Opinion
FBTCV156048792
01-18-2017
Saul Robles v. Richard Dean, et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #133
Michael P. Kamp, J.
Before the court is the defendants' motion for summary judgment as to counts two, four, five, and six of the plaintiff's amended complaint.
FACTS
On October 26, 2015, the plaintiff, Saul Robles, filed a six-count amended complaint against four defendants: Richard Dean, Fitness Edge Holdings, LLC (Edge), Champion Boxing Fitness, LLC (Champion Boxing), and Michael DeLeo. In count one of the amended complaint, the plaintiff alleges the following facts. On September 1, 2013, the plaintiff and Dean went to the Edge Fitness for purposes of conducting a training session, at which time Dean engaged defendant DeLeo, an employee of the defendant Edge, to spar with the plaintiff. During the sparring match, the defendant DeLeo began striking the plaintiff in a violent manner in the head and neck area, causing injuries. The plaintiff alleges that he attempted to stop defendant DeLeo, but that defendant DeLeo continued to violently and unreasonably attack the plaintiff. In count one of the amended complaint, the plaintiff alleges a cause of action for negligence against Dean. In counts two and six of the amended complaint, the plaintiff alleges causes of action against the defendant Edge for negligence and negligent supervision, respectively. In count three of the amended complaint, the plaintiff alleges a cause of action for negligence against defendant Champion Boxing. In counts four and five of the amended complaint, the plaintiff alleges causes of action against the defendant DeLeo for assault and battery and negligence, respectively.
Champion Boxing Fitness, LLC is nonappearing in this matter. Furthermore, on October 20, 2016, the plaintiff filed a withdrawal of action against Richard Dean. Therefore, because the present motion for summary judgment concerns only defendant DeLeo and defendant Edge, they will collectively be referred to as the defendants throughout this memorandum.
On September 13, 2016, the defendants filed a motion for summary judgment as to counts two, four, five, and six of the plaintiff's amended complaint on the grounds that there is no genuine issue of material fact that (1) the plaintiff cannot satisfy his burden with regard to the standard of care applicable to fitness boxing; (2) the plaintiff cannot satisfy his burden with regard to his claim for assault and battery; and (3) the plaintiff cannot satisfy his burden with regard to his claim for negligent supervision. The defendants submitted a memorandum of law in support of the motion for summary judgment and attached thereto pp. 50, 59, 61, 64-67, 69, 71-72, 77-79, 81-84, 125-27, 130-31, and 134 of the plaintiff's deposition testimony from August 24, 2016, as exhibit A. On October 28, 2016, the plaintiff filed a memorandum of law in opposition to the defendants' motion for summary judgment and attached several exhibits, including: (1) exhibit one, pp. 23-25, 55, 57, 60-61, 65-66, 68-69, 76, 78, and 82-83 of the plaintiff's deposition testimony from August 24, 2016; (2) exhibit two, pp. 20-21, 24, 26, 28-29, 31, and 34 of Dean's deposition testimony; (3) exhibit three, a copy of Vaid v. Equinox Greenwich Old Track Road, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-6019426-S, (April 15, 2016, Lee, J.); and (4) exhibit four, a copy of Seda v. Maxim Healthcare Services, Superior Court, judicial district of Hartford, Docket No. CV-07-5010811-S, (April 8, 2008, Elgo, J.). On October 31, 2016, the defendants filed a reply memorandum and attached thereto pp. 15, 40-43, 51-52, 60-62, 69-72, and 76 of Dean's deposition testimony from October 13, 2016, as exhibit B. The court heard oral arguments at short calendar on October 31, 2016.
DISCUSSION
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
" The use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 236, 116 A.3d 297 (2015). Moreover, " [w]hile [a party's] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996).
In their memorandum of law in support of the motion for summary judgment, the defendants argue that (1) as to counts two and five, asserting causes of action for negligence, the applicable standard of care for fitness boxing is the duty to refrain from reckless or intentional conduct--not ordinary negligence--and, because it is undisputed that the plaintiff cannot show the defendants breached said standard, the defendants are therefore entitled to judgment as a matter of law; (2) as to count four, asserting a cause of action for assault and battery, it is undisputed that the plaintiff cannot show intent in satisfaction of the requisite elements, and therefore the defendants are entitled to judgment as a matter of law; and (3) as to count six, asserting a cause of action for negligent supervision, it is undisputed that because the aforementioned claims for negligence and assault and battery must fail, the claim for negligent supervision, as a derivative claim, must also fail, and therefore the defendants are entitled to judgment as a matter of law. In the alternative, the defendants also argue that it is undisputed that the plaintiff cannot assert factual allegations to support a claim for negligent supervision, and therefore, on that ground, the defendants are still entitled to judgment as a matter of law.
In his memorandum of law in opposition to the motion for summary judgment, the plaintiff argues that (1) as to counts two and five, the applicable standard of care for fitness boxing is ordinary negligence, and the plaintiff can establish a breach of that duty; (2) as to count four, the plaintiff can show intent in satisfaction of the requisite elements; and (3) as to count six, the plaintiff has asserted sufficient factual allegations in support of the claim and, in addition, because the claims for negligence and assault and battery are also sufficient, the defendants' reasoning regarding derivative claims is not applicable.
In response, in their reply to the plaintiff's objection, the defendants additionally assert that the plaintiff did not disclose Dean as a liability expert witness in the case and, furthermore, his testimony is biased because he was formally a co-defendant, and therefore the court should not take his testimony into consideration. The defendants further argue that because Dean is not an expert, his testimony is inadmissible, and therefore the plaintiff has not provided any admissible evidence with regard to the standard of care. As to the claim for negligent supervision, the defendants argue that the plaintiff has not provided evidence that defendant Edge knew or should have known that defendant DeLeo would injure the plaintiff, and therefore the plaintiff cannot satisfy his burden with respect to count six.
On November 8, 2016, the plaintiff disclosed Dean as an expert witness in accordance with Practice Book § 13-4. Pursuant to the scheduling order approved by the court, Bellis, J., on September 6, 2016, the deadline for the plaintiff to disclose all expert witnesses was October 1, 2016. Nonetheless, at short calendar on October 31, 2016, plaintiff's counsel informed the court that if he planned to have Dean testify at trial with regard to the standard of care applicable to fitness boxing, he would disclose him as an expert in a timely manner. Furthermore, plaintiff's counsel indicated that Dean did not need to be disclosed as an expert for the purposes of the motion for summary judgment. In response, defendants' counsel did not raise the issue of failure to comply with the scheduling order in his reply to the plaintiff's objection or during oral argument at short calendar. Based on the November 8, 2016 disclosure of Dean as an expert witness, the court will consider Dean's testimony.
I. COUNTS TWO AND FIVE--NEGLIGENCE
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). " Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." (Internal quotation marks omitted.) Lawrence v. O& G Industries, Inc., 319 Conn. 641, 649, 126 A.3d 569 (2015). " The test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Id., 650.
In support of their argument that the plaintiff is unable to satisfy his burden with regard to the standard of care applicable to fitness boxing, the defendants point to pp. 50, 59, 64-65, 67, 69, 71-72, 77-78, 82-84, and 130 of the plaintiff's deposition testimony from August 24, 2016, and pp. 51-52 and 56 of Dean's deposition testimony from October 13, 2016. The plaintiff, in response, cites to pp. 20, 29, and 31 of Dean's deposition testimony; pp. 82-83 of the plaintiff's deposition testimony from August 24, 2016; and a copy of Vaid v. Equinox Greenwich Old Track Road, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-6019426-S, (April 15, 2016, Lee, J.).
" Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984). " The conclusion of negligence is ordinarily one of mixed law and fact invoking the applicable standard of care, which is a question of law and its application to the facts of the case, which is a question of fact." Monterose v. Cross, 60 Conn.App. 655, 659, 760 A.2d 1013 (2000). Furthermore, " [t]he correctness of a [jury charge about the standard of care] is determined by the proof offered during the course of the trial." Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 150, 801 A.2d 775 (2002); see also Monterose v. Cross, supra, 659-60 (finding that court improperly failed to charge jury on appropriate standard of care where court charged on reasonably prudent person standard despite testimony from defendant and expert witness as to standard of care applicable to riggers).
Although the defendants advocate for application of the standard of care as set forth in Jaworski v. Kiernan, 241 Conn. 399, 696 A.2d 332 (1997), the court does not find this argument persuasive. In Jaworski v. Kiernan, supra, 409, the Connecticut Supreme Court held that a reckless or intentional conduct standard of care was appropriate for team contact sports in order to " maintain civility and relative safety . . . without dampening the competitive spirit of the participants." The court also noted that the decision to adopt such a standard for team sports was influenced by the desire to " stem the possible flood of litigation that might result from adopting simple negligence as the standard of care to be utilized in athletic contests." Id.
In adopting this particular standard, the court first conducted a threshold inquiry into whether a reasonable person in the defendant's position, knowing what he knew or should have known, would have anticipated the harm that resulted from his actions. Id., 406. After determining that the plaintiff's injury was foreseeable to the defendant, the court assessed the extent of the legal duty to be imposed upon the defendant through consideration of four factors: " (1) the normal expectations of participants in the sport in which the plaintiff and the defendant were engaged; (2) the public policy of encouraging continued vigorous participation in recreational sporting activities while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Id., 407.
In the instant case, it seems that a reasonable person in defendant DeLeo's position, as an experienced trainer with knowledge of the plaintiff's skill level and past fitness boxing sessions involving " light contact, " would have anticipated serious injury from throwing a combination punch without warning. Therefore, the plaintiff's injury was foreseeable to the defendant. Nevertheless, through application of the four delineated factors, the reckless and intentional conduct standard of care is inappropriate under the circumstances. First, the normal expectations of participants in fitness boxing, compared to participants in a soccer or football game, certainly differ. The plaintiff testified that he was accustomed to " light contact, " and that fitness boxing is " slower speed because you're not going full boat, you're not going full contact." The plaintiff further indicated that it involves " a lot of hand work, a lot of mitt work . . . it has nothing to do with hitting hard, it has everything to do with very light contact . . . it's all movement." Additionally, Dean testified that, in his experience as a USA national boxing coach, he would warn his trainee ahead of a combination punch in order for the trainee to know how to block it. Therefore, it does not appear to be a normal expectation of participants in fitness boxing to be punched in the back of the head.
Second, the court is asked to consider the public policy of encouraging continued vigorous participation in fitness boxing while weighing the safety of the participants. Public policy dictates that trainees should be encouraged to engage in fitness boxing as an effective work out option in a health club, and trainers should also be encouraged to provide hands-on, effective training without fear of impending litigation if a punch lands too hard or catches the trainee in the wrong place. Nonetheless, trainees at a health club should also be kept safe while engaged in an activity such as fitness boxing, where the trainers are necessarily more experienced and therefore better equipped to deliver a harmful punch to an unexpected trainee. As distinguishable from an actual boxing match, where participants are engaged in full-bodied contact with the intent to win, a trainee partaking in fitness boxing at a health club is there to receive instruction from a trainer. Moreover, as discussed above, the evidence presented indicates that the normal expectation for a trainee in fitness boxing does not involve contact to the back of the trainee's head.
The third consideration is the avoidance of increased litigation in the event that the standard of care is one of ordinary negligence, rather than reckless or intentional conduct. In Jaworski, the court voiced a concern for an influx of lawsuits based on " the number of athletic events taking place in Connecticut over the course of a year . . ." Jaworski v. Kiernan, supra, 241 Conn. 410. Although a fear of impending litigation is also present here, the circumstances of the instant case suggest a less pressing concern than the one expressed by the court in Jaworski . Based on the facts alleged, fitness boxing does not entail full-contact, full strength combination punches. Instead, the expectation is one of " light contact, " where the focus is on the cardio aspect of the work out. Accordingly, injuries such as the ones sustained by the plaintiff should be less likely to occur in comparison to similar injuries resulting from competitive soccer or football games.
Finally, the court is asked to look at decisions of other jurisdictions. With regard to the activity of fitness boxing between a trainer and a trainee at a health club, there are not many cases, either in Connecticut or in outside jurisdictions, which are particularly instructive as to the appropriate standard of care. In Laughman v. Girtakovskis, 374 P.3d 504, 508, 2015 COA 143 (Co.App.Div. VII 2015), the Colorado Court of Appeals held that participants in marital arts sparring do not owe his or her fellow participants a duty of ordinary care. Nonetheless, in Laughman, the defendant was preparing to test for his black belt and, as part of a pre-test, solicited the help of the plaintiff, a fellow student, to " attack him so that he could demonstrate his skill and control in defending himself." Id., 506. During the sparring session, the defendant performed an accepted marital arts sparring technique that unintentionally connected with the plaintiff's face, causing serious facial and visual damage. Id.
Although the Laughman case involves a sparring session, it is readily distinguishable from the instant case. Here, unlike in Laughman, the participants were not co-students in a sparring session to test the readiness of one participant to receive the high level honor of black belt qualification. Rather, the plaintiff, as a trainee with limited experience, was sparring with a trainer for the purposes of achieving a cardio work out through fitness boxing. Moreover, in Laughman, the plaintiff was specifically asked to " attack" the defendant so that the defendant could show off his skill and control. Although the demonstration was only supposed to involve " light sparring, " the plaintiff was still fully informed of the circumstances of the sparring session (e.g., to demonstrate the defendant's ability to defend an attack). Therefore, there was an inherent expectation, by both parties, that injuries could accidentally result.
In sum, it bears repeating that the plaintiff and defendant DeLeo were not engaged in a team sport. The facts allege that the plaintiff, as a trainee, enlisted defendant DeLeo, as a trainer, for instruction in fitness boxing. They were not co-participants in an athletic contest within the meaning contemplated by the Supreme Court. Unlike the athletic competition described in Jaworski v. Kiernan, supra, 407, where the " object obviously is to win, " the evidence presented does not show that the plaintiff and defendant DeLeo engaged in the sparring session with the intent to defeat the other person. Rather, the plaintiff indicated that it was a " work out session" for him, and that in his past sessions with fitness boxing, they would mostly hit gloves or shoulders. Although the plaintiff admitted that he understood contact could be made, he also stated he only expected " light contact." Accordingly, given the circumstances, a reckless or intentional conduct standard of care, as applicable to team contact sports, is not applicable to the instant case involving a personal trainer and a trainee engaged in fitness boxing at a health club.
Under application of an ordinary negligence standard, the defendants have not presented evidence sufficient to support a judgment in their favor. The defendants submitted testimony from the plaintiff that he willingly entered the ring with defendant DeLeo, that the plaintiff was wearing headgear and other safety equipment at the time, that the plaintiff and defendant DeLeo sparred for approximately thirty seconds, that defendant DeLeo threw a combination punch which landed on the back of the plaintiff's head, and that the plaintiff thereafter took off his equipment and left the ring. The plaintiff further testified that combinations are common, and that he " guesses" they are something he expects could occur during a session. Nonetheless, this evidence is not sufficient to show that an ordinary person in defendant DeLeo's position, knowing what he knew or should have known, would not have anticipated that the plaintiff's injuries were likely to result from a combination punch to the back of the head.
The plaintiff also asserted, both in his memorandum of law in opposition to the motion for summary judgment and again at oral argument, that defendant DeLeo may even be subjected to a more heightened standard of care based on the special relationship between a trainer and a trainee. Nonetheless, such a determination is better established at trial, where the court can decide the appropriate standard of care to charge the jury with based on the proof offered. The defendants have not met their heavy burden on a motion for summary judgment, and therefore are not entitled to judgment as a matter of law. Accordingly, the defendants' motion for summary judgment as to counts two and five is denied.
II. COUNT FOUR--ASSAULT AND BATTERY
" [L]iability for battery arises if . . . [a person] acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and . . . a harmful contact with the person of the other directly or indirectly results." (Internal quotation marks omitted.) Simms v. Chaisson, 277 Conn. 319, 331, 890 A.2d 548 (2006), quoting 1 Restatement (Second), Torts § 13 (1965). Furthermore, " liability for assault arises if . . . [a person] acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and . . . the other is thereby put in such imminent apprehension." (Internal quotation marks omitted.) Id., quoting 1 Restatement (Second), Torts § 21 (1965). In Connecticut, " [a]n actionable assault and battery may be one committed wilfully or voluntarily, and therefore intentionally, or one done under circumstances showing a reckless disregard of consequences. It may also be one committed negligently." Russo v. Porga, 141 Conn. 706, 708-09, 109 A.2d 585 (1954).
Interestingly, Connecticut does not follow the common-law rule that battery requires intent. See Clinch v. Generali-U.S. Branch, 110 Conn.App. 29, 40, 954 A.2d 223 (2008), aff'd, 293 Conn. 774, 980 A.2d 313 (2009) (" intentional conduct is not required for an assault and battery" [footnote omitted]); Sansone v. Bechtel, 180 Conn. 96, 99, 429 A.2d 820 (1980) (" [w]e have long adhered to rule that an unintentional trespass to person, or assault and battery, if it be the direct and immediate consequence of force exerted by defendant wantonly, or imposed without exercise by him of due care, would make him liable for resulting injury" [internal quotation marks omitted]). Nonetheless, based on the allegations contained in the plaintiff's amended complaint, count four is properly construed as a claim of intentional assault and battery, as opposed to negligent assault and battery. Therefore, the court will evaluate the defendants' motion for summary judgment against an intentional theory.
" [I]ntent involves (1) . . . a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends not only to having in the mind a purpose (or desire) to bring about given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act . . . Also, the intentional state of mind must exist when the act occurs . . . Thus, intentional conduct extends not only to those consequences which are desired, but also to whose which the actor believes are substantially certain to follow from what the actor does . . . Furthermore, it is not essential that the precise injury which was done be the one intended . . . Rather, it is an intent to bring about a result which will invade the interests of another in a way that the law forbids." (Citations omitted; emphasis omitted; internal quotation marks omitted.) American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 776, 607 A.2d 418 (1992).
In support of their argument that the plaintiff is unable to satisfy his burden with regard to the claim for assault and battery, the defendants point to pp. 59, 64-65, 69, 71-72, 77-79, 81-84, 130-31, and 134 of the plaintiff's deposition testimony from August 24, 2016, in addition to pp. 60-62 of Dean's deposition testimony from October 13, 2016. The plaintiff, in response, cites to pp. 18-19 and 31 of Dean's deposition testimony, in addition to pp. 65-66 of the plaintiff's deposition testimony from August 24, 2016.
" Summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). But, " even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact." (Internal quotation marks omitted.) Voris v. Middlesex Mutual Assurance Co., 297 Conn. 589, 603, 999 A.2d 741 (2010).
Here, the defendants have presented evidence concerning the element of intent with regard to the assault and battery claim. The defendants presented the plaintiff's testimony that he willingly entered the ring with defendant DeLeo to spar and that, after sparring for about thirty seconds, defendant DeLeo threw the combination punch that landed on the back of the plaintiff's head, and thereafter the plaintiff immediately took off his safety equipment and left the ring. The defendants provided further evidence to show that defendant DeLeo had not acted in any overly aggressive manner towards the plaintiff before, nor was there anything else about the session that made the plaintiff think defendant DeLeo wanted to hurt him. The plaintiff also stated that the combination punch was " probably an accident" on defendant DeLeo's part, and that defendant DeLeo apologized sometime after the incident.
Nevertheless, the plaintiff has also presented evidence that creates a genuine issue of material fact as to whether defendant DeLeo intended to cause a harmful or offensive contact with the plaintiff. The evidence provided shows that although the plaintiff consented to entering the ring with defendant DeLeo, he was accustomed to " light contact" in fitness boxing, which involves " a lot of hand work, a lot of mitt work, " and is " slower speed because you're not going full boat, you're not going full contact." Moreover, Dean testified that although combination punches are commonly used in teaching sparring, if he were to throw a combination punch, he would " tell his trainee it was coming so that [the trainee] would know how to block it." Additionally, Dean testified that the particular punch that landed on the back of the plaintiff's head was " very irresponsible to throw at a student, " and that Dean did not " expect to see [defendant DeLeo] hit the plaintiff in the face or in the head as a coach." Therefore, there is a genuine issue of material fact as to whether defendant DeLeo intended to cause a harmful or offensive contact with the plaintiff. Accordingly, the defendants' motion for summary judgment as to count four of the plaintiff's amended complaint is denied.
III. COUNT SIX--NEGLIGENT SUPERVISION
" Under Connecticut law, an employer may be held liable for the negligent supervision of employees." Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004). To hold an employer liable for negligent supervision, " [the] plaintiff must plead and prove that [he] suffered an injury due to the defendant's failure to supervise an employee whom the defendant had a duty to supervise. A defendant does not owe a duty of care to protect a plaintiff from another employee's tortious acts unless the defendant knew or reasonably should have known of the employee's propensity to engage in that type of tortious conduct." (Citation omitted.) Roberts v. Circuit-Wise, Inc., 142 F.Supp.2d 211, 214 (D.Conn. 2001). See also Seda v. Maxim Healthcare Services, Superior Court, judicial district of Hartford, Docket No. CV-07-5010811-S, (April 8, 2008, Elgo, J.) (" majority of Superior Court decisions considering issue have required plaintiff in negligent supervision action to plead and prove injury by defendant's negligence in failing to properly supervise employee who defendant had duty to supervise and who defendant knew or should have known would cause injury").
In support of their argument that the plaintiff is unable to satisfy his burden with regard to the claim for negligent supervision, the defendants point to pp. 61, 66, 71, 77-78, 82-84, 125-27, and 134 of the plaintiff's deposition testimony from August 24, 2016, and pp. 15 and 69-72 of the defendant Dean's deposition testimony from October 13, 2016. The plaintiff, in response, cites to pp. 21, 24, 34, and 36 of the defendant Dean's deposition testimony, as well as a copy of Seda v. Maxim Healthcare Services, Superior Court, judicial district of Hartford, Docket No. CV-07-5010811-S, (April 8, 2008, Elgo, J.).
Although the plaintiff alleges in his amended complaint that the defendant DeLeo was not adequately supervised, trained, and/or instructed, he also indicated that he does not know what measures the defendant Edge took in hiring employees, nor does he know what kind of training is given to employees or how the defendant Edge generally runs their business. The plaintiff also stated that defendant DeLeo is a " professional, " and that defendant DeLeo was familiar with the plaintiff's level of training. When asked if there was any other reason why the defendant Edge was responsible for the incident, other than the claim that the defendant DeLeo was an employee, the plaintiff merely stated that the defendant Edge " should have hired the right people."
The plaintiff presented testimony concerning " No Sparring" signs posted in the room where the incident took place, and testimony from Dean stating that he thinks it would be a violation of defendant Edge's policies for a trainer to spar with a trainee. There is a question of fact as to whether the defendant Edge failed to adequately train and/or instruct defendant DeLeo in fitness boxing.
As to the foreseeability element, the plaintiff asserts that because defendant DeLeo has a background in mixed martial arts, the defendant Edge knew or should have known that he would cause injury to the plaintiff. The punch that injured the plaintiff was a combination punch, which is a common move used in boxing, not mixed marital arts. The plaintiff also indicated that in the three or four previous training sessions before the incident, defendant DeLeo never acted in an aggressive manner or punched him too hard. The plaintiff has created a genuine issue of material fact as to whether the defendant Edge knew or should have known of defendant DeLeo's propensity to punch a trainee in the back of the head, and raised questions of fact regarding the level of training and supervision that are best left to be resolved by the jury. Therefore, the defendants' motion for summary judgment as to count six of the plaintiff's amended complaint is denied.
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment as to counts two, four, five and six of the plaintiff's amended complaint is denied.