Opinion
No. AAN CV 09 6001209
June 14, 2011
MEMORANDUM OF DECISION RE (#159) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
BACKGROUND
This is an action by the plaintiffs, Bessie Debassio and Peter Debassio, both individually and as parents and natural guardians of their minor son, Peter Debassio, Jr. The defendants are Lisa Moscato and Pasquale Moscato both individually and as joint custodial parents of their minor son, Adam Moscato. Additional defendants are Michael Butler and Michelle Butler.
The plaintiffs brought this action on August 26, 2009 as a result of an incident which occurred on April 5, 2008, when, according to the plaintiffs' allegations, Adam Moscato swung a golf club which had been lying in a wooded area and struck Debassio, Jr. in the head causing severe injuries. The plaintiffs brought a twenty-count complaint against the defendants alleging, inter alia, negligence, recklessness, statutory parental neglect, intentional infliction of bystander emotional distress and negligent infliction of bystander emotional distress.
On April 5, 2010, the plaintiffs filed a revised complaint which incorporated additional allegations against defendants Michael and Michelle Butler alleging that the golf club had belonged to the Butlers. Those additional counts against the Butlers included negligence, nuisance, bystander emotional distress and spoliation of evidence.
On November 17, 2010, the plaintiffs withdrew the action against Adam Moscato, Lisa Moscato and Pasquale Moscato.
On November 10, 2010, the defendants Butler filed the instant motion for summary judgment arguing that the claims of the plaintiffs fail as a matter of law because (1) the Butlers did not owe any duty to Peter Debassio, Jr. and that the alleged actions of Adam Moscato were not foreseeable; (2) that a golf club is not inherently dangerous nor has it a natural tendency to create danger and inflict injury upon person or property; and (3) that the sale of the Butlers' golf clubs was not done in bad faith or with knowledge of pending litigation and no genuine issue of material fact exists.
Standard for a motion for summary judgment.
"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." Miles v. Foley, 253 Conn. 381, 385-86 (2000).
"In opposing a motion for summary judgment, a party is not required to present evidence necessary to prevail at trial, only evidence sufficient to raise issues of fact." Vaillancourt v. Latifi, 81 Conn.App. 541, 544 (2004).
"The burden is on the moving party to show quite clearly what the law is, and that any real doubt as to the existence of a material fact has been excluded." Fogarty v. Rashaw, 193 Conn. 442, 445 (1984).
Having considered the arguments of counsel, the memoranda of law and the applicable statutes and case law, the Court makes the following findings.
The allegations against the defendants sounding in negligence, nuisance, negligent infliction of bystander emotional distress and spoliation of evidence are all predicated on the claim that the golf club used to injure DeBassio (minor child) was an inherently dangerous instrument which belonged to the Butlers. The plaintiffs claim that the mere presence of the golf club at the scene of the incident is enough to impute to the owners of the club, allegedly the Butlers, those four additional causes of action. The allegation of spoilation of evidence is based upon the plaintiffs' claim that the Butlers not only owned the club, but that after the incident and in an attempt to prevent it from being traced to them, they sold the parent set of clubs at a tag sale or otherwise disposed of them.
The defendants argue that the first part of the test for the existence of a legal duty, the foreseeability of harm cannot be met in this case because it would not be negligent to merely leave a golf club lying on the ground unattended. This Court agrees. There is no basis to find that a golf club is any more inherently dangerous than a baseball bat, a tennis racquet, or a hockey stick.
In Lubitz v. Wells, 19 Conn.Sup. 322 (1955), the Court held that, "it would hardly be good sense to hold that this golf club is so obviously and intrinsically dangerous that it is neglect to leave it lying on the ground in the yard." Id., p. 323. The facts in that case are substantially the same as in the instant case. The plaintiff sought to have the father of the minor child who swung a golf club left on the ground thereby injuring a playmate held to be negligent. The Court refused to hold the father liable despite the allegation that father knew or should have known the golf club was on the ground in the backyard, that children would likely play with it, and that he neglected to remove it. In that case, unlike the instant case, the father was the parent of the child who caused the injury, the golf club was on the father's premises and the father knew it was where the children would likely play. None of those facts are applicable in the instant case. The incident did not take place on the Butler's property and there is no evidence that they knew that the club was in the possession of the children.
In this case there is no claim of parental responsibility or parental supervision on the part of the Butlers. As our Supreme Court held in Murdock v. Croughwell, 268 Conn. 559 (2004), "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." Id., p. 566.
Having determined that a golf club is not an inherently dangerous instrumentality, the Court finds, as a matter of law, that the plaintiffs' allegation of nuisance must fail. The elements of nuisance in Connecticut law are set forth in Keeney v. Old Saybrook, 237 Conn. 135 (1996), wherein our Supreme Court held that the elements of nuisance include the requirement that "the condition complained of has a natural tendency to create danger and inflict injury upon person or property . . ." Id., p. 162.
The prerequisites for spoliation of evidence have been articulated by our Supreme Court recently in Rizzuto v. Davidson Ladder, Inc., 280 Conn. 225 (2002), in that case the Court set forth the requirements for the newly created independent tort of spoliation of evidence. Among them is "the plaintiff's inability to establish a prima facie case without the spoliation evidence . . ." Id., p. 245.
In the instant case, while there may be a genuine issue of material fact as to whether the Butlers disposed of the parent set of golf clubs with the knowledge of an impending law suit, the only evidentiary value that set of clubs would have had would have been to conclusively establish that the club used to cause the alleged injuries came from that set. Having found that the club, and for that matter the entire set of clubs, do not constitute an inherently dangerous instrumentality, the absence of that evidence cannot he said to be the cause of the plaintiff's inability to establish a prima facie case.
For the foregoing reasons, the defendants' motion for summary judgment is granted.