Opinion
No. CV07-5005261S
April 13, 2009
MEMORANDUM
This matter is before the court on the corporate defendant's motion to strike on the ground that counts five and six fail to state that the defendant is vicariously liable for acts of its agents, servants or employees. For the following reasons the defendant's motion to strike is denied.
FACTS
On April 10, 2008, the plaintiff, Judith Fontaine, filed a second revised complaint against the defendants, Ronald Clement, M.D., Mary E. Nichols, CRNA, and Waterbury Anesthesiology Associates, Inc. The second revised complaint consists of six counts, and the present motion to strike challenges counts five and six, which are directed only at Waterbury Anesthesiology Associates, Inc. (defendant). In count five, the plaintiff alleges that the defendant was negligent in failing "to exercise the degree of care and skill possessed and exercised by anesthesiology practitioners." In count six, the plaintiff alleges that the defendant was negligent in failing to adequately inform the plaintiff of "the risk of facial scarring associated with her low back surgery." Specifically, the plaintiff alleges the following facts in both counts. The defendant was a Connecticut professional corporation which provided medical care through medical professionals licensed in Connecticut. On April 11, 2005 and prior thereto, the co-defendants, Clement and Nichols, were owners, agents and/or employees of the defendant. On April 11, 2005, at St. Mary's Hospital in Waterbury, Connecticut, the defendant placed the plaintiff under general anesthesia in a prone position for a surgical procedure on the plaintiff's back. During the surgery, the plaintiff incurred an injury to her right cheek, which resulted in a permanent scar.
On April 23, 2008, the defendant filed a motion to strike counts five and six of the second revised complaint, which was supported by a memorandum of law. On May 14, 2008, the plaintiff filed an objection to the motion. The defendant then filed a reply on May 20, 2008.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
The defendant argues that counts five and six fail to state a cause of action on which relief can be granted because these counts allege direct negligence of a professional corporation individually, rather than a claim for vicarious liability for the negligent acts of the corporation's agent, servant or employees. The defendant emphasizes that a corporation cannot act on its own, but only through its agent, servant or employee. According to the defendant, counts five and six are based on allegations of the defendant's independent action and thus should be stricken.
The plaintiff counters that under General Statutes § 33-647, "the corporate defendant owed a duty of care to the plaintiff." The plaintiff further maintains that counts five and six imply that "individual defendants, and not the legal entity Waterbury Anesthesiology Associates, Inc., actually delivered the care in question," and that, to the extent that the defendant's liability is vicarious, sufficient facts are pleaded in the counts.
General Statutes § 33-647 provides in relevant part: "General powers. Unless its certificate of incorporation provides otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs, including without limitation power: (1) to sue and be sued, complain and defend in its corporate name . . ."
The defendant asserts in its reply that, to state a sufficient cause of action against it, the plaintiff needs to add a paragraph stating that "as a result of the negligence of Clement and Nichols `as owners, agents and/or employees' of the professional corporation, the professional corporation is vicariously liable." According to the defendant, an allegation that "the employees and/or agents of the corporate defendant treated the plaintiff" cannot be inferred from counts five and six because those counts specifically plead that the professional corporation itself performed the negligent acts. The defendant maintains that General Statutes § 33-182d supports its argument by clearly indicating that "a professional corporation itself cannot act on its own."
General Statutes § 33-182d provides in relevant part: "Services to be rendered by licensed persons only. No corporation organized and incorporated under this chapter may render professional services except through its officers, employees and agents who are licensed or otherwise legally authorized to render such professional services within this state . . ."
Practice Book § 10-2 is particularly instructive to the issue of whether a plaintiff is required to allege clearly that a corporate defendant's employees, and not the corporate defendant itself, performed acts in question. "The retention in the Connecticut Practice Book of § 10-1 and 10-2 constitutes a continued requirement that a plaintiff may not simply name a cause of action or plead a legal conclusion but must set forth the facts material to such a cause of action. The requirement of fact pleading reflects an apparent choice in the economics of litigation. If a plaintiff is not required to plead the facts that support his or her claimed cause of action, the case may go all the way through a trial before the absence of such facts is known . . .
"The requirements of fact pleading are stated in §§ 10-1 and 10-2 of the Practice Book. The former provision requires that `[e]ach pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved . . .' The latter provision explains that while [a]cts and contracts may be stated according to their legal effect . . . in so doing the pleading should be such as fairly to apprise the adverse party of the state of the facts which it is intended to prove.' The requirement is thus not simply to identify a doctrine, cause of action or legal conclusion but to state the material facts, that is, the facts material to the cause of action asserted.
"At Section 10-2, the Practice Book furnishes illustrations of the difference between pleading a doctrine or conclusion or liability and pleading fact. The first example provided in § 10-2 is as follows: `Thus an act or promise by a principal, [other than a corporation], if in fact proceeding from an agent known to the pleader, should be so stated.' In other words, a plaintiff may not plead that the principal contracted with the plaintiff and is liable for breach of contract, but must plead that the person who entered into the contract was an agent of the principal. The principal's liability for the acts of the agent is the legal effect of the agent's act in contracting . . ." Lavole v. Bayer Corporation, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 01 0168392 (Jan. 23, 2002, Hodgson, J.) ( 31 Conn. L. Rptr. 391, 393).
As § 10-2 provides, there is an exception to this rule. "Corporations always act through agents. They are excepted from the rule requiring that the fact that a contract was made through an agent be stated." Vincent v. S. Alexander's Sons Company, 85 Conn. 512, 516, 84 A. 84 (1912). Therefore, when "the defendant is a corporation . . . it is not even necessary to allege that the act charged to have been performed by the defendant was in fact performed by an agent acting for it, much less is it necessary to allege that this agent had authority to act. This is so by virtue of an express provision of our rule." Central Company v. Industrial Bank of Hartford, Inc., 9 Conn.Sup. 208, 208 (1941).
Accordingly, the fact that the plaintiff does not state specifically that the defendant's agents, servants or employees were the ones who actually performed the medical treatment that the plaintiff received does not make counts five and six legally insufficient.
As to whether the plaintiff's failure to articulate a theory of vicarious liability makes the counts legally insufficient, the Connecticut Supreme Court has stated that "the construction of a pleading is a question ultimately for the court . . . When a case requires the court to determine the nature of a pleading filed by a party, we are not required to accept the label affixed to that pleading by that party." (Citations omitted.) Horse Oil Co. v. Todd, 195 Conn. 333, 340, 487 A.2d 1095 (1985). "A court can fairly conclude that certain facts may give rise to legal theories not even referred to in the actual pleadings." Devico v. Vetro, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97 0059315 (April 16, 1998, Corradino, J.) ( 22 Conn. L. Rptr. 43, 44).
"In the medical malpractice area it has been held that a corporate entity can be held liable for the medical malpractice of its employees. Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 801 A.2d 775 (2002)." Draper v. Danbury Health Systems Inc., Superior Court, judicial district of Waterbury, Docket No. X10-UWYCV-08 5008854 (October 14, 2008, Scholl, J.) ( 46 Conn. L. Rptr. 462, 466). A review of our case law finds that Connecticut courts do not require a theory of vicarious liability to be expressly pleaded in the complaint for a claim to be addressed under that theory. In Ali v. Community Health Care Plan, Inc., a plaintiff's complaint alleged, inter alia, that a corporate defendant was "careless and negligent, had a duty . . . to provide . . . medical care and treatment for pregnancy and its complications which met the accepted standard of obstetrical care and treatment, failed to do so, and caused [the plaintiff] various damages." (Internal quotation marks omitted.) Ali v. Community Health Care Plan, Inc., Superior Court, judicial district of New Haven, Docket No. CV 94 0364055 (July 25, 1995, Martin, J.), aff'd, supra, 261 Conn. 143. On appeal, the Connecticut Supreme Court stated that "[w]e agree with the trial court's characterization of the plaintiff's case. Our careful review of the record reveals that the plaintiff's theory of the case at the trial court was one of vicarious liability. In other words, under the doctrine of respondent superior, the defendant could be held liable for the negligent acts of its employee . . . This was not a case regarding any purported institutional negligence on the part of the defendant, nor has the plaintiff cited any evidence to support that theory." Ali v. Community Health Care Plan, Inc., supra, 261 Conn. 151.
Community Health Care Plan Inc. was the only defendant in this case. See Ali v. Community Health Care Plan, Inc., supra, Superior Court, Docket No. CV 94 0364055.
Institutional negligence is also referred to as corporate negligence. See Klein v. Bristol Hospital, 50 Conn.Sup. 160, 178, 915 A.2d 942 (2006). "While the hospital will be liable if any of its admitted agents or employees is liable, the doctrine of `corporate negligence' is a separate and independent basis for liability on the part of the hospital. `Corporate negligence' is the failure of the officers or directors who constitute the governing board of a corporation, acting as a board, to maintain the standard of conduct required of the particular corporation, rather than the personal negligence of the corporations ordinary employees. Bader v. United Orthodox Synagogue, 148 Conn. 449, 452-53, 172 A.2d 192 (1984) [.]" Olszewski v. New Britain General Hospital, Superior Court, judicial district of New Britain, Docket No. CV 97 0477887 (July 15, 1999, Shortall, J.). "[A]n allegation that the hospital is liable because it `failed to provide . . . proper supervision, training, education, control and qualified staff in accord with accepted prudent standards of care within the medical community' [is] in effect an allegation of corporate negligence." Id.
In the present case, the counts at issue allege that the defendant was a professional corporation and it provided anesthesiology in connection with the plaintiff's surgery. The counts further allege that the defendant was negligent in causing the plaintiff to sustain a facial injury, which resulted in a permanent scar, and in failing to inform the plaintiff adequately of the risk involved in the surgery. Applying the principles discussed above, the court finds these allegations to be sufficient to state a vicarious liability claim against the defendant. Counts five and six also allege that the co-defendants, Clement and Nichols, were engaged in the practice of anesthesiology as owners, agents and/or employees of the defendant. The plaintiff's complaint, however, does not confine the defendant's employees involved in her surgery to the two named co-defendants, as this court found on October 24, 2008. See Fontaine v. Clement, Superior Court, judicial district of Waterbury, Docket No. CV 07 5005261 (October 24, 2008, Brunetti, J.) ("there is a genuine issue of fact as to whether someone from this defendant was present during the plaintiff's surgery . . . there was no claim that Dr. Clement was the sole employee of this entity"). Connecticut courts have allowed a vicarious liability claim to be brought against an employer for tortuous acts of its unidentified employees. See Revzon v. Lawrence Memorial Hospital, Superior Court, judicial district of New London, Docket No. CV 04 4001227 (December 12, 2007, Peck, J.) ("Five paragraphs . . . allege acts of negligence by other unidentified persons . . . The evidence produced by [a corporate defendant] in support of its motion for summary judgment attacks only the allegations . . . as to [one identified doctor]. Therefore, [the corporate defendant] has not met is evidentiary burden to show there is no genuine issue of material facts").
The defendant has produced no authority in support of its proposition that General Statues § 33-182d mandates that conduct attributed to a corporation be clearly alleged to have been undertaken by its employees, or that a theory of vicarious liability be specifically referred to in complaints. Rather, a thorough review of Practice Book § 10-2 and case law indicates otherwise.
For the foregoing reasons the defendant's motion to strike counts five and six is denied.