Opinion
No. CV07-5002004 S
November 30, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #112
I BACKGROUND
In a single-count complaint dated December 20, 2006, the plaintiff, Eugenia Martino, Administratrix of the Estate of Francesca M. Benedetto, claims that Joseph LeRose negligently caused the death of Francesca M. Benedetto, who was shot by Zacarias DaCosta, Jr. on May 29, 2005.
In paragraph 17 of the complaint, it is alleged that LeRose knew that DaCosta believed LeRose and Benedetto were in a romantic relationship and that DaCosta was unstable, prone to violence, and had threatened to kill both Benedetto and LeRose.
In paragraphs 18 and 19, it is alleged that DaCosta went to the (Danbury, Connecticut) residence of Benedetto and, at gunpoint, took her from her home and took her in DaCosta's car to the home of LeRose in Sherman.
It is alleged that LeRose was traveling away from his home by car when the DaCosta vehicle drove down the street where LeRose lived.
In paragraphs 22, 23 and 24 it is alleged that LeRose "knew or should have known" that DaCosta was going to LeRose's home to cause bodily injury to either Benedetto or LeRose; that LeRose "negligently continued to proceed from his home and not return home or call to his home to give any advance warning to anyone, call the police or take any steps necessary to protect any of the persons located on his premises"; that LeRose did no further inspection, research or investigation of DaCosta or the "dangerous conditions" present at his home.
In paragraph 26, it is alleged that the defendant knew or should have known that DaCosta was going to injure Benedetto and "did not warn her or prepare his property to prevent the events" that caused Benedetto's death.
In paragraph 28, it is alleged that LeRose "failed and refused to immediately return to his home" to "confer with DaCosta to resolve the belief of DaCosta" about the alleged romantic relationship of LeRose and Benedetto.
In paragraph 29, it is alleged that if LeRose had "timely" returned home to "dissuade" DaCosta, then he "probably would not have shot Benedetto."
In paragraph 30, it is alleged that LeRose "failed to timely return," given his "background as a police officer," and "then he would have been able to defuse DaCosta and prevented him from killing Benedetto.
In paragraph 31, it is alleged that LeRose "failed to maintain his property so that DaCosta could not enter his home with a gun in LeRose's absence."
In paragraph 32, it is alleged that LeRose "failed to secure his home and prevent DaCosta from being able to enter LeRose's home and bedroom" and kill her.
In paragraph 33, it is alleged that LeRose "failed . . . to have his agents or servants at the property to prevent Benedetto's death."
In paragraph 34, it is alleged that LeRose "failed to warn persons at his property to not allow DaCosta on his property."
In paragraph 37, it is alleged that LeRose "failed to protect Benedetto while she was on . . . LeRose's property from injury by a third party."
In paragraph 38 it is alleged that LeRose "knew or should have known that DaCosta was in a state of mind that was foreseeable that this activity of coming to LeRose's home and causing bodily injury to himself and others could occur."
In a motion to strike, dated July 12, 2007 (#112), the defendant, Joseph LeRose, moved to strike the entire complaint of the plaintiff on the ground that the claims of the complaint were legally insufficient as a matter of law. The specific grounds for the motion are (1) that DaCosta's intentional criminal conduct was a superseding cause of the plaintiff's death; (2) that the defendant's alleged negligence was not the cause of the plaintiff's death; and (3) that there was no duty owed by Joseph LeRose to Francesca Benedetto.
The plaintiff filed an objection to defendant's motion to strike (#114) dated August 2, 2007. The defendant filed a reply to the plaintiff's objection (#115), dated September 5, 2007. Both sides argued their respective positions to the court at the short calendar on November 5, 2007.
II LAW A Motion to Strike
"Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . or any . . . special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . 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). "The role of the trial court [in ruling on a motion to strike is] to examine the [pleading], construed in favor of the [pleading party], 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 [pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The Appellate Court in Burns v. Gleason Plant Security, Inc., 10 Conn.App. 480, 523 A.2d 940 (1987), affirmed a Superior Court's decision to strike a complaint wherein a store owner, who was assaulted by third parties who had stolen a security company car, brought an action against the security company and its employee who left the key in the ignition of the company car in a high crime area. The court noted that "[i]t is true that the question of proximate cause is ordinarily a question of fact for the trier . . . It becomes a question of law, however, when the mind of a fair and reasonable man could reach only one conclusion . . . Such a determination requires us to decide where a line should be drawn. As Justice Holmes said, the great body of law consists in drawing such lines . . ." (Citations omitted; internal quotation marks omitted.) Id., 485.
B Duty
"Duty is a `legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action." Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997); RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385, 650 A.2d 153 (1994). The determination of whether a duty exists between individuals is a question of law. Petriello v. Kalman, 215 Conn. 377, 382, 576 A.2d 474 (1990); Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty. Petriello v. Kalman, supra, 382-83. The Supreme Court has "stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. [ RK Constructors, Inc. v. Fusco Corp., supra] 386-87, 650 A.2d 153." (Internal quotation marks omitted.) Zamstein v. Marvasti, 240 Conn. 549, 558, 692 A.2d 781 (1997).
1. Foreseeability
"Our first step in an analysis of whether a duty exists and the extent of the defendant[s'] duty, therefore, is to determine the foreseeability of the plaintiff[s'] injury . . ." Jaworski v. Kiernan, supra, 241 Conn. 406. "[T]he test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" Jaworski v. Kiernan, supra, 405; RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 385. In defining the limits of duty, the Supreme Court has recognized that "a defendant [is] not required to take precautions against hazards [that are] too remote to be reasonably foreseeable." Noebel v. Housing Authority, 146 Conn. 197, 202, 148 A.2d 766 (1959); Lodge v. Arett Sales Corp., 246 Conn. 563, 575, 717 A.2d 215 (1998). However, "[i]t is for this reason that the law has rejected a literal `foreseeability' test as the fulcrum of duty . . . [T]he conclusion that a particular injury to a particular plaintiff or class of plaintiffs possibly is foreseeable does not, in itself, create a duty of care." (Citations omitted.) Lodge v. Arett Sales Corp., supra, 246 Conn. 576.
2. Public Policy
Regarding public policy, there generally is no duty that obligates one party to aid or to protect another party. See 2 Restatement (Second), Torts § 314, p. 116 (1965). One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another. See W. Prosser W. Keeton, Torts (5th Ed. 1984) § 56, pp. 373-74; see also 2 Restatement (Second), supra, §§ 314A, 315. "In delineating more precisely the parameters of this limited exception to the general rule, [the Supreme] Court has concluded that, [in the absence of] a special relationship of custody or control, there is no duty to protect a third person from the conduct of another . . . Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996)." Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004).
Section 314 of 2 Restatement (Second), Torts provides: "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."
Section 315 of 2 Restatement (Second), Torts provides: "There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection."
C Superseding Cause
The Connecticut Supreme Court, in Barry v. Quality Steel Products, Inc., 263 Conn. 424, 433, 820 A.2d 258 (2003), aff'd, 280 Conn. 1, 905 A.2d 55 (2006), explicitly abandoned the doctrine of superseding cause in situations where there are multiple acts of negligence. However, the court expressly noted that its conclusion did not affect those cases in which the defendant claims that an unforeseeable intentional tort or criminal event superseded his tortious conduct. Barry v. Quality Steel Products, Inc., supra, 439 n. 16; see also Ramsay v. Camrac, Inc., 96 Conn.App. 190, 203, 899 A.2d 727, 736, cert. denied, 280 Conn. 910, 908 A.2d 538 (2006). In other words, "an intervening intentional or criminal act relieves a negligent defendant of liability, except where the harm caused by the intervening act is within the scope of risk created by the defendant's conduct or where the intervening act is reasonably foreseeable . . . As a general rule, the act of a third person in committing an intentional act or crime is a superseding cause of harm to another resulting therefrom . . . In such a case, the third person has deliberately assumed control of the situation, and all responsibility for the consequences of his act is shifted to him." (Internal quotation marks omitted.) Medcalf v. Washington Heights Condominium Ass'n., Inc., 57 Conn.App. 12, 17, 747 A.2d 532, cert. denied, 253 Conn. 923, 754 A.2d 797 (2000). "Thus, the doctrine of superseding cause serves as a devise by which one admittedly negligent party can, by identifying another's superseding conduct, exonerate himself from liability by shifting the causation element entirely elsewhere." Wagner v. Clark Equipment Co., Inc., 243 Conn. 168, 179, 700 A.2d 38 (1997), rev'd on other grounds, 259 Conn. 114, 778 A.2d 83 (2002).
For example, in Sullivan v. Metro-North Commuter Railroad Co., 96 Conn.App. 741, 901 A.2d 1258, cert. granted, 280 Conn. 919, 908 A.2d 545 (2006), the Appellate Court upheld a superseding cause instruction to the jury under the exception to the holding in Barry. In Sullivan, the defendant filed a special defense of superseding cause where, under the facts of the case, the plaintiff had been shot and killed by a third party in a stairwell at the Metro-North railway station in Norwalk. The plaintiff's estate brought a wrongful death action against the defendant Metro-North Commuter Railroad Company, alleging that the defendant was negligent in failing to maintain and to provide adequate security at one of its train stations. The jury returned a verdict in favor of the defendant, and the Appellate Court affirmed the judgment on the verdict.
Courts have held intentional criminal actions to be valid superseding causes. In Doe v. Manheimer, 212 Conn. 748, 761, 563 A.2d 699 (1989), overruled on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995), the Supreme Court concluded that a criminal attack on the plaintiff was a superseding cause of plaintiff's injuries notwithstanding plaintiff's claim that defendant's allowed outgrowth of vegetation on property where the attack occurred was a substantial factor in both occurrence and duration of the attack. Also in Davis-Trapani v. Scarcella, Superior Court, judicial district of New Haven, Docket No. CV 000436800 (July 23, 2003, Arnold, J.), the court concluded that where the plaintiff's decedent had taken his own life by an act of suicide that the act of suicide was a deliberate and intentional act by the decedent which relieved the defendants from any negligence for which they may be responsible. In addition, in Holden v. Johnson, Superior Court, judicial district of Hartford, Docket No. CV 01 0811660 (April 15, 2005, Lavine, J.), the court granted summary judgment in favor of the defendant gun owner holding that a commission of a murder with a stolen gun is a superseding cause and extinguishes any potential civil liability of the gun owner even though the gun owner may have been negligent in his storage of the gun. Finally, in Doe v. Lasaga, Superior Court, judicial district of New Haven, Docket No. CV 99 0430858 (March 10, 2004, Arnold, J.), the court held that the superseding act of criminal sexual assaults by a mentor, which were deliberate and intentional, relieved the defendant Board of Education from any negligence for which it may be responsible in its failure to supervise and oversee the mentor program. The court found that "[o]ne cannot leap to a conclusion that the defendant Board of Education's failure to do a background check in this matter or oversee the mentoring program caused [the mentor] to sexually assault the plaintiff. Doe v. Lasaga, supra, 212 Conn. 761.
D Proximate Cause
In order to prevail on a negligence claim, a plaintiff must establish that the defendant's conduct "legally caused" the injuries, that is, that the conduct both caused the injury in fact and proximately caused the injury. Paige v. Saint Andrew's Roman Catholic Church Corp., 250 Conn. 14, 24-25, 734 A.2d 85 (1999); Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987). "The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct." Kowal v. Hofher, 181 Conn. 355, 359, 436 A.2d 1 (1980). "[P]roximate cause [is] defined as an actual cause that is a substantial factor in the resulting harm . . . Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 321, 852 A.2d 703 (2004).
In Coste v. RiversideMotors, Inc., 24 Conn.App. 109, 585 A.2d 1263 (1991), the Appellate Court examined whether an employer's denial of a request to leave work early during a snowstorm "caused" the employee's subsequent automobile accident. The Superior Court granted the employer's motion to strike the complaint and rendered judgment for employer and the employee appealed. The Appellate Court held that legal causation was not sufficiently alleged in the complaint and affirmed the decision of the lower court. In Coste, the plaintiff asked his manager if he could leave work early on account of the onset of a snowstorm and the request was denied so that the plaintiff left work approximately five hours later, after the weather had worsened considerably which caused the plaintiff to lose control of his car and crash head-on into another vehicle. Id., 110-11. In concluding that the plaintiff could not establish causation, the court observed: "Conjecture exists as to whether the harm to the plaintiff would have ensued had the plaintiff . . . left earlier when driving conditions may have been better. Conjecture also exists as to whether the accident would have occurred had the road been better sanded or plowed, or had the plaintiff taken another route home, or had he driven a different make and model car, or had he been a better driver." Id., 115.
In Medcalf v. Washington Heights Condominium Ass'n., Inc., supra, 57 Conn.App. 12, the court considered whether the failure of an electronic intercom system was the legal cause of an attack that occurred outside the door to an apartment building. The plaintiff in Medcalf had used the apartment's intercom system to call her friend upstairs and to announce her arrival. Id., 14. After the intercom system failed to unlock the door remotely, the friend was forced to come downstairs and physically open the door. Id. While the plaintiff was waiting for her friend to come to the door, she was attacked by a third party, resulting in injuries. Id. In concluding that the requisite causal link was absent, the court found that "[t]he injury may likely have occurred without any negligence with respect to the intercom system." Id., 18. The court held that, as a matter of law, the jury could not reasonably have found that third party's assault on the visitor and the visitor's resultant injury were within the foreseeable scope of risk created by the association's and its management company's failure to maintain the intercom system, and thus, the visitor failed to establish the necessary causal relationship so as to prevail on her negligence claim. Id.
Most recently, the Appellate Court on May 29, 2007, affirmed the trial court granting of a motion for summary judgment for the defendants in Alexander v. Vernon, 101 Conn.App. 477, 923 A.2d 748 (2007). In Alexander, the estate of the wife, who was killed by her estranged husband, brought an action against the defendant police officers alleging that the officers were negligent in not protecting her and in not arresting the husband after she repeatedly called police and requested their assistance. Id. The trial court rendered summary judgment in favor of the defendants after concluding that the officers' inaction was not a proximate cause of the victim's death and the Appellate Court affirmed the trial court's decision. Id. The facts in Alexander are as follows. At about noon on Saturday, February 12, 2000, the victim called the Vernon police department and explained that she was in the process of leaving her husband and needed police protection while she retrieved some of her belongings. Id. Upon arrival, the victim informed the officers that the couple had gotten into an argument on the previous day and that her husband had slapped her in the face, struck her with a belt and physically restrained her from calling the police. Id. The victim also told the officers that her husband had threatened her with a knife in the past. Id. The officers remained in the home while the victim collected her belongings and then left the residence in the company of her mother. Id. At about 9:30 p.m. that same day, however, the victim again called the Vernon police department and requested that an officer accompany her to her residence because she reported that her husband had just called and informed her that he had destroyed the contents of their home. Id. When the officers arrived at the home, they toured the residence and observed an extensive amount of damage to various items. Id. The victim repeated for these officers what had transpired the previous day and she also stated that she was afraid of her husband and that during their argument, he had threatened to kill her if she left him. Id. The victim gave a written statement confirming that she wanted her husband arrested for the damage he had done to their home. Id. The officer advised the victim to leave the residence for the night and told her that he planned to apply for a warrant for her husband's arrest. Id. The next day, on Sunday, February 13, 2000, the victim received harassing telephone calls from her husband at her mother's home and she notified the East Hartford police of the calls and advised them that she was unaware of her husband's location. Id. Early in the afternoon of the next day, Monday, February 14, 2000, the husband broke into his mother-in-law's house and while the couple's minor children were in the home, he fatally shot the victim and then himself. Id.
The court in Alexander recognized that all the cases it referenced, Coste and Medcalf, "involved a complex set of circumstances that, in combination, led undeniably to tragic outcomes. Yet, in Coste there was no way of knowing whether leaving work earlier would have prevented the automobile accident, just as in Medcalf it was impossible to determine whether a functioning electronic intercom system would have thwarted the attack. These are the kind of situations that trigger the application of the basic principle of tort law that no matter how negligent a party may be, if his act bears no causal relation to the injury, it is not actionable." (Citation omitted.) Id.
If causation and duty are not sufficiently alleged in a complaint, a motion to strike can be granted as a matter of law. Coste v. Riverside Motors, Inc., supra, 24 Conn.App. 109. "Accidents and crimes occur for a myriad of reasons, including the vagaries of the weather and the vagaries of the conduct of criminals, but that does not make the risk of an accident or a crime reasonably foreseeable by a defendant whose conduct may have played some part in the accident or crime." Id., 114.
III DISCUSSION
The defendant, Joseph LeRose, owed no duty to the plaintiff as a friend, acquaintance or individual. As stated in the plaintiff's objection to defendant's request to revise, May 22, 2007, "The Plaintiff has brought this cause of action against the Defendant Joseph LeRose in his individual capacity as an owner of the premises where the Plaintiff was injured . . . This is only a direct claim against the Defendant Joseph LeRose as an individual. Any allegation that the Defendant LeRose, while acting as a police officer came into possession of information said allegation is only being made to establish the foreseeability and the evidence of what it is the Defendant LeRose knew or should have known in his individual capacity." See pp. 2-3 of the objection.
As per the above, the plaintiff has expressly denied there is liability based upon the defendant being a police officer in the Danbury Police Department. That position was reaffirmed in oral argument at the short calendar.
Therefore, the plaintiff has defined the scope of duty to that of an individual, not of a police officer on duty.
Utilizing the two-pronged analysis set out in the case of Zamstein v. Marvasti, 240 Conn. 549, 558, 692 A.2d 781 (1997), the court must conclude that the defendant had no duty to protect the plaintiff's decedent.
In the first instance, Benedetto's death was too remote a possibility to be reasonably foreseeable. Though one might argue that all harms are, from a conceptual standpoint, or in hindsight, "foreseeable," one could conclude that Benedetto's death was foreseeable. But the "literal `foreseeability' test" is not the standard of measure. Lodge v. Arett Sales Corp., 246 Conn. 563, 576, 717 A.2d 215 (1998).
The relationship between the defendant's alleged negligent conduct and Benedetto's injuries in this case is too attenuated and unforeseeable to extend liability to the defendant. It is simply too remote and farfetched to hold that the defendant should have foreseen that Benedetto would be killed due to LeRose's alleged negligence. This foreseeability analysis also applies to the decision as to whether or not DaCosta's actions are a superseding cause. As previously stated, "an intervening intentional or criminal act relieves a negligent defendant of liability, except where the harm caused by the intervening act is within the scope of risk created by the defendant's conduct or where the intervening act is reasonably foreseeable." (Internal quotation marks omitted.) Medcalf v. Washington Heights Condominium Ass'n., Inc., supra, 57 Conn.App. 12, 17, 747 A.2d 532, cert. denied, 253 Conn. 923, 754 A.2d 797 (2000).
The plaintiff alleges that the defendant negligently caused Benedetto's death because he failed to maintain his property so that DaCosta could not enter his home, he failed to warn persons at his property to not allow DaCosta onto his property, and he failed to return to his home or have his agents go to his home to prevent Benedetto's death. See complaint, ¶¶ 31-34. However, DaCosta's intentional act is not within the scope of the risk created by LaRose's alleged negligence. In other words, it is too remote and farfetched for the defendant, Joseph LeRose, to have foreseen that DaCosta would forcibly take Benedetto from her home at gunpoint and drive to LeRose's home at that particular time and kill Benedetto when LeRose was not even home at the time. This event could have occurred at any time and there would be no way the defendant could have protected Benedetto. That fact that it occurred at LeRose's home does not change the possibility of liability because LeRose was not home at the time. Imposing liability on this defendant for a harm that he reasonably could not be expected to anticipate and over which he had no control would serve no legitimate objective of the law. See Lodge v. Arett Sales Corp., supra, 246 Conn. 576.
In every case in which a defendant's negligent conduct may be remotely related to a plaintiff's harm, the courts must draw a line, beyond which the law will not impose legal liability. Although that line is often difficult to discern, it has been crossed in this case. The possibility that DaCosta would take Benedetto to LeRose's home at this particular time and kill her is far too remote to be reasonably foreseeable. A reasonable person should not be expected to anticipate such an event. "To hold otherwise would be to convert the imperfect vision of reasonable foreseeability into the perfect vision of hindsight." Burns v. Gleason Plant Security, Inc., supra, 10 Conn.App. 486. Consequently, the defendant owed the plaintiff no duty to prevent the harm suffered because that harm was not reasonably foreseeable.
As to the second prong of the Zamstein test, for public policy reasons, the defendant should not be liable for Benedetto's death.
In this case, the plaintiff has failed to allege a special relationship of custody or control between LeRose and Benedetto. "The Plaintiff has brought this cause of action against Defendant Joseph LeRose in his individual capacity as an owner of the premises where the Plaintiff was injured. The Plaintiff in no way has indicated that the Defendant LeRose is being sued in his capacity as a police officer . . . This [action] is only a direct claim against the Defendant Joseph LeRose as an individual." See plaintiff's objection to defendant's request to revise dated May 22, 2007, p. 2. As stated above, the general rule is that there is no duty to control the conduct of a third person. Section 314 of the Restatement (Second), provides: "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."
The plaintiff has not alleged facts indicating that a special relationship existed between LeRose and Benedetto which would demonstrate that an exception should be made to this general rule. Sections 314A, 316-320 of the Restatement (Second) identifies specific relationships that give rise to a duty to control a third party pursuant to § 315(a). Section 314A imposes a duty upon common carriers, innkeepers and possessors of land who hold their land open to the public. Section 316 imposes a duty on a parent to prevent his minor child from intentionally harming a third party. Section 317 imposes a duty on an employer to control the conduct of an off-duty employee. Section 318 imposes a duty on the possessor of land or chattels to control the conduct of a licensee. Section 319 requires those exercising custodial control over an individual, such as sheriffs or wardens, to prevent such an individual from harming third parties. Section 320 imposes a duty of care upon a person who takes custody of another person so as to deprive him of his normal powers of self-protection. None of these relationships, however, describes in any way the relationship between Benedetto and LeRose and therefore for public policy reasons, LeRose had no duty to protect Benedetto. See Murdock v. Croughwell, 268 Conn. 559, 567-71, 848 A.2d 363 (2004).
The murder of Francesca Benedetto by Zacarias DaCosta was an intentional criminal act and, therefore, was a superseding cause of the plaintiff's injuries. As discussed by the Supreme Court in Doe v. Manheimer and Stewart v. Federated Dept Stores, Inc., a criminal attack on the plaintiff was a superseding cause of plaintiff's injuries, thereby relieving the defendant of liability.
The plaintiff has alleged that LeRose's conduct was a substantial factor in causing Benedetto's death and the court must take these allegations at face value, however, it is also clear from the plaintiff's allegations that DaCosta's actions are a superseding cause for the plaintiff's death. Even if the court were to find that LeRose's conduct was negligent in that it increased the risk of Benedetto's death, LeRose is relieved from liability by the intervention of DaCosta because of his intentional actions. The plaintiff's complaint specifically alleges that "[o]n May 29, 2005, DaCosta went to the residence of Benedetto and, at gunpoint, removed her from her home, and took her in his car" to LeRose's residence. See Complaint, ¶¶ 18-19. The plaintiff also alleges that DaCosta "brought Benedetto into the house, and up the stairs to the second floor bedroom of Defendant LeRose, at gunpoint and against Benedetto's will [and when] DaCosta learned LeRose was not home [he] began waving around his gun [and it] discharged causing severe injury and death to Benedetto." See complaint, ¶¶ 25, 35-36. These criminal and intentional acts by DaCosta relieve LeRose from liability in this case. It is apparent from the allegations in the complaint that DaCosta deliberately assumed control of the situation, and therefore all responsibility for the consequences of his act is shifted to him.
Therefore, the defendant's motion to strike is granted on the grounds that DaCosta's intentional criminal act is a superseding cause, relieving LeRose of liability.
Finally, there is a third ground for granting the motion to strike. LeRose's alleged negligence did not proximately cause Benedetto's death.
The plaintiff alleges that the defendant negligently caused Benedetto's death because he failed to maintain his property so that DaCosta could not enter his home, he failed to warn persons at his property to not allow DaCosta onto his property, and he failed to return to his home or have his agents go to his home to prevent Benedetto's death. See Complaint, ¶¶ 31-34. However, the plaintiff's complaint clearly shows it was DaCosta's actions which caused Benedetto's death. In order to prevail on a negligence claim, a plaintiff must establish that the defendant's conduct "legally caused" the injuries, that is, that the conduct both caused the injury in fact and proximately caused the injury. Paige v. Saint Andrew's Roman Catholic Church Corp., 250 Conn. 14, 24-25, 734 A.2d 85 (1999); Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987). "The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct." Kowal v. Hofher, 181 Conn. 355, 359, 436 A.2d 1 (1980). "[P]roximate cause [is] defined as an actual cause that is a substantial factor in the resulting harm . . ." Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 321, 852 A.2d 703 (2004).
As the court in Alexander v. Vernon, 101 Conn.App. 477, 923 A.2d 748 (2007), held, no matter how negligent a party may be, if his act bears no causal relation to the injury, it is not actionable.
In this case, there are too many variables involved to state with any certainty that the victim's murder would not have occurred in the absence of the defendant's alleged negligence. Alexander v. Vernon, 101 Conn.App. 477.
Like in Alexander, to reach the opposite conclusion, a jury in this case would first have to suppose that the defendant could have returned home before the murder occurred or the defendant could have called for assistance and those individuals could have arrived before the murder occurred. The jury would then have to further assume that the defendant or those assisting the defendant could have stopped the murder. Or, in the alternative, the jury would have to assume that if the defendant called his residence and told the individuals in his home not to let DaCosta in, that he then would not have murdered Benedetto. Because the jury would be forced to make these critical inferences, they would be forced to resort to sheer speculation. Yet, a determination of causation on the basis of conjecture or speculation is precisely what we cannot permit. On the basis of the facts as alleged, the plaintiff cannot possibly establish the requisite causal relationship between the defendant's alleged nonfeasance and the victim's murder. Because causation is an essential element of the negligence alleged by the plaintiff, the court must grant the defendant's motion to strike the plaintiff's complaint.
The court has reviewed the arguments offered by the plaintiff in its objection to the motion to strike, and finds that they are without merit.
CONCLUSION
The motion to strike the entire complaint of the plaintiff is granted.
So ordered.