Opinion
No. CV08 5021149S
July 11, 2011
MEMORANDUM OF DECISION
For the court this has been a difficult case. The basic facts were stated by the court in its previous decision on a motion to strike. In that motion the apportionment plaintiff, Chapel Haven moved to strike an Apportionment Complaint made by the apportionment defendant, Alex Grossman. The plaintiffs in the original action filed suit against Chapel Haven, Inc. where the plaintiff parent arranged to have their mentally challenged son reside. The suit arises out of Chapel Haven's alleged failure to protect their son against sexual assaults, threats, emotional abuse, and physical assaults by the alleged perpetrator, their son's roommate, who is said to be Alex Grossman. Chapel Haven Inc., as indicated filed a third-party complaint against Grossman. The Revised Apportionment Complaint states that to the extent the plaintiffs recover damages, Grossman "is or may be liable for a proportionate share of such damages pursuant to Connecticut General Statutes § 52-572h in that the negligence of the apportionment defendant Alex Grossman, was active as set forth in the paragraphs 16 through 22 of the original complaint . . . while the alleged negligence of the defendant apportionment plaintiff Chapel Haven Inc., which it denies, was merely passive" (par 2). The Apportionment Complaint Claim for Relief asks for "an apportionment of liability among all parties, including the apportionment defendant," and "attorneys fees for defending the action brought by the plaintiff . . ." The motion to strike the Revised Apportionment Complaint by Grossman was based on a claim that it was legally insufficient. The grounds for the motion were (1) the action against Chapel Haven was based on the alleged intentional not negligent conduct of Grossman, thus apportionment under § 52-572h does not lie (2) Chapel Haven's claim of active-passive negligence is not properly asserted by way of apportionment and it cannot claim any relief but apportionment relief under § 52-102b (3) in any event the Revised Apportionment Complaint fails to allege any of the necessary elements of a claim in active-passive negligence and (4) Chapel Haven cannot prove the element of exclusive control necessary to a claim in active-passive negligence.
The court granted the motion to strike on the basis that the operative complaint alleged intentional not negligent conduct. It did note that "the Apportionment Complaint makes reference to active-passive negligence theory as between it and Grossman. The court concluded intentional actions by Grossman were alleged in the reversed plaintiff's complaint and such a theory has no place in apportionment litigation in any event as it lies in indemnification law." A motion to reargue was filed and after a hearing the court vacated its ruling on the motion to strike to allow time for discovery to take place. The purpose of this was to avoid the possibility of retrial of this matter if an Appellate Court ruled this court had committed error in granting the motion and/or discovery which was to be held, indicated a negligence claim could be made under the revised complaint and/or the evidence at trial permitted such a result compelling the trial judge to rule on a motion to permit apportionment.
What is now before the court is a motion for summary judgment as to the same revised complaint. It is argued that "facts supporting a claim of negligence against Grossman did not emerge during the discovery that has taken place since the December 9, 2009 hearing (date of motion to reargue motion to strike) and plaintiffs have not amended their operative pleadings to allege any claim of negligence against Grossman. The discovery conducted by the parties demonstrates the absence of any genuine issue of material fact with respect to the intentional nature of Grossman's conduct."
How is one to make his or her way out of this difficult maze. The court has relied on certain guidelines. The court will first refer to Rule 1-8 of the Practice Book which is entitled "Rules to Be Liberally Interpreted." The rule reads "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice," see discussion of rule in State v. Anonymous, 32 Conn.Sup. 306, 312-313 (1976). As noted in Horton and Knox this rule was referred to in Krevis v. Bridgeport, 262 Conn. 813, 823-24 (2003), which involved the waiver of compliance with a summary judgment procedure, and Salrino v. Ruffulo 19 Conn.App 402, 404 (1989), which involved the filing of pleadings out of order, commentary to rule at p. 204 of Volume 1 of Connecticut Practice Series.
Secondly, it is quite clear that this court is not required to follow its own prior decision if it concludes it was wrong or that doing so would create the possibility of impediments to a fair and final hearing of a case at the trial level.
Thirdly, Connecticut follows the modern trend to "construe pleadings broadly and realistically rather than narrow and technically," Normand Josef Enterprises, Inc. v. Conn. National Bank, 230 Conn. 486, 496, (1994). On the other hand as noted in Horton and Knox's comment of Practice Book § 10-1 "pleadings should be unambiguous." Is it negligence or intentional conduct that the plaintiff alleges; should there not be separate counts. But there was no request to revise file and it is certainly true that alternate and even inconsistent pleadings are permitted, see Practice Book § 10-25. In fact absent prejudice there is no bar to inconsistent pleadings; Hanover Fire Ins. Co. v. Fireman's Fund Ins. Co., 217, Conn. 340, 346, (1991).
A bare bones reading of the original complaint indicated to the court that intentional conduct was being alleged by Chapel Haven against the defendant Grossman. At the original argument on the motion to strike the attorney for the parent guardians of the plaintiff stated the complaint was based on intentional conduct, see December 9, 2009 transcript. Now discovery has been completed and the plaintiff's lawyer in response to an argument by Grossman's lawyer said:
"Counsel's correct, the pleadings haven't been changed but the pleadings didn't need to be changed because the pleadings don't take a position on whether Alex Grossman's conduct was negligent or intentional, all the pleadings say is that Alex Grossman, quote, `emotionally, physically and sexually abused and assaulted Michael Robinson.'"
An assault in our state can in fact be committed willfully or voluntary and thus intentionally or recklessly but it may also be committed negligently, Krause v. Bridgeport Hospital, 169 Conn. 1, 8-9 (1975), if Swainbank v. Coombs, 19 Conn.Sup. 391, 394, (1955) (Oddly enough this view differs from that taken of assault and battery in Prosser and Keeton on Torts § 10, page 46, and The Law of Torts, Harper James and Gray, § 35, page 281). The complaint also uses the word "abused" and lists a variety of acts. The negligence argument lies in attempting to establish the proposition that the complaint can be read as alleging acts which were sexually and emotionally abusive from the victim's perspective but Grossman did not perpetrate these acts with intent to do such harm because he had reason to believe his acts were unwanted and was negligent in so concluding. The defendant Chapel Haven Inc. argues that discovery allows this interpretation to be given and thus the court should not grant Grossman's summary judgment motion against the Apportionment Complaint.
What has discovery shown and is there a disputed issue of material fact raised by discovery to support the proposition Chapel Haven seeks to advance in its revised Apportionment Complaint.
The plaintiff relies on deposition testimony which, it is argued, shows Grossman's conduct was intentional. Robinson was deposed and he spoke of numerous sexual acts performed on him by Grossman. In one incident involving attempted anal penetration which was not able to be accomplished, the deposition is quoted to the effect that when asked what he did Robinson said "I walked away." The following then ensued "You didn't slap him in the face did you," Robinson's answer was "I told him to get off." Earlier in the brief an incident is described where Grossman is said to have put his mouth on Robinson's private parts. But what is left out is the response to a question as to what Robinson did when this happened. He said he did not allow this to happen but as noted in Chapel Haven's brief concerning what he did he said . . . "I didn't do anything." He also didn't report the incidents to anyone at Chapel Haven — meaning apparently the staff.
Robinson's mother testified concerning conversations she had with her son. She repeated the acts mentioned were not willingly engaged in by her son; Grossman's acts were intentional. She responded in the affirmative that it was her "understanding" based on "information provided" by her son that the acts "were not inadvertent acts but were deliberate acts" by Grossman. (April 29, 2010 deposition) Robinson's father was deposed April 28, 2010 and he described Grossman as a predator who used sex as a "club." The parents' statements are hearsay and conclusory. Besides the point is not what the alleged victim perceived as the state of mind of Grossman but whether there could be a colorable claim that Grossman could have perceived that his advances and actions were not unwanted. Similarly a doctor was deposed October 6, 2010, he was the treating psychologist of Robinson and the latter told him the sexual actions were unwanted — it was "an adverse experience." Robinson felt hopeless and helpless. This testimony could possibly come in as an exception to the hearsay rule, see Section 8.3.5 of the Evidence Code, Brown v Blauvert, 152 Conn. 272, 274, 275 (1964). But again they do not directly address the issue of Grossman's perception of the situation.
On this score the Chapel Haven memorandum points to different responses made by Robinson at his deposition. When Grossman touched his private parts with his mouth, as noted, he said he did not do anything. The memorandum refers to the deposition and states when Grossman tried to penetrate him "Robinson did not indicate to Grossman that he did not want him to do that or say no or push him away" and when Robinson was touched inappropriately, "Robinson continued to watch television." But the Chapel Haven brief is as selective as that of its opponent. As to one of the sexual assaults the question was asked "Did you say you didn't want him to do it? The answer cited by Chapel Haven is Robinson saying "No." But immediately thereafter the following occurred:
"Q. Did you push him away; do anything to get him away from your person or body?
A. I pushed him away. He comes and do it again."
The court concludes that the foregoing deposition references makes clear that there is a material issue of fact as to whether Grossman's conduct was intentional or can rather be characterized as a negligent assault as defined by the defendent Chapel Haven.
Two other matters must be discussed that have been raised by the parties. (A) At one point in its brief Chapel Haven argues that "evidence regarding Grossman's cognitive disabilities may further support the conclusion that Grossman may not have understood Robinson's ambiguous reactions to his sexual advances." The deposition testimony of Betsy Parlato, the President of Chapel Haven, is cited and portions of her deposition are attached. But Parlato's expertise and background are not cited to give any indication that she can offer her opinion on Grossman's "cognitive disabilities." She seems to be simply an administrator of Chapel Haven which cares for people with "cognitive disabilities or . . . and/or on the autism spectrum." It is not clear to the court that from her testimony which category of patient Grossman falls under — cognitive disability or Asperger problems. In any event the court is not quite clear how this cognitive disability issue applies or should apply to any negligence claim. The weight of authority appears to stand for the following proposition: "The standard according to which a person's conduct is judged in determining whether ordinary care has been exercised, however, is an objective standard of the reasonable person. A person with mental disabilities is generally held to the same standard of care as that of a reasonable person under the same circumstances without regard to the alleged tortfeasor's capacity to control or understand the consequences of his or her actions," 57 Am.Jur.2d, "Negligence" at § 180, page 254, also see Restatement (2d) Torts, Section 283B, Connecticut appears to take a different approach, in Badrigan v. Elmcrest Psychiatric Institute Inc., 6 Conn.App 383, 389 (1986), the court said "that in order for an individual's mental disability to impinge upon whether that person is chargeable with negligence, the individual must be incapable of exercising reasonable care." The cases relied upon, however, are quite old, King v. Connecticut Co., 110 Conn. 615, 618 (1930); Bushnell .v Bushnell, 103 Conn. 583, 590 (1925).
(B) In moving for summary judgment, as a separate ground, the plaintiff also makes the broad claim that "parties may not apportion liability in cases involving breaches of trust or fiduciary duty." It is noted that § 52-572h provides that the statute "shall not apply to breaches of trust or of other fiduciary duty." The revised complaint itself, however, does not allege a breach of fiduciary duty but it is based on a claim in negligence and reckless and wanton conduct. In Sherwood v. Danbury Hospital, 278 Conn. 163 (2006), the court quoted from earlier case law to the effect that "although we have not expressly limited the application of these principles of fiduciary duty to cases involving only fraud self-deciding, or conflict of interest, the cases in which we have invoked them have involved such deviations." The court went on to note that the case before it involved professional negligence but such a claim "does not give rise automatically to a claim of fiduciary duty . . . Professional negligence implicates a duty of care, while a breach of a fiduciary duty implicates a duty of loyalty and honesty." Id. page 196.
Professional negligence is not being advanced here but the foregoing discussion indicates negligence and breach of fiduciary are two distinct analytical concepts. Insofar as a breach of fiduciary duty could be based on negligence the legislature may well have concluded that the underlying relationship is of such a nature that apportionment should not be permitted to a party accused of violating a fiduciary duty apart from or even though the purported violation is negligence based — a seemingly rare possibility in any event.
(C) Finally the plaintiff argues summary judgment should be granted because it "mixes a claim for apportionment with a claim for common law indemnification." In effect the plaintiff is seeking to use summary judgment procedure to attack the legal sufficiency on the complaint on the specific ground now raised. The Revised Apportionment Complaint is in certain respects confusing. It is called an "apportionment complaint" and paragraph 2 states that if the original plaintiffs recover damages Grossman, the apportionment defendant "is or may be liable for a proportionate share of such damages pursuant to Connecticut General Statutes § 52-572h" (then comes the confusion because the sentence goes on) "in that the negligence of the apportionment defendant Alex Grossman, was active as set forth in paragraphs 16 though 22 of the complaint . . . while the alleged negligence of the apportionment plaintiff Chapel Haven Inc., which it denies, was merely passive." Then the revised complaint asks for, by way of damages — an apportionment of liability among all parties — so far so good — but in a second paragraph demands attorneys fees.
Active-passive language and attorneys fees sound in indemnification and in such an action Chapel Haven would seek to foist total liability, if any, on Grossman. In fact an active-passive theory in an apportionment context may impose a more heavy burden on an apportionment that plaintiff is recurred to shoulder.
The revised apportionment complaint clearly intends to secure an apportionment of liability between Chapel Haven and Grossman if the litigation makes that result appropriate under § 52-572h — there is already an indemnification claim filed by Chapel Haven against Grossman so why would Chapel Haven need two such claims. Therefore the court denies the motion for summary judgment directed against the revised apportionment complaint.
But the court would refer to Section 10-1 of the Practice Book which provides that "if any such pleading does not fully disclose the ground of claim or defense, the judicial authority may order a fuller and more particular statement." The apportionment plaintiff should file a new apportionment complaint removing language that more properly belongs in a claim for indemnification. By so directing, the court in no way means to question the viability of any indemnification claim. The court simply wishes the language to reflect (1) what to the court is clear — a § 52-572h apportionment claim being asserted by Chapel Haven and (2) the appropriate burdens on the parties under such a claim.
In any event the motion for summary judgment against the revised apportionment claim is denied.
The summary judgment motion is directed against the revised apportionment complaint and oral argument was held on that basis. The court construed comments in the plaintiff's brief that active — passive negligence could not be established only as an "insofar as" argument, that is insofar as the revised apportionment complaint rests on that concept, it can not be shown.