Opinion
No. CV08 5016956S
April 9, 2009
MEMORANDUM OF DECISION
This matter before this court is whether a parent's contributory negligence is a defense to the parent's claim for damages for past and future medical expenses. The plaintiff Toni Ray brings this action for damages as next friend of her daughter Tajonea Ray for injuries sustained from a piece of metal protruding from a metal rack in the retail store of the defendant, Wal-Mart Stores, Inc. The defendant has raised two special defenses to the mother's claim.
First Special Defense — Contributory Negligence
1. If the plaintiff, Tajonea Ray, sustained any injuries or damages, which is denied, said injuries or damages were caused by the plaintiff's mother and next best friend, Toni Ray's own negligence and carelessness in one or more of the following ways, in which the plaintiff's mother:
a. failed to make proper use of her senses and faculties;
b. failed to keep a proper lookout;
c. was inattentive to her surroundings;
d. failed to exercise reasonable care for her daughter's safety at said time and place.
2. The plaintiff's mother's negligence as aforesaid was the substantial factor in bringing about the accident and alleged injuries, and was greater than any negligence on the part of the defendant, which negligence the defendant expressly denies.
Second Special Defense — Lack of Notice
1. The plaintiffs' claims are barred because the defendant lacked actual or constructive notice of the alleged defect.
A.
The plaintiffs have now moved to strike the first and second special defenses on the basis that 1) "[T]he first special defense is legally insufficient because it attempts to impute to plaintiff-minor the alleged negligence of the plaintiff parent," and 2) "the second special defense (lack of notice) is improper in that it does not speak to any issue of comparative negligence . . ."
The parties acknowledge, through pleadings, that on this issue there is a split of authority among Superior Court judges. Most Superior Court cases since Crotta v. Home Depot, Inc., 249 Conn. 634, 732 A.2d 767 (1999), have not allowed the defense. In Crotta the 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. The Supreme Court held that the doctrine of parental immunity operated to bar the parent from being so joined. The court extended the doctrine of parental immunity to preclude third-party actions against the parent for apportionment of liability, 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. The Supreme Court held that the doctrine of parental immunity operated to bar the parent from being so joined. The court extended the doctrine of parental immunity to preclude third-party actions against the parent for apportionment of liability, contribution or indemnification based on the parent's allegedly negligent supervision of a child. Id., 644-45.
"Parental immunity was first recognized by Connecticut in Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753 (1929)." Henderson v. Woolley, 230 Conn. 472, 478, 644 A.2d 1303 (1994). The doctrine prohibits the "bringing of an action at law for personal injuries by a minor child against the parent." Mesite v. Kirchenstein, supra, 109 Conn. 84. Parental immunity continues to be the general rule, subject to a very few legislatively and judicially promulgated exceptions; Asciutto v. Farricielli, 244 Conn. 692, 698-700, 711 A.2d 708 (1998); none of which are applicable here.
This court joins the courts which have held that a special defense such as that filed here is inconsistent within the policies of parental immunity discussed in Crotta v. Home Depot, Inc., supra 249 Conn. 643-44. To allow a parent's alleged negligent supervision to diminish her recovery of damages for past or future medical expenses would involve the court in the "exercise of parental discretion regarding the upbringing and care of children." (Internal quotation marks omitted.) Id., 643-44. Furthermore, such a defense "would have a detrimental effect upon the injured child. It is artificial to separate the parent and 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." (Internal quotation marks omitted.) Id., 644.
Finally, permitting a parent's negligent supervision to diminish the recovery of damages for medical expenses would create an unnecessary anomaly in the law. As noted supra, "General Statues § 52-204 authorizes the recovery of medical expenses in an action solely in behalf of the injured child and makes the recovery in such action a bar to any claim by that procedure." Dzenutis v. Dzenutis, 200 Conn. 290, 3080, 512 A.2d 130 (1986). Where, however, the claim for damages for medical expenses is made in the name of the minor child, it is settled that the negligence of the parent may not impair the child's recovery of damages. See Bothello v. Curtis, 28 Conn.Sup. 493, 497-98.
As to the second special defense — lack of notice, the court agrees with the legal position advanced by the plaintiff in that the defense is an essential element of the plaintiff's burden of proof to establish negligence.
CONCLUSION
Plaintiff's motion to strike counts one and two is granted.