Opinion
FSTCV065001340S.
11-21-2012
Emanuel J. DI TERESI et al., Executors of the Will of Santina Di Teresi et al. v. STAMFORD HEALTH SYSTEM, INC. et al.
UNPUBLISHED OPINION
ALFRED J. JENNINGS, JR., Judge Trial Referee.
FACTUAL BACKGROUND
On March 22, 2006, the plaintiff, Santina Di Teresi, commenced this action through her attorney-in-fact, Virginia Di Teresi, by serving process on the defendants, Stamford Health System, Inc., Stamford Hospital (collectively, the defendants) and Robert E. Mayes. In the operative pleading, the second amended complaint dated February 12, 2010, the plaintiff alleges the following relevant facts. On March 9, 2004, the plaintiff was admitted into Stamford Hospital with a diagnosis of pneumonia and new onset diabetes. At the time of her hospital admission, the plaintiff was ninety-four years old and suffering from dementia and contractures. The defendants classified the plaintiff as a " total care patient, " which means that they deemed her unable to care for herself. During her stay at Stamford Hospital, the plaintiff was assigned to Main Three South, " in a room located the furthest distance away from the nurses' station." On March 23, 2004, the defendants assigned Mayes to work at Main Three South for the day because of a staffing shortage. On that day, Mayes, a certified nurse's assistant employed by the defendants, was assigned to assist Latrina Futrell, a registered nurse.
On January 27, 2008, Santina Di Teresi died. As a result, on May 12, 2008, the court, Tierney, J.T.R., granted a motion to substitute her executors, Emmanuel J. Di Teresi and Virginia Di Teresi, as the plaintiffs in this case. Even though there are now multiple plaintiffs, this memorandum will continue to refer to a singular plaintiff, Santina Di Teresi, because she was the alleged victim of Mayes' sexual assault.
As Stamford Health System, Inc. and Stamford Hospital are the only defendants who are parties to the motion for summary judgment that is currently before the court, they alone will be referred to as " the defendants" throughout this memorandum.
On December 14, 2010, the plaintiff filed a request for leave to file a third amended complaint, with a proposed amended complaint attached. Thereafter, on December 23, 2010, the defendants filed a timely objection to the proposed third amended complaint. To date, there has been no court ruling on the defendants' objection. Therefore, the operative complaint remains the second amended complaint dated February 12, 2010.
The plaintiff alleges that Stamford Health System, Inc. is the parent corporation of Stamford Hospital.
The plaintiff alleges that Futrell met with Mayes at around 7:30 a.m. to discuss the patients for whom she needed Mayes' help. Futrell told Mayes to report back to her when he was ready to bathe the plaintiff. At approximately 10:30 a.m., Futrell was walking down the hallway when she smelled what she thought was feces emanating from the plaintiff's room. Upon entering the plaintiff's room, Futrell witnessed Mayes, a man in his thirties, sexually assaulting the plaintiff. Specifically, Futrell saw Mayes rub his exposed penis against the plaintiff's vagina and buttocks. The plaintiff alleges that Mayes had drawn the plaintiff's bed curtain in order to obtain the requisite privacy to sexually assault her.
In count three, the plaintiff brings a negligent supervision cause of action against the defendants. The plaintiff alleges that the defendants granted Mayes " privileged" and " free" access to Stamford Hospital's facilities, including the plaintiff's room. As a result of this access, the plaintiff had " the opportunity to dress, undress and bathe [t]otal [c]are [p]atients such" as the plaintiff. According to the plaintiff, the defendants should have had a policy in place requiring that male certified nurse's assistants who attended to female dementia patients work with another hospital employee. The plaintiff further alleges that the defendants " knew or reasonably should have known that [their] failure to properly supervise Mayes in the care and treatment of [the plaintiff] subjected her to harm of the general nature of that suffered, or that Mayes' misconduct was otherwise foreseeable." Accordingly, the plaintiff alleges that the defendants breached their duty of supervision over Mayes.
On March 6, 2007, the court, Tobin, J., granted a motion to strike count three on the ground that the plaintiff failed to allege that the type of harm suffered by her was foreseeable. Following the granting the motion to strike, the plaintiff repleaded this count. The defendants then brought another motion to strike count three. This motion to strike was denied by the court, Tobin, J., on May 23, 2007.
Via a memorandum of decision dated December 14, 2010, the court, Tierney, J.T.R., granted the defendants' motion for summary judgment as to twelve of the nineteen counts in the second amended complaint. In that motion, the defendants did not move for summary judgment as to count three for negligent supervision. Only count three is at issue in the motion for summary judgment that is presently before the court.
On July 7, 2011, the defendants filed a motion for summary judgment as to count three, along with a memorandum of law in support of their motion. The plaintiff filed a memorandum of law in opposition to the defendants' summary judgment motion on July 3, 2012. On July 27, 2012, the defendants filed a reply memorandum. Both of the parties have attached numerous exhibits in support of their respective positions. This matter appeared on the July 30, 2012 short calendar.
LEGAL 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.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). " [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). The burden is on the moving party to demonstrate an absence of any triable issue of material fact and " [t]o satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
In the memorandum of law in support of their motion for summary judgment, the defendants argue that they are entitled to summary judgment because " [t]here is not one scintilla of evidence" of Mayes' propensity or predilection for sexual assault on a patient. The defendants contend that there is no genuine issue of material fact that they were not on notice of Mayes' tendency to commit sexual assault on a patient. In their supporting memorandum of law, the defendants cite to testimony offered by the plaintiff's experts indicating that the experts had never heard of a sexual assault committed by a hospital employee on a patient during their entire careers. Therefore, the defendants argue that the sexual assault committed on the plaintiff was not foreseeable as a matter of law.
The plaintiff responds that whether the sexual assault committed by Mayes on the plaintiff was foreseeable is a question of fact for the jury. The plaintiff argues that it is not relevant whether Mayes had a prior history as a sexual deviant. Rather, the plaintiff contends that there is sufficient evidence before the court to establish that the defendants knew or should have known that the plaintiff could experience the harm of the general nature that was suffered. The plaintiff also points to the expert testimony of Dr. John Shershow, who testified that sexual abuse of patients in a hospital setting is not uncommon. Additionally, the plaintiff argues that Judge Tierney's rulings on the prior summary judgment motion with respect to the premises liability claim are not relevant because there is a different notice requirement in a premises liability cause of action than a negligent supervision claim. Finally, the plaintiff states that the court should not rely on the Superior Court cases cited by the defendants because those cases are either factually inapposite or incorrectly decided.
Notably, all of the Superior Court cases cited by the defendants are rulings on motions to strike, not motions for summary judgment.
In their reply memorandum, the defendants argue that the plaintiff simply cannot meet the threshold requirements in order to demonstrate a genuine issue of material fact with respect to the issue of the foreseeability of the sexual assault on the plaintiff. The defendants contend that under the totality of the facts and circumstances presented in this case, the sexual assault committed on the plaintiff was not foreseeable and the defendants had no duty to supervise their employees to stop it. The defendants argue that the recitation of the facts and law found in their brief is consistent with Connecticut appellate authority on negligent supervision. Furthermore, the defendants state that Judge Tierney's previous rulings are relevant here because the premises liability claim for which Judge Tierney granted summary judgment in favor of the defendants is predicated upon the same facts presented in support of the plaintiff's negligent supervision cause of action.
" Under Connecticut law, an employer may be held liable for the negligent supervision of employees ... [I]n [a] negligent supervision action, [the] plaintiff must plead and prove that she suffered an injury due to the defendant's failure to supervise an employee whom the defendant had [a] duty to supervise." (Citations omitted; internal quotation marks omitted.) Brooks v. Sweeney, 299 Conn. 196, 207-08 n. 12, 9 A.3d 347 (2010). " Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of [foreseeability]. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised ... It is well settled that defendants cannot be held liable for their alleged negligent hiring, training, supervision or retention of an employee accused of wrongful conduct unless they had notice of said employee's propensity for the type of behavior causing the plaintiff's harm ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Citation omitted; internal quotation marks omitted.) Loglisci v. Stamford Hospital, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 08 5009309 (February 22, 2011, Jennings, J.T.R.), citing, Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008). " The matter of foreseeability is a question of proximate cause ..." Gutierrez v. Thorne, 13 Conn.App. 493, 500, 537 A.2d 527 (1988). " An issue of proximate cause is ordinarily a question of fact for the trier ... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion ..." (Citation omitted; internal quotation marks omitted.) B & D Associates, Inc. v. Russell, 73 Conn.App. 66, 77, 807 A.2d 1001 (2002).
The Appellate Court's decision in Gutierrez v. Thorne, supra, 13 Conn.App. at 493 is factually very similar to the present case and, therefore, is instructive to the resolution of the motion for summary judgment presently before the court. In Gutierrez, the plaintiff, a mentally impaired female, brought suit against the commissioner of the Department of Mental Retardation (DMR) after she was sexually assaulted in her supervised apartment by a male at-home health aid named Steven Jones, who was employed by the DMR's Central Connecticut Regional Center (CCRC). The Appellate Court recites the facts in Gutierrez as follows:
In his application, Jones denied any criminal convictions or that any criminal charges were pending, which was verified through a state police fingerprint check. Upon being hired as a[n] [at-home health] aide, Jones went through a one-week orientation program and was supervised on a daily basis ... In December 1981, Jones was assigned to visit the plaintiff. As a[n] [at-home health] aide, Jones was given a key to the plaintiff's apartment to enable him to enter the apartment in case of emergency. On December 19, while the plaintiff was taking a shower, Jones entered the plaintiff's apartment with the key provided to him and sexually assaulted the plaintiff ... In the twenty years in which CCRC operated a community residential program prior to 1981, no employee had ever been arrested or convicted of any crime of violence, including sexual assault, involving a CCRC client.Id., 497-98.
At the trial court level, the defendant filed a motion for summary judgment as to the negligent supervision cause of action. Based on these facts, the trial judge granted summary judgment in favor of the defendant on the basis that " an intentional tort of the general nature of that suffered by the plaintiff was not foreseeable as a matter of law." (Internal quotation marks omitted.) Id., 498. On appeal, the Appellate Court reversed, reasoning that " the question of foreseeability is not such as would lead to only one conclusion; rather, under the circumstances of this case, the foreseeability of whether the defendant's conduct in permitting Jones to have a key to the plaintiff's apartment would result in a sexual assault upon the plaintiff is a question to be resolved by the trier of fact. In reaching this conclusion, we note several critical aspects of this case which must be carefully weighed, and therefore the inferences to be drawn from these facts cannot be resolved by summary judgment ... The plaintiff is a woman whose mental functioning is slightly impaired. She is a client of the department of mental retardation receiving the benefits of a state program to assist high-functioning mentally retarded persons in an independent living situation. The department of mental retardation's rules notwithstanding, the defendant, through department employees, permitted Jones, a male employee, to have complete, unfettered and unsupervised access to the plaintiff's apartment. The plaintiff was in a position where it is unlikely that she could resist Jones' entry into her private apartment. This impaired ability to resist arose both from the unrestricted nature of the access granted to Jones by virtue of his possession of a key to the plaintiff's apartment, and from the particular vulnerability of the plaintiff due to the superior power accorded Jones in his relationship with the plaintiff by virtue of their provider-client relationship, her mental impairment, and his ability to threaten a termination of her state services."Id., 501-502.
Another illustrative case is Burban v. Hill Health Corp., Superior Court, judicial district of New Haven, Docket No. CV 01 0446764 (December 12, 2006, A.Robinson, J.), where the court applied Gutierrez and denied summary judgment under the following facts. The plaintiff's decedent was involuntarily admitted into a medical facility for the treatment of mental health issues. There, the plaintiff's decedent was allegedly raped by an employee named Moises Velez. When he was hired as a security guard, " Velez had no criminal history and no criminal charges in his history. His job references were excellent. And, from the time he was hired by the defendant to the time the defendant became aware of the allegation of sexual assault, the defendant reasonably considered Mr. Velez an exemplary employee. Further, prior to this incident, the defendant claims that there had never been any incidents involving patients and guards having sexual relations at the facility." Id. The plaintiff brought a claim for negligent supervision against Velez's employer. As stated by the Burban court,
In the instant matter, the defendant contends that it is entitled to judgment based on the single undisputed fact that the defendant had no actual notice that Velez would sexually assault the plaintiff's decedent. This undisputed fact was similarly present and relied upon in Gutierrez. In Gutierrez, the Appellate Court concluded that; although the defendant was not actually or constructively aware of any prior incidents of violent crimes, including sexual assaults, whether the sexual assault of the plaintiff was foreseeable was a question of fact. Though Jones, the assailant in Gutierrez, had no history of violent crimes or of any crimes, the Appellate Court concluded that it was still a question of fact as to whether the defendant should have foreseen that he would sexually assault the plaintiff. Based upon the holding in Gutierrez, this court concludes that there is, at least, a question of fact as to whether alleged the sexual assault by Moises Velez was foreseeable. Id.
The Superior Court cases cited by defendants for the proposition that a negligent supervision plaintiff must plead and prove injury by the defendants' negligence in failing to properly supervise an employee who the defendant had a duty to supervise and who the defendant knew or should have known would cause the plaintiff's injury cannot justify summary judgment in cases such as this in the Gutierrez-Burban fact pattern where foreseeability can be gleaned from the vulnerability and impairment of a victim unable to defend herself from the unsupervised, unfettered access of an assailant having the superior power accorded by the provider-client relationship. These are the " critical aspects" which must be " carefully weighed, " and therefore the inferences to be drawn from these facts cannot be resolved by summary judgment. Gutierrez, at 502.
In the present case, it is not disputed that the plaintiff was an elderly women suffering from serious health problems including dementia. Therefore, the plaintiff, similar to the plaintiffs in Gutierrez and Burban, would have been limited in her ability to resist a sexual assault committed by a much younger man. Moreover, according to Futrell's original deposition testimony, she told Mayes " to call [her]" at 7:30 a.m. when he was ready to bathe the plaintiff, but she had not heard from him until the 10:30 a.m. sexual assault of the plaintiff. (See Exhibit A to the defendants' motion, p. 48.) Accordingly, Mayes very well may have had a three-hour window where he had unfettered access to the plaintiff. The defendants were also on notice that Mayes was a less than stellar employee, who had committed various types of work misconduct, albeit much less serious than the sexual assault on the plaintiff. (See, generally, Exhibit G to the defendants' motion.) Additionally, as noted by the Gutierrez and Burban courts, a plaintiff can maintain a successful negligent supervision claim against the perpetrator's employer for a sexual assault when there is no evidence of the individual's propensity to commit sexual assault or that sexual assault is common in that occupation. Consequently, the defendants' arguments in that respect are unavailing. Therefore, in reliance on the factually similar Gutierrez and Burban cases, the issue of foreseeability should be decided by the trier of fact. Even though this matter may not be the strongest case in support of a negligent supervision cause of action, the defendants have not met their burden to establish that Mayes' sexual assault on the plaintiff was not foreseeable as a matter of law. This is not a case where a reasonable mind could reach only the conclusion that the assault by Mayes was not a foreseeable risk. There are genuine issues of material fact to be resolved at trial.
Defendants' reliance on Judge Tierney's ruling in granting summary judgment for the defendant Stamford Hospital in the plaintiff's premises liability claim is misplaced. Judge Tierney himself made this clear when the plaintiffs cited four negligent supervision cases, including Burban, supra, in support of their opposition to summary judgment on Count One claiming premises liability. " The Court finds that none of the four cases supported the claim of foreseeability as to Count One, which sounds in liability based on a form of defective or dangerous premises." Di Teresi v. Stamford Health Systems, Inc. Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. FST CV06-5001340S (December 14, 2012, Tierney, J.) 2010 WL 5493514 (Conn . Super.) at *13. " Typically, under traditional premises liability doctrine, [f]or [a] plaintiff to recover for the breach of a duty owed to [her] as [a business] invitee, it [is] incumbent upon [her] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [her injury] or constructive notice of it ... [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it." (Emphasis added; internal quotation marks omitted.) James v. Valley-Shore Y.M.C.A., Inc., 125 Conn.App. 174, 178-79, 6 A.3d 1199 (2010), cert. denied, 300 Conn. 916, 13 A.3d 1103 (2011). In contrast, within the context of a negligent supervision cause of action, " [t]he test that is often applied in determining whether there exists a duty to use care is the foreseeability of harm ... This does not mean foreseeability of any harm whatsoever or foreseeability that the particular injury which resulted would occur. It is, in short, the foreseeability or anticipation that harm of the general nature of that suffered would be likely to result, which gives rise to a duty to use due care, breach of which might constitute negligence." (Emphasis added; internal quotation marks omitted.) Gutierrez v. Thorne, supra, 13 Conn.App. at 500. Accordingly, it can be seen that a premises liability claim and a negligent supervision claim have different notice requirements.
See Loglisci v. Stamford Hospital, supra, where I granted summary judgment on the premises liability claim but denied summary judgment on the negligent supervision claim, on the same facts.
Order
For the foregoing reasons, the defendants' second motion for summary judgment directed to Count Three of the Second Amended Complaint is denied.