Opinion
No. CV09-5029998S
November 6, 2009
MEMORANDUM OF DECISION
On June 22, 2009, the plaintiffs, Marisa Lenti, a minor, by and through her mother and next friend, Pamela A. Lenti, and Pamela A. Lenti, individually, filed this action against the defendants Nathan Jacobson, the Wallingford Board of Education, Ashley Rivera, by and through her mother and next friend, Yvette Rivera, and Yvette Rivera, individually. The minor plaintiff claims to have been injured while participating in a mandatory floor hockey game which took place during a physical education class at James H. Moran Middle School in Wallingford, Connecticut. In counts five and six of the plaintiffs' complaint, Marisa Lenti and Pamela A. Lenti, respectively, seeks to hold Ashley Rivera liable for negligently tripping the minor plaintiff with a hockey stick during the floor hockey game. The plaintiffs allege that Ashley Rivera negligently tripped the minor plaintiff, despite the fact that Ashley Rivera knew or should have known that pushing the hockey stick out in front of Marisa Lenti would cause her to fall to the gym floor. The plaintiffs further allege that Ashley Rivera was negligent in that the minor defendant failed to pay attention, with regard to the hockey stick she was running with, and negligently failed to warn the minor plaintiff of the imminent contact with the hockey stick.
Hereafter, "the defendants" refer to Ashley Rivera, by and through her mother and next friend, Yvette Rivera, and Yvette Rivera, individually.
On July 13, 2009, the defendants filed a motion to strike the complaint in whole as it pertains to Yvette Rivera in her individual capacity and counts five and six of the complaint as they pertain to Ashley Rivera. The defendants contend that Yvette Rivera was wrongfully listed on the summons as an individual defendant and not in her capacity as next friend of her minor daughter. Because no cause of action has been alleged against Yvette Rivera in the complaint, the defendants move to have the complaint stricken in its entirety as it pertains to her. The defendants also move to have counts five and six stricken on the ground that the plaintiffs have only alleged negligent conduct on behalf of the minor defendant and not reckless or intentional conduct, which the defendants maintain is necessary in order to bring a valid cause of action for injury resulting from a team contact sport. The defendants filed a memorandum of law in support of their motion. On July 20, 2009, the plaintiffs filed an eight-sentence objection to the motion to strike, stating that they appropriately pleaded an action in negligence.
The defendants' motion to strike was heard at short calendar on October 13, 2009, at which time the plaintiffs' attorney conceded that it had mistakenly listed Yvette Rivera in her individual capacity on the summons as a defendant. The parties agreed that the plaintiff would withdraw charges against Yvette Rivera in her individual capacity, and would only retain her as the mother and next friend of the minor defendant, Ashley Rivera. That same day, the plaintiffs' attorney filed with the court a withdrawal of the action as to the defendant Yvette Rivera (#112).
"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). "[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.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
In the present case, the defendants contend that counts five and six of the plaintiffs' complaint are legally insufficient because mere negligence is insufficient to permit recovery for an injury sustained in a team sport. The defendants rely on the Supreme Court's holding in Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997), and its progeny in support of their argument that the appropriate standard of liability to impose upon co-participants in a team sport is the duty to refrain from reckless or intentional conduct. The plaintiffs attempt to distinguish their case from Jaworski v. Kiernan, by arguing that the case at bar involves a minor child who was injured by another child with a hockey stick while mandatorily participating in a non-contact middle school physical education class floor hockey game whereas Jaworski v. Kiernan, supra, 241 Conn. 399, involved adults who had voluntarily decided to participate in a recreational contact team sport. The plaintiffs do not, however, cite to any authority in support of their contentions.
In Jaworski v. Kiernan, supra, 241 Conn. 399, the Supreme Court addressed the issue of participant liability for injuries sustained during a team contact sport where the parties were adult, voluntarily participants in a co-ed recreational soccer league. During a soccer match, the defendant made contact with the plaintiff, causing permanent injury, and the plaintiff sued the defendant under theories of both negligence and recklessness. Id., 402. The Supreme Court ultimately held that "as a matter of policy, it is appropriate to adopt a standard of care imposing on the defendant, a participant in a team contact sport, a legal duty to refrain from reckless or intentional conduct. Proof of mere negligence is insufficient to create liability." Id., 412.
In reaching its holding, the Supreme Court cited four factors to be considered in determining the extent of the legal duty to be imposed upon the defendant participants: "(1) the normal expectations of participants in the sport in which the plaintiff and the defendant were engaged; (2) the public policy of encouraging continued vigorous participation in recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Id., 407. In applying these factors, the Supreme Court stated that "[i]n athletic competitions the object obviously is to win. In games, particularly those played by teams and involving some degree of physical contact, it is reasonable to assume that the competitive spirit of the participants will result in some rules violations and injuries . . . The normal expectations of participants in contact team sports include the potential for injuries resulting from conduct that violates the rules of the sport . . . [These] normal expectations of participants in contact team sports counsel the adoption of reckless or intentional conduct duty of care standard for those participants . . . [A] recklessness standard will sufficiently protect participants in athletic contests by affording them a right of action against those who cause injuries not inherent in the particular game in which the participants are engaged . . . without dampening the competitive spirit of the participants." Id., 407-09.
Applying the factors set forth by the court in Jaworski v. Kiernan, supra, 241 Conn. 399, several courts have found proof of mere negligence insufficient to create liability where a minor student is injured by another minor student during a mandatory physical education team contact sport. In Baer v. Regional, School District, Superior Court, judicial district of Waterbury, Docket No. 98 0148373 (July 19, 1999, J. Pellegrino) (25 Conn. L. Rptr. 376), a case nearly identical to the present case, the court, J. Pellegrino, granted a minor defendant's motion to strike a minor plaintiff's complaint for damages sustained during a physical education class floor hockey game because the minor plaintiff had failed to allege more than mere negligence on the part of the minor defendant. Considering the public policy arguments advanced by the Supreme Court in Jaworski v. Kiernan, supra, 241 Conn. 399, the court in Baer v. Regional, School District, supra, 25 Conn. L. Rptr. 376, held that there are compelling public policy arguments for holding a participant in a contact sport to a higher legal duty than mere negligence, even when the participant is a minor whose participation is mandated. "[S]tudents would be hesitant to participate or their parents would refuse to allow them to participate in gym class athletic contests if mere negligence would expose them to a lawsuit." Id. "[T]he law should not place unreasonable burdens on the free and vigorous participation in sports by our youth." Jaworski v. Kiernan, supra, 241 Conn. 409.
See, e.g., Hotak v. Seno, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 00 0072461 (June 12, 2001, J. Arnold) [29 Conn. L. Rptr. 609] (granting the minor defendant's motion to strike the minor plaintiff's negligence claim for injuries sustained while participating in a mandatory physical education class baseball game); Baer v. Regional, School District, Superior Court, judicial district of Waterbury, Docket No. 98 0148373 (July 19, 1999, J. Pellegrino) (25 Conn. L. Rptr. 376) (granting the minor defendant's motion to strike the minor plaintiff's negligence claim for injuries sustained while participating in a mandatory physical education class floor hockey game).
This court finds the rationale and analysis of Baer v. Regional, School District, supra, 25 Conn. L. Rptr. 376, to be instructive. The normal expectation of a participant in a floor hockey game is to come into contact with another participant or another participant's hockey stick. Allegations of reckless or intentional conduct on the part of the defendant co-participant are therefore necessary to plead a cause of action for injuries sustained by a participant in a team contact sport. Proof of mere negligence will not suffice.
Accordingly, the defendants' motion to strike counts five and six of the plaintiffs' complaint is granted.