Opinion
No. CV 08-5006839
September 1, 2010
FACTS
On February 18, 2009, the plaintiff, Allyn Wright, filed a thirteen-count second revised complaint against the defendants, Stephen Judge, Shane Crawford, Mike Civardi and Scott Sexton, for damages allegedly sustained as the result of two racially motivated assaults. The underlying action arises out of the alleged assault and battery and racial harassment of Wright by his former co-workers while all parties were employed by Electric Boat, in Groton, Connecticut, and assigned to work on the repair facilities at the New London submarine base. Counts one, two, five, eight and eleven are brought against Judge, the cross-complaint defendant, alleging claims for battery, assault, intentional infliction of emotional distress, negligent infliction of emotional distress and false imprisonment, respectively. Counts four, seven, ten and thirteen are brought against Sexton, the cross-complaint plaintiff, alleging claims for assault, intentional infliction of emotional distress, negligent infliction of emotional distress and false imprisonment, respectively.
On November 27, 2009, Wright withdrew his claims against Crawford.
On September 4, 2009, Sexton filed a second revised cross-complaint against Judge. In his complaint, Sexton alleges the following facts. At all relevant times, Electric Boat employed Sexton as a decontamination technician, and Judge as a CIF foreman and Sexton's immediate and direct supervisor. On February 15, 2006, Judge and Crawford engaged Wright in a discussion, during which Judge lifted Wright off the ground, turned him in Sexton's direction, and uttered words that were intended to intimidate and embarrass Wright, and to denigrate Wright's masculinity. On February 16, 2006, Judge and Crawford again engaged Wright in a conversation, during which Judge made a racial reference about Wright, who is African-American, and further made reference to the fact that Wright was surrounded and outnumbered by white employees. Judge ordered Sexton and Civardi to approach the area, causing Wright to believe that they intended to prevent him from exiting. Sexton approached the area due to Judge's request, and without knowledge of the racially charged discussion that had been occurring with Wright at that time. After being present in the area for only a few seconds, Sexton realized he had been summoned by Judge for a non-work-related purpose, and he left the area to return to his desk. Despite the fact that he was only in the area for a short time, Sexton's presence caused Wright to believe that Sexton was participating in the ongoing harassment. Judge breached his duty to properly supervise Sexton by causing him to become involved in the alleged incidents with Wright. As a result of Judge's breach, Sexton has incurred substantial defense costs, and is exposed to liability pursuant to the underlying action.
On April 19, 2010, Judge filed a motion to strike Sexton's cross-complaint on the grounds that Sexton failed to sufficiently allege claims for negligence or common-law indemnification. Judge filed a memorandum in support of his motion. On June 10, 2010, Sexton filed a memorandum in opposition. On June 15, 2010, Sexton conceded at short calendar that the cross-complaint does not set forth a claim for common-law indemnification.
DISCUSSION
Practice Book § 10-39 provides in relevant part: "Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any . . . cross claim . . . to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading . . ." In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
I. DUTY OF CARE
Judge first argues that Sexton's cross-complaint should be stricken on the ground that the negligence claim is legally insufficient because it fails to allege a legally recognizable duty owed by Judge to Sexton. Sexton counters that Judge's role as Sexton's immediate and direct supervisor constitutes a special relationship which gives rise to a duty for purposes of a negligence claim.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, there can be no actionable negligence . . . unless there exists a cognizable duty of care." Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004). "Our Supreme Court has stated that the test for the existence of a legal duty of care 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.) Lachowicz v. Rugens, 119 Conn.App. 866, 868-69, 989 A.2d 651, cert. denied, 297 Conn. 901, 994 A.2d 1287 (2010).
A. Foreseeability
With respect to the first inquiry, "[i]n any determination of whether a special relationship should give rise to a duty to exercise care to avoid harm to a third person, the key element is foreseeability . . . The threshold inquiry is whether the specific harm alleged by the plaintiff was foreseeable to the defendant." (Citation omitted; internal quotation marks omitted.) Beach v. Jean, 46 Conn.Sup. 252, 261-62, 746 A.2d 228 (1999). Foreseeability involves "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. . ." (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717 A.2d 215 (1998). "[T]o meet the test of foreseeability, the exact nature of the harm suffered need not have been foreseeable, only the `general nature' of the harm." Id., 573. "In defining the limits of duty, [our Supreme Court has] recognized that what is relevant . . . is the . . . attenuation between [the defendant's] conduct, on the one hand, and the consequences to the identity of the plaintiff, on the other hand . . . Articulated another way, the attenuation between the [plaintiffs] harm and the [defendant's] conduct is nothing more than a determination of whether the harm was a reasonably foreseeable consequence of the [defendant's] conduct." (Citation omitted; internal quotation marks omitted.) Id., 574-75.
In the present case, an ordinary person in Judge's position would know or should have known that by involving an unwitting subordinate employee in the physical and racial harassment of another employee, the subordinate employee could be subjected to liability by the harassed employee. As a result, construing the allegations in favor of Sexton, the court finds that the harm alleged by Sexton was foreseeable to Judge for purposes of determining the existence of a legal duty of care.
B. Public Policy
"With respect to the second inquiry, namely, the policy analysis, there generally is no duty that obligates one party to aid or to protect another party . . . One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another . . . In delineating more precisely the parameters of this limited exception to the general rule, this court has concluded that, [in the absence of] a special relationship of custody or control, there is no duty to protect a third person from the conduct of another." (Citations omitted; emphasis in original; internal quotation marks omitted.) Kolodziej v. Durham Agricultural Fair Ass'n., Inc., 96 Conn.App. 791, 795, 901 A.2d 1242, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006). "For any such relationship, the theory of liability is essentially the same . . . Since the ability of one of the parties to provide for his own protection has been limited in some way by his submission to the control of the other, a duty should be imposed upon the one possessing control (and thus the power to act) to take reasonable precautions to protect the other." (Internal quotation marks omitted.) Ryan Transportation, Inc. v. MG Associates, 266 Conn. 520, 526, 832 A.2d 1180 (2003).
In the present case, Sexton alleges that Judge, as his immediate and direct supervisor, ordered him to approach the area for what Sexton presumed was a work-related conversation, thereby causing Wright to believe that Sexton was taking part in the harassment. As a result, Sexton further alleges that he became an involuntary participant in the activities related to Wright's harassment. Pursuant to the foregoing case law, and construing the allegations in favor of Sexton, the court finds that Sexton has sufficiently alleged that Judge was in custody and control of Sexton at all relevant times, thereby creating a special relationship that gave rise to a duty to protect him. As a result, the court finds that Sexton has sufficiently alleged a legally cognizable duty pursuant to his negligence claim, and therefore, Judge's motion to strike Sexton's cross-complaint on this ground must be denied.
II. PROXIMATE CAUSE
Judge further argues that Sexton's cross-complaint should be stricken on the ground that the negligence claim is legally insufficient because it fails to allege a proper causal connection between Sexton's alleged damages and Judge's alleged breach of duty. Sexton counters that the negligence claim sufficiently alleges proximate cause.
"A breach of duty by the defendant and a causal connection between the defendant's breach of duty and the resulting harm to the plaintiff are essential elements of a cause of action in negligence." Dias v. Grady, 292 Conn. 350, 362, 972 A.2d 715 (2009). "In order for legal causation to exist, actual cause or cause in fact, as well as proximate cause, must be present . . . Actual cause requires allegations that state that the particular injury would not have occurred in the precise way that it did occur without the defendant's conduct . . . Proximate cause, on the other hand, is defined as an actual cause that is a substantial factor in the resulting harm . . . The fundamental inquiry in the substantial factor test is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence . . . The determination of proximate cause is ordinarily a question of fact for the trier . . ." (Citation omitted; internal quotation marks omitted.) Hall v. Winfrey, 27 Conn.App. 154, 158, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992).
In the present case, Sexton alleges that as a result of Judge's breach of his supervisory duty, Sexton was ordered to be present in the area during the racial and physical harassment of Wright. Sexton further alleges that due to his presence in the area, Wright presumed that Sexton was a participant in the ongoing harassment. As a result, Sexton alleges that he has incurred substantial legal costs and exposure to liability pursuant to Wright's underlying action. Therefore, the court finds that the harm which allegedly occurred in the present case was of the same general nature as the foreseeable risk created by Judge's alleged negligence. Construing the allegations in favor of Sexton, the court finds that Sexton has sufficiently alleged proximate cause pursuant to the negligence claim. As a result, Judge's motion to strike Sexton's cross-complaint on this ground must also be denied.
CONCLUSION
Based on the foregoing, the court hereby denies Judge's motion to strike Sexton's cross-complaint.