April 28, 2010
RULING ON MOTION TO STRIKE SPECIAL DEFENSE (#140)
By way of a second amended complaint dated June 12, 2009, Jean Lake, individually and also on behalf of her minor child Jesse Lake, has brought an action in three counts, alleging negligence, nuisance and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), arising out of personal injuries the minor child sustained while residing in premises rented to Jean Lake and her husband by the defendant Shakaib Butt. The gravamen of the complaint is that the minor child was made ill while residing on the premises due to exposure to contaminated tap water, rodent infestation and mold and mildew resulting from water leakage. On February 17, 2010, the defendant filed an answer to the second amended complaint along with two special defenses.
The plaintiffs move to strike the second special defense (#140) on the ground that it is barred by the doctrine of parental immunity. The defendant maintains that the second special defense is proper because it is directed at Jean Lake's individual claims in the second amended complaint and not at the claims made on behalf of the minor child. In the second amended complaint, Jean Lake made claims to recover for the costs of the minor plaintiff's medical care (count one, ¶ 14, count two, ¶ 16), and also sought damages in nuisance for the loss of the use and enjoyment of the premises (count two, ¶ 17) and under CUTPA (count three, ¶ 18).
To the extent Jean Lake has any claim for these damages under General Statutes § 52-204, her claim is derived from the claim of the minor plaintiff. "If the child was not entitled to recover compensation for his injury, there can be no recovery by the parent." Shiels v. Audette, 119 Conn. 75, 77, 174 A. 323 (1934). Furthermore, if the minor plaintiff is awarded consequential damages for medical expenses incurred on his behalf by his parents, his recovery acts as a bar to Jean Lake's claim under § 52-204.
Connecticut adheres to the doctrine of parental immunity which, as a matter of policy, "affords special protection to acts of parental control, authority and discretion." Crotta v. Home Depot, Inc., 249 Conn. 634, 643, 732 A.2d 767 (en banc 1999); Squeglia v. Squeglia, 234 Conn. 259, 661 A.2d 1007 (1995); Dubay v. Irish, 207 Conn. 518, 522-28, 542 A.2d 711 (1988). "The purpose of the doctrine is to preserve the integrity and unity of the family and to avoid unnecessarily injecting `the machinery of the state' into the day-to-day exercise of parental discretion." Squeglia v. Squeglia, supra, 234 Conn. 265. "[M]aintenance of the home environment typifies the day-to-day exercise of parental discretion that the state would rather not disrupt." (Footnote not in original) Id., 269. Even the Restatement (Second) of Torts, which recommended the abrogation of the doctrine of parental immunity, cautioned "against imposing liability when the parental conduct involves acts of supervision or discretion that are necessitated by the nature of the familial relationship between the parent and the unemancipated minor child," Henderson v. Woolley, 230 Conn. 472, 481, 644 A.2d 1303 (1994), highlighting "the performance of parental duties such as the use of care to provide a safe place to live or adequate necessaries or proper instruction and training." Id., n. 15, quoting 4 Restatement (Second) Torts § 895G, comment (k).
Courts have defined the exercise of parental discretion to include the provision of food, clothing, housing, medical services and other care which a parent is obligated to furnish. See, e.g., Brunner v. Hutchinson Div. Lear-Siegler, Inc., 770 F.Sup. 517, 525 (D.S.D. 1991); Jilani v. Jilani, 767 S.W.2d 671, 672-73 (Tex. 1988); Wagner v. Smith, 340 N.W.2d 255 (Iowa 1983); Foldi v. Jeffries, 93 N.J. 533, 461 A.2d 1145, 1152 (1983); Plumley v. Klein, 388 Mich. 1, 199 N.W.2d 169 (1972).
In the second special defense, the defendant makes a series of factual allegations against Jean Lake. These allegations fall into three general categories: (1) that she failed to properly maintain and clean her home and remedy the defective conditions that allegedly injured her minor child, (2) that she failed to properly supervise and care for her minor child and to obtain medical care for him, and (3) that she failed to cooperate with the defendant by denying him the ability to enter the premises to inspect it and address complaints. The special defense clearly alleges parental failure to supervise a minor child, provide instruction, provide reasonable and adequate care, and provide a safe home environment.
The allegations of the second special defense are:
Any and all losses, expenses, injuries or damages alleged by plaintiff Jean Lake individually are directly and proximately caused by her own negligence in that she, as the mother of the minor plaintiff, failed properly to clean and maintain the demised premises and the contents and items of personal property therein; failed to maintain and control her child's contact with and exposure to dust, debris, animals, smoke, allergens and other environmental contaminants within her control as tenant in possession of the premises; failed to warn her child of the presence of and risks of contact with dust, debris, animals, smoke, allergens and other environmental contaminants in premises; failed to obtain and administer medical care, treatment, therapy and medications to her minor child; failed to attend timely and consistently to the health of her minor child; failed to eliminate and/or prevent her child's contact with and exposure to dust, debris, animals, smoke, allergens and other environmental contaminants within her control as tenant in possession of the premises; failed to remedy the conditions permitting her child's contact with and exposure to dust, debris, animals, smoke, allergens and other environmental contaminants within her control as tenant in possession of the premises; and she and her husband as the tenants in possession of the premises failed to cooperate with the defendant by denying him entry to the premises to inspect, examine and address the complaints with the condition of the premises about which she and her husband were complaining.
In a series of decisions involving claims of personal injury to minor children allegedly exposed to toxic levels of lead as a result of defective lead-based paint in rented premises, this court took the position that claims such as those alleged in the second special defense are barred by the doctrine of parental immunity even if the parent is a party to the lawsuit. See e.g., Wright v. Rogers, Superior Court, Judicial District of New Haven, Docket No. 98-04 17078 (Aug. 3, 1999); Clements v. Rattinger, Superior Court, Judicial District of Danbury, Docket No. 94-0322063 (Aug. 3, 1998); Tobin v. Connecticut Housing Finance Authority, Superior Court, Judicial District of New Haven, 92-333231 (June 17, 1997). Similarly, this case involves claims of personal injury to a minor child exposed to defective conditions in premises rented by his parents. The court concludes that the second special defense is barred by the doctrine of parental immunity. This does not mean, however, that the defendant cannot raise other defenses to Jean Lake's claim for damages she alleges she sustained, arising in nuisance (count two, ¶ 17) and under CUTPA (count three, ¶ 18), as long as those damages are independent of the damages claimed by the minor plaintiff and not derived from his personal injury claim.
For the foregoing reasons, the motion to strike (#140) is granted.