Jay Johnson v. David Waddington (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 104

FACTS

On May 21, 2010, the plaintiff, Jay Johnson, filed a three-count complaint against the defendants, David and Amy Waddington, alleging the following facts.   On August 9, 2009, the plaintiff was a social invitee at the defendants' residence in Waterford, Connecticut.   The defendant wife had met the plaintiff one month earlier and told the plaintiff she was separated from her husband and in the process of obtaining a divorce.   The defendant wife did not inform the plaintiff that she was living with her husband when she invited the plaintiff to her home for a social call.   A short time after the plaintiff arrived, the defendant husband entered the residence in an intoxicated state and, without warning, proceeded to assault the plaintiff, who suffered numerous injuries as a result.

Count three of the plaintiff's complaint alleges negligence on the part of the defendant wife because she led the plaintiff to believe she was not married and falsely claimed that she was separated from her husband.   Further, the complaint alleges that the defendant wife knew or should have known of her husband's violent tendencies, and she failed to warn the plaintiff.   But for the defendant wife's negligent misrepresentations, the assault by the defendant husband would not have taken place.

On July 27, 2010, the defendant wife filed a motion to strike the third count of the plaintiff's complaint on the grounds that she does not owe a duty to her husband to control his actions or to the plaintiff to warn or protect him from her husband.   The motion is accompanied by a memorandum of law.   On August 11, 2010, the plaintiff filed an objection to the motion to strike and a memorandum of law in opposition to the motion.

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).   In considering a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] 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).  “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 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).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”   (Internal quotation marks omitted.)  American Progressive Life & Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).  “The existence of a duty [of care] is a question of law.”  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988).   Therefore, 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.  Id., 171-72.

In the present case, the defendant wife argues that she owes neither a duty to control her husband nor a duty to protect the plaintiff from her husband.   Specifically, she contends that the spousal relationship between her and her husband and the social relationship between her and the plaintiff are not recognized exceptions to the general rule that there is no duty to control the conduct of a third person or to protect another person from harm.

In response, the plaintiff counters that as a social guest, he was owed a duty by the defendant wife to refrain from actively subjecting him to danger in her home and to warn him of any reasonably anticipated, dangerous conditions.

“The existence of a duty of care is a prerequisite to a finding of negligence.”  Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614, 783 A.2d 462 (2001).  “[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 ․ The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy.”  (Internal quotation marks omitted.)   Neuhaus v. Decholnoky, 280 Conn. 190, 217-18, 905 A.2d 1135 (2006).

“With respect to the second inquiry, namely, the policy analysis, there generally is no duty that obligates one party to aid or to protect another party ․ One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of duty to aid or to protect another.”  (Citation omitted;  internal quotation marks omitted.)  Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 559 (2004).  “Connecticut courts follow the Restatement (Second) of Torts, which instructs that, except in limited circumstances, a person has no duty to take actions in order to aid another person or to control the conduct of a third person to prevent harm to the other person.”   Doe v. Talabi, Superior Court, judicial district of Hartford, Docket No. CV 07 5009974 (August 7, 2009, Sheldon, J.) (48 Conn. L. Rptr. 382, 385).   According to the Restatement (Second) of Torts § 315, there are two special relationships that give rise to this exception:  “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.”  “The [recognized] relations between the actor and a third person which require the actor to control the third person's conduct are stated in §§ 316-19 [of the Restatement (Second) of Torts].”  Murdock v. Croughwell, 268 Conn. 559, 568, 848 A.2d 559 (2004).

The relationship between the defendant wife and her husband does not fall within any of the special relationships enumerated in §§ 316-19.   Thus, § 315(a) does not apply in the present case, and the defendant wife owes no duty to control her husband's conduct.   Based on the second exception, in § 315(b), however, the defendant wife's relationship with the plaintiff does give rise to a duty to protect the plaintiff from harm.

According to the Restatement (Second) of Torts, “[t]he relations between the actor and the other which require the actor to control the conduct of third persons for the protection of the other are stated in §§ 314A and 320.”   Murdock v. Croughwell, supra, 268 Conn. 570, quoting 2 Restatement (Second), supra, § 315, comment (c).  Section 314A imposes a duty upon a possessor of land who holds his or her land open to the public to protect members of the public who enter in response to his or her invitation.  “The duty to protect the other against unreasonable risk of harm extends to risks arising ․ from the acts of third persons, whether they be innocent, negligent, intentional, or even criminal.”   2 Restatement (Second), supra, § 314A, comment (d).

Here, the plaintiff has alleged in his complaint that he was a social invitee of the defendant wife.   Pursuant to General Statutes § 52-577a, “[t]he standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee.”   The Supreme Court has stated:  “The defendant ․ as the possessor of the premises ․ ha[s] the duty of exercising reasonable care and control to protect its invitees from dangers which might reasonably be anticipated to arise from the conditions of the premises or the activities taking place there ․ In particular, the possessor must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands.   He must act as a reasonable [person] to avoid harm ․ even from intentional attacks on the part of such third persons. ”  (Citation omitted;  emphasis added;  internal quotation marks omitted.)   Merhi v. Becker, 164 Conn. 516, 520, 325 A.2d 270 (1973).   Moreover, the Supreme Court has “expressly disavowed any intention to elevate the burden of proof in premises liability claims involving criminal or intentional acts beyond foreseeability.”  Monk v. Temple George Associates, LLC, 273 Conn. 108, 116, 869 A.2d 179 (2005).

In the present case, the plaintiff has alleged that the defendants share a common residence.   The plaintiff further alleges that the defendant wife knew of her husband's violent tendencies.   Whether the husband's alleged actions were a foreseeable consequence of the defendant wife inviting the plaintiff to her home at night is a question of fact.   It can be implied from the allegations that it is reasonably foreseeable a husband with violent tendencies entering his own home past midnight to discover a male stranger visiting his wife for a social call would lead to harm for the plaintiff.   Since a motion to strike assumes all facts in the light most favorable to the nonmoving party, the plaintiff has established for the purposes of this motion that the defendant wife had a duty of exercising reasonable care and control to protect the plaintiff as her invitee from reasonably anticipated dangers arising from activities taking place at her residence.

CONCLUSION

Construing the complaint in the manner most favorable to sustaining its legal sufficiency, the court finds that the plaintiff has alleged sufficient facts in his complaint to withstand the motion to strike.   Therefore, the defendant wife's motion to strike count three of the plaintiff's complaint is denied.

Martin, J.

Martin, Robert A., J.