Anthony Casubolo v. Donald Whelley et al. (2010)

MEMORANDUM OF DECISION MOTION TO STRIKE # 114

FACTS

On August 3, 2007, the plaintiff, Anthony Casubolo, filed a summons and complaint naming as defendants, Donald Whelley, Ellen Whelley and Natalie Whelley.   The complaint alleges the following facts.

On July 14, 2005, the plaintiff, Anthony Casubolo, attended a party at the home of Donald Whelley and Ellen Whelley.   The party was hosted by Natalie Whelley, the minor daughter of Donald and Ellen Whelley.   Neither Donald Whelley or Ellen Whelley were at home on this date.   During the party alcohol was served, brought by or provided to minor guests.   Four of the guests at the party Jared Hall, Michael Lametta, Tomasz Cieslak and Matthew Swain were all under the legal age for alcohol consumption.   They attended the party and consumed alcohol.   As a result of the illegal consumption of alcohol, each of the four individuals assaulted the plaintiff, Anthony Casubolo.   The plaintiff was knocked unconscious as a result of the assault.   The plaintiff was transported to Norwalk Hospital and was treated for bilateral fracture of the nasal bones, a blowout fracture of the left orbital floor, a chipped front tooth and lacerations to his face, head and hands.   As a result of these injuries, the plaintiff suffers frequent headaches, blurred vision, physical pain and mental anguish.   He has incurred and will in the future incur medical expenses.

In count one of his complaint, the plaintiff alleges that the defendant Natalie Whelley's negligence caused the plaintiff's injuries and damages.   The plaintiff alleges that Natalie Whelley acted negligently when she served alcohol or permitted alcohol consumption on the premises in violation of General Statutes § 30-86, failed to supervise the premises to ensure that underage drinking did not occur, failed to control the behavior of individuals who created a risk of imminent harm to social invitees and failed to take appropriate measures to ensure the safety and well-being of social invitees.

In count two of the complaint, the plaintiff alleges that Donald Whelley and Ellen Whelley caused the plaintiff's injuries and damages when they negligently supervised their residence, negligently supervised the conduct of their daughter, Natalie Whelley, and failed to prevent Natalie Whelley from creating an unreasonable risk of bodily harm.

On December 28, 2007, the defendants filed an apportionment complaint against Jared Hall, Michael Lametta, Tomasz Cieslak and Matthew Swain.   In the apportionment complaint, the defendants state that if the plaintiff sustained the injuries and damages alleged in his complaint, those damages and injuries were proximately caused by the carelessness and negligence of the apportionment defendants who consumed alcohol in violation of General Statutes § 30-86, remained on the premises despite their lack of invitation from Natalie Whelley, remained on the premises after they had been instructed to leave prior to the incident with the plaintiff, and failed to control their own behavior.   The defendants allege that the apportionment defendants are or may be liable pursuant to General Statutes § 52-572h for a proportionate share of damages allegedly suffered by the plaintiff.

On February 10, 2009, the apportionment defendant Matthew Swain (Swain) moved to strike the first count of the defendants' apportionment complaint on the ground that the underlying action against Swain is based on intentional, rather than negligent, acts.

DISCUSSION

“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).  “[T]he moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 498.   The court should “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

In the present case, Swain argues that there can be no apportionment as a matter of law.   Swain asserts that the defendants are attempting to apportion liability for an intentional act when § 52-102b(o) only allows apportionment for negligent acts.   Swain argues that in the underlying action, the plaintiff alleges that he was assaulted by Lametta, Hall, Swain, and Cieslak.   Swain argues that because the underlying complaint alleges that Swain's conduct was intentional, rather than negligent, there can be no apportionment.

The defendants counter that the negligence alleged in their apportionment complaint concerns conduct that occurred prior to the assault.   The defendants aver that four of their five specifications of negligent behavior on the part of the apportionment defendants concern the consumption of alcohol and their presence at the party, rather than the assault itself.   Additionally, the defendants argue that under Connecticut law, an assault may be committed negligently.

General Statutes § 52-102b(a) provides in relevant part:  “A defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability ․” “[A] civil action to which section 52-572h applies, within the meaning of § 52-102b, means a civil action based on negligence.”   (Internal quotation marks omitted.)  Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 793-95, 756 A.2d 237 (2000).   Pursuant to General Statutes § 52-572h(o) in relevant part, “there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence ․” The Connecticut Supreme Court clarified that “conduct other than negligence, [includes but is not] limited to intentional, wanton or reckless misconduct, strict liability, and liability pursuant to any cause of action created by statute.”  Allard v. Liberty Oil Equipment Co., supra, 803.

In Allard v. Liberty Oil Equipment Co., the defendants attempted to construe the claims in the apportionment complaint as negligence claims, so that the claims would fall within the statute governing apportionment liability.  Allard v. Liberty Oil Equipment Co., supra, 253 Conn. 787.   In that case, the court held that because the allegations themselves were classic allegations of product liability, and “[the defendant could not] convert its apportionment claim against [the apportionment defendant] into something other than a product liability claim simply by alleging only negligent misconduct.”   Allard v. Liberty Oil Equipment Co., supra, 800.   In Allard v. Liberty Oil Equipment Co., the court determined that the allegations did not match the asserted cause of action by looking at the language in the complaint.  Id.

According to the Connecticut Supreme Court, “[i]n this state, an actionable assault and battery may be one committed willfully or voluntarily, and therefore intentionally;  one done under circumstances showing a reckless disregard of consequences;  or one committed negligently.”  (Internal quotation marks omitted.)  Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985).   Further, “[u]nder our law, a civil action may be supported by proof of a negligent or wanton as well as an intentional, blow.”  Swainbank v. Coombs, 19 Conn.Sup. 391, 394 (1955).

In the present case, the plaintiff's complaint states that “[a]s a result of their consumption of alcohol ․ [the apportionment defendants] assaulted plaintiff Anthony Casubolo ․” The complaint does not characterize the assault as either negligent or intentional.   Additionally, in their apportionment complaint, the defendants base their allegations of negligence on five specifications.   The defendants assert that the apportionment defendants were negligent in consuming alcohol, consumed alcohol in excess despite being intoxicated, came to the premises when they were not invited and did not leave although they were asked.   These facts do not allege intentional misconduct and are consistent with the defendants' asserted cause of action of negligence.

CONCLUSION

The plaintiff's complaint alleges claims for negligence against the defendants, and the defendants' cause of action for negligence against the apportionment defendants is consistent with the factual allegations in their apportionment complaint.   Because there may be apportionment of liability or damages between the parties liable for negligence, the apportionment defendant Swain's motion to strike is denied.

THE COURT

Brazzel-Massaro, J.

Brazzel-Massaro, Barbara, J.