Opinion
No. NNH CV 07 501 06 54 S
August 15, 2008
MEMORANDUM OF DECISION RE APPORTIONMENT DEFENDANT'S MOTION TO STRIKE #120
Anne Fincher, parent and next friend of Miguel Fincher commenced this action in April 2007, against the defendants Roy Nisenson, PhD, Roy Nisenson, individually, and Yale Alumni Chorus Foundation, Inc. (foundation). Presently, before the court is Anne Fincher's motion to strike the foundation's apportionment complaint on the ground that it is barred by the doctrine of parental immunity. The motion to strike is granted.
The writ, summons and complaint, which were filed on April 19, 2007, identify the plaintiff as "Anne Fincher ppa Miguel Pincher." Due to the way the names are written on the writ, summons and complaint, Anne Pincher and not Miguel Pincher is the plaintiff in the present case. The writ, summons and complaint should have stated the name of the minor first followed by "ppa" and then the name of the parent. It is well settled Connecticut law that a minor cannot bring a civil action before the court except through her parent or guardian and next friend. Carruba v. Moskowitz, 81 Conn.App. 382, 401 n. 11, 840 A.2d 557, aff'd, 274 Conn. 916, 847 A.2d 310 (2004). There is a split in the superior courts, however, as to whether the court must dismiss the action for a lack of subject matter jurisdiction based on the transposition of the name of the plaintiff in the writ summons and complaint. Doyon v. Ladson, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4003728 (January 27, 2006, Shluger, J,). For example, in Dellavalle v. D.C. Moore School, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0272084 (October 29, 2004, Frazzinni, J.), the court declined to adhere to the strict common-law "jurisdiction first" approach despite the plaintiff's naming the wrong person as plaintiff. The "language of the complaint placed all defendants on notice that a minor child was bringing this action by the child's next friend . . . [and] the transposition of names did not in any way confuse or prejudice the rights of others." Id.
In the instant case, the paragraphs in count one of the complaint correctly identify Miguel as the party who is bringing the action by and through his parent and next friend Anne Pincher. Since the parties are on notice that the real party plaintiff is the minor and not his mother and that the pleading at issue presently before the court does not involve the minor, the court does not have to dismiss the action.
Further, the court notes that the spelling of the minor's name is not consistent in the pleadings. The writ, summons and complaint identify him as "Miguel" and later pleadings refer to him as "Mikhael." Consequently, the court will refer to him as the "minor."
The complaint includes the following allegations. Nisenson is a psychologist in New Haven. He held himself out as a provider of psychological treatment to meet the mental health needs of his patients. During February 2006 through January 2007, Nisenson treated the minor for depression and grief and invited him to stay overnight at his home. In September 2006, Nisenson invited the minor to attend a Yale Alumni Chorus event in the Netherlands sponsored by the foundation as part of their freedom tour in 2006. From February 2006 and continuing forward, Nisenson improperly touched and fondled the minor and engaged in other acts of an improper sexual nature. Nisenson further provided the plaintiff with illicit drugs, which they consumed together. The minor's injuries and losses were caused by the negligence and carelessness of Nisenson. That as "a result of the [herein] referenced negligence and malpractice, the minor plaintiff, Miguel Fincher, was caused to suffer physical and emotional harm including but not limited to post traumatic stress disorder; mood disorder; anxiety and other emotional problems and difficulties, some or all of which injuries are or are likely to be permanent in nature." Count one is a claim of negligence against Nisenson as a psychologist.
Count two, a claim of negligence against the foundation, alleges that the foundation organized and facilitated the freedom tour in 2006 in which the Yale Alumni Chorus traveled to the Netherlands to participate in a concert with Leiden University. The foundation knew that Nisenson was taking a minor patient with him on the tour. The foundation knew that Nisenson was engaged in an improper relationship with the minor and failed to take reasonable and proper steps to prevent him from causing the minor further harm. Nisenson was acting as an agent of the tour sponsor. The minor's injuries and losses were caused by the negligence and carelessness of the foundation. Count three, a negligence claim against Nisenson in his individual capacity, alleges that Nisenson agreed to provide supervision and accept responsibility to safeguard and watch the minor, that he engaged in improper touching of a sexual nature and that he failed to act as a responsible supervisor.
On August 22, 2007, the foundation filed an apportionment complaint against Anne Fincher claiming that "[i]f the [m]inor [p]laintiff was injured as alleged, then any injuries, damages or losses were caused by the negligence and carelessness of [the plaintiff/apportionment defendant] Anne Fincher" and she is liable pursuant to General Statutes § 52-572h, the apportionment statute. On September 11, 2007, Anne Fincher moved to strike the apportionment complaint on the ground of parental immunity. She submitted a memorandum of law in support of the motion. On October 12, 2007, the foundation filed a memorandum of law in opposition and on October 18, 2007, Anne Fincher filed a reply memorandum.
On September 7, 2007, the complaint against Nisenson, Ph.D and Nisenson individually was withdrawn.
"The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993). "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 necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "The role of the trial court [is] to examine the [complaint], construed in favor of the [pleader], to determine whether the [nonmovant has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
In support of the motion to strike the apportionment complaint, Ann Pincher argues that the doctrine of parental immunity bars an unemancipated child from suing his parents for personal injuries and that none of the common-law exceptions to the doctrine are applicable to the facts of the present case. In response, the foundation counters that "parental immunity does not bar the apportionment action against [Anne] Pincher because the allegations involve a claim of sexual abuse of a minor." In reply, she asserts that the sexual abuse exception does not pertain to her because she is not the person alleged to have engaged in acts of an improper sexual nature with the minor plaintiff.
General Statutes § 52-102b(a) is the procedural vehicle by which a defendant in a negligence action may cite in a party for apportionment of liability purposes. The party against whom apportionment is sought must be one who is liable in negligence to the original plaintiff. See Bhinder v. Sun Co., 263 Conn. 358, 365, 819 A.2d 822 (2003). To be liable in negligence, a party must breach a duty of care owed to the plaintiff and that breach must be a legal cause of the plaintiff's injuries and damages. See Ward v. Greene, 267 Conn. 539, 565, 839 A.2d 1259 (2004).
"In Crotta v. Home Depot, Inc., 249 Conn. 634 [ 732 A.2d 767] (1999), our Supreme Court addressed the question of whether, in an action brought by the parent seeking damages for his child's injury, a defendant may join the parent as a third-party defendant for the purposes of asserting claims of apportionment of liability, contribution and indemnification based on the parent's negligent supervision of the minor child. [ Id.] 644-45. The court held that the doctrine of parental immunity operated to preclude the parent of a minor plaintiff from being joined as a third-party defendant for purposes of apportionment of liability based on the parent's allegedly negligent supervision of a child. [ Id.] The court's reasoning was that `[t]he supervision, care and instruction of one's child involves issues of parental control, authority and discretion that are uniquely matters of a very personal type . . . Each parent has unique and inimitable methods and attitudes on how children should be supervised. Likewise, each child requires individualized guidance depending on intuitive concerns which only a parent can understand.' (Internal quotation marks omitted.) Id., 643. Furthermore, the court expressed its view that `allowing such third party claims would have a detrimental effect on the injured child. It is artificial to separate the parent and the child as economic entities by the assertion that the recovery of the non-parent defendant from the negligent parent does not technically diminish the injured child's recovery. The reality of the family is that, except in cases of great wealth, it is a single economic unit and recovery by a third party against the parent ultimately diminishes the value of the child's recovery.' (Internal quotation marks omitted.) Id., 644.
"Connecticut has recognized certain exceptions to the doctrine which are set forth in Squeglia v. Squeglia, 34 Conn.App. 866, 809 [ 644 A.2d 378 (1994), aff'd, 234 Conn. 259, 661 A.2d 1007 (1995)] . . . First, an unemancipated minor can sue the employer of a parent whose negligence in the course of employment injured the child, thereby putting the parent at risk of an indemnity suit. Chase v. New Haven Waste Material Corp., 111 Conn. 377, 380 [ 150 A. 107] (1930). Second, a minor can sue a parent if the child was emancipated prior to the tortious conduct. See Wood v. Wood, 135 Conn. 280, 283 [ 63 A.2d 586] (1948). Third, an unemancipated minor can sue a parent for injuries received through the negligent conduct of a business enterprise conducted away from the home. Dzenutis v. Dzenutis, 200 Conn. 290, 300 [ 512 A.2d 130] (1986). Fourth, an unemancipated minor can sue a parent for injuries resulting from the negligent operation of a motor vehicle, aircraft or waterborne vessel. General Statutes § 52-572c. Another exception was recognized in Henderson v. Woolley, 230 Conn. 472, 486 [ 644 A.2d 1303] (1994), which held the doctrine does not bar a suit by a child for sexual abuse, sexual assault or sexual exploitation by a parent." (Internal quotation marks omitted.) Kochian v. Central CT Coast YMCA, Superior Court, judicial district of Fairfield, Docket No. CV 07 5011527 (March 31, 2008, Frankel, J.) ( 45 Conn. L. Rptr. 351, 353).
Notwithstanding this legal precedent, the foundation claims that based on Lawson v. Lawson, Superior Court, judicial district of Litchfield, Docket No. CV 99 0080780 (January 23, 2001, DiPentima, J.) [ 29 Conn. L. Rptr. 264], and Coburn v. Ordner, Superior Court, judicial district of Fairfield, Docket No. CV 93 0306715 (March 23, 1995, Gormley J.) [ 14 Conn. L. Rptr. 9], Anne Fincher is not immune from the apportionment action because "the allegations involve a claim of sexual abuse of a minor." In Lawson, the plaintiff Heidi Lawson at the age of thirty-five brought an action against her parents claiming injuries as a result of the sexual assault by her father that occurred for a period of seven years from the age of five. The mother moved for summary judgment inter alia on the doctrine of parental immunity. Relying on Henderson v. Woolley, supra, 230 Conn. 482-83, the trial court stated that the acts complained of in Lawson constituted the breach of any duty owed to the public. "It is this court's opinion if in fact, these allegations are proved that they would indeed be a matter of public concern [and] . . . the purpose behind parental immunity would not be served by shielding either parent involved in sexual abuse of a minor child from suit. Public policy will not allow a negligent parent who allows the sexual abuse of her child to occur to be immune from suit." Thus, the court in Lawson concluded that a genuine issue of material fact exist[ed] as to the mother's liability. In Coburn, the plaintiff daughter brought an action against her parents alleging that for a period of thirteen years during her childhood, her father continually and intentionally engaged in sexual activities with her. The mother filed a motion for summary judgment on the ground that all counts against her were barred by the doctrine of parental immunity. The Coburn court acknowledged that Henderson v. Woolley, supra, created a common-law exception to the doctrine of parental immunity in an action for personal injuries arising out of sexual abuse, sexual assault and sexual exploitation. The Coburn court reasoned that although the Henderson decision addressed "wrongful and willful misconduct . . . it set down a more general rule that `the public policy of this state requires that the parental immunity doctrine not preclude a child victim of parental sexual abuse from vindicating his or her rights by bringing an action for damages.'" The court concluded in Coburn that the "doctrine of parental immunity does not bar a claim against either a perpetrator or a nonperpetrating parent in an action alleging sexual abuse. Because the defendant mother is not immune from the present suit, a genuine issue of material fact remains as to her liability to the plaintiff and the motion is denied as to that issue."
The case presently before this court is distinguishable on the facts from these two superior court cases in that it does not involve sexual abuse of a minor by one parent which the other parent knew of or should have known of. Secondly, no superior court decision is binding precedent on another superior court. Lastly, and more importantly, however, legal precedent exists from the appellate courts in Connecticut addressing the exceptions to the parental immunity doctrine, which is binding on this court. See Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996).
As there is no claim in this case that the mother abused the child or that the abuse occurred with the knowledge or consent of the mother there is no basis for concluding that the parental immunity protection should be breached.
For these reasons, the motion to strike the apportionment complaint is granted.