Jane Doe v. Gary Terwilliger et al (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 182

The defendant, James Ford, has filed a motion to strike the seventh count of the third revised complaint of Jane Doe, the plaintiff, alleging breach of fiduciary duty.   Both parties have filed briefs and argued their respective positions before the court.

“A motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court ․ [W]e construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.   In doing so, moreover, we read the allegations broadly ․ rather than narrowly.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 347 1269 (2006).  “In Connecticut, we long have eschewed the notion that pleadings should be read in a hypertechnical manner.   Rather, [t]he modern trend ․ is to construe pleadings broadly and realistically, rather than narrowly and technically ․ [T]he complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and to do substantial justice between the parties ․ Our reading of the pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension.”  (Internal quotation marks omitted.)   Dimmick v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 802 (2008).   In this case on June 8, 2010, the court, Zoarkski, J.T.R., denied co-defendant Gary Terwilliger's motion to strike count six alleging breach of fiduciary duty as to him.   The court reasoned:  “The existence of a fiduciary duty is largely a factual determination inappropriate to decide on a motion to strike.   Given the plaintiff's allegations in this case, the court is satisfied that she has pled sufficient facts to allege the existence of a fiduciary relationship between herself and [Terwilliger] ․ Connecticut courts, addressing the existence of a fiduciary relationship, attach significance to whether the plaintiff was a minor and additionally, draw a line between a typical student-teacher relationship and those relationships that include ‘something more,’ namely acts of fraud, misconduct or misappropriation on behalf of the superior party.   Given the collaborative nature of the relationship between a public school coach and a student-athlete, and that the minor plaintiff has alleged that [Terwilliger], her ‘mentor and confidant,’ engaged in several acts of sexual misconduct and harassment, the court is convinced that more factual development is warranted in this case.”  (Citation omitted.)  Id.

The plaintiff alleges the following against Ford, Terwilliger's co-defendant in this action.  “James Ford was plaintiff's high school coach and in 2005, defendant James Ford began bringing plaintiff Jane Doe to defendant Gary Terwilliger's pool at Terwilliger's house ostensibly to cross-train ․ Terwilliger and Ford would watch Plaintiff Jane Doe swimming in the pool ․ Ford sent ․ Terwilliger to speak with plaintiff Jane Doe on several occasions.”   Specifically, count seven alleges:  “Ford, as plaintiff's public school coach was in a position of trust and confidence and superiority ․ and was in a fiduciary relationship with plaintiff ․ Ford breached his fiduciary duty owed to plaintiff Jane Doe when he willfully and repeatedly engaged in the harmful and offensive conduct against the plaintiff ․”

Moreover, count eleven, alleging recklessness as to Ford, incorporates all of the allegations preceding it and additionally, alleges that:  “Ford knew of defendant Terwilliger's abuse of the plaintiff ․ Ford often left defendant Terwilliger alone with the plaintiff ․ Knowing of the abuse by defendant Terwilliger, defendant Ford ignored the extreme danger in leaving defendant Terwilliger alone with the plaintiff ․ Knowing of the abuse by defendant Terwilliger, defendant Ford ignored the extreme dangers and failed to warn anyone or report defendant Terwilliger's conduct.”

The court finds that more factual development is warranted as to Ford's alleged breach of fiduciary duty to the plaintiff and as a result, denies his motion to strike.   Like Terwilliger and the plaintiff, Ford and the plaintiff were engaged in a collaborative relationship as a public school coach and a student-athlete.   More significantly, the court is satisfied that the minor plaintiff pled sufficient facts to show that her relationship with Ford, like her relationship with Terwilliger, included “something more.”

The plaintiff alleged that Ford brought her to Terwilliger's home and left her alone with him.   More significantly, in count eleven, which incorporates all of the allegations contained in count seven, the plaintiff alleges that Ford knew of Terwilliger's abuse of the plaintiff.   In sum, a broad reading of the plaintiff's complaint, demonstrates that Ford, like Terwilliger, engaged in several acts of misconduct.   The defendant's motion is hereby denied.

MAUREEN M. KEEGAN, J.

Keegan, Maureen M., J.