Opinion
No. NNH CV 10-6010501
July 22, 2011
MOTION FOR SUMMARY JUDGMENT #123
FACTS
The present action was previously before this court on the plaintiff's June 16, 2010 motion to strike the defendants' special defenses. This court decided that motion on December 29, 2010 and now looks to its decision in reciting the present action's facts and procedural history: "The plaintiff, Jo-Ann Smith, commenced the present action by service of process against the defendants, Christopher Sunbury, John Sunbury and Margery Sunbury, on April 22, 2010. The plaintiff brings the present action in her capacity as the administratrix of the estate of Shane Smith, her deceased son (the decedent). John Sunbury and Margery Sunbury are the parents of Christopher Sunbury. Because they are the only defendants [involved in] the present motion, they will be hereinafter called the defendants. The four-count complaint alleges the following facts. On or about August 7, 2008, Christopher Sunbury was swinging a samurai sword on a public street in Wallingford, in the presence of a large group of individuals. The decedent was among them. He was struck by the sword and sustained serious injury to his left arm. He was then taken to Midstate Medical Center, where he died on or about August 8, 2008. The following counts comprise the complaint. Count one is against Christopher Sunbury and sounds in negligence. Count two is against the defendants and sounds in negligence. Counts three and four are brought against the defendants individually and sound in parental liability for a minor's torts, pursuant to Connecticut General Statutes § 52-572." Smith v. Sunbury, Superior Court, judicial district of New Haven, Docket No. CV 10 6010501 (December 29, 2010, Burke, J.).
On July 1, 2011, defense counsel filed a suggestion of death to inform the court and plaintiff's counsel that John Sunbury died on June 19, 2011.
Section 52-572(a) provides in relevant part: "The parent or parents or guardian . . . of any unemancipated minor or minors, which minor or minors wilfully or maliciously cause . . . injury to any person . . . shall be jointly and severally liable with the minor or minors for the . . . injury to an amount not exceeding five thousand dollars, if the minor or minors would have been liable for the . . . injury if they had been adults."
The following procedural history is also relevant. Christopher Sunbury filed a motion to consolidate the present action with Smith v. Midstate Medical Center, Superior Court, judicial district of New Haven, Docket No. CV 10 6013753, on February 28, 2011 (companion action). That action was also brought by the plaintiff in this action, and it is based upon the medical treatment received by the decedent for the injuries he sustained during the August 7, 2008 incident. The defendants in the companion action filed apportionment complaints against, inter alia, the defendants in the present action on December 29, 2010 and January 3, 2011. The operative complaint in the companion action is the amended version filed on February 4, 2011. The plaintiff amended the complaint in the companion action in order to add counts against Christopher Sunbury and the defendants, following the commencement of the apportionment actions against them. The counts against the defendants are as follows. The tenth count is against the defendants and sounds in negligence. The eleventh and twelfth counts are against Margery Sunbury and John Sunbury, respectively, and they both sound in parental liability under § 52-572. The court, Lager, J, granted Christopher Sunbury's motion to consolidate on March 28, 2011.
The plaintiff recently filed a subsequent amended complaint on July 18, 2011. Per Practice Book § 10-60(a)(3), however, the other parties in the companion action have fifteen days to object to it. The operative complaint in the companion action therefore remains the February 4, 2011 version.
After this court's decision on the plaintiff's motion to strike, the following special defenses remain in the present action. First, the defendants allege that "the plaintiff's decedent was a provocateur of the incident, thereby proximately and substantially contributing to his own injuries." Second, the defendants allege: "At the time of the actions alleged in the complaint, and for sometime prior thereto, the defendant, Christopher J. Sunbury, was not living with his parents, leaving them with no opportunity to control his actions." The defendants now move for summary judgment on the counts that have been brought against them in the complaints for the present action and the companion action. They filed their motion, a memorandum of law in support thereof and exhibits on March 31, 2011. The plaintiff in turn filed her opposition to the motion on May 11, 2011. The plaintiff's opposition adopts and incorporates the opposition filed by certain of the defendants/apportionment plaintiffs in the companion action on May 10, 2011. The court will hereinafter refer to the plaintiff in the present action and the opposing defendants/apportionment plaintiffs in the companion action collectively as the nonmovants. The defendants then filed a reply memorandum on May 18, 2011. The court heard the matter at short calendar on June 6, 2011.
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." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . ." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
The defendants move for summary judgment on the following grounds. First, they are entitled to a judgment as a matter of law on the counts sounding in parental liability under § 52-572 because there is no genuine issue of material fact that they lacked control over their son at the time of the incident. Second, they are entitled to a judgment as a matter of law on the counts sounding in negligence because there is no genuine issue of material fact regarding their knowledge of the samurai sword or their ability to foresee the incident. Their reply memorandum repeats and elaborates upon these arguments.
The nonmovants oppose the present motion for the following reasons. First, control is not a criterion for establishing liability under § 52-572, because the word "control" does not appear in the statute. Second, even if the court accepted the defendants' argument that control is a prerequisite to liability under § 52-572, it should still deny the motion, because the defendants cannot establish their alleged lack of control on the sole basis that their son was not living with them at the time of the incident. Third, the incident was foreseeable to the defendants, because they once called the police after their son caused damage to their house. Finally, in arguing that they did not know about the samurai sword, the defendants rely on Christopher Sunbury's failure to respond to their requests for admissions, but they should not be able to do so because Christopher Sunbury is currently incarcerated and therefore may be unable to answer the defendants' requests.
As the nonmovants note, this court has already held that lack of control over a minor is a viable special defense to a cause of action sounding in parental liability under § 52-572: "In Gearity v. Salvo, [ 40 Conn.Sup. 185, 186, 485 A.2d 940 (1984),] which involved a statutory parental liability cause of action, the court denied the plaintiff's motion to strike one defendant parent's special defense alleging that the other defendant parent `had exclusive care, custody and control of their minor child at the time of the acts complained of and for some time prior thereto.' The court based its decision on its conclusion that `control of the minor' is a determining factor in the imposition of liability under § 52-572.' Id., 187. In deciding the motion, the court contrasted the facts of Gearity with the facts of Repko v. Seriani, 3 Conn. Cir.Ct. 374, 377, 214 A.2d 843 (1965), in which the court held that the defendant father was liable for his minor son's conduct under § 52-572 where `the son was under the control of his father . . . although he was technically in the custody of the state.'" Smith v. Sunbury, supra, Superior Court, Docket No. CV 10 6013753.
In coming to its conclusion, the Gearity court noted: "While the plain meaning of § 52-572 dictates . . . that the mere relation of parent and child is enough to impose statutory liability upon a parent, the courts have not construed the statute so strictly. Rather, some courts have drawn a distinction between technical custody and actual control of the minor in order to impose liability upon the parent. Repko v. Seriani, [ supra,] 376-77 . . . Gillepsie v. Gallant, 24 Conn.Sup. 357, 190 A.2d 607 (1963). The courts have noted that . . . § 52-572 was intended to combat the rise of juvenile delinquency by obligating parents to control their minor children so as to prevent them from intentionally harming others. Repko v. Seriani, supra, 377; Lutteman v. Martin, 20 Conn.Sup. 371, 375, 135 A.2d 600 (1957)." Gearity v. Salvo, supra, 40 Conn.Sup. 187.
"The law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked . . . In essence it expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power . . . A judge should hesitate to change his own rulings in a case . . ." (Internal quotation marks omitted.) Bowman v. Jack's Auto Sales, 54 Conn.App. 289, 293, 734 A.2d 1036 (1999). By arguing that "the issue of control should not factor into the Court's decision in the present case," the nonmovants essentially ask the court to change its decision regarding the legal sufficiency of the defendants' "lack of control" special defense. The court declines to do so. The nonmovants' argument here consists only of cursory references to the plain language of the statute and the legislative intent underlying it. Their argument is thus unconvincing, given the applicability of Gearity and the law of the case doctrine, and the court will not adopt it in deciding the present motion.
The court now considers the issue of whether the defendants have met their initial burden of establishing with evidence that there is no genuine issue of material fact about whether they had control over their son at the time of the incident. In support of the present motion, the defendants have submitted affidavits in which they each attest to the following. Christopher Sunbury was estranged from the defendants at the time of the incident. Approximately one month before the incident, he left the defendants' residence after damaging it during a disagreement. His conduct caused Margery Sunbury to contact local police and seek a warrant for his arrest. He then moved to an address unknown to them. The defendants were therefore unaware of his location, let alone his conduct, between the date that he moved out and the date that he allegedly injured the plaintiff. The conduct of which the defendants were unaware includes Christopher Sunbury's access to, ownership of or possession of the samurai sword. After the incident, he did not return to the defendants' residence. The defendants have not provided him with financial support since he left their residence.
The defendants have also submitted the following unanswered requests for admissions that were directed to Christopher Sunbury. He purchased the samurai sword with his own money. When he did so, he had been living at a location unknown to the defendants for at least two weeks. The defendants did not know that he purchased the sword. They had no reason to know that he purchased the sword. Practice Book § 13-23(a) provides in relevant part: "Each matter of which an admission is requested is admitted unless, within thirty days after the filing of the notice required by Section 13-22(b), or within such shorter or longer time as the judicial authority may allow, the party to whom the request is directed files and serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or his attorney." Because Christopher Sunbury has not served the defendants with a written answer or objection in response to their requests, they now argue that they may treat the allegations contained in the requests as admitted. The court agrees and proceeds accordingly.
As previously noted, the nonmovants argue, without providing any legal support, that "the Court should not rule on the Apportionment Defendants' Motion for Summary Judgment" because "Christopher Sunbury is currently incarcerated," and "there may be difficulties presented in being incarcerated which prevent him from answering the request to admit." While the court is aware of such difficulties, it nonetheless rejects the nonmovants' argument. Christopher Sunbury filed a motion for a sixty-day extension of time to respond to the defendants' requests for admissions, which was granted by the court, Alexander, J., on November 1, 2010. Thus, Christopher Sunbury had until January 12, 2011 to respond to the defendants' requests for admissions. More than half a year has passed since then. The court is compelled to conclude that the allegations contained in the requests have been admitted, given the clear language in Practice Book § 13-23(a) and the court's disinclination to provide an extension of time that is sought by parties to whom the requests are not directed.
Similarly, the court notes that Christopher Sunbury filed a motion for a thirty-day extension of time to oppose the present motion on April 11, 2011. It was granted by operation of Practice Book § 17-45. The time provided by the Practice Book and the thirty-day extension for Christopher Sunbury to respond to the present motion has passed. Therefore, the court further concludes that he does not oppose the present motion.
The nonmovants argue that genuine issues of material fact remain because the defendants cannot establish their lack of control over their son on the basis that he "was living outside of their home at the time he struck Shane Smith" and therefore was "no longer their responsibility." The court rejects the nonmovants' argument. The evidence, even when viewed in the light most favorable to the nonmovants, establishes that the defendants had been wholly unaware of Christopher Sunbury's whereabouts for approximately one month when the incident occurred. Thus, the defendants claim that they lacked control over their son, not only because they were unaware of his conduct, but also because they were unable to access him, contact him or find out about his conduct between the time that he left and the time of the incident, such that they would have had the ability or opportunity to control it.
The relationship between parental "control" and § 52-572 was addressed in Watson v. Gradzik, 34 Conn.Sup. 7, 8-10, 343 A.2d 191 (1977): "Parents and those in loco parentis . . . not only have a deep, immediate and personal interest in the welfare of their children and wards but, under law, may enforce correction for the unruly conduct of their charges and compel obedience in all matters, whether of a legal, moral or familial nature . . . Because parents do have the authority to compel obedience of their children, it would not seem unreasonable to hold them responsible for exercising that authority . . . One reason [underlying the passage of the statute] is to deter juvenile delinquency by placing upon the parent the obligation to control his minor child so as to prevent him from intentionally harming others." (Citations omitted.) Again, even when viewed in the light most favorable to the plaintiff, the available evidence establishes that no genuine issue of material fact exists about whether the defendants were in the position to correct Christopher Sunbury's conduct, compel his obedience and/or control him in order to prevent him from intentionally harming others, given that they did not know where he was living or how they could contact him for approximately one month prior to the incident.
The nonmovants have not demonstrated otherwise. They instead argue, without citing to legal authority or providing illustrative examples, that the defendants "have failed to remove all issues of fact as to the issue of control" because "[a] jury may well determine that there are other factors to consider in determining whether John and Margery Sunbury were negligent in supervising their minor son." The nonmovant's argument is again unpersuasive, and it is an insufficient basis for them to meet their burden on summary judgment. See, e.g., Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11. Accordingly, the defendants are entitled to a judgment as a matter of law, and the court grants their motion on the counts against them in the operative complaints for the present action and the companion action that sound in parental liability under § 52-572.
As an aside, the court notes that § 52-572, by its plain language, refers only to minors who " wilfully or maliciously cause damage to any property or injury to any person, or, having taken a motor vehicle without the permission of the owner thereof, cause damage to the motor vehicle." (Emphasis added.) The counts against Christopher Sunbury in the operative complaints for the present action and the companion action sound in negligence, however, not intentional tort and/or recklessness. Furthermore, none of these counts contain any express or implied allegations that Christopher Sunbury "wilfully or maliciously" injured the plaintiff. Other trial courts have concluded that parental liability under § 52-572 is not a legally cognizable cause of action when such liability is sought for a minor's negligence. See Krepcio v. Ray, Superior Court, judicial district of New London, Docket No. CV 08 5008383 (May 19, 2011, Martin, J.); Santagata v. Woodbridge, Superior Court, judicial district of New Haven, Docket No. CV 96 0384914 (December 26, 1997, Zoarski, J.). Nonetheless, the issue of the statute's applicability cannot be dispositive of the present motion, because it has not been raised by the defendants. "[A] court may not grant summary judgment sua sponte . . ." Hope's Architectural Products, Inc. v. Fox Steel Co., 44 Conn.App. 759, 762 n. 4, 692 A.2d 829, cert. denied, 241 Conn. 915, 696 A.2d 985 (1997). "The issue must first be raised by the motion of a party and supported by affidavits, documents or other forms of proof." (Internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn.App. 491, 500, 613 A.2d 292, cert. denied, 223 Conn. 927, 614 A.2d 825 (1992). Therefore, the court grants the present motion on the counts sounding in parental liability under § 52-572 only for the reasons stated supra.
The court now turns its attention to the counts against the defendants that sound in negligence. The plaintiff specifically alleges that the defendants were negligent because they knew or should have known that their son's possession of the samurai sword was dangerous and unreasonable and nonetheless failed to limit, monitor and/or prevent his use of it. "At common law, the torts of children do not impose vicarious liability upon parents qua parents, although parental liability may be created by statute; see . . . § 52-572; or by independently negligent behavior on the part of parents. LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970)." Kaminski v. Fairfield, 216 Conn. 29, 34, 578 A.2d 1048 (1990). In LaBonte v. Federal Mutual Ins. Co., supra, 159 Conn. 256, the court elaborated upon what may qualify as "independently negligent behavior on the part of parents" by specifying instances "where they had entrusted a dangerous instrumentality to their children or had failed to restrain their children who they knew possessed dangerous tendencies."
A plaintiff must prove that a harm was foreseeable to a defendant in order to maintain a negligence cause of action. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385-86, 650 A.2d 153 (1994). This is because "[t]he ultimate test of the existence of a duty to use due care is found in the foreseeability that harm may result if it is not exercised . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, 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?" Id., 385. "Accordingly, the fact finder must consider whether the defendant knew, or should have known, that the situation at hand would obviously and naturally, even though not necessarily, expose [a plaintiff] to probable injury unless preventive measures were taken." (Internal quotation marks omitted.) Mirjavadi v. Vakilzadeh, 128 Conn.App. 61, 76, 18 A.3d 591 (2011) "Due care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable." Noebel v. Housing Authority of New Haven, 146 Conn. 197, 202, 148 A.2d 766 (1959).
The court in the present action has already determined from the evidence before it that the defendants were unaware that Christopher Sunbury possessed the samurai sword. It therefore may not determine that genuine issues of material fact exist regarding their alleged failure to limit, monitor and/or prevent his use of the sword. The nonmovants argue that the court must nonetheless deny the present motion on the negligence counts against the defendants because there are genuine issues of material fact about whether Christopher Sunbury's conduct was foreseeable to the defendants, regardless of whether they knew about the sword. The basis for the foreseeability claimed by the nonmovants is the fact that Margery Sunbury contacted local police and sought a warrant for Christopher Sunbury's arrest after he caused damage to their family residence. According to the nonmovants, Christopher Sunbury's conduct during the familial disagreement "is evidence that he had the propensity to cause harm to other individuals and their property."
The nonmovants' interpretation of foreseeability is too broad under the prevailing standard. Damage caused to a property by a violent response to a disagreement and injury caused to a person by the negligent use of a dangerous instrumentality are not harms of the same general nature. The possibility that the defendants' alleged failure to act in response to the former incident led to the decedent's injury during the latter incident is too remote for the court to conclude that the injury was reasonably foreseeable to the defendants. The fact that the defendants were wholly unaware of their son's whereabouts at and around the time of the August 7, 2008 incident further counsels against coming to this conclusion. Thus, the defendants have met their burden on summary judgment of establishing with evidence that no genuine issues of material fact exist about whether they were able to foresee the incident, such that they owed a duty of care to the decedent, and they are entitled to a judgment as a matter of law because the nonmovants have not met their burden in turn. The court accordingly grants their motion on the counts against them in the operative complaints for the present action and the companion action that sound in negligence.
CONCLUSION
For the foregoing reasons, the court grants the entirety of the defendants' motion for summary judgment, on counts two through four of the complaint in the present action and counts ten through twelve of the complaint in the companion action.