Opinion
No. CV04-4002015S
June 9, 2006
MEMORANDUM OF DECISION
Before the court is a motion to strike counts eight and nine of the plaintiff's complaint on the grounds that the plaintiff has failed to sufficiently plead a legally cognizable cause of action based upon negligent supervision in count eight and premises liability in count nine.
FACTS
The plaintiff, Melanie Martinez, filed a nine-count complaint against the defendants, Frank Maratta d/b/a Harbor Park Restaurant, Harbor Park Associates Limited Partnership, Port Associates, LLC, Frank Maratta Productions, Inc. and Clear Channel Broadcasting, Inc. (hereinafter, Clear Channel). Count eight of the second revised complaint sounds in negligent supervision and contains the following allegations against Clear Channel.
The defendant is a foreign corporation authorized to transact business in the state of Connecticut. The defendant, through its radio station known as KISS 95.7, invited members of the public to participate in a casting call for a reality show pilot at Harbor Park Restaurant. On June 23, 2004, the plaintiff participated in the defendant's casting call and another participant caused the plaintiff to fall. As a result of the fall, the plaintiff suffered injuries and losses. The plaintiff alleges that the defendant's negligence in supervising the other patrons, in failing to warn the plaintiff that the participant who knocked her down was intoxicated, in allowing or encouraging the participation of the intoxicated persons, and encouraging participant to become violent or physical with other participants caused the incident.
In count nine, the plaintiff alleges that the defendant owned, possessed, controlled, managed and/or maintained the casting call area at Harbor Park Restaurant. Additionally, the plaintiff alleges in count nine that the incident was caused by the defendant's negligent behavior of inviting the plaintiff and others to perform in an unsafe area and that the defendant allowed intoxicated persons to perform. The plaintiff alleges that she sustained injuries and losses as a result of the defendant's negligence.
Clear Channel has filed a motion to strike counts eight and nine of the plaintiff's complaint on the grounds that the plaintiff failed to plead legally cognizable claims.
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 he granted. (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004).
DISCUSSION
Clear Channel argues that Count Eight should be stricken because, notwithstanding Connecticut's recognition of a cause of action for the negligent supervision of tavern patrons and employees, liability cannot attach inasmuch as it is not a proprietor or owner of Harbor Park Restaurant. Clear Channel argues additionally that the plaintiff's negligent supervision claim is legally insufficient because the plaintiff has not alleged that the harm suffered by the plaintiff was foreseeable or that the defendant had a duty to control the other participants in the casting call.
Clear Channel asserts that count nine should be stricken because it did not possess or control the premises, and it thus owed no duty to the plaintiff. The defendant argues that one who lacks possession and control over the premises cannot be liable in negligence to a plaintiff injured by a defect on the premises. The defendant further argues that although the plaintiff alleges that the defendant owned, possessed, controlled, managed or maintained the casting call area at Harbor Park Restaurant, that allegation, without more, is a mere legal conclusion and that the plaintiff has failed to allege facts to support the legal conclusion that the defendant possessed and controlled the casting call area.
The plaintiff asserts that the defendant owed a duty of care to the plaintiff and that the resulting harm to the plaintiff was foreseeable. Additionally, in regard to count nine, the plaintiff argues that the defendant invited the public to participate in the casting call and that the defendant owned, possessed, controlled, managed and/or maintained the casting call area at Harbor Park Restaurant.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care." Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004). "The test for determining legal duty is a two-prong analysis that includes: (1) a determination of foreseeability; and (2) public policy analysis." Monk v. Temple George Associates, LLC, 273 Conn. 108, 114, 869 A.2d 179 (2005).
In Seguro v. Cummiskey, 82 Conn.App. 186, 844 A.2d 224 (2004), our Appellate Court noted that "Connecticut has recognized "only a limited duty to take action to prevent injury to a third person. Our point of departure has been that absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another. See 2 Restatement (Second), Torts § 315 (1965)." Id., 193.
In Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270 (1973), our Supreme Court, in dicta, stated: "The defendant . . . as the possessor of the premises . . ., ha[s] the duty of exercising" reasonable care and control to protect its invitees from dangers which might reasonably by anticipated to arise from the conditions of the premises or the activities taking place there." Id., 520. The court went on to say: "In particular, the possessor must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands. He must act as a reasonable man to avoid harm . . . even from intentional attacks on the part of such third persons." Id.
In Count eight, the plaintiff fails to allege that the defendant exercised any degree of possession or control over the premises, the plaintiff, the other participants or the casting call. Practice Book § 10-4 states: "It is unnecessary to allege any promise or duty which the law implies from the facts pleaded." In the present case, however, the plaintiff fails to plead facts from which the court could imply the existence of a duty of care owed to the plaintiff by the defendant. The plaintiff merely alleges that the defendant, by way of a radio station, invited members of the public to participate in a casting call. The plaintiff fails to allege that the defendant owned, possessed or controlled the casting call or the premises. "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1977). The plaintiff's allegation that Clear Channel invited people to participate in a casting call is insufficient to imply a duty based on the relationship between the Clear Channel and the plaintiff. Moreover, the court cannot infer, from the facts alleged, that the plaintiff's alleged injuries and losses were foreseeable.
Regarding the ninth count, Clear Channel argues that the plaintiff has failed to state a legally cognizable claim for negligence based upon premises liability. Specifically, it argues that the plaintiff has pleaded mere legal conclusions and that the plaintiff has failed to plead the required elements of a claim based upon premises liability.
"The touchstone of liability for unsafe premises is control over the area of danger which causes injury . . . Liability for an injury due to defective premises does not depend on title, but on possession and control." (Citations omitted; internal quotation marks omitted.) Rivera v. TH Real Estate Holdings, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 03 0400816 (April 1, 2005, Dewey, J.). "To establish duty, the plaintiff must have evidence of control. [L]iability can be predicated upon negligence in the control and possession of premises, as opposed to mere ownership thereof . . . In general, to have control of the place is to have the authority to manage, direct, superintend, restrict or regulate. The word control has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee." (Internal quotation marks omitted.) Id.
In count nine, the plaintiff alleges that the defendant owned, possessed, controlled, managed and/or maintained the casting call area at Harbor Park Restaurant. The plaintiff alleges further that the defendant was negligent because it invited the plaintiff and others to perform in an unsafe area and because it failed to provided a safe business environment for the patrons of Harbor Park Restaurant. The court finds that the plaintiff, having alleged that Clear Channel had control over the premises where the casting call was performed, has sufficiently alleged a duty and breach of that duty.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion to strike count eight and denies the motion to strike count nine of the plaintiff's complaint.