Opinion
No. CV-10-6005077
March 25, 2011
RE: MOTION TO STRIKE (NO. 108')
Facts and Procedural History
By a single count complaint, filed July 8, 2010, Heather Rumm brings this action on behalf of her minor son, Noah Rumm. The plaintiff's allege that the defendant, The Shack Restaurant, negligently served Noah ice cream that contained peanuts after Heather explicitly told a waitress that he had a peanut allergy. The defendant filed its answer and special defense, alleging the contributory negligence of the plaintiffs, on October 12, 2010.
The plaintiffs filed a motion to strike the defendant's special defense on October 29, 2010. The defendant filed its objection on November 5, 2010. The plaintiff's filed a second motion to strike on November 24, 2010, which cured a technical defect present in their October 29, 2010 motion and therefore, is the operative motion. The parties appeared for oral argument on January 31, 2011. At oral argument, the defendant indicated it would rely on its November 5, 2010 memorandum in opposing the plaintiffs' motion.
Discussion
"[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). "In . . . ruling on the . . . motion to strike, the trial court recognized its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "[T]he total absence of any factual allegations" specific to the dispute "renders [the special defense] legally insufficient." U.S. Bank National Ass'n. as Trustee v. Ascenzia, Superior Court, judicial district of New Haven, Docket No. CV 08 5022527 (July 30, 2009, Abrams, J.) ( 48 Conn. L. Rptr. 345, 346).
The plaintiff's argue that the court should strike the defendant's special defense of contributory negligence because the doctrine of parental immunity protects a parent from civil liability regarding its allegedly negligent supervision of a minor child. The defendant counters that the plaintiffs' argument is based upon the incorrect assumption that its special defense seeks to limit Noah's recovery solely due to his mother's negligence. Rather, the defendant points out that its special defense is divided into three subsections, which allege the contributory negligence of both Noah and his mother, Heather.
In subsections (a) and (c) of its special defense, the defendant claims that Noah and Heather were negligent in that they "failed to use that degree of care that ordinarily prudent persons would have exercised for their own safety by dining in a public restaurant where the conditions of food preparation and contents could not be personally supervised by the parents of the hypersensitive child [and] . . . allowed the consumption of the allegedly incorrect product without examining or inspecting it, despite their superior knowledge of the risk involved, relying on their own verbal requests to the restaurant personnel without any prior knowledge as to the ability of the staff to fully understand the request and/or to control the possible presence of allergens." In subsection (b), the defendant claims that Heather was negligent in that she "depended on a brief conversation with nonprofessional wait staff in a busy restaurant to protect the child from a possible allergic reaction rather than provide him with food prepared by a person qualified and with sufficient training to evaluate the safety of the product for that specific consumer."
As a preliminary matter, the court notes that "under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count . . . However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action." (Citation omitted; internal quotation marks omitted.) Vanstean-Holland v. Lavigne, Superior Court, judicial district of New London, Docket No. CV 08 5007959 (September 2, 2009, Martin, J.). Here, the court is satisfied that each subsection attempts to state a cause of action for Noah's and/or Heather's negligence. As a result, the court will entertain this motion on its merits.
The court will first address the legal sufficiency of the defendant's special defense alleging the contributory negligence of Noah Rumm, contained in subsections (a) and (c). "The prevailing view in Connecticut is that a child is not automatically immune from liability, and that a child should be compared to the standard of an ordinary child of comparable age, knowledge, and experience. Neal v. Shiels, 166 Conn. 3, 11, 347 A.2d 102 (1974); Marfyak v. New England Transportation Co., 120 Conn. 46, 49, 179 A. 9 (1935); Milledge v. Standard Mattress Co., 27 Conn.Sup. 358, 359-60, 238 A.2d 602 (1968); Altieri v. D'Onofrio, 21 Conn.Sup. 1, 4-5, 140 A.2d 887 (1958); Lutteman v. Martin, [ 20 Conn.Sup. 371, 374, 135 A.2d 600 (1957)]; Grenier v. Glastonbury, [ 118 Conn. 477, 481, 173 A. 160 (1934)]." Vandine v. Marley, Superior Court, judicial district of Waterbury, Docket No. CV 95 0124656 (February 16, 1996, Pellegrino, J.).
"There have been various cases decided in Connecticut dealing with charges of contributory negligence as alleged against a child. It was held a question of fact as to a girl of five. Rutkowski v. Connecticut Light Power Co., 100 Conn. 49, 52-53, [ 123 A. 25 (1923)] . . . Where the plaintiff was four years and nineteen days old, the issue of contributory negligence was in the case. Press v. Connecticut Co., 95 Conn. 45, 47, [ 109 A. 295 (1920)]. In Connecticut there seems to be no fixed cutoff age below which the court holds a child incapable of contributory negligence." Milledge v. Standard Mattress Co., supra, 27 Conn. Sup. 359.
There appears, however, to be a limited exception to this rule, where Connecticut courts have recognized that certain children "may be so young as to be manifestly incapable of exercising any of those qualities of attention, intelligence and judgment which are necessary to enable him to perceive a risk and to realize its unreasonable character." Lutteman v. Martin, supra, 20 Conn.Sup. 374. In Simon v. Nelson, 118 Conn. 154, 157, 170 A. 796 (1934), the Supreme Court held that a two-year-old plaintiff carried no duty of care in relation to a motor vehicle accident. More recently, in Vandine v. Marley, supra, Docket No. CV 95 0124656, the court similarly concluded that a "two year old plaintiff compared to the standard of an ordinary child of comparable age, knowledge and experience would inevitably result in the common sense conclusion that she could, under no circumstances, be capable of negligence." As a result, the Vandine court granted the plaintiff's motion to strike the defendant's special defense of contributory negligence.
In the present case, Noah was eight years old when he was served ice cream by the defendant. Under prevailing Connecticut law, he is not automatically immune from liability. As such, the court denies the plaintiffs' motion to strike the defendant's allegations of the contributory negligence of Noah Rumm, contained in subsections (a) and (c) of its special defense.
Next, the court must determine whether the defendant's allegations as to Heather Rumm's negligence, alleged in all three subsections and specifically, in subsection (b), are legally sufficient under the doctrine of parental immunity. Prior to the Supreme Court's decision in Crotta v. Home Depot, Inc., 249 Conn. 634, 732 A.2d 767 (1999), there existed "[a] split of authority in the Superior Court . . . One line of cases [held] that the negligence of a parent is not imputable to a minor, and therefore, is not a legal barrier to the child's action . . . The other line of cases [held] that the negligence of the parents may be considered for purposes of apportioning liability." (Citations omitted; internal quotation marks omitted.) Samuels v. Connecticut Ballet School, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 96 0335728 (April 14, 1997, Melville, J.).
In Crotta v. Home Depot, Inc., 249 Conn. 634, 635, 732 A.2d 767 (1999), the Supreme Court held that the doctrine of parental immunity operated to preclude the parent of a minor plaintiff from being joined as a third party defendant for purposes of: (1) apportionment of liability; (2) contribution; or (3) indemnification based on the parent's allegedly negligent supervision of the minor plaintiff. The minor plaintiff was injured while riding in the cargo portion of the defendant shopping cart manufacturer's cart in defendant retailer's store when he fell out, hit his head, and sustained injuries. See id., 636. The court reasoned that the doctrine of parental immunity barred the parent from being held liable to his minor child. Consequently, the defendants had no basis upon which to assert a common-law claim for contribution or indemnification against the parent on the basis of his allegedly negligent supervision of his child. See id., 640-42. Furthermore, the court held that public policy dictated that parental immunity operated to preclude third-party actions against the parent of a minor plaintiff on the basis of the parent's allegedly negligent supervision of the child. See id., 643-45.
Specifically, the court reasoned: "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 parent's 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 child rearing 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.) Id., 643-44
Post- Crotta decisions of the Superior Court have determined that the parental immunity doctrine precludes allegations of a parent's contributory negligence as a special defense to an action brought on behalf of a minor plaintiff. See Littlejohn v. Barillaro, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4004211 January 29, 2007, Rubinow, J.) ( 42 Conn. L. Rptr. 808, 810-11); Fuentes v. Mack, Superior Court, judicial district of Hartford, Docket No. CV 03 0826133 (April 1, 2004, Wagner, J. T.R.) ( 36 Conn. L. Rptr. 777, 778); Kuzoian v. Saybrook Country Barn, Inc., Superior Court, judicial district of New Britain, Docket No. CV 00 0501052 (January 22, 2001, Shapiro, J.). Moreover, post- Crotta decisions of the Superior Court have also determined that the doctrine bars the special defense as to the parent's claim for damages for past and future medical expenses in connection with an injury to the parent's minor child. See Ray v. Wal-Mart, Superior Court, judicial district of New Haven, Docket No. CV 08 5016956 (April 9, 2009, Holden, J.) ( 47 Conn. L. Rptr. 499-00); Palacios v. Children's Place Retail Stores, Inc., Superior Court, judicial district of Fairfield, Docket No. 411076 (November 18, 2004, Levin, J.) ( 38 Conn. L. Rptr. 291, 293); Burke v. L L Management, LLC, Superior Court, judicial district of Hartford, Docket No. CV 98 0583578 (June 16, 2000, Rittenbrand, JT.R.) ( 27 Conn. L. Rptr. 420, 421-22); Hart v. Torello, Superior Court, judicial district of New Haven, Docket No. CV 99 0421294 (September 24, 1999, Devlin, J.) ( 25 Conn. L. Rptr. 506, 507).
Therefore, the court finds that the defendant's special defense fails as a matter of law. Its attempt to impute to Noah the alleged negligence of his mother is barred by the doctrine of parental immunity. As a result, the court grants the plaintiffs' motion to strike as to allegations of contributory negligence against Heather Rumm, contained in subsections (a) and (c), and strikes subsection (b) in its entirety.
Conclusion CT Page 7965
For all of the foregoing reasons, the court grants the motion to strike as it relates to the defenses asserted against the mother. It denies the motion to strike as to the special defenses directed to the plaintiff Noah Rumm.