Opinion
No. 411076
November 18, 2004
MEMORANDUM OF DECISION
The issue before the court is whether a parent's contributory negligence is a defense to the parent's claim for damages for past and future medical expenses in connection with an injury to the parent's minor child. The plaintiff Urania Palacios brings this action for damages as next friend of her daughter Kelly for injuries Kelly sustained from a piece of metal protruding from a metal rack in the retail store of the defendant, The Children's Place Retail Stores, Inc. The first count is an action for damages for the child's injuries. In the second count, the plaintiff asserts a claim for damages for past and future medical expenses she will incur for the treatment of Kelly's injuries. The defendant has raised a special defense to the mother's claim, which states: "If the minor plaintiff was injured as alleged in her complaint, her injuries and the resulting damages are due to the negligence of the plaintiff, Urania Palacios, who failed to watch Kelly Palacios, keep her safe and prevent her from injuring herself while on the defendant's premises." The plaintiffs' move to strike this special defense.
"A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Citations omitted; internal quotation marks omitted) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
The parties acknowledge that on this issue there is a split of authority among Superior Court judges. Most Superior Court cases since Crotta v. Home Depot, Inc., 249 Conn. 634, 732 A.2d 767 (1999), have not allowed the defense. In Crotta the court addressed the question of whether, in an action brought by the parent seeking damages for his child's injury, a defendant may join the parent as a third-party defendant for the purposes of asserting claims of apportionment of liability, contribution and indemnification based on the parent's negligent supervision of the minor child. The Supreme Court held that the doctrine of parental immunity operated to bar the parent from being so joined. The court extended the doctrine of parental immunity to preclude third-party actions against the parent for apportionment of liability, contribution or indemnification based on the parent's allegedly negligent supervision of a child. Id., 644-45.
"Parental immunity was first recognized by Connecticut in Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753 (1929)." Henderson v. Woolley, 230 Conn. 472, 478, 644 A.2d 1303 (1994). The doctrine prohibits the "bringing of an action at law for personal injuries by a minor child against the parent." Mesite v. Kirchenstein, supra, 109 Conn. 84. Parental immunity continues to be the general rule, subject to a very few legislatively and judicially promulgated exceptions; Ascuitto v. Farricielli, 244 Conn. 692, 698-700, 711 A.2d 708 (1998); none of which are applicable here.
"The primary focus of the parental immunity doctrine in Connecticut is the protection of the relationship between the parent and the child. The protection of that relationship enables the parent to raise the child effectively without undue interference from the state . . . It is for those reasons that the parental immunity doctrine affords special protection to acts of parental control, authority and discretion . . . The supervision, care and instruction of one's child involves issues of parental control, authority and discretion that are uniquely matters of a very personal type . . . Each parent has unique and inimitable methods and attitudes on how children should be supervised. Likewise, each child requires individualized guidance depending on intuitive concerns which only a parent can understand. Also, different cultural, educational and financial conditions affect the manner in which different parents supervise their children. Allowing a cause of action for negligent supervision would enable others, ignorant of a case's peculiar familial distinctions and bereft of any standards, to second-guess a parents management of family affairs . . . Courts should not unnecessarily involve themselves in the day-to-day exercise of parental discretion regarding the upbringing and care of children. To do so would undermine parental authority in the very personal endeavor of childrearing and inject the machinery of the state into an area where its presence might be the occasion for family discord." (Citations omitted; internal quotation marks omitted.) Crotta v. Home Depot, Inc., supra, 249 Conn. 643-44. "Third party actions against a parent based on that parent's allegedly negligent supervision of his child would be no less disruptive of parental management of family affairs than would be a direct negligence action by the child against the parent . . . Permitting such actions would undermine parental authority . . . in a similar manner." (Citations omitted; internal quotation marks omitted.) Id., 644.
"Furthermore, allowing such third party claims would have a detrimental effect upon the injured child. It is artificial to separate the parent and child as economic entities by the assertion that the recovery of the nonparent defendant from the negligent parent does not technically diminish the injured child's recovery. The reality of the family is that, except in cases of great wealth, it is a single economic unit and recovery by a third party against the parent ultimately diminishes the value of the child's recovery . . . In addition, vulnerability to suit by third parties might make parents reluctant to seek legal redress for their child's injuries." (Citations omitted; internal quotation marks omitted.) Id.
In this matter, the issue is not whether a child may sue the parent, the quintessential context in which parental immunity historically arose, nor whether a third-party tortfeasor may seek apportionment of liability, contribution or indemnification from the parent based on the parent's negligent supervision of the child. The issue here is whether the third party tortfeasor may reduce the amount of economic damages — specifically damages for past and future medical expenses — payable to the parent on account of the parent's negligent supervision of the child.
The analytical backdrop to this issue is that "[w]hen a minor child is injured by the negligent act of a third party, two causes of action immediately spring into existence; first, the right of action by the child itself for the personal injuries inflicted upon it; and second, a right of action to the parent for consequential damages, such as loss of services and expenses, caused by the injury to the child. The right of the parent to recover is independent of the right of the child . . . The parent is not regarded in law as either a party or privy to an action brought by a child and hence is not bound by the judgment thereunder." (Citation omitted.) Shiels v. Audette, 119 Conn. 75, 77, 174 A. 323 (1934). This common-law rule has been modified by statute to the extent that a claim for damages due to expenses incurred or to be incurred may be made either by the minor child or the parent, at the minor's election. General Statutes § 52-204. Where damages for medical expenses are sought in the name of the child, those damages are neither barred nor diminished by the negligent supervision of the child by a parent. Botelho v. Curtis, 28 Conn.Sup. 493, 497, 267 A.2d 675 (1970), and cases cited therein; see also Lange v. Hoyt, 114 Conn. 590, 159 A. 575 (1932). There is no logical reason to allow the damages sought to be diminished by the claimed negligence of the parent when the election is made to bring the claim in the name of the parent.
General Statutes § 52-204 provides: "In any civil action arising out of personal injury or property damage, as a result of which personal injury or property damage the husband or parent of the plaintiff has made or will be compelled to make expenditures or has contracted indebtedness, the amount of such expenditures or indebtedness may be recovered by the plaintiff, provided a recovery by the plaintiff shall be a bar to any claim by such husband or parent, except in an action in which the husband or parent is a defendant."
This court joins the courts which have held that a special defense such as that filed here is inconsistent with the policies of parental immunity discussed in Crotta v. Home Depot, Inc., supra, 249 Conn. 643-44. To allow a parent's alleged negligent supervision to diminish her recovery of damages for past or future medical expenses would involve the court in the "exercise of parental discretion regarding the upbringing and care of children." (Internal quotation marks omitted.) Id., 643-44. Furthermore, such a defense "would have a detrimental effect upon the injured child. It is artificial to separate the parent and child as economic entities by the assertion that the recovery of the nonparent defendant from the negligent parent does not technically diminish the injured child's recovery." (Internal quotation marks omitted.) Id., 644
Finally, permitting a parent's negligent supervision to diminish the recovery of damages for medical expenses would create an unnecessary anomaly in the law. As noted supra, "General Statutes § 52-204 authorizes the recovery of medical expenses in an action solely in behalf of the injured child and makes the recovery in such action a bar to any claim by the parent for such expenses, [although] the statute does not mandate that procedure." Dzenutis v. Dzenutis, 200 Conn. 290, 308, 512 A.2d 130 (1986). Where, however, the claim for damages for medical expenses is made in the name of the minor child, it is settled that the negligence of the parent may not impair the child's recovery of damages. See Bothelho v. Curtis, supra, 28 Conn.Sup. 497-98, and cases cited therein. Given the economic unity of the family recognized in Crotta and that the parent holds monies awarded for future medical expenses as custodian for the minor child, it makes little sense to promulgate a rule of law that can be so deftly circumvented merely by substituting another person within the same household as the party claiming medical expenses.
See General Statutes § 45a-631.
"Just as the legislature is presumed to enact legislation that renders the body of the law coherent and consistent, rather than contradictory and inconsistent . . . courts must discharge their responsibility, in case by case adjudication, to assure that the body of the law — both common and statutory — remains coherent and consistent." (Internal quotation marks omitted.) Ireland v. Ireland, 246 Conn. 413, 420, 717 A.2d 676 (1998), quoting Fahy v. Fahy, 227 Conn. 505, 513-14, 630 A.2d 1328 (1993). Here, this responsibility requires recognition that in light of the provisions of § 52-204, the better rule of law is that a parent's negligent supervision of her minor child may not diminish the recovery of damages for past or future medical expenses, whether the claim for such damages is made by the parent prochein ami or in the parent's own name.
The motion to strike is granted.
Subsequent to oral argument on the plaintiffs' motion to strike, the court ordered the parties to file briefs on the significance, if any of the holding in Lange v. Hoyt, supra, 114 Conn. 590 (1932). In that case, a minor daughter and her mother brought an action to recover damages for personal injuries to the arm and pelvis sustained by the minor as a pedestrian when she was struck by a motor vehicle. The case was tried to a jury which returned verdicts for the plaintiffs.
The jury was instructed that "[i]f the [child's) injuries were in any way aggravated by the failure of the parent to exercise reasonable care to obtain proper medical and surgical treatment, the parent could not recover for any aggravation of the injuries so caused." Id., 596.
Lange dealt with a plaintiff's duty to mitigate damages. However, if a parent's breach of a duty of care in obtaining medical care for her minor child after an injury may reduce the parent's recovery of damages for medical expenses incurred for the child, then a breach of a duty of care in causing the child's injury might conceivably reduce the parent's recovery of damages. See also Daley v. Norwich and Worcester R.R. Co., 26 Conn. 591 (1858) and Murphy v. Derby Street Ry. Co., 73 Conn. 249, 252, 47 A. 120 (1900). However, in their supplemental briefs neither party submitted that Lange was relevant to the issue before the court. Accordingly, the court does not consider it.
BY THE COURT
Bruce L. Levin
Judge of the Superior Court