Opinion
No. X02 CV 05 5003467
May 19, 2011
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE #186
FACTS PROCEDURAL HISTORY
The plaintiffs in the present action are Janine Schlierf, individually; Janine Schlierf, the administratrix of the estate of Brian Schlierf; Janine Schlierf, as next friend for Kevin Schlierf; Janine Schlierf, as next friend for Samantha Schlierf; and James Schlierf. The defendants are the defendant who brings the present motion, Abercrombie Kent, Inc., as well as Private Retreats, LLC and Fiskars Brands, Inc. The plaintiffs initiated the present action seeking damages against the defendant by service of process on November 22, 2005. The defendant has filed a motion to strike (#186) various counts of the plaintiffs' complaint.
Because Abercrombie Kent, Inc. is the only defendant involved in the present motion, the court will refer to it hereinafter as the defendant.
Private Retreats filed a notice on July 28, 2006 that it had filed for bankruptcy. It was subsequently dissolved, and the plaintiffs withdrew their causes of action against it on July 21, 2010. The plaintiffs have indicated that they will file an amended complaint after the court's decision on the present motion to delete the counts against Private Retreats.
Fiskars became involved in the present action when Private Retreats filed an apportionment complaint against it on April 26, 2006. The plaintiffs subsequently filed an amended complaint on July 31, 2006 to add causes of action against Fiskars. Fiskars then filed apportionment and cross complaints against the defendant, Howard Parnes, Buena Vista Group, Ltd., Casa de Campo and Costasur Dominicana, N.A. in October 2006, which have since been withdrawn.
The operative version of the plaintiffs' complaint is the second amended complaint filed on August 24, 2010. It alleges the following facts. The defendant is a corporation engaged in the business of providing luxury travel packages within and outside of the United States. At the time of the incident at issue, Private Retreats was a Connecticut limited liability company that leased, owned and/or rented properties worldwide. The defendant and Private Retreats were engaged in a joint venture. In 2004, the defendant, either directly or through its joint venturer, Private Retreats, provided a luxury travel package to the Schlierf family — parents James and Janine and their children Brian, Kevin and Samantha. The package included accommodations at Villa 73 of Casa de Campo (the property), which is located near the city of La Romana in the Dominican Republic. The property was maintained in part by Casa de Campo, a Dominican Republic corporation. The defendant was engaged in a joint venture with Casa de Campo, either directly or through Private Retreats. Through written materials, the defendant or Private Retreats represented that it chose accommodations after expert review and that such review assured the comfort and security of those who stayed at such accommodations. On August 4, 2004, the plaintiffs were present on the property when a fire occurred. The cause and origin of the fire was a power strip plug assembled, designed, distributed, manufactured and/or sold by Fiskars. Brian and Kevin Schlierf were injured as a result of the fire. Brian Schlierf died of his injuries on August 18, 2004. Janine Schlierf was appointed as the administratrix of the estate of Brian Schlierf by the Probate Court, district of Ridgefield, on October 13, 2005.
Forty-six counts comprise the complaint. The following are the counts against the defendant that are the subject of the present motion. Count one is brought by the estate of Brian Schlierf and sounds in negligence. Count two is brought by the estate of Brian Schlierf and sounds in joint venture. Count seven is brought by Kevin Schlierf and sounds in negligence. Count eight is brought by Kevin Schlierf and sounds in joint venture. Count thirteen is brought by Samantha Schlierf and sounds in bystander emotional distress due to the defendant's negligence. Count fourteen is brought by Samantha Schlierf and sounds in bystander emotional distress due to the defendant's joint venture. Count nineteen is brought by Kevin Schlierf and sounds in loss of consortium due to the defendant's negligence. Count twenty is brought by Kevin Schlierf and sounds in loss of consortium due to the defendant's joint venture. Count twenty-one is brought by Kevin Schlierf and sounds in loss of consortium due to the defendant's negligent misrepresentation. Count twenty-five is brought by James and Janine Schlierf and sounds in loss of consortium due to the defendant's negligence. Count twenty-six is brought by James and Janine Schlierf and sounds in loss of consortium due to the defendant's joint venture. Count twenty-seven is brought by James and Janine Schlierf and sounds in loss of consortium due to the defendant's negligent misrepresentation. Count forty-one is brought by Janine Schlierf and sounds in bystander emotional distress due to the defendant's negligence. Count forty-two is brought by Janine Schlierf and sounds in bystander emotional distress due to the defendant's joint venture. Count forty-four is brought by James Schlierf and sounds in bystander emotional distress due to the defendant's negligence. Finally, count forty-five is brought by James Schlierf and sounds in bystander emotional distress due to the defendant's joint venture.
The defendant filed the present motion to strike and a memorandum of law in support thereof on September 28, 2010. The plaintiff in turn filed an objection to the motion and a memorandum of law in support thereof on November 1, 2010. The defendant then filed a reply memorandum on December 6, 2010. The court heard the matter at oral argument on February 28, 2011.
II DISCUSSION
A. Motion to Strike Standard
"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 be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal suifficiency . . . Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). "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 (1997). Accordingly, "[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 v. Alves, supra, 262 Conn. 498.
B. The Parties' Arguments
The defendant moves to strike counts one, two, seven, eight, thirteen, fourteen, nineteen, twenty, twenty-one, twenty-five, twenty-six, twenty-seven, forty-one, forty-two, forty-four and forty-five of the plaintiffs' complaint. The defendant moves to strike counts one and seven, which sound in negligence, on the ground that the plaintiffs have not alleged the essential element of duty, because they have not alleged that the defendant controlled or possessed the property at the time of the fire. The defendant moves to strike counts thirteen, nineteen, twenty-five, forty-one and forty-four on the ground that these bystander emotional distress and loss of consortium causes of action are derivative of counts one and seven, which are legally insufficient. The defendant moves to strike counts two and eight, which sound in joint venture, on two grounds. First, "joint venture" is not a recognized cause of action in Connecticut. Second, the plaintiffs have not alleged facts sufficient to fulfill the criteria for establishing a joint venture. The defendant moves to strike counts fourteen, twenty, twenty-six, forty-two and forty-five on the ground that they are bystander emotional distress and loss of consortium causes of action that are derivative of counts two and eight, which are legally insufficient. Finally, the defendant moves to strike counts nineteen, twenty, twenty-one, twenty-five, twenty-six and twenty-seven, which sound in loss of filial and sibling consortium, on the ground that Connecticut does not recognize a loss of consortium cause of action outside of the spousal context.
The plaintiff objects to the present motion arguing that it should be denied with respect to counts one and seven, as well as all challenged counts derivative of them, for two reasons. First, counts one and seven are legally sufficient because they allege that the defendant's duty arose from its control and possession of the property, which in turn arose through its joint venture with Private Retreats. On the face of the motion, the defendant's ground for striking counts one and seven only refers to the plaintiffs' allegations of duty and therefore does not challenge the plaintiffs' allegations of imputed negligence due to the defendant's joint venture with Private Retreats. Second, counts one and seven are legally sufficient because they allege that the defendant's duty arose from its willingness to undertake the selection of the plaintiffs' accommodations, based on its professional expertise.
The plaintiffs argue that the motion should be denied with respect to counts two and eight, as well as all challenged counts derivative of them, because the counts labeled "joint venture" do not necessarily render them legally insufficient. In their view, they allege facts sufficient to state imputed liability causes of action against the defendant based on the negligent conduct of its joint venturer, Casa de Campo. Furthermore, they argue the present motion is procedurally improper because it seeks to compel a more particular statement of the facts alleged in counts two and eight which would be properly achieved through a request to revise, not a motion to strike.
Finally, the plaintiffs claim the motion should be denied with respect to counts nineteen, twenty, twenty-one, twenty-five, twenty-six and twenty-seven because no Connecticut court has ever expressly rejected a loss of filial or sibling consortium cause of action. They contend these causes of action were in fact recognized by trial courts prior to Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998), which is the leading appellate authority on the subject of loss of consortium. That case holds that a child may not bring a loss of parental consortium cause of action. However, it is the plaintiffs' position that many out-of-state courts that have considered these causes of action have recognized them, signaling a trend that the Supreme Court is likely to follow should it be presented with the opportunity to reconsider its position.
C. Counts One and Seven: Negligence
Counts Thirteen, Forty-One and Forty-Four: Bystander Emotional Distress by Reason of the Defendant's Negligence
Counts Nineteen and Twenty-Five: Loss of Consortium by Reason of the Defendant's Negligence
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). "The existence of a duty is a question of law . . ." (Internal quotation marks omitted.) Mendillo v. Board of Education, supra, 246 Conn. 483. "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 . . . [T]he 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." (Citations omitted; internal quotation marks omitted.) Ryan Transportation, Inc. v. M G Associates, 266 Conn. 520, 525-26, 832 A.2d 1180 (2003).
"It is well established that, in the context of a negligence action based on a defective condition on the defendant's premises, [t]here could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it . . ." (Internal quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., 281 Conn. 160, 163, 914 A.2d 529 (2007). "Liability for an injury due to defective premises does not depend on title, but on possession and control." Farlow v. Andrews Corp., 154 Conn. 220, 225, 224 A.2d 546 (1966). "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.) Doly v. Shawmut Bank, 58 Conn.App. 427, 432, 755 A.2d 219 (2000).
The plaintiffs in the present action have not directly or inferentially alleged that the defendant controlled or possessed the property. At the most, the plaintiffs allege that the defendant arranged for the plaintiffs to stay at the property and represented to the plaintiffs that the property was assured to be comfortable and safe because it had been expertly selected. See Pl.'s Second Amended Complaint, Counts 1 and 7 ¶¶ 3, 4. The court cannot necessarily imply that the defendant managed, superintended, directed or oversaw the property from these allegations.
The plaintiffs argue that the counts are based on the theory that Private Retreats' negligence must be imputed to the defendant. They posit: "Private Retreats owned, leased and/or rented properties around the world and provided those properties to its clients . . . It can be inferred from these allegations that the Villa was in fact one of the properties owned, leased and/or rented by Private Retreats and used in the joint venture between A K and Private Retreats . . . There is no allegation that Private Retreats gave up the rights to possession and control that come with ownership — no allegation that any other independent entity possessed or control the Villa. There is also no allegation that the Villa was a hotel, or that A K made reservations for the Schlierfs with an independent entity. To dwell for a moment on the obvious, the joint venturers had sufficient possession and control of the Villa simply to provide the Schlierfs accommodation there."
The plaintiffs misunderstand the motion to strike standard. Private Retreats' control or possession of the specific property at issue is not necessarily implied from the allegation that Private Retreats generally owned, leased and/or rented properties worldwide. Likewise, an entity's control or possession of a property is not necessarily implied from an allegation that the entity was able to provide vacationers with short-term access to the property. The absence of contrary allegations also does not necessarily make the plaintiffs' allegations sufficient under the fact pleading standard provided by Practice Book § 10-1: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies." While the plaintiffs are correct that they need not use the words "control" or "possession" in order to allege that Private Retreats controlled or possessed the property, they do need to provide a factual predicate that demonstrates such control or possession.
"Although the court is required to read the pleadings broadly and in the light most favorable to sustaining the legal sufficiency of the claim, it cannot read additional allegations into the pleading." Pike v. Bugbee, 115 Conn.App. 820, 827 n. 5, 974 A.2d 743, cert. granted on other grounds, 293 Conn. 923, 980 A.2d 912 (2009). Counts one and seven, even when construed "broadly," "realistically" and in the light most favorable to the plaintiffs, only allege that Private Retreats and the defendant were engaged in a joint venture; that Private Retreats represented that the property was assured to be comfortable and safe because it had been expertly selected; and that Private Retreats was negligent because it failed to inspect the property, prepare the property and warn the plaintiffs of the property's defects. None of these allegations necessarily imply that Private Retreats, or by extension the defendant, managed, superintended, directed or oversaw the property, such that it had a legal duty to, inter alia, inspect, repair and warn the plaintiffs of the property's defects. Had the plaintiffs wished to allege that Private Retreats and the defendant controlled or possessed the property, they could easily have said so, but did not.
The plaintiffs argue in the alternative that counts one and seven sufficiently allege that the defendant was duty bound to exercise reasonable care in selecting the property for the plaintiffs because it affirmatively acted as an expert in this endeavor. In support, they cite to Coville v. Liberty Mutual Ins. Co., 57 Conn.App. 275, 281-82, 748 A.2d 875, cert. granted on other grounds, 253 Conn. 919, 755 A.2d 213 (2000), which provides: "[O]ne who undertakes to perform an act will be liable for performing it negligently . . . If one undertakes to perform an act and performs it negligently . . . it makes no difference whether . . . the act was performed gratuitously." The plaintiffs cite the language for the proposition that a party is duty bound to exercise reasonable care when it affirmatively acts to provide professional services. Coville is factually and legally inapposite to the present action, however. In Coville, the defendant forced an intoxicated plaintiff to remain in his motor vehicle and they were subsequently involved in an accident. The issue before the court in Coville was whether the defendant owed a special duty to protect the plaintiff because he had control or custody over her person. There is no such issue before the court in the present action.
The plaintiffs also cite to several out-of-state cases in support of their proposition that providers of travel-related services owe certain duties to their clients. The court, however, declines to adopt the law enunciated by any of these cases when the plaintiffs' allegations fail to fulfill even our general two-part test for legal duty. Specifically, the court concludes that the plaintiffs have not directly or inferentially alleged that the harm that they suffered was foreseeable to the defendant, based on what the defendant knew or should have known. The plaintiffs have not even directly or inferentially alleged that the defendant knew or should have known about the property's lack of access to emergency services, working fire suppression equipment or lack of working smoke detectors, such that the defendant was duty bound to exercise reasonable care in selecting the property by inspecting it and warning the plaintiffs of its defects. The plaintiffs only allege that the property lacked access to emergency services, working fire suppression equipment and working smoke detectors for the purpose of enumerating the ways in which the defendant was negligent. In order for the plaintiffs to allege a breach of duty that constitutes negligence, however, they must allege an underlying duty first. Because the plaintiffs have not fulfilled the first part of the two-part test for legal duty, the court need not proceed with the second part of the test, which requires a public policy analysis.
The court thus concludes that counts one and seven are legally insufficient and grants the defendant's motion to strike them. The court also grants the defendant's motion to strike counts thirteen, nineteen, twenty-five, forty-one and forty-four, because they are derivative of counts one and seven.
D. Counts Two and Eight: Joint Venture
Counts Fourteen, Forty-Two and Forty-Five: Bystander Emotional Distress by Reason of the Defendant's Joint Venture
Counts Twenty and Twenty-Six: Loss of Consortium by Reason of the Defendant's Joint Venture
The court will address the defendant's first ground for striking the plaintiffs' joint venture-based counts, i.e., that "joint venture" is not a recognized cause of action in Connecticut, before it considers the legal sufficiency of the counts. "In the context of a motion to strike, the factual allegations of the count, and not the label placed on the count, are dispositive." Lattanzio v. WVIT NBC-30, Superior Court, judicial district of New London, Docket No. CV 05 5000082 (May 15, 2007, Martin, J.). The plaintiffs oppose the defendant's motion to strike their joint venture-based counts by arguing, inter alia, that the counts truly sound in negligence by a third party imputed to the defendant through a joint venture. The court will therefore proceed by considering whether the plaintiffs' allegations sufficiently state that a joint venture existed between the defendant and the negligent third party, such that the third party's negligence can be imputed to the defendant.
"A joint venture is a special combination of two or more persons who combine their property, money, effects, skill and knowledge to seek a profit jointly in a single business enterprise without any actual partnership or corporate designation . . . The relationship between contracting parties cannot amount to a joint venture unless the parties so intend." (Citations omitted.) Electronic Associates, Inc. v. Automatic Equipment Development Corp., 185 Conn. 31, 35, 440 A.2d 249 (1981). "A joint venture requires five elements, namely two or more persons must enter into a specific agreement to carry on an enterprise for profit; their agreement must evidence their intent to be joint venturers; each must make a contribution of property, financing, skill, knowledge, or effort; each must have some degree of joint control over the venture; and there must be a provision for the sharing of both profits and losses . . . 46 Am.Jur.2d. Joint Ventures, § 8." R.S. Silver Enterprises Co., Inc. v. Pascarella, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5002499 (July 14, 2010, Jennings, J.T.R.).
The plaintiffs make the following relevant allegations in counts two and eight. The property was maintained in part by Casa de Campo. The defendant was engaged in a joint venture with Casa de Campo. Casa de Campo was negligent because of its failure to inspect and maintain the property and to inform the plaintiffs of the property's defects. Casa de Campo's negligence was a substantial factor in causing the fire that injured Kevin Schlierf and killed Brian Schlierf. These allegations, even when construed broadly, realistically and in the light most favorable to the plaintiffs, cannot be reasonably read to state that Casa de Campo and the defendant "combine[d] their property, money, effects, skill and knowledge to seek a profit jointly in a single business enterprise without any actual partnership or corporate designation." In fact, the court cannot even read the complaint to allege that Casa de Campo and the defendant entered into an agreement that demonstrated their intent to be in a joint venture that governed their division of losses and profits.
The plaintiffs argue that the defendant should have filed a request to revise instead of a motion to strike, because the defendant seeks to compel a more particular statement of the facts alleged in counts two and eight, not to challenge the legal sufficiency of the counts. Counts two and eight, however, are wholly devoid of allegations that fulfill any of the criteria for establishing a joint venture, even when the counts are viewed broadly, realistically and in the light most favorable to the plaintiffs. There are thus no facts that the defendant could seek to have the plaintiffs particularize. Instead, the counts simply allege that a joint venture existed between Casa de Campo and the defendant, without more. Pl.'s Second Amended Complaint, Count Two ¶¶ 10, 17, Count Eight ¶¶ 10, 16. These are legal conclusions unsupported by factual allegations that render the counts legally insufficient to state the plaintiffs' imputed negligence causes of action. See Del Greco Realty Co., Inc. v. Lamoureux, 39 Conn.Sup. 95, 98-99, 469 A.2d 1232 (1983) ("The pleading party cannot merely make conclusions of law without alleging facts which would bring the case within any of the recognized grounds for that particular cause of action"). The court thus grants the defendant's motion to strike counts two and eight. The court also grants the defendant's motion to strike counts fourteen, twenty, twenty-six, forty-two and forty-five, because they are derivative of counts two and eight.
The plaintiffs argue that they need not allege facts to fulfill all five joint venture criteria and cite to Greenhouse v. Zempsky, 153 Conn. 501, 218 A.2d 533 (1966), which held that a partnership may be found to exist, even though one partner wholly controls the joint enterprise, when there are indicia of intent and profit sharing. Greenhouse, however, is legally inapposite because the business relationship at issue was a partnership, not a joint venture. It is also factually inapposite because there are no indicia of intent and profit sharing present in the present complaint.
E. Counts Nineteen, Twenty, Twenty-One, Twenty-Five, Twenty-Six and Twenty-Seven: Loss of Consortium
"The right of consortium is said to arise out of the civil contract of marriage and as such, does not extend to the parent-child relationship." Mahoney v. Lensink, 17 Conn.App. 130, 141, 550 A.2d 1088 (1988), aff'd in part and rev'd in part on other grounds, 213 Conn. 548, 569 A.2d 518 (1990). The Supreme Court in Mendillo v. Board of Education thus declined to recognize a loss for parental consortium cause of action brought by a minor child. The court reached its conclusion "primarily on the basis of: the fact that recognition of the cause of action would require arbitrary limitations; the additional economic burden that recognition would impose on the general public; the uncertainty that recognition would yield significant social benefits; the substantial risk of double recovery; and the weight of judicial recovery." Mendillo v. Board of Education, supra, 246 Conn. 485.
It elaborated: "[I]f we were to recognize the claim as asserted by the plaintiffs — i.e., limited to loss of parental consortium suffered by minor plaintiffs resulting from serious injury to the parent — we would have to impose arbitrary limitations on the scope of the cause of action in order to avoid the creation of a practically unlimited class of potential plaintiffs. In the constellation of family relationships, there are other formally recognized relationships — e.g., siblings, grandparent and grandchild, and aunt or uncle and nephew or niece — and others, less formally recognized but just as real in an emotional sense — e.g., stepsiblings, and stepchild and stepparent — that could well, depending on the case, present equally strong claims of loss of consortium." (Emphasis in original.) Id. The court further determined: "[T]here is nothing in reason to differentiate the parent's loss of the joy and comfort of his child from that suffered by the child." Id., n. 20.
It then noted that there are "significant differences" between the parent-child relationship and the spousal relationship. "These differences arise out of the fact that the relationship between spouses is different in kind as well as source from the parent-child relationship. Marriage is a unique human relationship . . . the closest entity recognized by society . . . a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred . . . Most important, the spousal relationship is based on notions of commitment between adults. [T]he formal marriage relation forms the necessary touchstone to determine the strength of commitment between the two individuals which gives rise to the existence of consortium between them in the first instance." (Citations omitted; internal quotation marks omitted.) Id., 493-94. The plaintiffs concede that there is no Connecticut appellate authority recognizing their loss of consortium causes of action, but they also argue that there is no such authority denying these causes of action, either, because Mendillo does not expressly refuse to recognize a loss of consortium cause of action brought by a parent or a sibling. While they are technically correct, the court in the present action nonetheless declines to recognize their loss of filial and sibling consortium causes of action, given the broad scope of the Mendillo court's public policy analysis, its emphasis on the singularity of the spousal relationship and the continued lack of Connecticut appellate authority to support the plaintiffs' position. The court therefore grants the defendant's motion to strike counts nineteen, twenty, twenty-one, twenty-five, twenty-six and twenty-seven, because they are legally insufficient as a matter of law.
III CONCLUSION
For the foregoing reasons, the court grants the defendant's motion to strike counts one, two, seven, eight, thirteen, fourteen, nineteen, twenty, twenty-one, twenty-five, twenty-six, twenty-seven, forty-one, forty-two, forty-four and forty-five of the plaintiffs' second amended complaint.