Opinion
No. CV10-6002505 S
April 6, 2011
MEMORANDUM OF DECISION
The issue presented by the motion to strike is whether the complaints sufficiently allege a duty of care as to the defendant, Mental Health Association of Connecticut.
This wrongful death action was filed on February 17, 2010, by Emily Spahn, as administratrix of the estate of Christine Duncan, against the Regional YMCA of Western Connecticut and Eastern Putnam County, Inc. (the "YMCA") and Meaghan Dawley, who, at all relevant times, is alleged to have been employed by the YMCA as a lifeguard. The plaintiff's complaint alleges that on July 2, 2008, while swimming in the YMCA pool, Duncan nearly drowned and later died of complications related to the pool incident. In count one, the plaintiff claims that the defendant Dawley was negligent in, among other things, failing to supervise the pool area where Duncan was swimming. Count two of the original complaint alleges, among other things, that the YMCA was negligent in failing to train its employees and failing to develop adequate rules and procedures for the pool area.
On or about June 25, 2010, the defendants YMCA and Dawley filed an apportionment complaint against the Mental Health Association of Connecticut, Inc. (MHAC), alleging that Duncan was a "client" of MHAC, a nonprofit organization that provides "services to adults with mental illness." The apportionment complaint further alleges that at all relevant times, MHAC had a "membership with the YMCA" and under that membership, "MHAC's clients were allowed to use the YMCA's facilities by presenting a written pass from MHAC which permitted the client access to the YMCA." The apportionment complaint alleges that MHAC was negligent and/or careless in that:
a. it permitted Christine Duncan to use the Boughton Street YMCA facility without supervision and/or without a companion or aide;
b. it permitted Christine Duncan to use the Boughton Street YMCA facility without supervision and/or without a companion or aide even though it knew or should have known, that Christine Duncan had various health issues including but not limited to poor vision, hearing loss, mental health issues and was known to exercise poor judgment;
c. it permitted Christine Duncan to use the Boughton Street YMCA facility without supervision and/or without a companion or aide even though it knew, or should have known, that Christine Duncan was not able to independently perform day to day activities;
d. it failed to give any warning to the Regional YMCA or otherwise advise the Regional YMCA, its staff, employees or agents that Christine Duncan had various health issues including but not limited to poor vision, hearing loss, mental health issues and was known to exercise poor judgment;
e. it failed to give any warning to the Regional, YMCA or otherwise advise the Regional YMCA, its staff, employees or agents that Christine Duncan was not independent;
f. it permitted Christine Duncan to use the Boughton Street YMCA facility without determining whether she was proficient enough in swimming to use the YMCA facility; and
g. it failed to advise the Regional YMCA that it had not determined whether Christine Duncan was proficient enough in swimming to use the YMCA facility.
On July 30, 2010, the plaintiff filed a revised complaint in which she added a third count for wrongful death against MHAC, asserting essentially the same allegations as those asserted by the YMCA against MHAC in the apportionment complaint.
On October 1, 2010, MHAC moved to strike the defendants,' YMCA and Dawley, apportionment complaint and count three of the plaintiff's revised complaint on the ground of legal insufficiency. In particular, MHAC asserts that the revised complaint and apportionment complaint fail to allege sufficient facts to establish that it owed a duty of care to Duncan, or that her injury and death were proximately caused by any of its actions. The plaintiff and the defendant YMCA have objected to the motion to strike asserting that they have alleged sufficient facts to establish a duty of care and proximate cause. The court heard argument on the motion to strike on March 21, 2011.
"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); Vertex v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007); Hollister v. Thomas, 110 Conn.App. 692, 698, 955 A.2d 1212, cert. denied, 289 Conn. 956, 961 A.2d 419 (2008). "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." (Citations omitted; internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004). Although 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).
MHAC argues that the apportionment complaint and count three of the revised complaint fail to allege sufficient facts to establish, as a matter of law, that it owed Duncan a duty of care. Specifically, it claims that the plaintiff and defendants the YMCA and Dawley have not alleged that it had "a special relationship of custody or control" over Duncan which gave rise to a duty to protect her at the pool or that her injuries were foreseeable.
A duty of care is one of the four essential elements of a cause of action for negligence. Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004); Ryan Transportation, Inc. v. M G Associates, 266 Conn. 520, 525-26, 832 A.2d 1180 (2003). Whether a duty exists is a question of law for the court to decide, and if no duty is found, there can be no actionable negligence. Murdock v. Croughwell, supra, 268 Conn. 566; Jaworski v. Kiernan, 241 Conn. 399, 404-05, 696 A.2d 332 (1997); Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007); Hollister v. Thomas, supra, 110 Conn.App. 699. "Duty is a legal conclusion about relationships between individuals, made after the fact; and is imperative to a negligence cause of action." Murdock v. Croughwell, 268 Conn. at 559. A duty of care "may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." Pelletier v. Sordoni/Skanska Construction, Co., 286 Conn. 563, 578, 965 A.2d 388 (2008), quoting Ward v. Greene, 267 Conn. 539, 547, 839 A.2d 1259 (2004).
The Connecticut Supreme Court has established a two-prong test to determine the existence of a legal duty of care: "(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 this case . . ." Murdock v. Croughwell, supra, 268 Conn. 566, quoting Ryan Transportation, Inc. v. M G Associates, 266 Conn. 520, 525-26, 832 A.2d 1180 (2003); Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006). The court is not required to decide the issue of forseeability if it determines there is no duty of care under the public policy prong of the test. Neuhaus v. Decholnoky, supra, 280 Conn. 218.
There is no allegation that MHAC had a contractual or statutory duty to Duncan. The court therefore turns to the second inquiry of the duty test — the public policy analysis — it is well established that absent a limited exception, "[t]here is no duty that obligates one party to aid or to protect another party." Ryan Transportation Inc. v. M G Associates, supra, 266 Conn. 525-26; Murdock v. Croughwell, supra, 268 Conn. 566. The exception to this 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 . . . In delineating more precisely the parameters of this limited exception to the general rule, this 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 . . ." Ryan Transportation, Inc. v. M G Associates, supra, 266 Conn. 525-6; Murdock v. Croughton, supra, 268 Conn. 566.
The factual allegations of the revised complaint and apportionment complaint on the issue of duty of care can best be described as scant. On this necessary element, the plaintiff and the apportionment plaintiff merely assert generalized allegations that Duncan was a "client" of MHAC, that MHAC provided unspecified "services" to its clients, and that MHAC's clients are allowed to use its pool membership at the YMCA. Neither complaint sets forth any facts describing the nature of the "client" relationship between Duncan and MHAC, the specific "services" MHAC provided to Duncan, or whether these services or the pool membership included or required MHAC to supervise or protect Duncan while she was using the YMCA facilities. Such generalized and unspecific allegations are insufficient to establish that MHAC had a "special relationship of custody and control" over Duncan to protect her from harm while she was swimming at the YMCA. See Hollister v. Thomas, 110 Conn.App. 692 (motion to strike granted where court found that an allegation of agency, without more, was insufficient to establish the right of control). Thus, the apportionment complaint and count three of the revised complaint contain insufficient allegations to overcome the limited exception to the general rule that there is no duty to protect another party. Ryan Transportation, Inc. v. M G Associates, supra, 266 Conn. 526.
The YMCA's reliance on Section 323 of the Restatement (Second) Torts is similarly unavailing. Section 323 provides that: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm; or (b) the harm is suffered because of the other's reliance upon the undertaking."
As stated above, the apportionment complaint and the revised complaint contain insufficient allegations to establish what, if any, act or service MHAC undertook that would create a duty of care. The complaints fail to set forth facts to establish what specific "services" were undertaken or rendered to Duncan by MHAC that it should have recognized were necessary for Duncan's protection while she was swimming at the YMCA. There is no allegation that Duncan needed MHAC's protection while she was swimming at the YMCA pool, or that such protection was a "service" undertaken by MHAC or rendered to Duncan, gratuitously or for consideration. That Duncan used a pool membership provided by MHCA, without more, is insufficient to create a duty under section 323 of the Restatement. Thus, neither the YMCA or the plaintiff have alleged sufficient facts to establish a claim under Section 323 of the Restatement (Second) Torts.
Having found that count three of the revised complaint and the apportionment complaint are insufficient to establish the public policy prong of the duty of care test, it is not necessary for the court to address the remaining issues of whether the complaints allege sufficient facts to establish the foreseeability of harm to Duncan under the first prong of the test or the separate element of proximate cause.
For the foregoing reasons, MHAC's motion to strike count three of the revised complaint and the apportionment complaint, in its entirety, is granted.