirmative defense should be struck because it seeks to diminish the recovery of the minor plaintiff by assigning blame to his parent, thus violating the doctrine of parental immunity. The plaintiff cites to the recent decision by Judge Frankel in Kochian v. Central CT Coast YMC, 2008 Ct.Sup. 5161 (No. CV-07-5011527, J.D. of Fairfield at Bridgeport, 3/31/08) in support of its argument. The court finds the reasoning of Kochian persuasive. In Kochian, the plaintiff, through his parents, brought an action alleging negligence for injuries sustained at a birthday party at the defendant's premises. The plaintiff sought to strike the defendant's special defense of the plaintiff's alleging failure to supervise her child. The court analyzed the state of the law in Connecticut with regard to the parental immunity doctrine in the decision of Crotta v. Home Depot, Inc., 249 Conn. 634 (1999), as well as the Superior Court decisions on the issue of whether parental immunity may be used to strike a special defense claiming contributory negligence. This court agrees with the majority trend since Crotta and upholds the parental immunity doctrine as applied to the special defense in the present case. The motion to strike the second affirmative defense is GRANTED.