Mikhael Fincher v. Roy Nisenson (2010)

MEMORANDUM OF DECISION

FACTS

On May 9, 2008, the plaintiff, Anne Fincher, parent and next friend of Miguel Fincher,¹ filed a three-count second amended complaint (amended complaint) against the defendants, who are as follows:  Yale Alumni Chorus Foundation, Inc., Classical Movements, Inc., and Douglas A. Berv, M.D.² The third count of the amended complaint alleges negligence against Berv, who is referred to as “the defendant” in this memorandum.

In the amended complaint, the plaintiff alleges the following facts.   Roy Nisenson, Ph.D., a licensed psychologist who was the minor's treating therapist, referred the minor to the defendant in May 2006, for evaluation and treatment.   During the initial evaluation, the defendant, a psychiatrist, diagnosed the minor with a “depressive disorder,” prescribed medication and arranged for a follow-up schedule.   The minor continued to be a patient of the defendant at least until October 2006.   During the time that the minor was the defendant's patient, the defendant “knew or in the exercise of reasonable care should have known that the relationship between [the minor] and his psychologist was inappropriate.”   During this time, Nisenson communicated with the defendant and “the substance of these communications caused the defendant ․ to become increasingly concerned about his [patient's] relationship with the psychologist.”

On or about August 29, 2006, the minor told the defendant that he was traveling to the Netherlands with Nisenson, which was later confirmed in a communication between Nisenson and the defendant.   Even though the defendant knew that Nisenson planned to take the minor to another country for about one week, the defendant “failed to appropriately report the relationship and to effectively intervene for his [patient's] safety” and failed to comply with General Statutes § 46b-120.   In December 2006, after the physician-patient relationship between the minor and the defendant ended, the defendant noted in a medical record that the plaintiff told him that she did not have any concerns about the relationship between Nisenson and the minor, and that Nisenson sent a message to the defendant “in which he denied any inappropriate relationship with ‘my son.’  “ The defendant also noted that he later “received a lengthy letter from [Nisenson] that has been placed in [the minor's] chart.”

During this time, the defendant “was negligent and careless and deviated from the acceptable standard of care in providing care and treatment to the minor” because he failed to report his concerns about Nisenson as required by General Statutes § 46b-120, failed to “intervene effectively so as to prevent further harm to his patient,” “failed to effectively intervene to prevent ․ Nisenson ․ from taking the minor ․ to Europe unaccompanied by a parent” and “failed to contact the authorities in a timely and appropriate manner concerning [the minor's] inappropriate relationship with his psychologist.”   As a result of this, the minor suffered various injuries and losses.

On August 22, 2007, defendant Yale Alumni Chorus Foundation, Inc., filed a complaint for apportionment (YACF apportionment complaint) against the plaintiff.   Fincher v. Nisenson, Superior Court, judicial district of New Haven, Docket No. CV 07 5010654 (August 15, 2008, Skolnick, J.T.R.).   The plaintiff moved to strike the YACF apportionment complaint on the ground of parental immunity.   On August 15, 2008, the court granted the plaintiff's motion to strike.  Id.

On July 30, 2008, the defendant filed a complaint for apportionment against the plaintiff, denying the allegations against him.   The apportionment complaint alleges the following facts.   The minor was fifteen and sixteen years old at the time of the alleged actions by Nisenson.   During the course of the psychologist-patient relationship between Nisenson and the minor, “[the plaintiff] knew, or in the exercise of reasonable care should have known, that the relationship between [the minor] and his psychologist was inappropriate.”   Nisenson “engaged in sexual contact” with the minor on at least two occasions between September and November 2006.   In February 2008, Nisenson pleaded guilty to sexual assault and narcotics charges and is now a registered sex offender.   Despite knowing that Nisenson “was engaging in an inappropriate relationship with her son, [the plaintiff] failed to appropriately report the relationship to the appropriate authorities and failed to effectively intervene for her son's safety.”   The plaintiff had a duty to the minor “and to the public at large to refrain from engaging in, allowing, encouraging, and/or perpetrating any criminal or other harmful conduct against her son ․”

The apportionment complaint alleges that any injuries suffered by the minor “were entirely or substantially caused by the negligence of [the plaintiff ․” The apportionment complaint alleges the following facts regarding the relationship between the plaintiff, the minor and Nisenson during the relevant period of time.   The plaintiff moved into Nisenson's home and arranged for the minor to do the same “when she knew or reasonably should have known that such conduct was overstepping the bounds of her son's patient/psychologist relationship with Dr. Nisenson and would impair [the minor's] psychological treatment,” “that Dr. Nisenson was a drug and alcohol abuser” and “that Dr. Nisenson was interested in or capable of an inappropriate relationship (including a sexual relationship) with [the minor].”   During times that the plaintiff was not living with Nisenson, she “threw her son ․ out of her house when she knew or reasonably should have known that doing so would lead to her son staying at the home of Dr. Nisenson,” “encouraged, condoned, and/or permitted her son ․ to travel outside of their family's home to sleep at the home of Dr. Nisenson” and “called Dr. Nisenson ․ and asked him to come to her house to get [the minor] and his belongings because she did not want [the minor] to live with her anymore.”   The plaintiff “encouraged, condoned, and/or permitted [the minor] to engage in illegal drug use with Dr. Nisenson” and “applied for and obtained a passport for [the minor] so that he could travel out of the country with Dr. Nisenson.”   Furthermore, the plaintiff “encouraged, condoned, and/or permitted [the minor] to travel outside of their family's home to a foreign country with Dr. Nisenson for the purpose of engaging in an inappropriate relationship and using illegal drugs.”   The plaintiff “compelled [the minor] by force or intimidation to live with Dr. Nisenson” and “took thousands of dollars in cash from Dr. Nisenson, which Dr. Nisenson gave to her to facilitate an inappropriate relationship with [the minor].”   The plaintiff's negligence “severely disrupted the harmony of her family” and caused her to “[breach] her duty to the public at large, thereby creating a matter of serious public concern.”

On September 9, 2008, the plaintiff moved to strike the apportionment complaint on the ground that it is barred by the doctrine of parental immunity.   The motion is accompanied by a memorandum of law.   The defendant filed a memorandum of law in opposition to the motion to strike on July 7, 2010.   The plaintiff filed a reply to the objection on July 14, 2010.   This matter was heard on the short calendar on August 30, 2010.

DISCUSSION

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10-39(a).  “[I]n 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 ․” (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).   The court must “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.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010).

Under the doctrine of parental immunity, “a parent is not liable civilly to his child for personal injury inflicted during [the child's] minority ․” (Internal quotation marks omitted.)  Crotta v. Home Depot, Inc., 249 Conn. 634, 638, 732 A.2d 767 (1999).   Parental immunity has been deemed applicable to claims for apportionment of liability.  Id., 639.  “Connecticut law recognizes only four exceptions to the parental immunity doctrine.   First, an unemancipated minor can sue the employer of a parent whose negligence in the course of employment injured the child, thereby putting the parent at risk of an indemnity suit ․ Second, a minor can sue a parent if the child was emancipated prior to the tortious conduct ․ Third, an unemancipated minor can sue a parent for injuries received through the negligent conduct of a business enterprise conducted away from the home ․ Fourth, an unemancipated minor can sue a parent for injuries resulting from the negligent operation of a motor vehicle, aircraft or waterborne vessel.”  (Citations omitted.)  Squeglia v. Squeglia, 34 Conn.App. 866, 869, 644 A.2d 378 (1994), aff'd, 234 Conn. 259, 661 A.2d 1007 (1995).   Furthermore, as a fifth exception, “the parental immunity doctrine does not bar an action by a minor child against his or her parent for personal injuries arising out of sexual abuse, sexual assault or sexual exploitation.”  (Internal quotation marks omitted.)  Henderson v. Woolley, 230 Conn. 472, 486, 644 A.2d 1303 (1994).

The Henderson decision outlined several types of parental sexual misconduct that are outside the scope of parental immunity.  “[T]here is a point at which parental conduct properly becomes a matter of public concern, and sexual abuse, assault and exploitation are well within that realm.   When a parent perpetrates such a crime upon his or her child, that act constitutes a breach of duty owed not only to the child, but to the public at large, and there is no reason to immunize such conduct from a civil action in damages merely because of the familial relationship.”  Id., 482-83.  “[T]he purpose of the preservation of family harmony cannot justify immunity in the case of sexual abuse of a child by a parent.”  Id., 482.   Thus, the Supreme Court concluded that “the public policy of this state requires that the parental immunity doctrine not preclude a child victim of parental sexual abuse from vindicating his or her rights by bringing an action for damages.”  Id., 483.

In Lawson v. Lawson, Superior Court, judicial district of Litchfield, Docket No. CV 99 0080780 (January 23, 2001, DiPentima, J.) [29 Conn. L. Rptr. 264], the plaintiff brought an action against her parents, alleging that her father sexually abused her during her childhood and that her mother “negligently failed to prevent the sexual contact or to protect the plaintiff, that this negligence was extreme and outrageous and that this defendant knew or should have known that the conduct of the [father] would result in severe emotional distress to the plaintiff.”   The mother moved for summary judgment on the ground of parental immunity, and the court denied the motion, ruling that “[p]ublic policy will not allow a negligent parent who allows the sexual abuse of her child to occur to be immune from suit.”  Lawson v. Lawson, supra, Superior Court, Docket No. CV 99 0080780.

In Gladwell v. Gladwell, Superior Court, judicial district of Fairfield, Docket No. CV 95 319853 (April 10, 1995, Maiocco, J.) [14 Conn. L. Rptr. 71], the court considered “whether the doctrine of parental immunity bars a minor child from suing his natural parent for injuries he received from his stepfather and with the natural parent's actual or constructive notice of such happenings.”   The court denied the defendant mother's motion to strike, noting that the Henderson decision “abrogated the doctrine of parental immunity as it relates to claims by minor children for personal injuries arising out of sexual abuse, sexual assault or sexual exploitation.”  Id.

In Coburn v. Ordner, Superior Court, judicial district of Fairfield, Docket No. CV 93 0306715 (March 22, 1995, Gormley, J.) [14 Conn. L. Rptr. 9], the plaintiff claimed that her father engaged in sexual activities with her when she was a minor and accused her mother of “intentional, reckless and negligent failure to protect the plaintiff, the infliction of emotional distress and a civil conspiracy to commit sexual assault.”   The mother moved for summary judgment on the ground of, inter alia, parental immunity, arguing that “the law does not grant immunity to parents specifically accused of actual sexual assault, but ․ that she is immune because she was not the perpetrator of the sexual abuse.”  Id. After examining the Henderson decision, among other rulings, the court ruled as follows:  “The purpose of the doctrine of parental immunity would not be served by shielding either parent involved in the sexual abuse of a minor child from a civil action.   This court concludes that the doctrine of parental immunity does not bar a claim against either a perpetrating or a non-perpetrating parent in an action alleging sexual abuse.”  Id.

The plaintiff also directs the court's attention to Doe v. Colletto, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0163640 (April 16, 1999, D'Andrea, J.) [24 Conn. L. Rptr. 387], noting that the facts are similar to the present case.   In Colletto, a minor plaintiff brought an action through her mother against a minor defendant and his mother, alleging that the minor defendant sexually assaulted her.  Doe v. Colletto, supra, Superior Court, Docket No. CV 98 0163640.   The defendants filed a special defense, alleging that the plaintiff-mother was contributorily negligent in failing to adequately supervise her daughter and the minor defendant while she was at the defendants' home.  Id. The plaintiffs moved to strike this special defense on the ground of parental immunity.  Id. The court distinguished its case from Henderson, noting that “in the Henderson case, the plaintiff sued her own father for alleged sexual assault and misconduct by him.”  Id. “In the present case, the minor plaintiff is not alleging that her own parent's sexual abuse caused her personal injuries.   Rather, the minor plaintiff is alleging that the minor defendant sexually abused her and thus, the purpose of the doctrine of parental immunity being to preserve family harmony, it still applies to bar the defense in this case.”   Id.

The facts alleged in the present case more closely resemble those of Doe v. Priority Care, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. CV 06 4015734 S (October 27, 2008, Eveleigh, J.) (46 Conn. L. Rptr. 587).   In Priority Care, the plaintiff, a mother of a minor, claimed that one of the defendant's alleged employees, a “professional behaviorist,” sexually assaulted her minor child outside of the family home.  Id., 587, 588.   After the defendant filed an apportionment complaint against the plaintiff, the plaintiff moved to dismiss on the ground of lack of subject matter jurisdiction due to parental immunity.  Id., 587.   The apportionment complaint stated in relevant part:  “[The plaintiff] ․ was notified and knew of or should have known of a potentially inappropriate relationship between (the employee) and the infant plaintiff but took no action to either investigate, report or terminate said relationship.”  (Internal quotation marks omitted.)  Id., 588.   The court denied the motion to dismiss, ruling that the case constituted an exception to parental immunity because the plaintiff's “negligent acts, as alleged, did not concern parental supervision or discretion but, instead, violated a duty owed to the general public.”  Id. The court added the following:  “[T]he knowledge of sexual abuse on the part of the parent and the failure to report it, although not yet specifically decided by the Court, is a situation closely akin to a direct allegation of sexual abuse by the parent.   It is such an abhorrent act, completely destructive of family harmony, that it is difficult to imagine that the Supreme Court would not provide a further exemption under the doctrine of parental immunity for this type of situation.”  Id., 588-89.

In the present case, the defendant alleges that the plaintiff knew or should have known that the relationship between the minor and Nisenson was inappropriate and that the plaintiff took money from Nisenson to facilitate the relationship.   Although the plaintiff tries to compare the allegations in the apportionment complaint to the Colletto negligent supervision situation, the plaintiff's alleged conduct is a matter of public concern outside the scope of parental immunity.   The allegations tend to show a violation of a public duty in line with Priority Care. As discussed above, the Henderson court ruled that “there is a point at which parental conduct properly becomes a matter of public concern, and sexual abuse, assault and exploitation are well within that realm.”  Henderson v. Woolley, supra, 230 Conn. 482-83.   Construed in the manner most favorable to sustaining its legal sufficiency, the apportionment complaint alleges that the plaintiff's misconduct falls within the “realm” of exceptions to parental immunity.

The plaintiff also directs the court's attention to the court's August 2008 decision striking the YACF apportionment complaint.  Fincher v. Nisenson, supra, Superior Court, Docket No. CV 07 5010654.   In her memorandum in support of the motion to strike, the plaintiff argues that “[w]hile the subsequent apportionment complaints tack on additional allegations of negligence against [the plaintiff], the fact remains that she is not the one alleged to have engaged in improper contact with [the minor], and this is not a case involving any parental sexual abuse.”   Detailed allegations included in the present apportionment complaint distinguish it from the YACF apportionment complaint.   The court reasoned that, “[a]s there is no claim in this case that the mother abused the child or that the abuse occurred with the knowledge or consent of the mother there is no basis for concluding that the parental immunity protection should be breached.”  Id. In contrast, the defendant's apportionment complaint alleges that the plaintiff encouraged or permitted the minor to travel abroad with Nisenson to engage in an inappropriate relationship and accepted money from Nisenson in exchange for facilitating the relationship.   This activity is within the “realm” discussed in Henderson and therefore distinguishable from the YACF apportionment complaint.

CONCLUSION

For the foregoing reasons, the court denies the plaintiff's motion to strike the apportionment complaint on the ground of parental immunity.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. The original summons in this action, filed on April 19, 2007, identifies the plaintiff as “Fincher, Anne, parent and next friend of Miguel Fincher.”   The second amended complaint, which is the operative complaint for the purposes of this motion, refers to Anne Fincher's son in different instances as Miguel Fincher, Michael Fincher and Mikhael Fincher.   The spelling of the son's name also is inconsistent in the captions of the pleadings.   This memorandum will refer to the son as “the minor” in line with a previous decision in this action.  Fincher v. Nisenson, supra, Superior Court, Docket No. CV 07 5010654..  FN1. The original summons in this action, filed on April 19, 2007, identifies the plaintiff as “Fincher, Anne, parent and next friend of Miguel Fincher.”   The second amended complaint, which is the operative complaint for the purposes of this motion, refers to Anne Fincher's son in different instances as Miguel Fincher, Michael Fincher and Mikhael Fincher.   The spelling of the son's name also is inconsistent in the captions of the pleadings.   This memorandum will refer to the son as “the minor” in line with a previous decision in this action.  Fincher v. Nisenson, supra, Superior Court, Docket No. CV 07 5010654.

FN2. The original complaint in this action also named Roy Nisenson, Ph.D., and Roy Nisenson, individually, as defendants.   The complaint against these two defendants was withdrawn on September 7, 2007..  FN2. The original complaint in this action also named Roy Nisenson, Ph.D., and Roy Nisenson, individually, as defendants.   The complaint against these two defendants was withdrawn on September 7, 2007.

Burke, Richard E., J.