Opinion
No. CV04-0351625 S
July 23, 2004
MEMORANDUM OF DECISION RE PREJUDGMENT REMEDY APPLICATION
The plaintiff seeks a prejudgment remedy to secure tort claims against her former high school teacher/high school basketball coach and his wife. The plaintiff alleges claims for negligent infliction of emotional distress, intentional sexual assault and battery, negligent supervision, invasion of privacy and fraudulent conveyance. In her prejudgment remedy application, the plaintiff seeks to attach real property located at 27 Sachem Road, Seymour, Connecticut. For the reasons stated below, the court agrees with the plaintiff as to her claims of negligent infliction of emotional distress, intentional sexual assault and battery, negligent supervision, invasion of privacy claim, and fraudulent conveyance. The plaintiff is authorized to secure a claim in the amount of $150,000.
The plaintiff states in her brief that she will amend the complaint in order to assert a claim for intentional infliction of emotional distress, but for purposes of her prejudgment remedy, the court will not address that cause of action.
On July 14, 2004, the court received the defendant, Mr. Warecke's supplemental memorandum of law in opposition to the plaintiff's motion for prejudgment remedy. This memorandum is in regard to an article published in the August 2004 issue of Cosmo Girl, in which the plaintiff gave an interview about the relationship between her and the defendant. For prejudgment remedy purposes, the court finds that this magazine article and accompanying memorandum of law unpersuasive, and more appropriate to be addressed at the time of trial.
The plaintiff, Vanessa Silva, attended Henry Abbott Technical High School. The defendant, Frank Warecke, Jr., was the plaintiff's drafting teacher and high school basketball coach. During the plaintiff's senior year of high school, her relationship with the defendant became sexual. On May 23, 2003, the defendant was arrested on sexual assault charges against the plaintiff, and ultimately pled guilty to those charges. On September 15, 2003, the defendant quitclaimed his one-half interest in a piece of real property to Christine Warecke, his wife and co-defendant.
On May 24, 2004, this court held a hearing on the prejudgment remedy application. At that hearing, the plaintiff testified that the defendant persuaded her into sexual relations by stating that he had cancer and no longer had a relationship with his wife. The plaintiff testified that these sexual relations occurred in and out of the classroom. These relations resulted in: kissing, fondling of the plaintiff's breasts and vagina, manual penetration of the vagina, oral sex and intercourse. The plaintiff further testified that the defendant was in complete control because he knew that she would do anything for him. The plaintiff asserts that the defendant's actions have caused her, inter alia, psychological trauma, suffering, embarrassment, depression, emotional distress and a strained relationship with her parents.
At that hearing, co-defendant, Mrs. Warecke, testified that on September 15, 2003, the defendant quitclaimed his one-half interest in the marital home to her. The deed reflects that Mrs. Warecke gave valuable, but not monetary, consideration for the defendant's interest in the marital home. Mrs. Warecke also testified that to her knowledge the marital home was the only asset the defendant possessed, and believed the house to be worth $300,000. Mrs. Warecke further testified that the defendant continued to reside at the marital home after he quitclaimed his interest.
Both defendants argue that the plaintiff's complaint is devoid of factual allegations that, if proven, would satisfy the elements of each of her counts, and, thus, the application for prejudgment remedy must be denied.
Standard
"Pursuant to our prejudgment remedy statutes . . . the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits . . . The hearing in probable cause for the issuance of a prejudgment remedy is not contemplated to be a full scale trial on the merits of the plaintiff's claim. The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim . . . The court's role in such a hearing is to determine probable success by weighing probabilities." (Internal quotation marks omitted.) J.K. Scanlan Co. v. Construction Group, Inc., 80 Conn.App. 345, 349-50 (2003). "Moreover, this weighing process applies to both legal and factual issues . . . It is the [court] that must determine, in light of its assessment of the legal issues and the credibility of the witnesses, whether a plaintiff has sustained the burden of showing probable cause to sustain the validity of its claim." (Internal quotation marks omitted.) Blakeslee Arpaia Chapman v. El Constructors, 32 Conn.App. 118, 126 (1993).
Negligent Infliction of Emotional Distress
The elements for negligent infliction of emotional distress are: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003).
This court concludes that the plaintiff has established probable cause with respect to a cause of action for negligent infliction of emotional distress. The defendant's sexual advances created a foreseeable risk of causing the plaintiff emotional distress, which was unreasonable in light of the teacher-student relationship. At trial the plaintiff will produce an expert who will testify to the affect the emotional distress has had upon her well-being. This distress is the result of the defendant's conduct.
Intentional Sexual Assault and Battery
"The elements of the intentional tort of sexual assault for which [the defendant may be] found liable are [a] harmful or offensive contact with a person, intended to cause the plaintiff . . . to suffer such a contact, resulting from an act . . ." (Internal quotation marks omitted.) Fernandez v. Standard Fire Ins. Co., 44 Conn.App. 220, 224 n. 4 (1997). Determinations of causation and intent are necessary to a finding of intentional sexual assault. Id., 223-24.
The defendant argues that the sexual relations were consensual, and as such, the intent element cannot be established. Furthermore, the defendant argues that the plaintiff was seventeen years old at the time of these relations, which is an age where an individual can give consent. As a result, the defendant then argues that the plaintiff cannot establish probable cause for a claim of intentional sexual assault.
The plaintiff argues that the present situation is akin to the scenario where a teacher engages in sexual relations with a student who is a minor. In that situation, the minor cannot give valid consent to engage in such relations. The plaintiff then couples this argument with the fact that the plaintiff is a member of a protected class as demonstrated in Connecticut General Statutes § 53a-71(a)(8). Finally, the plaintiff argues that the defendant was in a position of power because he was her teacher/coach, and that he had the knowledge that the plaintiff would do anything for him.
Connecticut General Statutes § 53a-71(a)(8) provides: "A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and . . . the actor is a school employee and such other person is a student enrolled in a school in which the actor works or a school under the jurisdiction of the local or regional board of education which employs the actor . . ."
The court agrees with the plaintiff because it feels that this situation is more akin to the scenario where the sexually assaulted individual is a minor. As her teacher and coach, the defendant was in a position of power, and abused that power. Because of the teacher-student relationship, the defendant had a duty to refrain from engaging the plaintiff to participate in any sexual activities. As such, the court concludes that there exists probable cause to establish the plaintiff's claim of intentional sexual assault.
Negligent Supervision
"Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so . . . The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Citation omitted; internal quotation marks omitted.) Stokes v. Lyddy, 75 Conn.App. 252, 257 (2003). "[T]he determination of whether a duty exists between individuals is a question of law . . . Only if a duty is found to exist does the trier of fact go on to determine whether the defendant has violated that duty." (Citations omitted.) Jaworski v. Kiernan, 241 Conn. 399, 404-05 (1997).
"Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 754 (2002). "A duty to act with reasonable care to prevent harm to a plaintiff which, if violated, may give rise to tort liability is based on a `special relationship' between the plaintiff and the defendant." (Internal quotation marks omitted.) Burns v. Board of Education, 228 Conn. 640, 646 (1994). "[S]chool children attending public schools during school hours are intended to be the beneficiaries of certain duties of care." Id., 648.
As the plaintiff's teacher and school basketball coach, the defendant had a duty to supervise and protect her from harm. The defendant breached this duty by engaging in sexual relations with the plaintiff. There are sufficient allegations that establish the plaintiff has suffered several injuries. These alleged injuries were a foreseeable consequence of the defendant's breach of duty. Therefore, for prejudgment remedy purposes, there exists probable cause for the plaintiff to assert a claim for negligent supervision.
Invasion of Privacy
In Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 126-28 (1982), the Supreme Court established a cause of action for invasion of privacy and adopted the four categories as defined in § 652A of the Restatement (Second) of Torts. The four categories are: "(a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." Id., 128. The court explained these four categories to have "not developed as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone." (Internal quotation marks omitted.) Id., 127-28.
The plaintiff argues that the defendant's actions fit within the first category, an unreasonable intrusion upon the seclusion of another. Neither defendant addresses the plaintiff's argument, but rather, they argue that the only potentially applicable category is publicity that unreasonably places the other in a false light before the public. For the following reasons, the court agrees with the plaintiff's argument.
"The Connecticut Appellate Courts have not yet set forth the necessary elements of a claim for unreasonable intrusion upon seclusion." Gallagher v. Rapoport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 0149891 (May 6, 1997, D'Andrea, J.) ( 19 Conn. L. Rptr. 474). However, an unreasonable intrusion claim is defined as "[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person." (Internal quotation marks omitted.) Id., citing 3 Restatement (Second), Torts § 652B (1977). Other trial courts have held that "allegations of sexual assault constitute an actionable unreasonable intrusion claim" because, that conduct intrudes upon the solitude of a person in a highly offensive manner. Fields v. Kichar, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 94 54868 (May 2, 1995, Klaczak, J.) ( 14 Conn. L. Rptr. 230); see also Blair v. LaFrance, Superior Court, judicial district of Waterbury, Docket No. CV 98 0149622 (September 27, 2000, Rodgers, J.); Gallagher v. Rapoport, supra, Superior Court, Docket No. CV 960149891.
This court agrees with those courts that have held that sexual assault fits within an unreasonable intrusion, which then forms the basis for an invasion of privacy claim. Because this court previously found that there exists probable cause for intentional sexual assault, the court also finds that there exists probable cause for the plaintiff to establish an invasion of privacy premised upon an unreasonable intrusion upon the seclusion of another.
Fraudulent Conveyance
"Property fraudulently conveyed may, as to the creditors of the grantor, be treated as if no conveyance of it had been made . . . True, the fraudulent grantor could not invoke the power of the courts to secure a reconveyance to him, because his own fraud has shut the door of the courts against him . . . Nevertheless, he still has an interest in the property which can be reached by his creditors." (Citations omitted.) Murphy v. Dantowitz, 142 Conn. 320, 325-26 (1955). When the property is jointly owned, an attachment by one of the owner's creditors only affects that owner's interest in the property. See 2 R. Bollier S. Busby, Stephenson's Connecticut Civil Procedure (3d Ed. 1997) § 110(d), p. 61-62.
In this application for a prejudgment remedy, the plaintiff must prove that there is probable cause to believe that at trial they can establish by clear and convincing evidence that the defendant fraudulently conveyed the property. See Polan v. Hunting Ridge Co., Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 960153713 (September 26, 1997, D'Andrea, J.); SMS Financial II, LLC, v. Kodsy, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 94 0141600 (April 12, 1995, Lewis, J.).
The plaintiff argues that under the Uniform Fraudulent Conveyance Act, Connecticut General Statutes § 52-552a et seq., they have established probable cause that they will succeed at trial on their claim of fraudulent conveyance. Specifically, the plaintiff asserts that they have established probable cause under both §§ 52-552e and 52-552f.
Connecticut General Statutes § 52-552e provides in relevant part: "(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, if the creditor's claim arose before the transfer was made or the obligation was incurred and if the debtor made the transfer or incurred the obligation . . . (2) without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor . . . (B) intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due."
Connecticut General Statutes § 52-552f provides:
(a) A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.
(b) A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time and the insider had reasonable cause to believe that the debtor was insolvent.
In response, the defendants argue that the plaintiff has failed to provide evidence which would establish probable cause that they will succeed at trial. In their briefs, the defendants state that the plaintiff failed to provide sufficient evidence on the following facts: "the transfer was in any way concealed; that the [plaintiff commenced or threatened commencement of suit prior to the transfer; that the transfer was of all or substantially all of [the defendant's] assets; that [the defendant] subsequently absconded; that [the defendant] in any way concealed or removed any of his other assets; that [the defendant] became insolvent as a result of this transfer; or that [the defendant] made the transfer to [Mrs.] Warecke shortly after his incurring a substantial debt." The court rejects the defendants' argument.
Within the meaning of Connecticut General Statutes § 52-552b(3), the plaintiff's claim arose before the transfer of the property. On May 23, 2003, the defendant was arrested on sexual assault charges, and on September 15, 2003, he quitclaimed his interest in the marital home to Mrs. Warecke. These facts establish that the sexual assault incidents occurred prior to the transfer, and that the plaintiff has a claim within the meaning of the statute.
Connecticut General Statutes § 52-552b(3) provides: "`Claim' means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured."
Mrs. Warecke testified that her consideration for this transfer was not monetary. Even though the deed states that valuable consideration was given in exchange for the defendant's interest in the property, there is nothing to suggest what that consideration consisted of. The court feels that probable cause exists that the defendant did not receive equivalent value in exchange for the transfer. Furthermore, the court feels that the defendant believed or reasonably should have believed that a subsequent civil suit premised upon his sexual assault of the plaintiff was forthcoming, and therefore, he would incur debts beyond his ability to pay. As such, probable cause exists that a fraudulent conveyance occurred within the meaning of Connecticut General Statutes § 52-552e.
See, supra, footnote 4.
Mrs. Warecke also testified that to her knowledge this house was the defendant's only asset. This is sufficient evidence for the court to conclude that probable cause exists that the defendant was insolvent at the time of the transfer or became insolvent as a result of the transfer. In light of the previous finding, the court also finds that there exists probable cause for a fraudulent conveyance under Connecticut General Statutes § 52-557f(a).
See, supra, footnote 5.
Damages
In conclusion, this court finds there is probable cause to believe that a judgment will be rendered in favor of the plaintiff, Vanessa Silva, at a trial on the merits. This court further finds that the plaintiff should be authorized to secure a claim for $150,000.
Richards, J.