Carl Doe v. Town of Wolcott et al.

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Superior Court of Connecticut.

Carl Doe v. Town of Wolcott et al.

UWYCV126013133S

Decided: March 4, 2014

MEMORANDUM OF DECISION ON MOTION TO STRIKE (# 122)

This matter is before the court concerning the defendants Town of Wolcott (Town) and Wolcott Board of Education's (Board) motion to strike counts one through eight of the plaintiff's amended complaint (# 119) (complaint).   The court heard oral argument concerning the motion on January 13, 2014.   After consideration, for the reasons stated below, the motion is granted in part and denied in part.

I

Background

The court summarizes below the pertinent allegations set forth in the challenged counts.   The plaintiff, Carl Doe, alleges that, at all relevant times, the Board was a local board of education organized and existing under the laws of the State of Connecticut and acted through its agents, servants, employees and associated staff and teachers, as well as on behalf of the Town. The Town is alleged to be a municipality, also organized and existing under Connecticut law, which acted through its agents, servants, employees, and associated municipal agencies.   The plaintiff alleges that the Board was a municipal agency of the Town and acted on its behalf.

The plaintiff alleges that Roger Niland (Niland) was an art teacher, employed by the Board, who served as the art teacher at the Wakelee Elementary School, managed the Board's art program for students at Wakelee, and maintained the art room at Wakelee.   Further, the plaintiff alleges that between September 1983 and June 1985, he was a resident of the Town and a student at Wakelee.

The plaintiff alleges that, “[a]t all times relevant to this action, [the] Board knew, should have known or could have known upon investigation that Niland in the guise of teaching art was sexually molesting and photographing minors such as the Plaintiff on the premises of Wakelee as well as off the premises.”   See complaint, count one, ¶ 9.

He also alleges that the Board's “employees knew, should have known, or could have known upon investigation that Niland was keeping children inside his room at Wakelee and his residence for hours at a time, sometimes in the late evening hours and other times on weekends.”   See complaint, count one, ¶ 11k.   He also alleges that Niland drove minors to and from Wakelee, one or more at a time, after hours, including evenings and weekends, and took children out of their homes in the evening and at other times and took them to his residence.

Among the breaches of duty the plaintiff alleges are that the Board failed to properly monitor and supervise Niland in order to prevent injury to minors such as the plaintiff.   He alleges that he suffered bodily intrusion and severe emotional injuries, some or all of which may be permanent.

Additional references to the complaint's allegations are set forth below.

II

Standard of Review

“[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the ․ court ․ We take the facts to be those alleged in the complaint ․ 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.)  Coppola Construction Co., Inc. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).

“A motion to strike ․ does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis omitted;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

III

DiscussionACounts One and Two

The movants argue that counts one and two should be stricken as legally insufficient, since they allege discretionary acts and are barred by the doctrine of governmental immunity.

“[W]hile a municipality is generally liable for the ministerial acts of its agents, [General Statutes] § 52–557n(a)(2)(B) explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law ․ The hallmark of a discretionary act is that it requires the exercise of judgment ․ In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Citation omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 117–18, 19 A.3d 640 (2011).

“The issue of governmental immunity is a question of law ․” Brooks v. Sweeney, 299 Conn. 196, 221 n.18, 9 A.3d 347 (2010).

In paragraph 11u of count one, the plaintiff claims that he was injured as the proximate result of breaches of duty by the Board, in that “the ․ Board's administrators, professional staff, nurses, security officers and other employees failed to report their reasonable suspicions of Niland's behavior to appropriate authorities in violation of [General Statutes § ]17a–101 (formerly 17–38a), then in effect.”   The same allegations are incorporated by reference in count two, as to the Town. It is necessarily implied that the plaintiff alleges that these individuals were “mandated reporters.”

General Statutes § 17a–101a(a) provides, “Any mandated reporter, as defined in section 17a–101, who in the ordinary course of such person's employment or profession has reasonable cause to suspect or believe that any child under the age of eighteen years (1) has been abused or neglected, as defined in section 46b–120, ․ shall report or cause a report to be made ․” Section 17a–101(b) provides, in relevant part, “The following persons shall be mandated reporters:  ․ a school employee, as defined in section 53a–65[.]”

Section 53a–65 provides, in relevant part, that “ ‘School employee’ means:  (A) A teacher, substitute teacher, school administrator, school superintendent, guidance counselor, psychologist, social worker, nurse, physician, school paraprofessional or coach employed by a local or regional board of education or a private elementary, middle or high school or working in a public or private elementary, middle or high school;  or (B) any other person who, in the performance of his or her duties, has regular contact with students and who provides services to or on behalf of students enrolled in (i) a public elementary, middle or high school, pursuant to a contract with the local or regional board of education[.]”

“Conn. Gen.Stat. § 46b–120 defines ‘abused’ to include any child or youth, including any unemancipated sixteen or seventeen year old, who is ‘in a condition that is the result of maltreatment, including but not limited to ․ sexual molestation or exploitation ․’ These statutes do not admit of any exercise of judgment or discretion on the part of a [school employee], and also do not require that the [employee] know for sure that the child is being sexually molested or exploited, only that the [employee] has ‘reasonable cause to suspect or believe’ that the child has been so abused.   Rather these statutes involve a mandatory duty, one that is ministerial rather than discretionary.   In such a situation, the municipality is not entitled to the cloak of governmental immunity when the municipal official fails to adhere to this duty.   See, e.g., Wright v. Brown, 167 Conn. 464, 356 A.2d 176 (1975) (where dog warden failed to adhere to statute that required warden to quarantine dog for fourteen days after roaming dog bit a person, held, municipality not immune from negligence action when dog bit plaintiff during the period when dog should have been quarantined).   See also Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979), holding that a statute that required a municipality to suppress a mob or riotous assembly created a mandatory duty that abrogates municipal immunity when plaintiff injured by mob.”  (Emphasis added.)   Doe v. Kennedy, Superior Court, judicial district of Waterbury, Docket No. UWY CV 09 5013921 (November 29, 2012, Pittman, J.) (55 Conn.L.Rptr. 193).

Since the plaintiff's allegations of failure to report concern a ministerial duty, governmental immunity is not applicable.   Accordingly, at this juncture, the court need not consider the other allegations in counts one and two, or, as to those allegations, whether an exception to governmental immunity applies.   The motion to strike is denied as to these counts.

B

Counts Three and Four

In counts three and four, the plaintiff alleges, respectively, that the Board and the Town, based on the allegation that the Board was acting as an agent of the Town, breached duties based upon a fiduciary or confidential relationship.   The plaintiff alleges that these defendants had a duty to ensure the safety of school children, such as the plaintiff.   See complaint, counts three and four, ¶ 15.

The movants contend that these counts should be stricken since no duty of care was owed to the plaintiff by these defendants, and since no fraud, self-dealing, conflict of interest or dishonesty on the part of the movants is alleged.

“[T]he essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury [.]”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 538, 51 A.3d 367 (2012).

“The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand ․ If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action ․ [T]he 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 ․ [A] duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.”  (Citations omitted;  internal quotation marks omitted.)  Id., 538–39.

Since the existence of a duty raises a question of law, the question of whether a defendant owed a duty of care to an injured party is properly decided in the context of a motion to strike.   See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171–72, 544 A.2d 1185 (1988).

The Supreme Court “has refrained from defining a fiduciary relationship in precise detail and in such a manner as to exclude new situations[.]”  Hi–Ho Tower, Inc. v. Com–Tronics, 255 Conn. 20, 38, 761 A.2d 1268 (2000).  “It is axiomatic that a party cannot breach a fiduciary duty to another party unless a fiduciary relationship exists between them.  [A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other ․ The superior position of the fiduciary or dominant party affords him great opportunity for abuse of the confidence reposed in him ․ Moreover, [a]lthough we have not expressly limited the application of these traditional principles of fiduciary duty to cases involving only fraud, self-dealing or conflict of interest, the cases in which we have invoked them have involved such deviations ․” (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Sherwood v. Danbury Hospital, 278 Conn. 163, 195–96, 896 A.2d 777 (2006).

“[P]rofessional negligence alone ․ does not give rise automatically to a claim for breach of fiduciary duty ․ [Thus] not every instance of professional negligence results in a breach of [a] fiduciary duty ․ Professional negligence implicates a duty of care, while breach of a fiduciary duty implicates a duty of loyalty and honesty.”  Id., 196.

The negligence and carelessness alleged against the Board and the Town in counts three and four do not involve fraud, self-dealing or conflict of interest.  “Absent claims of fraud, self-dealing, or a conflict of interest on the part of the defendant[s] ․ these allegations simply do not suffice to also encompass a claimed breach of fiduciary duty.   If the plaintiff ․ ha[s] a factual basis for making such additional claims, [he] may plead over as permitted by Practice Book § 10–44.   Such allegations cannot be read into the present pleadings.”   Orthopaedic Group v. Day Pitney, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. X05 CV 10 6007313 (September 13, 2011, Blawie, J.).   See Lavitt v. Meisler, Superior Court, complex litigation docket, judicial district of New London at Norwich, Docket No. X04 CV 0127150 (July 15, 2003, Quinn, J.) (35 Conn. L. Rptr. 133) (citing examples).

The motion to strike counts three and four is accordingly granted.   The court need not address whether a fiduciary relationship is sufficiently alleged as to either movant, or whether governmental immunity is applicable.

C

Counts Five and Six

In counts five and six, the plaintiff alleges, respectively, that the Board and the Town, based on the allegation that the Board was acting as an agent of the Town, breached the special duty of care owed to children.   The movants assert that these claims are not legally cognizable and that, if they are, they are barred by governmental immunity.

As a comment to Section 314A of the Restatement of Torts (Second) notes, that section “covers special relationships giving rise to a duty to aid or protect when an entity voluntarily takes custody of a child ․” Doe v. St. Francis Hospital and Medical Center, 309 Conn. 146, 205, 72 A.3d 929 (2013).  “[T]he duty to protect the [child] against unreasonable risk of harm extends to risks arising out of the [entity's] own conduct ․ [as well as] to risks arising ․ from the acts of third persons, whether they be innocent, negligent, intentional, or even criminal.”  (Emphasis in original;  internal quotation marks omitted.)  Id., citing 2 Restatement (Second), supra, § 314A, comment (d) at p. 119.

The Supreme Court reiterated that it “consistently has taken the position that children outside the supervision of their parents require special protection);  see also 2 Restatement (Second), supra, § 314A(4), at p. 118 (‘[o]ne ․ who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a ․ duty to’ protect him against unreasonable risk of physical harm).”  (Internal quotation marks omitted.)  Doe v. St. Francis Hospital and Medical Center, supra, 309 Conn. 205.

“Section 320 of the Restatement (Second) ․ imposes a duty of care upon a person who takes custody of another person so as to deprive him of his normal powers of self-protection.” 1  (Footnote omitted.)  Murdock v. Croughwell, 268 Conn. 559, 570–71, 848 A.2d 363 (2004).  “[C]hildren outside the supervision of their parents require special protection ․” Id., 572.

“Sections 314A ․ and 320 ․ of the Restatement (Second) of Torts list special relations which, if existing, require one party to that relation to render protection to the other.   The most important and widely recognized relation of this kind is that between an adult and a child in his custody.   The duty of the adult to protect the child from harm is enhanced when the child is of tender years or is otherwise incapable of managing his own affairs.   We learn this from comment b to Section 320 of the Restatement, which states that ‘[t]he actor who takes custody ․ of a child is properly required to give him the protection of which the custody or manner in which it is taken has deprived him.’   This understanding is confirmed by comment 1 to the proposed version of Section 40 of the Restatement (Third) of Torts, which as adopted (though not yet published) 2 states that ‘[w]hat constitutes reasonable care is contextual—the extent and type of supervision required of young elementary school pupils is substantially different from reasonable care for college students.’   We also learn this from Murdock, which, in declining to find a duty running from the chief of police to one of his off-duty police detectives, expressly distinguished the factual situation before it from previous cases in which it had taken the position that children outside the supervision of their parents require special protection.  [Murdock v. Croughwell, supra, 268 Conn.] at 572.   The public policy embodied in the rule imposing a duty on adults to protect children in their custody is reflected in substantial case law which has dealt with the issue.   The ․ cases show that this duty arises not only in the public school settings, but in private and other settings.”   (Footnotes omitted.)   Doe v. Talabi, Superior Court, judicial district of Hartford, Docket No. CV 07 5009974 (August 7, 2009, Sheldon, J.) (48 Conn. L. Rptr. 382) (collecting cases).

Here, the plaintiff alleges that, while he was a student at Wakelee, the Board knew or should have known that Niland was sexually molesting and photographing minors such as the plaintiff on school premises.   See count five, ¶ 9.   He also alleges that he “and other minors were seen and molested by Niland alone in his office and/or residence and thus were separated from their parents and guardians, sometimes for extended periods of time.”   See count five, ¶ 10.

These allegations of misconduct as to school children on school premises are sufficient to invoke the duty of care discussed in the recent Supreme Court decisions cited above.   See Restatement (Second), supra, § 320.   In addition, in paragraph 141, the plaintiff reiterates his allegations as to failures of mandated reporters to take steps to make reports.   Accordingly, as discussed above concerning counts one and two, the ministerial nature of this duty makes governmental immunity inapplicable.

D

Counts Seven and Eight

In counts seven and eight, the plaintiff alleges that the Board and the Town are liable based on the “aided-in-the-agency-relation doctrine.”   In particular, the plaintiff cites Restatement (Second) Agency § 219(2), which provides, in relevant part, “a master is not subject to liability for the torts of his servants acting outside the scope of their employment unless ․ (d) the servant ․ was aided in accomplishing the tort by the existence of the agency relation.”

The movants seek to strike these counts, contending that Connecticut does not recognize this cause of action and the alleged facts are insufficient to constitute actions within the scope of Niland's employment while in furtherance of his employment.   They also assert that these claims are barred by governmental immunity.

In this context, involving alleged sexual abuse of school children, such as the plaintiff, the court finds persuasive the recent analysis in Jean–Charles v. Perlitz, 937 F.Sup.2d 276 (D.Conn.2013), which applied Connecticut law.   There, the plaintiffs alleged that “Perlitz was the agent of each of the moving defendants and used the existence of these relationships to gain the trust and confidence of the plaintiffs in order to abuse them.”  Id., 286.

“With rare exceptions, courts applying Connecticut law have consistently held that sexual abuse is outside the scope of the abuser's employment.”  Id. Here, also, the plaintiff has not alleged facts “suggesting that [Niland's] sexual abuse of the plaintiff ․ was within the scope of his employment [.]”  Id.

Concerning the “aided-in-the-agency-relation doctrine,” as discussed in the Restatement (Second) of Agency § 219, the Jean–Charles court stated, “Connecticut courts have consistently declined to apply the doctrine of apparent authority in tort cases, notwithstanding the principles of agency set forth in the Restatement (Second).3  See Mullen v. Horton, 46 Conn.App. 759, 771–72, 700 A.2d 1377 (1997).  (‘[T]he doctrine ․ hold[ing] a princip [al], who represents that another is his servant or agent and thereby causes a third person to rely justifiably on the care or skill of such agent, vicariously liable ․ has never been used in such a manner [in Connecticut].’)”  (Citation omitted;  internal quotation marks omitted.)   Id., 286.

This court concludes that the Connecticut Supreme Court would decline to adopt this theory of liability based on the Restatement (Second) of Agency and would leave the plaintiff to his other claims, alleged in other counts discussed above.   See Jean–Charles v. Perlitz, supra, 937 F.Sup.2d 287 n.9.

CONCLUSION

For the reasons stated above, the motion to strike is granted in part and denied in part.   Counts three, four, seven and eight are stricken.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

1.  FN1. Section 320 provides, “One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor (a) knows or has reason to know that he has the ability to control the conduct of the third persons, and (b) knows or should know of the necessity and opportunity for exercising such control.”

2.  FN2. The Supreme Court also has cited the Restatement (Third) of Torts.   See Metropolitan Property & Casualty Ins. Co. v. Deere & Co., 302 Conn. 123, 134, 25 A.3d 571 (2011).

3.  FN3. In addition, the Jean–Charles court noted that this section of the Restatement (Second) has been superseded by the Restatement (Third).   See id., 286 n.8. “Section 7.08 of Restatement (Third), comment (b) (2006) states in relevant part:  ‘Section 219(2)(d) [Restatement (Second), Agency] concludes with a further general basis for an employer's vicarious liability, which is whether an employee ‘was aided in accomplishing the tort by the existence of the agency relation.’   This Restatement does not include ‘aided in accomplishing’ as a distinct basis for an employer's (or principal's) vicarious liability.”   Lara v. Legionaries of Christ, Superior Court, Complex Litigation Docket at Hartford, Docket No. X03 CV 10 6016974 (August 30, 2011, Miller, J.), n.2.

Shapiro, Robert B., J.

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