Opinion
CV156050674S
05-17-2017
Donald Kinahan v. Neal Gosain et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Dale W. Radcliffe, J.
FACTS
The Plaintiff, Donald Kinahan, brings this four-count complaint against Vikram Gosain, Penny Gosain, and their adult son Neal Gosain, seeking to recover for injuries he claims to have sustained as a consequence of a May 31, 2013 incident.
Donald Kinahan became a police officer, employed by the Town of Easton, after he retired, following a twenty-three-year career as a Connecticut State Police Trooper. He had attained the rank of sergeant prior to his retirement.
On May 31, 2013, while on duty as an Easton police officer, the Plaintiff was dispatched to 51 Vista View Drive, along with Sergeant Spencer of the Easton Police Department, and two members of the Easton Emergency Medical Service (EMS), who had been directed to take Neal Gosain to the Bridgeport Mental Health Center, for purposes of an evaluation.
Neal Gosain had been medically diagnosed as schizophrenic. According to Vikram Gosain, prior to May 31, 2013, Dr. Carlos Hernandez, a physician with the State of Connecticut Department of Mental Health and Addiction Services, authorized the involuntary hospitalization of Neal Gosain. A social worker, one Thomas Harrison, initiated the process. (Affidavit of Vikram Gosain, p. 4-5.)
Prior to entering the Gosain residence, the Plaintiff was informed by Sergeant Spencer that a " psychological situation" existed, and that the police officers would be standing by, in case Neal Gosain became uncooperative.
According to the police report, the Plaintiff, Sergeant Spencer, and two employees of the Bridgeport Mental Health Center, were met by the Defendant Vikram Gosain, before entering the residence. Vikram Gosain states, in his affidavit, that the group was informed, while still outside the dwelling, that Neal Gosain would only become violent, and attack, if he was provoked.
As he entered the residence, the Plaintiff, Sergeant Spencer, and the Bridgeport Mental Health Center employees, were informed by Penny Gosain that her son was in the sun room. A short time later, Neil Gosain walked into the living room, and sat in a chair.
Following a conversation with a representative of the Bridgeport Mental Health Center, Neal Gosain refused to come voluntarily, with the individuals. He crossed his arms defiantly, and, according to the Plaintiff, went limp and refused to move when requested to do so by the two Easton police officers. (Deposition of Donald Kinahan, p. 18.) When attempts were made to place Neal Gosain on a stretcher, the Plaintiff reports that the young man began screaming, and flailing about. The Plaintiff alleges that he was punched and kicked during the altercation.
Attempts were made to subdue Neal Gosain, and to render him compliant, through the use of a Taser. (Deposition of Donald Kinahan, p. 21-22.)
As a consequence of the May 31, 2013 incident at the Gosain residence, Officer Kinahan claims to have sustained serious personal injuries, including contusions and bruising of his neck, jaw and head, a temporomandibular joint injury, injuries to his left shoulder and upper back, accompanied by shock, and emotional distress. (Amended Complaint, Par. 8-10.)
Because these alleged injuries occurred in the scope of Donald Kinahan's employment as an Easton police officer, a claim was submitted pursuant to the Workers' Compensation Act, S. 31-293(a) of the General Statutes.
In his four-count Amended Complaint, dated October 17, 2016, the Plaintiff alleges negligence as against Neal Gosain in count one, and reckless misconduct addressed to Neal Gosain, in count two.
Counts three and four allege claims of negligence and reckless conduct respectfully, as against both Vikram and Penny Gosain.
The Plaintiff, in count three, claims that Vikram and Penny Gosain were negligent, in that they failed to control the conduct of their son, failed to maintain 51 Vista View Drive, Easton, in a reasonably safe condition, and made certain representations concerning Neal Gosain to the responding police personnel.
Similar claims of reckless conduct are hurled against Vikram and Penny Gosain in count four.
The Town of Easton has intervened in this matter. The Town, having paid Workers' Compensation benefits to and on behalf of its police officer, Donald Kinahan, seeks to recoup those benefits from any judgment entered against the Easton property owner, and/or their son.
The Defendants have moved for summary judgment, as to all counts of the Amended Complaint, and claims prosecuted on behalf of the Town of Easton in its Intervening Complaint dated August 5, 2015.
STANDARD OF REVIEW--SUMMARY JUDGMENT
Summary judgment shall be rendered forthwith, if the pleadings, affidavits and other proof show that there is no genuine issue as to any material fact, and 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. Lewis v. Chelsea GCA Realty Partnership, LP, 86 Conn.App. 596, 600-01, 862 A.2d 368 (2004).
The party seeking summary judgment has the burden of showing the absence of any genuine issue of material fact, and the party opposing the motion must provide an evidentiary foundation to demonstrate a genuine issue of material fact. Ace Equiptment Co. v. Buocino, 273 Conn. 217, 227, 869 A.2d 626 (2005). It is incumbent upon the moving party to demonstrate the absence of any genuine issue of material fact, under applicable principles of substantive law. Suarez v. Dickmont Plastics Corporation, 229 Conn. 99, 105, 639 A.2d 507 (1994); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980).
The test is whether the party seeking summary judgment would be entitled to a directed verdict on the same facts. Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990). Although summary judgment is designed to determine the existence of any genuine issue of material fact, it may be used to challenge the legal sufficiency of a complaint, if the complaint fails to set forth a cause of action, and the defect cannot be cured through repleading. Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).
NO GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO VIKRAM GOSAIN AND PENNY GOSAIN
The Defendants claim that this case is governed by the Connecticut Supreme Court's decision in Kaminski v. Fairfield, 216 Conn. 29, 578 A.2d 1048 (1990). In that case, the Court framed the issue as " whether a request for assistance to control the behavior of an adult son, supports the imposition of tort liability on the parents for injuries inflicted by the son on a police officer accompanying mental health workers to the parents' residence." Kaminski v. Fairfield, supra .
In Kaminski, the adult son, Joseph Kaminski, resided with his parents, following his discharge from Fairfield Hills Hospital. He had been diagnosed as a paranoid schizophrenic, and had exhibited violent, bizarre behavior following release from the facility. His parents requested that Joseph be evaluated by the Greater Bridgeport Mental Health Center, and a " crisis team" came to the Kaminski residence, escorted by Fairfield police officers.
During an interview, Joseph Kaminski became agitated, and ran upstairs in the residence, followed by two nurses, a police officer, and his mother. An altercation ensued, during which Joseph Kaminski began wielding an axe. He struck Officer Ronald Thompson with the axe, causing him serious injury. Officer Thompson then drew his weapon, and shot and killed Joseph Kaminski.
Joseph Kaminski's parents instituted a wrongful death action against the officer, and the Town of Fairfield. A counterclaim was filed by the Defendants, claiming that the negligence of the parents caused the police officer to suffer painful personal injuries and damages.
The parents filed a motion to strike the counterclaim, which was granted by the trial court.
The Supreme Court affirmed the granting of the motion to strike, on two grounds: 1) the rule announced in the Restatement (Second) Torts, S. 319 did not apply to the factual situation in question, and 2) no basis for a finding of negligence was presented.
Restatement (Second) Torts, S. 319--" one who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled, is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm."
Both of the Kaminski rationales are applicable to the motion for summary judgment filed in this case.
At common law, parents were not liable for the tortious acts of their children, and no duty arises merely because of the relationship of parent and child, unless the parents themselves are independently negligent. LaBonte v. Federal Mutual Insurance Company, 159 Conn. 252, 256, 268 A.2d 663 (1970). Merely by making a home for an adult child, even one suffering from schizophrenia, will not subject a parent to liability consistent with the Restatement (Second) Torts, S. 319. Kaminski v. Fairfield, supra, 35-36.
As in Kaminski, the reason the police were at the Gosain residence, was to be present while mental health personnel dealt with an individual with a medical diagnosis of schizophrenia. The Plaintiff acknowledges that he knew of Neal Gosain's condition, and that police would be standing by should the young man become uncooperative. The parents explained that the responders were told that Neal Gosain might attack, " if he was provoked."
Clearly all of those present at 51 Vista View Drive, Easton, knew that they were dealing with a " psychological situation" and no express or tacit assurances of safety were given to the responders. In the absence of such assurances, no actionable claim against Vikram Gosain or Penny Gosain can be maintained. Kaminski v. Fairfield, supra, 38.
The holding in Kaminski also recognizes the hazards and dangers inherent in the work performed by police officers and firefighters. A taxpayer, or person in control of property, should not be deterred from calling upon a municipal police or fire department, for fear of being found liable in negligence. Kaminski v. Fairfield, supra, 38. Furthermore, as the presence of the Intervening Plaintiff in this litigation attests, police officers injured in the scope of their employment are compensated, through Connecticut's Workers' Compensation Act. To impose additional obligations upon the Defendants, would constitute an undue burden upon the public. Lodge v. Arett Sales Corp., 246 Conn. 563, 579-81, 717 A.2d 215 (1998); Hollister v. Thomas, 110 Conn.App. 692, 701-02, 955 A.2d 1212 (2008).
The Kaminski opinion makes no explicit mention of the so called " Firefighter's Rule." That rule provides that a firefighter who enters property in the performance of a public duty, occupies a status akin to a licensee. Roberts v. Rosenblatt, 146 Conn. 110, 113, 148 A.2d 142 (1959). This rule, which has been extended to encompass police officers, recognized that fire and police personnel often enter properties at unforeseeable times, and under emergency circumstances, regardless of the consent of the property owner. Furstein v. Hill, 218 Conn. 610, 615-17, 590 A.2d 939 (1991); Hollister v. Thomas, supra, 701-02. Therefore the landowner, or one in control of real estate, only owes a duty to the firefighter or police officer not to injure him or her through willful or wanton misconduct. Levandoski v. Cone, 267 Conn. 651, 654, 841 A.2d 208 (2004); Furstein v. Hill, supra, 616.
The Plaintiff argues that Levandoski v. Cone, supra, restricts the application of the " Firefighter's Rule" to cases involving premises liability, and it is therefore inapplicable to the facts presented here. He therefore contends that summary judgment is inappropriate.
This claim is not well taken.
In Levandoski, a police officer, in response to a complaint concerning excessive noise, entered property in an attempt to quell the loud party. The officer observed a party participant place sandwich sized plastic baggies in his pants. Believing the baggies contained marijuana, the officer stepped from behind a car.
Seeing the officer, the individual began to run, resulting in a foot chase into a nearby woods. In an attempt to apprehend the fleeing suspect, the officer fell off a ledge on to rocks, causing severe injuries to his hip and knee. The Supreme Court, in an action brought by the officer against the fleeing suspect, refused to extend the " Firefighter's Rule" in order to shield an individual who was neither an owner of the property, or in control of the premises, Levandoski v. Cone, Supra, 214-15.
In so doing, the Court distinguished Kaminski, by observing that the homeowner who summoned mental health workers to evaluate their mentally ill son, owed no duty to the police officer to warn him of the son's dangerous propensities. Levandoski v. Cone, supra, 215-16; Kaminski v. Fairfield, supra, 36-37. The Levandoski Court made no finding that the Kaminski decision was dependent upon application of the " Firefighter's Rule, " while specifically validating and endorsing its holding.
Therefore, because Kaminski is controlling, the motion for summary judgment as to Vikram Gosain and Penny Gosain (Counts 3 and 4) must be granted.
The claims as to Neal Gosain, as pled in counts one and two, cannot be resolved by way of summary judgment.
Genuine issues of material fact remain as to whether Neal Gosain was negligent in his interaction with the Plaintiff, and/or was guilty of reckless misconduct. Any claim concerning an alleged assault by Neal Gosain, also presents issues of fact.
A question also remains as to whether the actions of Neal Gosain were voluntary, and whether any of his actions proximately causes injury to the police officer.
CONCLUSION
The motion for summary judgment, as to Vikram Gosain and Penny Gosain, is GRANTED, as to Count Three and Count Four.
The motion for summary judgment, as to the Defendant Neal Gosain, is DENIED as to Count one and Count two.