Elizabeth Rubbo et al. v. Guilford Board of Education

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Superior Court of Connecticut.

Elizabeth Rubbo et al. v. Guilford Board of Education

CV116017699S

Decided: July 20, 2011

MEMORANDUM OF DECISION

I

FACTS

On February 7, 2011,1 the plaintiffs, Elizabeth Rubbo and Christine Rubbo,2 filed a ten-count complaint 3 seeking to recover damages as a result of injuries sustained by Elizabeth Rubbo while participating in physical education class at her middle school.   According to the plaintiffs, on February 10, 2009, Elizabeth Rubbo was participating in an indoor hockey game as part of her physical education course at E.C. Adams Middle School.   The indoor hockey game was organized by the school's physical education teacher and was set up so that the sixth grade male students were required to play against the sixth grade female students.

Counts eight, nine and ten of the plaintiffs' complaint, alleging negligence, are directed at the defendants, Joseph Nault, Ronald Nault and Joanne Nault.   Count eight alleges that Joseph Nault forcibly struck Elizabeth Rubbo in the face with a hockey stick that he was utilizing and was negligent when he forcibly swung the hockey stick in the immediate vicinity of Elizabeth Rubbo's face and body.   Counts nine and ten allege negligence against Ronald Nault and Joanne Nault, the parents of Joseph Nault, pursuant to General Statutes § 52–572.4

On March 17, 2011, the defendants filed the present motion to strike counts eight, nine and ten of the plaintiffs' complaint on the ground that the counts are legally insufficient because Connecticut law does not recognize negligence as a cause of action for injuries suffered by participants engaged in a contact sport.   On May 27, 2011, the plaintiffs filed a memorandum of law in opposition to the motion to strike.   Thereafter, on June 2, 2011, the defendants filed supplemental case law in support of their motion to strike.

The matter was heard on the June 6, 2011 short calendar.

II

DISCUSSIONAMotion to Strike Standard

“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).  “[The court takes] the facts to be those alleged in the complaint that has been stricken and we construe 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 ․ [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.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).

B

Parties' Arguments

The defendants move to strike counts eight, nine and ten of the plaintiffs' complaint on the ground that the counts are legally insufficient because Connecticut law does not recognize negligence as a cause of action for injuries suffered by participants engaged in a contact sport.   According to the defendants, our Supreme Court held in Jaworski v. Kiernan, 241 Conn. 399, 412, 696 A.2d 332 (1971), that “it is appropriate to adopt a standard of care imposing on the defendant, a participant in a team contact sport, a legal duty to refrain from reckless or intentional conduct.   Proof of mere negligence is insufficient to create liability.”   According to the defendants, the holding in Jaworski applies to the present case and renders the plaintiffs' negligence claims legally insufficient.   Additionally, the defendants filed the following supplemental case law in support of their motion:  Lenti ex rel. Lenti v. Jacobson, Superior Court, judicial district of New Haven, Docket No. CV 09 5029998 (November 6, 2009, Zoarski, J.T.R.) (48 Conn. L. Rptr. 764);  Hotak v. Seno, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 00 0072461 (June 12, 2001, Arnold, J.) (29 Conn. L. Rptr. 609);  and Baer v. Regional School District 16, Superior Court, judicial district of Waterbury, Docket No. CV 980148373 (July 19, 1999, Pellegrino, J.) (25 Conn. L. Rptr. 376).5

The plaintiffs object arguing that Jaworski v. Kiernan, supra, 241 Conn. 399, is distinguishable for several reasons:  “(1) there are material differences between a recreational contact team sport and a floor hockey game played in physical education class during school hours;  (2) Jaworski v. Kiernan involved adults, while the case at bar involves minor children;  (3) the participants in Jaworski v. Kiernan were voluntary, while in the present case, the children were compelled to participate because the physical education class was a part of their mandatory school curriculum;  (4) physical contact is not always accepted as part of the sport when the facts deal with children and physical education class;  and (5) the plaintiff is a member of a narrowly defined class of persons exposed to an imminent threat of harm, falling within the foreseeable class of victims exception.”  (Internal quotation marks omitted.)  Baer v. Regional School District 16, supra, 25 Conn. L. Rptr. 376.   According to the plaintiffs, the students were engaged in a mandatory indoor hockey game during school hours in a physical education class, not a recreational contact team sport.   The children were compelled to engage in a mandatory activity of their educational curriculum, which was organized specifically so that the male students played against the female students, and the students were not provided with appropriate protective gear.6  Because the students were not engaged in a voluntary competitive game, the plaintiffs argue that Jaworski is not controlling.   In support of their position, the plaintiffs rely on Baer v. Regional School District 16, supra, 25 Conn. L. Rptr. 376;  Hendry v. Fratus, Superior Court, judicial district of New London, Docket No. CV 558176 (August 23, 2002, Hurley, J.) (32 Conn. L. Rptr. 733);  and Lenti ex rel. Lenti v. Jacobson, supra, 48 Conn. L. Rptr. 764.

C

Analysis

In Jaworski v. Kiernan, supra, 241 Conn. 399, “the Supreme Court addressed the duty of care a participant in an adult co-ed soccer game owed a member of an opposing team ․” LaPerle v. Woodstock Academy, Superior Court, judicial district of Windham, Docket No. CV 06 5000370 (June 5, 2007, Martin, J.) (43 Conn. L. Rptr. 531, 532).   Our Supreme Court held that “as a matter of policy, it is appropriate to adopt a standard of care imposing on the defendant, a participant in a team contact sport, a legal duty to refrain from reckless or intentional conduct.   Proof of mere negligence is insufficient to create liability.”  Jaworski v. Kiernan, supra, 412.   In so holding, the Supreme Court cited four factors to be considered in determining the extent of the legal duty to be imposed upon the defendant:  “(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.   The court explained that “[i]n athletic competitions, the object obviously is to win.   In games, particularly those played by teams and involving some degree of physical contact, it is reasonable to assume that the competitive spirit of the participants will result in some rules violations and injuries ․ Some injuries may result from such violations, but such violations are nonetheless an accepted part of any competition.   Simply put, when competitive sports are played, we expect that a participant's main objective is to be a winner, and we expect that the players will pursue that objective enthusiastically.   We also anticipate that players in their enthusiasm will commit inadvertent rules violations from which injuries may result.   The normal expectations of participants in contact team sports include the potential for injuries resulting from conduct that violates the rules of the sport.   These expectations, in turn, inform the question of the extent of the duty owed by one participant to another.   We conclude that the normal expectations of participants in contact team sports counsel the adoption of a reckless or intentional conduct duty of care standard for those participants.”  Id., 407–08.

The court went on to explain that “[w]e too appreciate the tension between promoting vigorous athletic competition on the one hand and protecting those who participate on the other.   As have most jurisdictions, we conclude that this balance is best achieved by allowing a participant in an athletic contest to maintain an action against a coparticipant only for reckless or intentional conduct and not for merely negligent conduct.   We believe that participants in recreational sports will not alter their enthusiasm for competition or their participation in recreational activities for fear of liability for injuring someone because of their reckless or intentional conduct.   We are convinced, however, that liability for simple negligence would have an opposite effect.   We also are convinced that a recklessness standard will sufficiently protect participants in athletic contests by affording them a right of action against those who cause injuries not inherent in the particular game in which the participants are engaged.   In other words, we believe that the reckless or intentional conduct standard of care will maintain civility and relative safety in team sports without dampening the competitive spirit of the participants.”   Id., 409.

The court, however, chose to limit the import of its holding to the specific facts of that case, stating that “the question of what standard of care might be applicable in other factual circumstances [is left] for another day.”   Id., 412.   As a result, subsequent case law indicates that the superior courts have reviewed the specific facts of each case to determine whether the reasoning that led the Supreme Court to its conclusion in Jaworski applies.   See Benedetto v. Avon, Canton & Farmington Youth Hockey Association, Superior Court, judicial district of Hartford, Docket No. CV 00 0594998 (April 6, 2001, Wagner, J.) [29 Conn. L. Rptr. 315].   Therefore, a review of the relevant cases is instructive.

In Baer v. Regional School District 16, supra, 25 Conn. L. Rptr. 377, the court found that the facts of that case were not distinguishable enough for it to depart from the ruling in Jaworski.   In Baer, the plaintiff alleged “that the minor defendant negligently caused the minor plaintiff to be struck in the mouth with a hockey stick.”  Id., 376.   The plaintiff also alleged “negligence and carelessness on the part of the minor defendant's parents for failure to exercise reasonable care in controlling and restraining their minor child.”  Id. Like in the present case, the plaintiff in Baer attempted “to distinguish Jaworski v. Kiernan on multiple grounds, including:  (1) there are material differences between a ‘recreational contact team sport’ and a floor hockey game played in physical education class during school hours;  (2) Jaworski v. Kiernan involved adults, while the case at bar involves minor children;  (3) the participants in Jaworski v. Kiernan were voluntary, while in the present case, the children were compelled to participate because the physical education class was a part of their mandatory school curriculum;  (4) physical contact is not always accepted as part of the sport when the facts deal with children and physical education class;  and (5) the plaintiff is a member of a narrowly defined class of persons exposed to an imminent threat of harm, falling within the ‘foreseeable class of victims' exception.”  Baer v. Regional School District 16, supra, 376.   The court, however, rejected the plaintiff's argument, finding that “[t]he question presented ․ is whether this court finds the distinguishing facts of this case sufficient to depart from the ruling in Jaworski.   Other than the fact that participation in this sporting event was not totally voluntary since it took place during school hours and as a part of a physical educational class, this case is in all other respects factually similar to Jaworski.   Based on the compelling public policy arguments advanced in Jaworski the fact that the participants here were playing in a ‘gym class' contest is insignificant.   It may even be argued that students would be hesitant to participate or their parents would refuse to allow them to participate in gym class athletic contests if mere negligence would expose them to a lawsuit and therefore the public policy arguments advanced in Jaworski are more compelling in this scenario.”  Baer v. Regional School District 16, supra, 377.   The court found that Jaworski was controlling and granted the defendants' motion to strike the negligence counts.  Baer v. Regional School District 16, supra, 377.

On a motion for summary judgment, the court in Benedetto v. Avon, Canton & Farmington Youth Hockey Association, supra, Superior Court, Docket No. CV 00 0594998, found that the facts of that case were distinguishable from Jaworski.   In Benedetto, the plaintiff alleged that the defendant “promoted and conducted a hockey ‘game’ between the parents of players between the ages of 7 and 9 and those players;  that this ‘game’ was to be a benign and fun activity requiring little skills or conditioning and presenting no danger to the parents ․ and that the plaintiff went on to the ice to join in this activity in reliance on the promotion that the activity would be safe, benign and commensurate with her skating skills and conditioning and requiring no hockey training ․ [T]he main objective of the plaintiff in participating in the hockey game between the parents and their children was not to win a competitive, team contact sport, but rather to have fun with her child while participating in a noncompetitive, noncontact sport ․ [T]he reasoning that led the Supreme Court to its conclusion in Jaworski v. Kiernan, supra, 241 Conn. 399 ․ does not apply ․” Benedetto v. Avon, Canton & Farmington Youth Hockey Association, supra, Superior Court, Docket No. CV 00 0594998.

In Hotak v. Seno, supra, 29 Conn. L. Rptr. 609, the court granted a motion to strike the plaintiff's action sounding in negligence and carelessness.   In that case, the plaintiff alleged that “the defendant was negligent and careless when, while playing baseball in a school gym class, the plaintiff was struck in the head with a baseball bat by the defendant.”  Id. The court found that Jaworski was controlling and explained that “[w]hile it may seem that there should be a remedy for every wrong, this is an ideal, limited perforce by the realities of this world.   Every injury has ramifying consequences, like the ripplings of the waters, without end.   The problem for the law is to limit the legal consequences of wrongs to a controllable degree ․ The law should not place unreasonable burdens on the free and vigorous participation in sports by our youth ․ One might well conclude that something is terribly wrong with a society in which the most commonly-accepted aspects of play—a traditional source of a community's conviviality and cohesion—spurs litigation.   The heightened recklessness standard recognizes a commonsense distinction between excessively harmful conduct and the more routine rough-and-tumble of sports that should occur freely on the playing fields and should not be second-guessed in courtrooms.”  (Citations omitted;  internal quotation marks omitted.)   Hotak v. Seno, supra, 610.

The court in Hendry v. Fratus, supra, 32 Conn. L. Rptr. 733, however, denied a motion to strike a negligence count finding that the facts were distinguishable from Jaworski.   In Hendry, the plaintiff was injured during baseball practice when one of the coaches threw a baseball which struck the plaintiff.  Id. The court explained that “[t]he Connecticut cases that follow Jaworksi involve participants of similar age and ability, who are engaged in an actual contest or game ․ Moreover, even when the fact that the participants were playing in a gym contest was deemed insignificant, the public policy reason in Jaworski of encouraging participation in athletic activities has been seen as compelling because parents or minors themselves could be hesitant or refuse to participate in gym class if a simple negligence standard is permitted ․ The Connecticut cases that have not applied the standard in Jaworski were distinguished by the facts of those cases.”   (Citations omitted.)  Hendry v. Fratus, supra, 733.   The Hendry court held that the “case maybe distinguishable from Jaworski because it is alleged that the minor participant who was injured was engaged in practice, not in a competitive game and the injury was not the result of an act by another minor participant, but rather from his adult coach who failed to properly instruct.”  Hendry v. Fratus, supra, 734.

Finally, in Lenti ex rel. Lenti v. Jacobson, supra, 48 Conn. L. Rptr. 764, the court granted a motion to strike two negligence counts where the plaintiff alleged that she was negligently tripped by a hockey stick while participating in a mandatory floor hockey game which took place during physical education class at the plaintiff's middle school.   The court rejected the plaintiffs argument that the case was distinguishable from Jaworski because it involved “a minor child who was injured by another child with a hockey stick while mandatorily participating in a non-contact middle school physical education class floor hockey game whereas Jaworski ․ involved adults who had voluntarily decided to participate in a recreational contact team-sport.”   (Citation omitted.)  Lenti ex rel. Lenti v. Jacobson, supra, 764.   The court found “the rationale and analysis of Baer v. Regional School District 16, supra, 25 Conn. L. Rptr. 376, to be instructive.   The normal expectation of a participant in a floor hockey game is to come into contact with another participant or another participant's hockey stick.   Allegations of reckless or intentional conduct on the part of the defendant co-participant are therefore necessary to plead a cause of action for injuries sustained by a participant in a team contact sport.   Proof of mere negligence will not suffice.”  Lenti ex rel. Lenti v. Jacobson, supra, 764.

Likewise, in the present case, the rationale and analysis set forth in Baer v. Regional School District 16, supra, 25 Conn. L. Rptr. 376, is instructive and persuasive.   The facts in Baer are almost identical to those of the present case:  a minor child is injured while participating in a floor hockey game that took place during a mandatory physical education class at school.   In Baer, the court relied heavily on the strong public policy considerations set forth in Jaworski and found that “the fact that the participants here were playing in a gym class contest is insignificant.”  (Internal quotation marks omitted.)  Baer v. Regional School District 16, supra, 377.   The same public policy considerations that drove the court's holding in Baer are present in this case:  “students would be hesitant to participate or their parents would refuse to allow them to participate in gym class athletic contests if mere negligence would expose them to a lawsuit and therefore the public policy arguments advanced in Jaworski are more compelling in this scenerio.”  Baer v. Regional School District 16, supra, 377.

Furthermore, like in Baer, the distinguishing facts of this case are not sufficient to depart from the ruling in Jaworski.   See Baer v. Regional School District 16, supra, 25 Conn. L. Rptr. 377.

Accordingly, the motion to strike should be granted.

Woods, J.

FOOTNOTES

1.  FN1. On May 3, 2011, the plaintiffs filed an amended complaint (# 113).   The operative complaint at the time the defendants' motion to strike was filed, however, is the original complaint filed on February 7, 2011.

2.  FN2. Elizabeth Rubbo, a minor age 12, brings the present action by and through her mother, Christine Rubbo.   Christine Rubbo is also named individually as a plaintiff.   The counts at issue in the present motion to strike, counts eight, nine and ten, relate to injuries suffered by Elizabeth Rubbo.

3.  FN3. The named defendants are Guilford Board of Education, Thomas Forcella, Joseph Nault, Ronald Nault, Joanne Nault and Tamara McDowell.   The present motion to strike was brought by Joseph Nault, Ronald Nault and Joanne Nault.

4.  FN4. General Statutes § 52–572(a) provides:  “The parent or parents or guardian, other than a temporary guardian appointed pursuant to section 45a–622, of any unemancipated minor or minors, which minor or minors 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, shall be jointly and severally liable with the minor or minors for the damage or injury to an amount not exceeding five thousand dollars, if the minor or minors would have been liable for the damage or injury if they had been adults.”

5.  FN5. The defendants, however, did not submit a supplemental memorandum of law which provided any analysis of the applicability of the supplemental cases to the present case.

6.  FN6. The plaintiffs also argue that the parents were not notified prior to the indoor hockey game that students would be forced to participate in the indoor hockey game, which prevented the parents from having the knowledge to purchase the appropriate protective equipment, which should also have been provided by the Guilford Board of Education.   According to the plaintiffs, the Board of Education failed to ensure student safety.   Moreover, the plaintiffs argue that the Board of Education and Tamara McDowell, the physical education teacher, knew or should have known that it was not safe to split the teams on the basis of sex.   Furthermore, the plaintiffs contend that McDowell failed to adequately supervise the hockey game and failed to show the students how to use the hockey sticks so as to ensure safety.   These arguments, however, bear little or no relation to the present motion to strike as neither the Board of Education nor McDowell are parties to this motion and counts eight, nine and ten are directed only at the alleged negligence of the Joseph Nault, Joanne Nault and Ronald Nault.

Woods, Glenn A., J.

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