Opinion
HHDCV166071480S
07-18-2017
Gayle Rapoport Schwartz on Behalf of the Estate of Dayna Rapoport v. Stephen F. Sok
UNPUBLISHED OPINION
Filed July 20, 2017
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION FOR JOINDER (#104) AND DEFENDANT'S MOTION TO STRIKE (#109)
Antonio C. Robaina, J.
The present case arises from a dispute between the plaintiff, Gayle Rapoport Schwartz, as administrator of the estate of Dayna Rapoport (decedent), and the defendant, Stephen Sok, regarding the decedent's alleged death. On September 23, 2016, the plaintiff filed a complaint (original complaint) against the defendant. The original complaint consists of five counts: wrongful death pursuant to General Statutes § 52-555 (count one); common-law negligence (count two); intentional infliction of emotional distress (count three); negligent infliction of emotional distress (count four); and battery (count five). The gist of the original complaint is that the defendant allegedly caused the decedent's death by " improperly and intentionally [administering] an incorrect medication to the decedent" when she was in need of care.
On November 18, 2016, the plaintiff filed a motion for joinder pursuant to General Statutes § 52-101. Specifically, the plaintiff seeks to add a coplaintiff to the present action viz., herself, as guardian of the minor child of the defendant and the decedent. The motion for joinder is accompanied by a proposed amended complaint. The proposed amended complaint consists of the five counts that were asserted in the original complaint, as well as three additional counts: loss of parental consortium (count six); intentional infliction of emotional distress (count seven), and negligent infliction of emotional distress (count eight). Counts six, seven, and eight are asserted against the defendant on behalf of the minor child. The essence of counts six, seven, and eight is that, through his alleged conduct, the defendant allegedly deprived the minor child of parental consortium with the decedent and inflicted emotional injury on the minor child.
The defendant seeks to strike counts six, seven, and eight of the proposed amended complaint on the ground that each count is legally insufficient under the parental immunity doctrine.
The first issue is whether the court should grant the plaintiff's motion for joinder. " Joinder is a method by which one may be compelled to become a party . . ." (Citations omitted; internal quotation marks omitted.) Franco v. East Shore Development, Inc., 271 Conn. 623, 629 n.7, 858 A.2d 703 (2004). " The decision whether to grant a motion for the addition or substitution of a party to legal proceedings rests in the sound discretion of the trial court." Poly-Pak Corp. of America v. Barrett, 1 Conn.App. 99, 102, 468 A.2d 1260 (1983). " Whether joinder is appropriate depends on whether the person sought to be joined is a necessary party or has a sufficient interest in the controversy, as determined by the [m]otion before the [c]ourt and the allegations of the underlying complaint. In other words, when deciding whether joinder is appropriate, courts generally limit their consideration to the allegations of the underlying complaint and the motion itself and do not consider the merits of the proposed complaint." Yoshu, LLC v. Ward, Superior Court, judicial district of Hartford, Docket No. CV-09-5033580-S (August 6, 2010, Sheldon, J.). In deciding a motion for joinder, " [f]actors to be considered include the timeliness of the application, the possibility of prejudice to the other party and whether the applicant's presence will enable the court to make a complete determination of the issues." A. Secondino & Son, Inc. v. LoRicco, 19 Conn.App. 8, 14, 561 A.2d 142 (1989).
In the present case, the plaintiff, as guardian of the minor child, is a necessary party for purposes of count six. Entry of judgment on the decedent's claims could affect the ability of the plaintiff, as guardian of the minor child, to recover on count six because a loss of consortium claim is derivative in nature. See Voris v. Molinaro, 302 Conn. 791, 799-800, 31 A.3d 363 (2011). Second, the facts and circumstances of the present case support the conclusion that the court, in the exercise of discretion, should make the plaintiff, as guardian of the minor child, a coplaintiff. In this regard, (1) counts six, seven, and eight stem from the same nucleus of operative fact that forms the basis of the decedent's claims, i.e., her alleged death; (2) counts six, seven, and eight and the decedent's claims would depend on substantially similar witnesses and proof; (3) adjudication of the decedent's claims would facilitate the resolution of factual issues arising under counts six, seven, and eight; and (4) the plaintiff's motion for joinder was filed less than two months after the original complaint was filed, which makes it timely. Accordingly, the plaintiff's motion for joinder is granted, and the court recognizes the proposed amended complaint as the operative complaint.
The next issue is whether the court should grant the defendant's motion to strike counts six, seven, and eight of the amended complaint on the basis of parental immunity.
" The doctrine of parental immunity . . . forbid[s] to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent." (Citation omitted; internal quotation marks omitted.) Squeglia v. Squeglia, 234 Conn. 259, 263, 661 A.2d 1007 (1995). " The modern doctrine in Connecticut only bars actions by minors who were unemancipated at the time of the alleged tortious conduct . . . Furthermore, the doctrine does not bar an action by an unemancipated child against a parent for injuries received because of: (1) the negligent conduct of the parent at a business enterprise located outside of the home . . . (2) the negligent operation of a motor vehicle, aircraft or waterborne vessel . . . or (3) sexual abuse, sexual assault or sexual exploitation . . . Otherwise, the doctrine . . . remains unchanged . . ." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 265.
Moreover, through judicial decree, the parental immunity doctrine has been abrogated on a case-by-case basis. In so doing, our Supreme Court " has relied on three primary factors . . . (1) whether the allegedly negligent act concerns parental discretion and supervision . . . (2) whether liability insurance covering the injury in question is prevalent in the circumstances under which the injury occurred . . . and (3) whether the duty breached by the parent was a public one rather than one particularly owed to the child . . . In evaluating these factors, [our Supreme Court] [has] looked to whether the injury occurred in the family home as an indication of whether the parent's actions involved parental discretion and whether the duty breached was a public one." (Citations omitted.) Ascuitto v. Farricielli, 244 Conn. 692, 699, 711 A.2d 708 (1998).
Here, by operation of the parental immunity doctrine, counts six, seven, and eight fail to state a claim upon which relief can be granted.
First, the parental immunity doctrine applies to the present case. In counts six, seven, and eight, the plaintiff, as guardian of the minor child, is asserting claims for relief against the defendant, who--according to the allegations of the amended complaint--is the minor child's parent.
Second, none of the categorical exceptions to the parental immunity doctrine apply here. According to the allegations of the amended complaint, the defendant's conduct primarily occurred in the home that he shared with the decedent and minor child, not his place of business. Moreover, the defendant's alleged conduct is unrelated to the operation of heavy machinery, and it does not involve sexual assault.
Lastly, the factors that our Supreme Court has considered in abrogating the parental immunity doctrine do not weigh in favor of abrogating the doctrine in the present case. The first factor does not support abrogation because the allegations that form the factual basis of counts six, seven, and eight relate to the defendant's provision of medication to the decedent, the minor child's mother, and, accordingly, such conduct concerns parental discretion. Although it is unclear as to whether the second factor favors abrogation, the third factor does not because it cannot be said that the defendant's alleged conduct gave rise to a public duty. To bolster, in light of the allegations of the amended complaint, the defendant's conduct primarily occurred in the home that he shared with the decedent and minor child.
Accordingly, the court grants the defendant's motion to strike counts six, seven, and eight of the amended complaint.