Opinion
X08FSTCV175019997S
10-15-2018
Jane DOE, a Minor Child, Brought BY Mary DOE et al. as Parents, as Guardian and Next Friend v. Eman ABUSAHYOUN aka Eman Beshtawii et al.
UNPUBLISHED OPINION
OPINION
Mintz, J.
Two of the defendants, Eman Abusahyoun and the Muslim Society of Greater Danbury, Inc., move to strike counts two and three as well as the request for punitive damages in the prayer for relief of the second revised complaint of the plaintiff, Jane Doe. The plaintiff contends in count two of the second revised complaint that the defendants are negligent per se because the defendants failed to report the plaintiff’s report that she was sexually assault, as required by General Statutes § 17a-101. Additionally, the defendants failed to obtain a child care center license, as required by General Statutes § 19a-77 et seq. In count three, the plaintiff contends that the defendants breached the fiduciary duty toward her. Finally, in her prayer for relief, the plaintiff requests, inter alia, punitive damages.
The plaintiff’s second revised complaint includes the following allegations common to counts two and three and her prayer for relief. The Muslim Society of Greater Danbury, Inc., operates a school that serves children from preschool through sixth grade (school), which the plaintiff attended as a kindergarten student. The school did not acquire a child care center license for the children under five years of age who are in its care as required by § 19a-77 et seq. The plaintiff was three and one-half years of age when she was sexually assaulted by John Roe, an older minor child attending the school, on multiple occasions. The sexual assaults occurred at the school. The school knew that John Roe had previously been accused of assaulting another child at the school prior to his sexually assaulting the plaintiff. The plaintiff reported the assault to her kindergarten teacher, Tracy L. Ajdinoska, who did not take any action. The plaintiff spoke to a psychotherapist after her parents noticed she had stopped eating. The plaintiff explained to the psychotherapist that she had been sexually assaulted by John Roe. The plaintiff’s mother, Mary Doe, went to the school and reported to the president of the Muslim Society of Greater Danbury, Inc., Eman Abusahyoun, that the plaintiff had been sexually assaulted by John Roe. The president did not file a report regarding the sexual assault. The president and Mary Doe then met with the principal of the school, Kristin Fuller, who did not report the sexual assault until Mary Doe insisted a report be filed.
The defendants move to strike count two, on the grounds that the plaintiff has failed to properly plead that the defendants operated a child care center pursuant to § 19a-77, the plaintiff is not within the class of persons § 19a-77 et seq. was designed to protect, and the defendants are exempt from the licensing requirements of § 19a-77 et seq. Additionally, the defendants move to strike count two on the grounds that the plaintiff is not within the class of persons that § 17a-101 was designed to protect and the plaintiff failed to plead that any of the identified individuals are mandatory reporters pursuant to the statute. The defendants move to strike count three on the ground that the plaintiff has failed to allege a confidential relationship between the plaintiff and the defendants. Finally, the defendants move to strike the plaintiff’s request for punitive damages on the ground that the requested relief cannot be awarded when the plaintiff has only alleged negligence. The plaintiff filed a memorandum in opposition on April 13, 2018. The court heard oral argument at short calendar on June 18, 2018.
"A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint ... or of any one or more counts thereof, to state a claim upon which relief can be granted; or (2) the legal sufficiency of any prayer for relief in any such complaint ..." Practice Book § 10-39(a). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... 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." (Internal quotation marks omitted.) Geysers v. Securitas Security Services USA, Inc., 322 Conn. 385, 398 (2016). "A single paragraph or paragraphs can only be attacked for insufficiency when a cause of action is therein attempted to be stated, and then only by [a motion to strike]." Donovan v. Davis, 85 Conn. 394, 397-98 (1912).
I. Count Two: Negligence Per Se
In count two, the plaintiff raises two claims of negligence per se; the first with respect to the defendants’ failure to obtain a license as required by § 19a-77 et seq., and the second with respect to the defendants’ failure to report the assaults pursuant to § 17a-101. In their first claim, the plaintiff contends that, in violation of the statute, the defendants did not have a license to operate a child care center for children under the age of five. The plaintiff further contends that the plaintiff, due to her age, was a member of the group that the licensing statutes were designed to protect. In their second claim of negligence per se, the plaintiff contends that she was of the age and in the class that the mandatory reporting statute, § 17a-101, was designed to protect. Accordingly, the plaintiff contends that her teacher and the school’s principal and president were required to report the sexual abuse when she reported it to her teacher. The plaintiff further contends that the principal and president were required to have reported a previous assault John Roe allegedly perpetrated on another child. The court reads count two as raising two separate causes of action and addresses each in turn.
The defendants first argue that count two with respect to licensing claims should be stricken because the plaintiff failed to allege that the school directly provided "supplementary care to more than twelve children outside their own homes" pursuant to § 19a-77(a)(1). General Statutes § 19a-80(a) provides in relevant part: "No ... association, organization, corporation, institution or agency, public or private, shall maintain a child care center ... without a license ..." Section 19a-77(a)(1) defines a child care center as "offer[ing] or provid[ing] a program of supplementary care to more than twelve related or unrelated children outside their own homes on a regular basis ..." At short calendar, the court granted the defendants’ motion to strike count two with respect to the licensing requirement because the plaintiff failed to allege sufficient facts, such as the number of students, to constitute a child care center pursuant to § 19a-77 et seq.
The defendants assert two alternative grounds for striking count two with respect to the plaintiff’s claims that the defendants violated § 19a-77 et seq. The first alternative ground is that the school is exempt from the state licensing requirements pursuant to § 19a-77(b), because it is a religious institution. The second ground is that the school only offered supplementary programs and the parents remained on the premises. Section 19a-77(b) provides an exception to the licensing requirements for "[s]upplementary child care operations for educational or recreational purposes and the child receives such care infrequently where the parents are on the premises" and "[r]eligious educational activities administered by a religious institution exclusively for children whose parents or legal guardians are members of such religious institution," which the defendants argue are applicable to the school. The defendants’ additional grounds sound as a defense to the licensing statute rather than grounds for a motion to strike. Accordingly, the defendants’ arguments are inappropriate on a motion to strike. Even if the court were to consider these additional grounds, the plaintiff has not alleged that the school children receive infrequent care or that the school children’s parents remain on the premises. The plaintiff also has not alleged that the school is operated exclusively for the members of the Muslim Society of Greater Danbury, Inc. The crux of the defendants’ argument relies on facts that are outside of the plaintiff’s second revised complaint, which the court cannot consider on a motion to strike. See Mercer v. Cosley, 110 Conn.App. 283, 292 n.7 (2008); Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, cert. denied, 273 Conn. 916 (2005).
The defendants move to strike the plaintiff’s second claim of negligence per se regarding the mandatory reporter statute on the ground that the individuals identified in the plaintiff’s second revised complaint are not required mandatory reporters pursuant to § 17a-101 because the plaintiff has failed to plead that any of the individuals are teachers or school employees. Additionally, the plaintiff is not within the class of persons that § 17a-101 was enacted to protect. Specifically, they argue that § 17a-101 was designed to solely protect children who have already been victims of reportable conduct and not to future unknown children.
"A violation of the statute or regulation thus establishes a breach of duty when (1) the plaintiff is within the class of persons intended to be protected by the statute, and (2) the injury is the type of harm that the statute was intended to prevent." Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn, 1, 24 (2013). Section 17a-101 provides in relevant part: "The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse or neglect, investigation of such reports by a social agency, and provision of services, where needed, to such child and family." For the purposes of § 17a-101, a child is defined as "any person under eighteen years of age ..." General Statutes § 17a-93.
With respect to § 17a-101, the class of persons "the legislature intended to focus on [are] children who already have been exposed to conduct that amounts to a reportable event, and we do not find merit in the plaintiff’s argument that the statute creates a duty of care to every child who has been in the care of the defendant." (Emphasis omitted.) Ward v. Greene, 267 Conn. 539, 549 (2004). Moreover, the Supreme Court noted that they could not "say that a mandated reporter owes a legally enforceable duty to children unknown to the reporter who might stand the remote chance of benefiting from a report of abuse or neglect, where the benefit would depend entirely on the intervening acts of administrative agencies." Id., 557. A reportable event includes the abuse or neglect of children, as defined in General Statutes § 46b-120. General Statutes § 17a-101a(a)(1)(A). Section 46b-120 defines abuse as when a child "is in a condition that is the result of ... sexual molestation or exploitation ..."
In the present case, the plaintiff makes the following allegations. At the time of the sexual assault, the plaintiff was three and one-half years old and attending the school. The plaintiff reported to her teacher that John Roe sexually assaulted her, however, her teacher did not take any action in response to her report and, as a result, John Roe continued to sexually assault her. The plaintiff’s teacher was a mandatory reporter. Reading the complaint broadly and in favor of sustaining its legal sufficiency, the plaintiff alleged sufficient facts to maintain that she was within the class of persons the statute was designed to protect.
The plaintiff additionally alleges that the defendants were required and failed to report John Roe’s prior assault against another student. The statute was not intended to protect unknown future victims. See Ward v. Greene, supra, 267 Conn. 549. The court, however, has already determined that the plaintiff has alleged sufficient facts to support her claim that the defendants breached § 17a-101. See Bouchard v. People’s Bank, 219 Conn. 465, 471 (1991).
Additionally, the defendants argue that the plaintiff has insufficiently pleaded that the individuals identified in the complaint fall within the class of persons that constitute mandatory reporters. Section 17a-101(b) provides in relevant part: "The following persons shall be mandated reporters ... any school employee, as defined in section 53a-65 ... any person paid to care for a child in any public or private facility, child care center, [and] group child care home ... licensed by the state ..." Section 53a-65(13) defines a school employee as "[a] teacher, substitute teacher, school administrator, school superintendent ... or ... any other person who, in the performance of his or her duties, has regular contact with students and who provides services to or on behalf of students enrolled in ... a private elementary ... school, pursuant to a contract with the supervisory agent of such private school."
In the present case, the plaintiff alleges that a school teacher, who is not a defendant, was told about the sexual assault. It remains unclear whether the president of the school, who is a defendant, constitutes a school administrator. "[W]hen a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary." (Internal quotation marks omitted.) State v. Albert, 252 Conn. 795, 807 (2000). An administrator is defined as "one who administers ... school ... affairs," and administer is defined as "to manage affairs" or "to manage or supervise the execution, use, or conduct of" something. Merriam-Webster’s Collegiate Dictionary (11th Ed. 2014), p. 16.
To the extent that the plaintiff claims that the president is liable for negligence per se for failing to report the sexual assault, the plaintiff has sufficiently alleged this claim. The plaintiff alleges that the president operates the school and supervises the teachers and other administrators of the school. Specifically, the plaintiff alleges that the president sets the school’s policies and procedures and further supervises its daily operations. The president also allegedly hired other administrators and teachers at the school and recruited students. These allegations are sufficient to maintain an action against the defendants for negligence per se. Accordingly, the motion to strike count two as to the violation of § 17a-101 is denied.
The defendants additionally state in one clause that the plaintiff has failed to sufficiently plead that the defendants were operating a school, however the defendants fail to properly brief this point or provide any authority. See Practice Book § 11-10(a) ("[a] memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with ... motions to strike"). Thus, the court does not address this claim.
II. Count Three: Breach of Fiduciary Duty
The defendants move to strike count three in its entirety on the ground that because the plaintiff does not allege a confidential relationship between the defendants and her, she has failed to allege a fiduciary duty. The plaintiff argues that she has pleaded sufficient facts to show that there was a fiduciary relationship between her and the defendants.
"It is well settled that a fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other ... Although [the Supreme Court] has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations ... we have recognized that not all business relationships implicate the duty of a fiduciary ... In particular instances, certain relationships, as a matter of law, do not impose upon either party the duty of a fiduciary." (Citations omitted; internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 640 (2002). In explaining when a fiduciary relationship may arise in a business relationship, the Supreme Court has stated that "[t]he unique element that inheres a fiduciary duty to one party is an elevated risk that the other party could be taken advantage of- and usually unilaterally. That is, the imposition of a fiduciary duty counterbalances opportunities for self-dealing that may arise from one party’s easy access to, or heightened influence regarding, another party’s moneys, property, or other valuable resources." (Emphasis omitted.) Iacurci v. Sax, 313 Conn. 786, 801 (2014). "All fiduciary relationships, to some degree, [require] confidence of one in another and a certain inequity or dependence arising from weakness of age, mental strength, business intelligence, knowledge of facts involved, or other conditions which give one an advantage over the other." (Internal quotation marks omitted.) Murphy v. Wakelee, 247 Conn. 396, 407 (1998).
The courts have "carefully refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations." (Internal quotation marks omitted.) Konover Development Corp. v. Zeller, 228 Conn. 206, 222-23 (1994). Our appellate courts have not addressed whether a student-teacher relationship involves a fiduciary duty. Accordingly, the court looks to similar cases to determine whether the allegations in the present case sufficiently allege a fiduciary duty.
The defendants cite to two cases in support of their position that no cases in Connecticut stand for the proposition that a student-teacher relationship is sufficient to create a fiduciary duty. In Bass ex rel Bass v. Miss Porter’s School, 738 F.Supp.2d 307 (D.Conn. 2010), the United States District Court for District of Connecticut determined that the facts of the case did not rise to the level of creating a fiduciary duty because the plaintiff failed to show that the school assumed the responsibility to act primarily for the plaintiff’s benefit. Bass ex rel Bass v. Miss Porter’s School, supra, 738 F.Supp.2d 331. The court reasoned that the school’s handbook and other materials showed that the school’s primary interest was in its community and not in the students themselves. Id. Moreover, none of the named defendants were individuals who could have had "a relationship of unique trust or confidence" with the student. Id.
In Golek v. Saint Mary’s Hospital, Inc., 133 Conn.App. 182 (2012), the court held that the student-teacher relationship alone between the plaintiff, who was a resident in the defendant’s residency program, and the director of the defendant’s surgery program did not create a fiduciary duty. Golek v. Saint Mary’s Hospital, Inc., supra, 133 Conn.App. 197-98. The court reasoned that there was no fiduciary duty because the plaintiff only alleged that the director "sometimes praised and sometimes criticized the plaintiff’s performance and that [the director] certified surgical residents’ performance records"; however, these facts merely stated a student-teacher relationship. Id., 198. The court further noted in dicta that it could find "no case, and the plaintiff has cited to none, to support the proposition that [a student-teacher] relationship, without something more, was fiduciary in nature or that [the director] should be deemed to have undertaken a duty to act primarily for the benefit of the plaintiff." (Internal quotation marks omitted.) Id.
The plaintiff relies on two cases in support of their position that the school owes her a fiduciary duty. The first, Munn v. Hotchkiss School, 326 Conn. 540 (2017), extends the in loco parentis doctrine, which places a duty upon the school to take reasonable care in protecting the students, to children on a private school field trip; however, it does not address whether the school’s duty to take reasonable care creates a fiduciary duty between the school and the students. Munn v. Hotchkiss School, supra, 326 Conn. 555. A duty of care does not, in and of itself, implicate a fiduciary duty. Cammarota v. Guerrera, 148 Conn.App. 743, 756 ("[p]rofessional negligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty" [internal quotation marks omitted] ), cert. denied. 311 Conn. 944 (2014). Therefore, Munn is distinguishable from the present case because the issue in the present case is not whether the school owes the plaintiff a duty of care with respect to count three, but whether the plaintiff and the defendants had a confidential relationship that created a fiduciary duty.
The second case the plaintiff relies on is Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d Cir. 1999). In Martinelli, the Second Circuit Court of Appeals upheld a jury verdict from the United States District Court for the District of Connecticut, which determined that the plaintiff and a priest and the plaintiff and the Diocese had a confidential relationship that created a fiduciary duty between the plaintiff and the Diocese as well as the plaintiff and a priest. Martinelli, supra, 196 F.3d 430. The priest, who belonged to the Diocese but was not employed by the Diocese, mentored and advised the plaintiff and other young boys outside of the boys’ Catholic High School, which belonged to the Diocese. Id., 429-30. The Diocese knew that the plaintiff had "a special and privileged relationship with [the priest] ... as a member of ... [a] small group of boys interested in liturgical reform in the Catholic Church to whom [the priest] acted as a mentor and spiritual advisor." Id., 429. The Diocese was aware that the priest led and participated in extracurricular activities with the plaintiff and the other young boys outside of school, and, in some cases, the Diocese encouraged the priest’s participation. Id., 429-30. At some point, "[t]he Diocese was entrusted with reports from young victims that they had been abused by [the priest], who had used his position to influence them and inflict injury." Id., 430. The court concluded that these facts that the Diocese and the plaintiff had a "particularly close relationship ... from which a fiduciary duty might arise. The Diocese, in turn, occupied a superior position of influence and authority over [the plaintiff]." Id.
The plaintiff alleges the following with respect to count three. The defendants advertised to parents that students attending the school would be protected from criminal activity prevalent at other schools, which was one of the reasons the plaintiff’s parents chose to enroll her in the school. The defendants knew that John Roe had behavioral issues and had assaulted another student prior to the sexual assaults perpetrated against the plaintiff. The defendants failed to take any actions to punish John Roe for his behaviors or attempt to modify his behaviors. Additionally, the defendants failed to take any reasonable precautions so John Roe could not continue to harm other students or misbehave. Specifically, the defendants allowed John Roe to wander the school freely, failed to supervise him, and failed to secure the stairwell that connected his classroom floor to the kindergarten classroom floor.
In the present case, the plaintiff contends that that the defendants’ were required to act in loco parentis and, thus, were required to act in her best interest. They further contend that breaching the duty to act in loco parentis by failing to address John Roe’s behavior is a breach of the defendants’ fiduciary duty. The plaintiff has failed to sufficiently allege the existence of a fiduciary duty. Specifically, the third count does not sufficiently allege that the defendants had a confidential relationship with her or that the defendants had taken on a duty to act primarily for her benefit. In general, "[w]hile [a] school is not an insurer of the safety of its students, it is obligated to exercise such care over students in its charge that a parent or ordinary prudence would exercise under comparable circumstances ..." (Internal quotation marks omitted.) Munn v. Hotchkiss School, supra, 326 Conn. 554. Moreover, "[p]arents who have relinquished control and custody of their children to the school rightly expect that the school will exercise reasonable care, as long as their children remain under the school’s custody and control." Strycharz v. Cady, 323 Conn. 548, 579 (2016). Even though the defendants had a duty to act with reasonable care, this duty does not, in and of itself, create a fiduciary duty between the defendants and the plaintiff.
The facts that the plaintiff has alleged in the present case are dissimilar to those in Martinelli because the plaintiff in the present case has failed to allege that she had a relationship of unique trust or confidence with the defendants or that the defendants assumed a duty to act primarily for her benefit. See Martinelli v. Bridgeport Roman Catholic Diocesan Corp., supra, 196 F.3d 430; Bass ex rel Bass v. Miss Porter’s School, supra, 738 F.Supp.2d 331; Golek v. Saint Mary’s Hospital, Inc., supra, 133 Conn.App. 197-98. Similar to the plaintiff in Miss Porter’s, the only individual with whom the plaintiff may have had a relationship of confidence and trust is the plaintiff’s kindergarten teacher, to whom the plaintiff reported the sexual assault; however, that teacher is not a defendant in the present case. See Bass ex rel Bass v. Miss Porter’s School, supra, 738 F.Supp.2d 331. In the absence of allegations demonstrating the existence of a fiduciary duty, count three is legally insufficient. Accordingly, the motion to strike count three is granted.
III. Punitive Damages
The defendants additionally move to strike the plaintiff’s claim for punitive damages in her request for relief in the event that the court strikes count three, which the court has done. The defendants argue that punitive damages cannot be awarded for negligence actions and, thus, the requested relief must be stricken if count three is stricken. The plaintiff argues that she is not required to plead sufficient facts with respect to their requested relief.
"Practice Book ... § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325 (1998). "We have previously held that in order to award punitive damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights ... Recklessness is a state of consciousness with reference to the consequences of one’s acts ... It is more than negligence, more than gross negligence ... The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... Wanton misconduct is reckless misconduct ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Citation omitted; internal quotation marks omitted.) Franc v. Bethel Holding Co., 73 Conn.App. 114, 137-38, cert. granted, 262 Conn. 923 (2002).
In the present case, the plaintiff has failed to make any allegations as to any of the defendants’ states of mind with respect to their failure to protect other children from John Roe, obtain a license for the school, properly train the school’s staff, and adopt appropriate policies and procedures. Additionally, the only remaining counts in the plaintiff’s second revised complaint sound in negligence, not recklessness. Accordingly, the defendants’ motion to strike the plaintiff’s requested relief of punitive damages is granted.
CONCLUSION
With respect to count two, the defendants’ motion to strike is granted in part and denied in part. It is granted with respect to the plaintiff’s § 19a-77 claims and denied with respect to the plaintiff’s § 17a-101 claims. With respect to the defendants’ motion to strike count three and the plaintiff’s prayer for relief for punitive damages, the defendants’ motion to strike is granted.
The third alternative ground is that the plaintiff is not within the group § 19a-77 et seq. was designed to protect nor was § 19a-77 et seq. designed to prevent the type of injury she suffered. Section 19a-84(a) provides in relevant part: "When the Commissioner of Early Childhood has reason to believe any person licensed under sections 19a-77 to 19a-80, inclusive, and sections 19a-82 to 19a-87, inclusive, has failed substantially to comply with the regulations adopted under said sections, the commissioner may notify the licensee in writing of the commissioner’s intention to suspend or revoke the license or to impose a licensure action ..." Section 19a-79-3a of the Regulations of Connecticut State Agencies provides in relevant part: "The operator of the child day care center ... shall be responsible for compliance with the requirements of [the regulations] ... in such a manner as to ensure the safety, health and development of the children while in the operator’s care ... The operator and staff shall not engage in, nor allow, anyone else to engage in any sexual activity with the day care children while in attendance at the program ..." The plaintiff alleges that she was sexually assaulted while under the defendants’ care. Thus, the plaintiff was within the group of persons the statute was designed to protect and she allegedly suffered an injury, sexual assault while under the defendants’ care, that § 19a-77 et seq. was designed to protect.