Opinion
No. CV 07 5004704
November 3, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #151
FACTS
On March 17, 2010, the defendant, Vista Vocational Life Skills Center, Inc. (Vista), filed a motion for summary judgment and memorandum in support. The motion for summary judgment is directed only at the second count of the fourth amended complaint, which is titled "Breach of Contract by Vista, as to Jane Couto and John Couto, individually." On June 9, 2010, the plaintiffs, Jane Couto and John Couto, filed a memorandum in opposition to the motion. The first and third counts of the complaint are brought on behalf Melissa Couto and allege claims based upon negligence and reckless, wilful and wanton misconduct on the part of the defendant.
Jane and John Couto are two of three named plaintiffs in this action. The defendant moves for summary judgment only on the second count of the complaint, which is as to Jane and John Couto, alone. Accordingly, Jane and John Couto will be referred to as "the plaintiffs" hereinafter.
The plaintiffs allege the following facts in count two of the fourth amended complaint. Jane and John Couto are the parents and guardians of Melissa Couto. Melissa is twenty-five years old and is severely mentally retarded and disabled. The defendant maintains a residential facility in Westbrook, Connecticut and provides services for young adults with neurological disabilities, which include vocational training, life skills, instruction, counseling and support. The plaintiffs entered into a contract with the defendant and Melissa moved into the Westbrook facility in exchange for the plaintiffs' payment of $50,000 for one year's tuition.
Throughout the time of Melissa's residence, it was necessary that Melissa maintain a regime of prescribed medications, including focalin, a stimulant prescribed for the purpose of preventing Melissa from becoming lethargic. In January 2006, Melissa's mental and physical status changed in a way that she became lethargic, lost motivation and experienced stress. The staff of the defendant observed Melissa's lethargy and resulting problems and the observations were recorded in Melissa's records.
In July 2006, Jane discovered that Melissa's medication capsules were depleted and that her drugs had been diverted and altered. Jane and Melissa's sister installed a camcorder in Melissa's bedroom at the facility in Westbrook and the films revealed that one of the defendant's employees was stealing Melissa's medication while Melissa and her roommate were sleeping. The employee admitted to taking Melissa's medication, focalin, on many occasions. On some occasions, the employee substituted other medications so as to maintain the weight and appearance of the capsules. As a result of the employee's actions, Melissa suffered serious and severe consequences and damages.
At the time the defendant entered into the contract for Melissa's care, the defendant knew or should have known that the plaintiffs were placing the utmost trust in the defendant to care for Melissa. The defendant knew or should have known that the plaintiffs might or would incur consequential damages in the event of the defendant's breach. The defendant materially breached its contract with the plaintiffs in numerous ways, including failing to investigate whether Melissa's medication was being taken by her at appropriate levels or in proper amounts, failing to discern and appreciate that Melissa's lethargy and altered behavior were products of her not receiving the proper level of medication, choosing to store a class II controlled substance in Melissa's room and failing to adequately supervise its personnel. The plaintiffs have suffered economic damages as a result of the defendant's breach of the contract. Additionally, the plaintiffs incurred consequential damages in that they suffered and continue to suffer emotional distress as a result of the events.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 99-100 n. 7, 931 A.2d 859 (2007). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318, 901 A.2d 1207 (2006).
The defendant argues that the second count of the fourth amended complaint is a negligence claim, despite the fact that the count is labeled "breach of contract." The defendant argues that summary judgment should be granted with respect to the second count pursuant to the Connecticut Supreme Court's reasoning in Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001). Further, the defendant argues that even if the court determines that the contract claim is proper, the plaintiffs are not entitled to emotional distress damages on a breach of contract claim.
In response, the plaintiffs argue that the court, Abrams, J., has already determined that the plaintiffs entered into a contract for services with the defendant. The plaintiffs argue that foreseeable consequential damages are recoverable on contract claims, as the court, Abrams, J., held in its memorandum of decision regarding a previous motion to strike. Further, the plaintiffs assert that the issue of whether a particular element of a loss was reasonably foreseeable is a question of fact.
I
The court begins by noting that the defendant has not provided any "traditional" evidence in the form of affidavits or other proof to support its motion for summary judgment. The only exhibits attached to the motion are previous versions of the plaintiffs' complaint and a previous decision by Judge Abrams in this case. The defendant's argument is not that it is entitled to summary judgment on a breach of contract claim, but rather that the second count of the fourth amended complaint is a negligence claim instead of a contract claim. Appellate authority indicates that this issue may properly be decided on a motion for summary judgment. Weiner v. Clinton, 106 Conn.App. 379, 383, 942 A.2d 469 (2008).
The initial inquiry is whether the second count of the fourth amended complaint is a claim for negligence, despite the fact that the count is labeled "breach of contract." "Just as [p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender . . . putting a contract tag on a tort claim will not change its essential character. An action in contract is for the breach of a duty arising out of a contract; an action in tort is for a breach of duty imposed by law. [W]hen the claim is one for personal injury, the decision usually has been that the gravamen of the action is the misconduct and the damage, and that it is essentially one of tort, which the plaintiff cannot alter by his pleading . . . It is true, of course, that out of a contractual relationship a tort liability, as in negligence, may arise." (Citations omitted; internal quotation marks omitted.) Gazo v. Stamford, supra, 255 Conn. 263.
This motion raises many of the same issues that the court earlier addressed when deciding a motion to strike filed by the defendant. On July 22, 2008, the court, Abrams, J., issued a memorandum of decision in this case regarding motion to strike #119. The defendant moved to strike several counts of the plaintiffs' first amended complaint, including the seventh count, titled "Breach of Contract by Vista, as to Jane and John Couto." The seventh count included many of the allegations that are now part of the second count and concluded with the claims that "Vista breached its contract with the Coutos . . . Because of that breach, the Coutos have suffered economic damages, including the costs of this lawsuit." First Amended Complaint, Seventh Count, ¶¶ 29-30. With respect to the seventh count, the plaintiffs sought "[money damages, statutory interest, attorney fees, and such other relief as the court deems equitable and proper." First Amended Complaint, Prayer for Relief. The court noted that the "[d]efendant seeks to strike plaintiffs' breach of contract claim based on the argument that it is merely a negligence claim cloaked in contractual garb, at least in part because the plaintiffs do not specifically seek return of the $50,000.00 that they paid defendant." Memorandum of Decision Re Motion to Strike (#119), July 22, 2008, Abrams, J.
In denying the motion to strike, Judge Abrams cited Milford v. Coppola Construction Co., 93 Conn.App. 704, 891 A.2d 31 (2006), for the proposition that a vast array of damages are recoverable pursuant to a breach of contract claim. In Milford, the Appellate Court stated that "[g]eneral damages are considered to include those damages that flow naturally from a breach, that is, damages that would follow any breach of similar character in the usual course of events. Such damages are said to be the proximate result of a breach, and are sometimes called `loss of bargain' damages, because they reflect a failure on the part of the defendant to live up to the bargain it made, or a failure of the promised performance itself. Consequential damages, on the other hand, include those damages that, although not an invariable result of every breach of this sort, were reasonably foreseeable or contemplated by the parties at the time the contract was entered into as a probable result of a breach. These, too, must be proximately caused by the breach, and the difference is that they do not always follow a breach of this particular character." (Internal quotation marks omitted.) Id., 715.
Relying on the Appellate Court's language in Milford, Judge Abrams found that in the present case the allegations, taken in a light most favorable to the non moving party alleged the "[p]laintiff[s] and defendant clearly entered into a contract to provide services in exchange for compensation. Implicit in that agreement was the promise on the part of defendant to keep Melissa Couto free from harm. Plaintiffs allege that the defendant's employee stole Melissa Couto's medication, causing her injury. Plaintiffs have alleged a valid claim for breach of contract and, if they prevail, may recover reasonably foreseeable damages flowing from the breach." Memorandum of Decision Re Motion to Strike (#119), July 22, 2008, Abrams, J.
The court is now faced with the issue of whether the defendant is entitled to summary judgment on the second count of the fourth amended complaint. The "breach of contract" claim now includes the allegation that "[a]t the time Jane Couto and John Couto entered into the contract for Melissa's care with Vista, Vista knew or should have known — given Melissa's vulnerable condition, the extraordinary efforts the Coutos had expended in caring for and protecting Melissa, and the utmost trust the Coutos were placing in Vista — that the Coutos might or would incur consequential damages (i.e. emotional distress) in the event of Vista's breach." Fourth Amended Complaint, Second Count, ¶ 29. Additionally, the plaintiffs now claim that "as a proximate result of Vista's breach of the contract, the plaintiffs Jane Couto and John Couto incurred consequential damages in that they suffered and continue to suffer emotional distress as a result of the events described herein and of the residual effects thereof."
In the present case, it was previously determined that the count titled "breach of contract" (formerly the seventh count, now the second count) properly alleged a cause of action for breach of contract. The second count in the fourth amended complaint includes substantially all of the allegations that were present in the first amended complaint. The difference between the "breach of contract" count when Judge Abrams made his determination and the current count is the addition of specific allegations with respect to the damages suffered by the plaintiffs. Those additional allegations do not affect Judge Abrams' previous determination that the plaintiffs and the defendant entered into a contract, that there was an implicit promise by the defendant to keep Melissa free from harm and that the defendant's employee caused Melissa injury by stealing her medication.
In opposition to the motion for summary judgment, the plaintiffs have provided a copy of the contract between themselves and the defendant. The contract states that, in exchange for the plaintiffs' payment, the defendant would provide vocational and educational training, counseling and transitional living training, room and board. Notably, the room and board provision details that the defendant would provide "[r]ent, utilities, food and access to supported living services during overnight and early morning/late evening hours." The contract language supports Judge Abrams' determination that the defendant implicitly promised to keep Melissa free from harm during her stay at the defendant's Westbrook facility. The subject matter of the contract: the care and supervision of an individual unable to care for themselves, required the defendant to take whatever steps were necessary to care for, meet the needs of or secure additional assistance to care for Melissa Couto. Additionally, in the fourth amended complaint the plaintiffs seek "[c]ontract damages (direct and consequential), statutory interest, attorney fees, and such other relief as the court deems equitable and proper" with respect to the second count.
The court finds, in line with Judge Abrams' previous holding, that the second count alleges a cause of action for breach of contract and that the count is not, as the defendant argues, simply a "negligence claim cloaked in contract garb." The plaintiffs seek direct and consequential contract damages for their breach of contract claim. There are substantial differences between the facts in this case and the facts of the Gazo case. Here there is a written contract between the plaintiffs and the defendant. In Gazo the plaintiff was attempting to become a third-party beneficiary of a contract between the building owner and the contractor. Here the scope of the contract is broad. It requires the plaintiffs to actively partner with the defendant in planning the program for Melissa. In Gazo the contract related to keeping snow and ice off of a sidewalk — a relatively simple physical task. Although some of the consequential damages plead by the plaintiff are "tortlike" damages, there is not a bright line that separates these "tortlike" damages from consequential breach of contract damages that might accompany the breach of a contract for personal services. Pursuant to the reasoning in Milford v. Coppola Construction Co., supra, 93 Conn.App. 715, the plaintiffs may be entitled to reasonably foreseeable consequential damages if they prevail on the second count. "[T]he question whether a particular element of loss was reasonably foreseeable is a question of fact . . ." (Internal quotation marks omitted.) Ambrogio v. Beaver Road Associates, 267 Conn. 148, 162, 836 A.2d 1183 (2003).
II
The court now reaches the defendant's argument that the plaintiffs are not entitled to damages for emotional distress on their breach of contract claim. At oral argument, the following colloquy transpired between the court and the defendant:
"THE COURT: So the contract was — the parent had a contract with the defendant.
"ATTY. HILL [attorney for the defendant]: Yes, your Honor.
"THE COURT: Is the state —
"ATTY. HILL: Paid directly $50,000.
"THE COURT: Paid directly.
"ATTY. HILL: This issue is not directed towards the court, not directed [to the] $50,000. There is a breach of contract claim. There may be issues directed toward there. What we're looking to do your Honor is remove in this case — remove any and all emotional distress claims by the parent." Transcript of Proceedings, August 9, 2010, p. 3.
At oral argument, the defendant appeared to concede that the plaintiffs have a valid claim for breach of contract. Indeed, this court has already determined that the second count alleges a cause of action for breach of contract. In essence, the defendant moves the court to grant summary judgment on the portions of the second count that refer to emotional distress.
"A majority of Superior Court judges . . . have held that [Practice Book § 17-51] does not permit a movant to eliminate some of the allegations in a single count via a motion for summary judgment." (Internal quotation marks omitted.) Pitcher v. Hamrick, Superior Court, judicial district of New London, Docket No. CV 03 0566770 (April 12, 2005, Jones, J.). The court will not address individual allegations within the second count on this motion. "[T]he proper way to cure any confusion [regarding the complaint] is to file a [request] to revise . . ." Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988).
CONCLUSION
Based on the foregoing, the defendant's motion for summary judgment is denied.