Opinion
LLICV185010541S
03-05-2019
Jane DOE v. Michael CAPOZZI et al.
UNPUBLISHED OPINION
OPINION
Pickard, J.
The defendants move to strike (# 120) count three and five of the plaintiff’s amended complaint on the grounds that the plaintiff has failed to allege facts that show the defendants owe the plaintiff a fiduciary duty and, even if the plaintiff has alleged sufficient facts, the plaintiff fails to allege the necessary elements required to sustain a breach of fiduciary duty claim. The plaintiff responds, arguing in her objection (# 121) that she has alleged sufficient facts that, if proven, establish that the defendants owed the plaintiff a fiduciary duty, which was breached, and that the necessary elements of a breach of fiduciary claim have been alleged. For the reasons stated in this decision, the defendants’ motion to strike is granted.
FACTS
On July 26, 2018, the plaintiff filed an amended five-count complaint (# 109). The plaintiff alleges the following facts in count one of her complaint, which alleges that Michael Capozzi (Capozzi) sexually assaulted the plaintiff. The plaintiff is a minor who was enrolled in the adolescent female residential treatment program at the Wellspring Foundation, Inc. (Wellspring). Wellspring provided psychiatric and psychological counseling services to adolescents at the Arch Bridge School (Arch Bridge), which Wellspring owned and operated. Wellspring represented that Arch Bridge was a private special education school serving children in grades one through twelve, was accredited by the New England Association of Schools and Colleges, and provided core academics and college prepatory courses to students in its residential treatment program or therapeutic day school and that Arch Bridge had a long history of success in service children with emotional, psychological and learning vulnerability and issues. The plaintiff attended Arch Bridge at all times relevant to the present action and resided in a residential unit with other adolescent female residents. The plaintiff sought treatment for a number of psychological or behavior disorders, some of which included "depression, anxiety and obsessive compulsive disorder, all of which made her a risk for engagement in self harming and or destructive attitudes and actions." The plaintiff graduated from Arch Bridge on June 17, 2016, when she was seventeen years old. During the plaintiff’s residency in the adolescent residential program at Arch Bridge, the plaintiff met with numerous professionals that included, but were not limited to psychiatrists, clinical psychologists, psychotherapists, licensed clinical social workers and registered and practical nurses. Wellspring and Arch Bridge also employed nonprofessionals known as "Millieu counselors" who supervised, and had direct contact with, the adolescent females in the residential program. Millieu counselors performed periodic bed checks of the adolescent residents during the course of a night. Capozzi was employed as a Millieu counselor and had direct contact and interaction with the female adolescent minors, including the plaintiff, who were enrolled in the adolescent residential program. At various times during May and June 2016, Capozzi had sexual contact with and sexually assaulted the plaintiff while she was under his care and supervision. As a result of Capozzi’s intentional actions, the plaintiff suffered injuries.
After incorporating paragraphs one through eighteen of count one, the plaintiff alleges the following additional facts in count two and count four of her amended complaint against Wellspring and Arch Bridge respectively, which allege that these defendants were negligent. The defendants never had a policy that required at least two staff members or Millieu counselors be present when conducting bed checks or had a policy prohibiting a male Millieu counselor from conducting bed checks by themselves or being alone with a female resident. These defendants employed Capozzi as a male Millieu counselor whose duties included conducting bed checks at the all-female residence house the plaintiff resided in. On or about December 15, 2016, a psychotherapist from Arch Bridge learned from a current adolescent female resident in the residential program that Capozzi had sexual contact with the plaintiff while he worked as a Millieu counselor. This was the first time an adult was made aware of the sexual abuse of the plaintiff. The psychotherapist informed the Connecticut state police of what he or she had learned. While Capozzi was employed by the defendants, he was acting as their agent, servant or employee and exercised control, custody and supervision of the plaintiff during the course of his duties as a Millieu counselor.
After incorporating paragraphs one through eighteen of count one and paragraphs nineteen through twenty-four of count two, the plaintiff alleges the following additional facts in count three and count five of her amended complaint against Wellspring and Arch Bridge respectively, which allege that these defendants breached a fiduciary duty owed to the plaintiff. During the plaintiff’s admission to the adolescent residential program, she had a physician-patient relationship with the agents, apparent agents, servants and employees of Wellspring and Arch Bridge. While the plaintiff had this physician-patient relationship, a fiduciary relationship existed between the plaintiff and Wellspring and Arch Bridge. This fiduciary relationship gave rise to an obligation on the part of the defendants to act in the best interest of the plaintiff and to protect her from harm while she was under their supervision and control. Wellspring and Arch Bridge breached this special relationship when they failed to properly train, supervise, control, monitor or oversee Capozzi. Wellspring and Arch Bridge further breached this special relationship when they failed to implement, maintain and have proper safeguards in place to prevent male Millieu counselors from conducting bed checks at an all-female residence without a second person present at all times or to prevent male Millieu counselors from being alone with female adolescent residents in the absence of a second person at all times. Wellspring and Arch Bridge knew or should have known that the plaintiff was vulnerable and susceptible to being taken advantage of by another person for sexual exploitation and should have implemented rules and safeguards to prevent such. The defendants failed to properly train its counselors to report any opportunity for one-on-one contact between a male counselor and an adolescent female resident. These failures resulted in the breach of Wellspring’s and Arch Bridge’s fiduciary duty of care owed to the plaintiff, which resulted in the plaintiff’s injuries.
On September 24, 2018, the defendants filed a motion to strike (# 120) counts three and five of the plaintiff’s amended complaint and attached a memorandum of law thereto. On October 10, 2018, the plaintiff filed her objection to the defendants’ motion to strike (# 121). On January 11, 2019, the defendants filed a reply memorandum (# 138) to the plaintiff’s objection. The court heard oral argument on January 14, 2019 at the civil short calendar.
The present motion was filed by Wellspring and Arch Bridge. All references to "the defendants" herein will refer to Wellspring and Arch Bridge unless otherwise specified.
Discussion
"[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [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 ... Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... 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.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
"[I]t is inappropriate to decide a question of fact on a motion to strike ... It is appropriate, however, for th[e] court to decide whether the plaintiff ... has [pleaded] sufficient facts to allege a fiduciary relationship." (Internal quotation marks omitted.) Doe v. Terwilliger, Superior Court, judicial district of New Haven, Docket No. CV-09-5024692-S (June 8, 2010, Zoarski, J.T.R.) (50 Conn.L.Rptr. 1, 1). "In particular instances, certain relationships, as a matter of law, do not impose upon either party ... a fiduciary [duty]." (Internal quotation marks omitted.) Macomber v. Travelers Property & Casualty Corp., 261 Conn. 620, 640, 804 A.2d 180 (2002).
"It is axiomatic that a party cannot breach a fiduciary duty to another party unless a fiduciary relationship exists between them. [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 ... The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him." (Citations omitted; emphasis in original; internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 195, 896 A.2d 777 (2006). "The unique element that inheres a fiduciary duty to one part 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, 801-02, 99 A.3d 1145 (2014) (discussing fiduciary relationship in business relationship context). "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, 721 A.2d 1181 (1998). Courts have "carefully refrained from defining a fiduciary relationship in precise detail and in such a manner to exclude new situations." (Internal quotation marks omitted.) Konover Development Corp. v. Zeller, 228 Conn. 206, 222-23, 635 A.2d 798 (1994). But "[p]rofessional negligence alone ... does not give rise automatically to a claim for breach of fiduciary duty ... [Thus] not every instance of professional negligence results in a breach of [a] fiduciary duty ... Professional negligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty." (Citations omitted; emphasis in original; internal quotation marks omitted.) Sherwood v. Danbury Hospital, supra, 196.
In Sherwood v. Danbury Hospital, supra, 196-97, our Supreme Court affirmed the granting of a motion for summary judgment that held that a hospital did not owe a fiduciary duty to a patient. In DiTeresi v. Stamford Health System, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-06-5001340-S (December 14, 2010, Tierney, J.), the plaintiffs, an elderly patient and the adult relative of said patient, sued the defendant hospital for, inter alia, breach of fiduciary duty that was owed to each of them for the alleged sexual assault of the elderly patient by a hospital employee and the subsequent cover-up of the investigation and reporting of such. The defendant hospital moved for summary judgment as to the breach of fiduciary duty claims. Id. As to the plaintiff who was the elderly patient, the court held that there is no fiduciary duty between the hospital and a patient, remarking that "no trial or appellate court in Connecticut ... has found a fiduciary relationship between a hospital and patient." Id. As to the adult relative plaintiff, the court reasoned that if no fiduciary duty existed between a hospital and its patient, then no fiduciary duty exists between a close family member of a patient who possessed the patient’s executed power of attorney and the hospital. Id.
In Golek v. Saint Mary’s Hospital, Inc., 133 Conn.App. 182, 198, 34 A.3d 452 (2012), the Appellate Court noted that it was aware of no case that stood for the proposition that a teacher-student relationship, without something more, was fiduciary in nature. In Ahern v. Kappalumakkel, 97 Conn.App. 189, 198-99, 903 A.2d 266 (2006), the Appellate Court held that in the clergy-parishioner context, something more beyond a general clergy-parishioner relationship is necessary to establish a fiduciary relationship.
In Doe v. Norwich Roman Catholic Diocese Corp., Superior Court, judicial district of New London, Docket No. CV-08-5005553 (June 18, 2009, Martin, J.) (48 Conn.L.Rptr. 59, 59-60), the plaintiff, a minor parishioner, alleged that a priest sexually abused her. The priest was alleged to have officiated Sunday masses, attended church events, advised the plaintiff in confession, counseled the plaintiff and groomed her so she would trust him. Id. The plaintiff also alleged that the diocese knew that there were complaints of sexual abuse of minors by this priest but failed to investigate, warn, or inform parishioners of such and even concealed the existence of such abuse. Id., 60, 62. The diocese moved to strike the plaintiff’s breach of fiduciary claim against it but the court denied the motion reasoning that "in light of ... the allegations indicating that the defendant knew of and sponsored [the priest’s] relationship with the plaintiff and that the plaintiff was taught to put her trust and faith in the defendant and its churches, clergy, priests and Bishop ... the plaintiff has stated a legally sufficient breach of fiduciary claim." Id., 62.
In Doe v. Abusahyoun, Superior Court, judicial district of Stamford-Norwalk, Docket No. X08-17-5019997-S (October 15, 2018, Mintz, J.) (67 Conn.L.Rptr. 242, 243), the plaintiff, a minor child, brought suit against the defendant, the Muslim Society of Greater Danbury, Inc., which operated a school that served children from preschool through sixth grade. The plaintiff in that cased alleged that when she was enrolled at the preschool, she was three and one-half years old and was sexually assaulted by an older minor child on multiple occasions. The plaintiff further alleged that she reported this to her kindergarten teacher, but no action was taken despite the defendant allegedly having knowledge that the older minor child had previously been accused of such conduct. Id. The plaintiff brought, inter alia, a breach of fiduciary claim against the defendant. Id. The defendant moved to strike on the ground that the plaintiff failed to allege a fiduciary relationship. Id. The court granted the defendant’s motion to strike and held that no facts were alleged that demonstrated the existence of a fiduciary duty, which rendered that count legally insufficient. Id., 247. The court reached this conclusion by reasoning that the two cases the plaintiff relied upon are distinguishable. Id. Specifically, the case of Munn v. Hotchkiss School, 326 Conn. 540, 555, 165 A.3d 1167 (2017), was distinguishable because it only extended the loco parentis doctrine to a private school to take reasonable care in protecting students on a field trip to another country and a duty of care does not by itself implicate a fiduciary duty. Id., 246. Furthermore, the case of Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 428-30 (2d Cir. 1999), was distinguishable because in that case, a special relationship of unique trust and confidence was established when a diocese encouraged an abusive priest’s extracurricular mentor-like relationship with a small group of young boys. Id., 246-47. The Abusahyoun court concluded that "[s]imilar to the plaintiff in [Bass ex rel Bass v.] Miss Porter’s [School, 738 F.Supp.2d 307, 331 (D.Conn. 2010) ], the only individual with whom the plaintiff may have had a relationship of confidence and trust is the plaintiff’s kindergarten teacher, to whom she reported the sexual assault ..." Id., 247.
In Bass ex rel Bass v. Miss Porter’s School. supra, 738 F.Supp.2d 313-19, 330, the plaintiff, a former student at a private, all-girls high school, claimed, inter alia, that the defendant, the school, breached its fiduciary duty to the plaintiff when it allegedly stood in loco parentis to her and failed to protect and care for her when she was harassed and bullied by other students. The defendant moved for summary judgment on the breach of fiduciary claim, which the court granted. Id., 310-11. The court reasoned that "[There is not] a single case in any state or federal court within the Second Circuit holding or even suggesting that a secondary school— public or private, boarding or day-session— or its employees owe a fiduciary to its students." Id., 330. Moreover, the facts that "[the plaintiff] was a minor child in a boarding school, which was expected to provide care, supervision and protection at all times, to meet the students’ physical and emotional needs" did not "show that [the defendant] undertook to act primarily for the benefit of [the plaintiff]." (Internal quotation marks omitted. Id., 330-31.
Arch Bridge is alleged to provide classes for kindergarten through twelfth grade as well as college prepatory courses to its residents and provides treatment to those same residents for psychological, behavioral, and emotional afflictions. Based on these facts, the defendants are alleged to either own and operate or are a school and a hospital. Under Connecticut law, a school and a hospital do not, without more, owe a fiduciary duty to a student or patient. Sherwood v. Danbury Hospital, supra, 196-97 (no reason to conclude hospital owed patient fiduciary duty); DiTeresi v. Stamford Health System, Inc., Superior Court, Docket No. CV-06-5001340-S (no Connecticut case holds hospital owes patient duty of care); Bass ex rel Bass v. Miss Porter’s School, supra, 738 F.Supp.2d 330-31 (no case in second circuit for proposition that school owes students fiduciary duties); Golek v. Saint Mary’s Hospital, Inc., supra, 133 Conn.App. 198-99 (no fiduciary relationship between student and teacher without something more). Indeed, the only case in Connecticut to hold that an entity owes a fiduciary duty was the result of allegations that the entity had knowledge of and encouraged another’s abusive relationship. Doe v. Norwich Roman Catholic Diocese Corp., supra, 48 Conn.L.Rptr. 62.
Here, though, nothing of the sort is alleged. Rather, the plaintiff specifically alleges in paragraph 22 of counts two through five of her complaint that once a psychotherapist at Arch Bridge found out from another adolescent female resident about Capozzi’s alleged sexual assault of the plaintiff, that psychotherapist informed the Connecticut state police. The plaintiff then alleges in the subsequent paragraph that this "was the first time an adult was made aware of the sexual abuse ... between the [p]laintiff ... and ... Capozzi ..." The plaintiff does not allege facts in her amended complaint that indicate that the defendants encouraged Capozzi’s alleged actions. Indeed, construing the complaint in the light most favorable to the plaintiff, it can only be inferred that the psychotherapist who reported Capozzi to the police was discouraging any potential abusive relationship. Moreover, the plaintiff does not allege that Capozzi owed her a fiduciary relationship. For an entity to be liable, it seems that a natural person must owe a plaintiff a fiduciary relationship in order for the entity to owe and breach a fiduciary duty to the same plaintiff. See Ahern v. Kappalumakkel, supra, 97 Conn.App. 198-99; Doe v. Norwich Roman Catholic Diocese Corp., supra, 48 Conn.L.Rptr. 62. Otherwise, no encouragement of an abusive relationship of special trust or confidence could occur. Sherwood v. Danbury Hospital, supra, 278 Conn. 195.
The plaintiff does, however, allege in paragraph 25 of count three and count five that she "had a physician-patient relationship with the agents, apparent agents, servants and/or employees" of Wellspring and Arch Bridge, respectively. Capozzi is alleged to have been an agent, apparent agent, servant or employee of the defendants. Whether a special relationship existed is a fact intensive question. Doe v. Terwilliger, supra, 50 Conn.L.Rptr. 1. On a motion to strike, the court must take the factual allegations as admitted but the court does not admit legal conclusions. Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997) ("A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings" [emphasis omitted; internal quotation marks omitted]). The allegation that the plaintiff had a physician-patient relationship with the various agents, apparent agents, servants or employees of the defendants is a legal conclusion that the court need not take as true. The plaintiff does allege several facts that, if true, do show that she had a physician-patient relationship with some agents, apparent agents, servants or employees of the defendants. The plaintiff alleges that when she was enrolled in the residential treatment program, she received treatment for depression, anxiety, obsessive compulsive disorder, self-harming and destructive attitudes and actions. The plaintiff then alleges that she "met with and was treated by numerous professionals; including, but not limited to, [p]sychiatrists, [c]linical [p]yschologists, [p]sychotehrapists, [l]icensed [c]linical [s]ocial [w]orkers, and [r]egistered and [p]ractical [n]urses." If true, the plaintiff almost certainly had a physician-patient relationship with these professionals.
But the plaintiff alleges that she had interactions with "non-professionals" that were known as Millieu counselors who supervised and had direct contact with the adolescent females in the residential program. This supervision is alleged to include the periodic bed checks during the course of the night. Nothing more is alleged about the scope of the duties a Millieu counselor had to undertake or whether the Millieu counselor assisted in the treatment of the plaintiff for her ailments. While the plaintiff has tactfully alleged that the she met and was treated by a nonexclusive list of professionals, there is no indication from the facts alleged in the amended complaint that Millieu counselors participated in the treatment of the plaintiff. Indeed, the plaintiff alleges she received treatment only from professionals, which, as defined by the plaintiff herself, clearly excludes Millieu counselors. Even if the plaintiff had alleged that Capozzi, a Millieu counselor, participated in the treatment of the plaintiff, the complaint is still devoid of any facts that indicate the defendants encouraged a relationship of special trust and confidence between Capozzi and the plaintiff or that Capozzi had such a relationship with the plaintiff.
Nevertheless, the plaintiff argues that the defendants owe her fiduciary duties because they were entrusted with her care and supervision on a twenty-four-hour basis and that they represented that Arch Bridge had a long history of success in serving children with vulnerabilities and, as such, were aware that the plaintiff suffered from such vulnerabilities that made her dependent on them for her care and safety. Similar arguments have failed in the Doe v. Abusahyoun, 67 Conn.L.Rptr. 246-47, and Bass ex rel Bass v. Miss Porter’s School, supra, 738 F.Supp.2d 330-31, cases. This is because a fiduciary duty implicates honesty. Sherwood v. Danbury Hospital, supra, 278 Conn. 196. A duty of care, however, concerns whether an action or course of conduct was reasonably safe under a given set of circumstances. Doe v. Saint Francis Hospital & Medical Center, 309 Conn. 146, 174-75, 782 A.3d 929 (2013). While these cases are factually distinguishable in that the plaintiffs in those cases specifically alleged and relied upon the in loco parentis doctrine, the essence of the arguments are the same. A failure to protect is more appropriately adjudicated under a claim for negligence as opposed to a breach of fiduciary duty, which addresses the violation of one’s trust.
Construing the allegations in the light most favorable to the plaintiff, she has failed to allege facts that, if true, would establish a fiduciary relationship between her and the defendants. Therefore, count three and count five of the plaintiff’s amended complaint, which allege claims for breach of fiduciary duties, are legally insufficient. Accordingly, the defendants’ motion to strike counts three and five of the complaint is granted.
So ordered.