Opinion
No. CV05 4004211-S
June 2, 2006
MEMORANDUM OF DECISION
FACTS
On September 15, 2005, the plaintiff, Theresa Littlejohn, as administratrix of the estate of her son, Jeffrey Littlejohn, filed an amended complaint against the defendant, Toni Ann Barillaro. The complaint sounds in negligence and alleges the following. The plaintiff was the mother and guardian of Jeffrey Littlejohn. On July 7, 2004, Jeffrey was two years old and living with the plaintiff. On that date, Jeffrey drowned in an in-ground swimming pool located on property owned and maintained by the defendant. The plaintiff further alleges in the complaint that Jeffrey suffered various damages between the time he fell into the pool and drowned and that the defendant's negligence ultimately was the cause of Jeffrey's drowning.
On February 2, 2006, the defendant filed an apportionment complaint pursuant to General Statutes § 52-572h against the apportionment defendant, Johnny Harris. The apportionment complaint alleges that when Jeffrey drowned, the apportionment defendant resided with the plaintiff as the boyfriend and/or fiance of the plaintiff and that he had a duty to observe, supervise, watch, and ensure the safety of Jeffrey. The apportionment complaint further alleges that the apportionment defendant was negligent in that he failed to observe or supervise Jeffrey, allowed Jeffrey to leave the yard without observation or supervision, allowed Jeffrey to enter the defendant's yard when he knew or should have known that it was unreasonable to do so and when he knew or should have known that an in-ground swimming pool existed on the defendant's property.
On April 11, 2006, the court, Wiese, J., granted the defendant's motion for default for failure to plead against the apportionment defendant. The apportionment defendant, however, filed an answer to the apportionment complaint before judgment was rendered against him and before a hearing in damages was claimed. The motion for default, therefore, is set aside. General Statutes § 17-32; Dauti v. Stop Shop Supermarket Co., 90 Conn.App. 626, 637-38, 879 A.2d 507, cert. denied, 276 Conn. 902, 884 A.2d 1025 (2005).
On February 22, 2006, the plaintiff filed a motion to strike the apportionment complaint accompanied by a memorandum of law in support. On March 13, 2006, the defendant filed a memorandum in opposition. On March 20, 2006, arguments on the motion were heard at short calendar.
DISCUSSION
"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] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual finding by the trial court." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotations omitted.) Commission of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
I. DUTY TO SUPERVISE
The plaintiff asserts that the apportionment defendant does not owe a duty at common law to supervise and ensure Jeffrey's safety. The plaintiff argues in the alternative that if such duty exists, then the parental immunity doctrine prohibits such a claim against the live-in boyfriend/fiance. The plaintiff argues that the apportionment complaint essentially alleges that the apportionment defendant had a duty to supervise Jeffrey by standing akin to a parent to Jeffrey. The plaintiff argues that such argument necessarily creates a relationship to which the parent immunity doctrine applies.
The defendant argues in her memorandum that the apportionment defendant had a custodial or care-taking capacity as to the decedent. The defendant argues that liability for negligence in the care and supervision by non-parents in a custodial or care-taking capacity has been recognized by Connecticut courts under a number of different circumstances. The defendant further argues that the plaintiff did not specify, on the face of the motion, parental immunity as a ground for granting the motion to strike. The defendant argues, therefore, that the court cannot consider parental immunity. The defendant argues in the alternative, however, that the courts have held that determining whether the doctrine applies beyond a natural or adoptive parental relationship is an issue of fact for the jury and inappropriate for a motion to strike.
In the present case, neither party submitted conclusive authority that establishes a duty on a live-in boyfriend to supervise the girlfriend's child. The plaintiff cites to State v. Miranda, 274 Conn. 727, 878 A.2d 1118 (2005) for the proposition that a common-law duty does not exist for a live-in boyfriend to supervise and ensure the safety of the girlfriend's child. As the defendant points out, however, Miranda does not so clearly state that proposition. First, the reliance on a common-law duty was to find criminal liability. In concurrence, three justices discussed the existence of such a duty. The justices stated that "[i]t simply goes to far to say that [a live-in boyfriend] should be treated precisely the same as a parent or legal guardian for purposes of criminal liability, because he had established a familial relationship with the victim's mother, has assumed responsibility for the victim's care, and considered himself her stepfather." (Emphasis added.) Id., 479. The issue of whether the defendant could be criminally liable in Miranda, therefore, is necessarily distinguishable from the issue in the present case of whether the apportionment defendant can be found civilly liable. Second, only three justices adopted this reasoning in the per curium decision. Any reliance on this reasoning for the proposition that a live-in boyfriend does not have a common-law duty to protect the girlfriend's child thus does not carry the authority of a majority decision.
Although the court could not find any Connecticut law directly on point, there is sufficient authority and basis to impose a duty on the defendant in this case. In Coville v. Liberty Mutual Ins. Co., 57 Conn.App. 275, 748 A.2d 875 (2001), cert. granted on other grounds, 253 Conn. 919, 755 A.2d 213 (2001) (appeal withdrawn March 30, 2001), the court stated that Connecticut recognizes that "one who gratuitously undertakes an act will be liable for performing it negligently." Id., 281. Based on this principle, the Coville court recognized the principle that "[o]ne who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge . . ." (Internal quotation marks omitted.) Coville v. Liberty Mutual Ins. Co., supra, 57 Conn.App. 280; citing Section 324 of the Restatement (Second), § 324, p. 139. The court elaborated that "[this rule] is applicable whenever one takes charge of another who is incapable of taking adequate care of himself." (Internal quotation marks omitted.) Coville v. Liberty Mutual Ins. Co., supra, 57 Conn.App. 281; citing § 324, comment (b), p. 140. The court finally recognized that the "duty [to protect another] arises particularly in special relationships where the plaintiff is typically in some respect particularly vulnerable and dependent upon the defendant who, correspondingly, holds considerable power over the plaintiff's welfare." (Internal quotation marks omitted.) Coville v. Liberty Mutual Ins. Co., supra, 57 Conn.App. 281; citing to W. Prosser W. Keeton, Torts (5th Ed. 1984) § 56.
In Pacello v. Wyndham International, Inc., Superior Court, judicial district of New Haven, Docket No. 03 0477014 (March 29, 2006, Silbert, J.), the court recognized the versatility of the principles cited in Coville v. Liberty Mutual Ins. Co., supra, 57 Conn.App. 280-81. The court cited to decisions from other jurisdictions where courts applied the same principles to hold that defendants who did not originally owe a duty to the plaintiff incurred one once they voluntarily undertook action towards the plaintiff. Id.
One portion of the restatement commentary that the Pacello court did not reference states that § 324 "applies also to one who takes charge of another who by reason of his youth is incapable of caring for himself." § 324, comment (b), p. 140. This is precisely the situation in the present case. The apportionment complaint alleges that Jeffrey was two years old and lived with the plaintiff, his mother. The apportionment complaint further alleges that the apportionment defendant was the live-in boyfriend/fiance of the plaintiff. It is implied from the allegations that at the time of Jeffrey's accident, the apportionment defendant was at home with Jeffrey. It is further implied that as two-year-old, Jeffrey was unable to adequately care for himself and, therefore, was dependent on the apportionment defendant for care. Therefore, the apportionment defendant at the very least could have incurred a duty to exercise reasonable care in supervising or caring for Jeffrey and, further, the apportionment complaint sufficiently pleads facts implying that the apportionment defendant incurred this duty on the day Jeffrey wandered into the neighbor's swimming pool and drowned. The plaintiff argues in the alternative that if the apportionment defendant had a duty to supervise Jeffrey, he was immune from liability under the parental immunity doctrine. The court rejects this argument. In Ascuitto v. Farrichielli, 244 Conn. 692, 711 A.2d 708 (1998), the court stated that the parental immunity doctrine prohibits un-emancipated minor children and their parents from suing one another for personal injuries. Id., 697. Connecticut courts recognize that "[traditional models of the nuclear family have come, in recent years, to be replaced by various configurations of parents, stepparents, adoptive parents and grandparents." (Internal quotation marks omitted.) Id., 701. To date, however, Connecticut has yet to unequivocally extend the doctrine to those in the position of the apportionment defendant.
Although the plaintiff did not specify the parental immunity doctrine as a ground for supporting the motion, the court will entertain the plaintiff's arguments, which were fully set forth in the memorandum of law in support to fully consider the merits of the case.
In Burdick v. Nawrocki, 21 Conn.Sup. 272, 154 A.2d 242 (1959), the Superior Court did not extend the doctrine to the stepfather of the plaintiff-child. The Burdick court stated that "the stepfather, although he presently voluntarily stands in loco parentis, is not under a legal obligation to care for, guide and control the child. Since the death of his father, the above obligations have fallen to the plaintiff's mother alone." Id., 274. The Burdick decision must be contrasted with another Superior Court decision, Bricault v. Deveau, 21 Conn.Sup. 486, 157 A.2d 604 (1960), in which the court held that the doctrine would apply to a stepfather if the stepfather stood in loco parentis to the stepson. Id., 486. The Bricault court stated that one who is in loco parentis puts themself in the situation of a lawful parent by "assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption, and embodies the two ideas of assuming the parental status and discharging the parental duties." Id. The court refused to strike the defendant's special defense of immunity, reasoning that whether a stepparent stands in loco parentis is a question of intent, which the defendant-stepfather "should have an opportunity under his special defense to prove . . ." Id., 487.
In the present case, the apportionment complaint does not allege facts sufficient to apply the parental immunity doctrine to the apportionment defendant. The apportionment complaint alleges that the apportionment defendant is a live-in boyfriend and/or fiance of the plaintiff. The court, however, cannot imply the fact that the apportionment defendant is the stepfather or otherwise stands in loco parentis to the child in this case. The parental immunity doctrine, therefore, cannot be applied to the apportionment defendant even under the more favorable holding of Bricault.
II. PROXIMATE CAUSE
The plaintiff states as a ground on the face of the motion that there is no proximate cause. The plaintiff argues that to apportion liability in this case is a dilution of the duty of a premises owner. The plaintiff argues that this dilution would interfere with public policy of premises liability. The defendant counters that proximate cause is a question of fact and, therefore, the plaintiff's assertion that there is no proximate cause is an inappropriate ground upon which to decide a motion to strike.
"Proximate cause is ordinarily a question of fact . . . The test for finding proximate cause is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence . . . The foreseeable risk may include the acts of the plaintiff and of third parties." (Citations omitted; internal quotation marks omitted.) Coburn v. Lenox Homes, Inc., 186 Conn. 370, 384, 441 A.2d 620 (1982).
In the present case, the court rejects the plaintiff's argument. First, the determination of whether there is proximate cause is a question of fact and, therefore, is a decision to be made by a fact finder after considering the evidence. Deglin v. Norwich Free Academy, Superior Court, judicial district of New London, Docket No. 0546339 (April 7, 1999, Hurley, J.T.R.) ( 24 Conn. L. Rptr. 343, 344). Second, the plaintiff does not support her argument with any legal authority and, therefore, fails to persuade the court to adopt her reasoning.
CONCLUSION
For the foregoing reasons, the plaintiff's motion to strike the apportionment complaint is denied.