John Lynk, Sr. et al. v. First Student, Inc. et al. (2010)

MEMORANDUM OF DECISION

This is a decision on a motion to strike filed by the defendants, First Student, Inc. and Casandra Fuller, dated July 2, 2010.

On March 26, 2010, the plaintiff, John Lynk, Sr., individually and as father and next friend of the plaintiff, John Lynk, Jr., a minor, filed a three-count complaint against the defendants, First Student, Inc., Casandra Fuller, Robert Turcio, Sr., and Robert Turcio, Jr. Following the defendants request to revise, the plaintiffs filed a four-count revised complaint on June 23, 2010.   In their revised complaint, the plaintiffs allege that the minor plaintiff was injured when he was struck in the head by a lunch box, which was swung by Turcio, Jr., after exiting a bus owned by First Student and operated by its employee, Fuller.   In count one, the minor plaintiff alleges a claim for personal injuries caused by the negligence and carelessness of the defendants.   In count four, the father, in his individual capacity, alleges a claim for medical expenses he has incurred and will be forced to incur as a result of First Student's negligence.

On July 2, 2010, the defendants filed a motion to strike count four of the plaintiffs' revised complaint on the ground that General Statutes § 52-204 prohibits a parent from asserting a separate claim for expenditures wherein a claim for personal injuries has been brought by the minor.   The motion is accompanied by a memorandum of law.   On July 26, 2010, the plaintiffs filed an objection to the defendants' motion to strike.   On July 29, 2010, the plaintiffs filed a subsequent objection and memorandum of law in support thereof.

I.

“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).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”   Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   Therefore, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [plaintiffs have] 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).

II.

In their memorandum of law in support of the motion to strike, the defendants argue that the father's claim for medical expenses is barred under § 52-204 because the exclusive right to recover such expenses inures to the minor plaintiff when an action has been brought on his behalf.   Therefore, the defendants contend that the father has no right to bring an independent action in his individual capacity for recovery of medical expenses because an action has been brought on behalf of the minor plaintiff in the present case.   In response, the plaintiffs counter that § 52-204 is not mandatory and, therefore, does not prohibit a parent from bringing a claim for medical expenses;  it merely prohibits a parent from recovering medical expenses when they have already been recovered by the minor plaintiff.

“When a minor child is injured by the negligent act of a third party, two causes of action immediately spring into existence;  first, the right of action by the child itself for the personal injuries inflicted upon it;  and second, a right of action to the parent for consequential damages, such as a loss of services and expenses, caused by the injury to the child.”  (Internal quotation marks omitted.)  Dzenutis v. Dzenutis, 200 Conn. 290, 308, 512 A.2d 130 (1986).  “The right of the parent to recover is independent of the right of the child, and the judgment in an action brought by the child would not preclude the parent from recovery ․” Shiels v. Audette, 119 Conn. 75, 77, 174 A. 323 (1934).  “Although ․ § 52-204 authorizes the recovery of medical expenses in an action solely in behalf of the injured child and makes the recovery in such action a bar to any claim by the parent for such expenses, the statute does not mandate that procedure.”  Dzenutis v. Dzenutis, supra, 308;  see also General Statutes § 52-204.¹

“The parents of an injured child, therefore, may bring a claim for expenses incurred as a result of their child's injury in a separate count, even though the child also brings a claim for injuries in the same action ․ [Section] 52-204 bars double recovery;  it does not limit the plaintiff's ability to plead her case.   If, subsequent to the trial, the fact finder ultimately deems that damages are appropriately due, only then will § 52-204 limit the manner in which the damages can be awarded.   If the damages are due, they can be awarded directly to the injured plaintiff ․ or they can be awarded directly to his mother, they will not be awarded to both.   Thus, when and if the time arises that damages are to be calculated, the jury can be properly instructed pursuant to § 52-204.”  (Citations omitted;  internal quotation marks omitted.)   Mercede v. Kessler, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0172682 (February 13, 2001, Karazin, J.) (29 Conn. L. Rptr. 246, 247).

In the present case, count one alleges a claim for personal injuries incurred by the minor plaintiff while count four alleges a claim for medical expenses incurred by the father individually.  Section 52-204 does not preclude such a pleading;  it merely bars double recovery.   As pled, there does not appear to be any claim for double recovery.   Therefore, count four is not legally insufficient on this ground.

For the foregoing reasons, the defendants' motion to strike count four of the plaintiffs' revised complaint is denied.

Matasavage, J.

FOOTNOTES

FN1. Section 52-204 provides:  “In any civil action arising out of personal injury or property damage, as a result of which personal injury or property damage the husband or parent of the plaintiff has made or will be compelled to make expenditures or has contracted indebtedness, the amount of such expenditures or indebtedness may be recovered by the plaintiff, provided a recovery by the plaintiff shall be a bar to any claim by such husband or parent, except in an action in which the husband or parent is a defendant.”  (Emphasis added.).  FN1. Section 52-204 provides:  “In any civil action arising out of personal injury or property damage, as a result of which personal injury or property damage the husband or parent of the plaintiff has made or will be compelled to make expenditures or has contracted indebtedness, the amount of such expenditures or indebtedness may be recovered by the plaintiff, provided a recovery by the plaintiff shall be a bar to any claim by such husband or parent, except in an action in which the husband or parent is a defendant.”  (Emphasis added.)

Matasavage, Paul, J.