Opinion
DBDCV185013180S
04-04-2019
Jerry ROSARIO v. Christopher MOLYNEAUX et al.
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Defendant Law Offices of Norman J. Voog, LLC has moved to strike plaintiff’s claim that it had negligently supervised Attorney Christopher J. Molyneaux, its employee, who is alleged to have committed malpractice by failing to file suit against the Commissioner of Corrections within the applicable statute of limitations. For the reasons stated below the motion to strike is denied.
The Standards for Deciding a Motion to Strike
"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). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, [the court notes] that [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.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). "If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). On the other hand, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349 (2013).
The Complaint States a Claim for Negligent Supervision
"To state a negligent supervision claim under Connecticut law, ‘plaintiff must plead and prove that she suffered an injury due to the defendant’s failure to supervise an employee whom the defendant had [a] duty to supervise.’ Brooks v. Sweeney, 299 Conn. 196, 209 n.12 (2010) (citing Roberts v. Circuit-Wise, Inc., 142 F.Supp.2d 211, 214 (D.Conn. 2001). ‘Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action.’ Doe v. Saint Francis Hosp. & Med. Center, 309 Conn. 146, 174 (2013) (citation omitted). The ‘general rule’ is that one has ‘no legal obligation to protect another, ’ but an exception ‘may arise when the defendant’s own conduct creates or increases the foreseeable risk that such other person will be harmed by the conduct of a third party.’ Id." Wade v. Kay Jewelers, Inc., 2018 WL 44440532 *10 (D.Conn. 2018) (Shea, J.).
Defendant argues that the negligent supervision claim should be stricken because plaintiff has not alleged facts to demonstrate that Attorney Molyneaux had the propensity to engage in the alleged improper conduct. There are cases in which courts struck negligent supervision claims for failure to allege facts showing the supervisor knew or should have known that the employee had a propensity for the type of improper conduct alleged. There are opinions that suggest a defendant cannot be held liable for negligent supervision of an employee accused of wrongful conduct unless the defendant knew or reasonably should have known of the employee’s propensity to engage in that type of conduct. See e.g., Quichimbo v. Luow, 2018 WL 6629231 *6 (Conn.Super. 2018) (Wilson, J.); Maggipinto v. Ulbrich Stainless Steels & Specials Metals, Inc., 2017 WL 2111405 *2 (Conn.Super. 2017) (Cronan, J.). In those cases, however, rather than stating a blanket rule, the courts used knowledge of an employee’s propensity as a means to determine whether the employer breached a duty to the plaintiff by causing foreseeable harm from failure to supervise under the facts alleged. See e.g., Quichimbo, 2018 WL 6629231 *6 ("would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?"), quoting Allen v. Cox, 285 Conn. 603, 610 (2008).
In Wade v. Kay Jewelers, 2018 WL 44440532 *11, District Judge Shea rejected the argument that knowledge of an employee’s propensity to the type of conduct alleged was an essential element of a negligent failure to supervise claim:
"Both parties are mistaken that Wade must plead that the defendants knew or should have known of an employee’s ‘propensity’ to engage in that type of tortious conduct to establish that such conduct was foreseeable, and thus that the defendants had a duty to prevent it. In [Doe v.] Saint Francis Hosp. & Med. Ctr. [309 Conn. 146 (2013)], the Connecticut Supreme Court held that the trial court did not need to give a jury instruction on propensity in a negligent supervision claim against an employer because ‘[t]he criminal misconduct of a third party may be foreseeable under the facts of a particular case ... without a showing that the defendant had such actual or constructive knowledge of the third party’s criminal propensity.’ 309 Conn. at 172. In other words, ‘proof of actual or constructive knowledge of propensity is but one way to establish that the criminal misconduct of the third party was foreseeable.’ Id. at 173. Accordingly, Wade did not need to plead that the defendants knew or should have known its employees had a ‘propensity’ for the type of tortious conduct alleged to establish defendants’ duty to prevent such conduct."
In Wade the Court cited St. Francis for "[t]he ‘general rule’ ... that one has ‘no legal obligation to protect another, ’ but an exception ‘may arise when the defendant’s own conduct creates or increases the foreseeable risk that such other person will be harmed by the conduct of a third party.’" 2018 WL 4440532 *10, quoting 309 Conn. at 174. In Wade plaintiff alleged the employer instituted a policy of racial profiling that contributed to its employee’s alleged misconduct.
The Supreme Court in Doe v. St. Francis, 309 Conn. at 172-73, held that knowledge of an employee’s propensity to criminal conduct was not an essential element of a negligent supervision claim.
In Ramirez v. Dietrich, 2017 WL 1194288 *3 (Conn.Super. 2017) (Roraback, J.), Judge Roraback held the supervisors’ knowledge of extreme weather conditions and hazardous road conditions were sufficient facts relating to foreseeability of injury to state a claim for negligent supervision of a tractor trailer operator whose truck jack-knifed causing plaintiff’s injury.
Here, plaintiff alleged over a seven-year period Attorney Molyneaux advised him he had a "very strong" case and his case was proceeding, although the case had not been timely filed; when he contacted the law firm, other staff members assured him his case was "moving forward" and promised to forward case documents that were not sent. Assuming that these allegations are true and construing them broadly in favor of plaintiff, the communications with staff other than Attorney Molyneaux about the status of his case should have alerted the defendant law firm to plaintiff’s concerns about the status of his case and triggered at least an inquiry into whether the case was pending, which would have revealed the case had not been filed and affirmative progress reports by Attorney Molyneaux were false; also unwarranted assurances by staff the case was "moving forward" and their promises to forward case documents lulled plaintiff into the false belief the case had been filed; the defendant law firm’s failure to inquire and staff misstatements about the status of the case constituted facts supporting the law firm’s failure to supervise the attorney assigned to the case, and contributed to the harm that the limitations period expired on plaintiff’s claims, which should have been foreseeable by the defendant law firm from the alleged facts. The defendant law firm’s conduct increased the risk of the particular harm caused by Attorney Molyneaux’s failure to file the lawsuit and was a substantial factor in causing that harm; also the defendant law firm otherwise had a legally cognizable duty to protect its client, the harm that occurred was within the scope of the risk created by the defendant’s conduct and reasonably could have been anticipated in light of the defendant’s duty to protect its client. See Doe v. St. Francis, 309 Conn. at 172-73.
The motion to strike the negligent supervision claim is denied.
"For the reasons set forth more fully hereinafter, we reject the hospital’s contention that the trial court improperly declined to charge the jury that it could not find the hospital negligent unless it found that the hospital knew or should have known that Reardon was a pedophile. It is true that, as a general matter, a defendant is not responsible for anticipating the intentional misconduct of a third party; see, e.g., 2 Restatement (Second), Torts § 302 B, comment (d), p. 89 (1965); unless the defendant knows or has reason to know of the third party’s criminal propensity. The criminal misconduct of a third party may be foreseeable under the facts of a particular case, however, without a showing that the defendant had such actual or constructive knowledge of the third party’s criminal propensity. As this and many other courts have recognized, when a defendant’s conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, or when the defendant otherwise has a legally cognizable duty to aid or protect another person, the fact that the harm is brought about by the actions of a third party does not relieve the defendant of liability, even though the third party’s conduct is criminal, if the harm that occurred is within the scope of the risk created by the defendant’s conduct or reasonably could have been anticipated in light of the defendant’s duty to protect. Thus, when the harm resulting from the criminal misconduct of a third party is foreseeable in view of the facts and circumstances presented, there is no reason why the injured party should nevertheless be required to establish that the defendant had actual or constructive knowledge of the third party’s criminal propensity. In other words, as the plaintiff aptly explains, proof of actual or constructive knowledge of propensity is but one way to establish that the criminal misconduct of the third party was foreseeable. Of course, evidence demonstrating such knowledge of the third party’s criminal propensity will be the only way for the injured party to establish foreseeability in cases in which there is no other evidence from which the jury reasonably could find that the harm resulting from the third party’s criminal misconduct should have been anticipated by the defendant. It also is true that those cases comprise the great majority of cases involving claims of a breach of duty by the defendant for failing to anticipate the criminal misconduct of a third party, whether that third party is the defendant’s employee or someone else. But when, as in the present case, there is no claim that the other, nonpropensity evidence was insufficient to support the claim that the criminal misconduct of the third party was foreseeable, it is improper to instruct the jury, as the hospital in the present case requested, that the injured party cannot prevail in the absence of proof that the defendant knew or should have known of the third party’s criminal propensity. The reason for this conclusion is well-nigh self-evident: in the absence of proof of actual or constructive knowledge of propensity, such an instruction would foreclose the jury from returning a verdict for the plaintiff predicated on the other evidence adduced by the injured party on the issue of foreseeability."