Opinion
No. CV 04 5000008
July 12, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE COMPLAINTS OF RIGHT TO PROPER HOUSING AND CONSORTIUM CLAIM OF CHILDREN
Three of the defendants, the city of New London, Pamela Kilbey-Fox and Bruce Rinehart, have filed a motion to strike count eight and counts eleven through sixteen of the plaintiffs' complaint. This case arises from an alleged incident in which the plaintiff Nichole Majette was seriously injured when she slipped on puddles of urine in a stairwell located on premises owned and managed by the defendant city.
The three defendants who have filed the present motion to strike are hereinafter referred to as the defendants.
In count eight of the complaint, Majette claims that the defendants violated 42 U.S.C. § 1983 by maintaining an unsafe and unsanitary apartment complex, thereby "denying [Majette] the equal protection of the law and statutory rights guaranteed to her by the fifth and fourteenth amendments to the United States constitution . . ." Nevertheless, the parties are in agreement that the claim set forth in count eight is essentially a substantive due process claim, rather than an equal protection claim. The defendants move to strike count eight on the ground that there is no constitutional right to the provision of safe and sanitary housing.
The United States Supreme Court has stated: "We are unable to perceive in [the constitution] any constitutional guarantee of access to dwellings of a particular quality . . . Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions," Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972); see also Hurt v. Philadelphia Housing Authority, 806 F.Sup. 515, 523 (E.D. Pa. 1992) (granting motion to dismiss attempted § 1983 claim based on substantive due process in lead paint case); Perry v. Housing Authority of the City of Charleston, 486 F.Sup. 498, 503 (D.S.C. 1980) (acknowledging procedural due process right to fair administration of public housing program, but rejecting substantive due process right to decent housing), aff'd, 664 F.2d 1210 (4th Cir. 1981).
In counts eleven through sixteen of the complaint, Majette's minor children set forth claims for loss of parental consortium resulting from their mother's injuries. The defendants move to strike counts eleven through sixteen on the ground that there is no cause of action in Connecticut for loss of parental consortium. Our Supreme Court specifically declined to recognize a cause of action for parental consortium in Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998).
The plaintiff's acknowledge the authority of Mendillo, but argue that the present case is distinguishable because of the allegations that Majette has suffered serious physical injuries. The mother in Mendillo alleged that as a result of the defendants' actions, "she suffered severe emotional distress, mental anguish and pain, resulting in illness and causing her to incur medical expenses." (Internal quotation marks omitted.) Id., 466. The issue in Mendillo was whether the court "should recognize a claim for loss of parental consortium by a minor child resulting from a serious injury to the child's parent." (Emphasis added.) Id., 477. The court stated: "[T]he balance of reasons and public policies tips against the recognition of such a claim. We therefore decline to do so . . ." Id.
For the foregoing reasons, the Motion to Strike count eight and counts eleven through sixteen should be and hereby is granted.
Clarance J. Jones