Timothy J. Aseltine, Administrator v. Ann Massella et al. (2012)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (No. 117)

The Motion For Summary Judgment now before the Court presents an important issue of legal duty.   The specific question raised is whether the defendant, Ann Massella, in her capacity as property owner, had a legal duty to prevent injury to her infant grandchild where the injury was inflicted not by a defect in the physical property but by the criminal act of the defendant's son-in-law.   For the reasons briefly stated below, the answer to this question is No.

The case arises out of tragic circumstances involving multiple members of the defendant's family.   In the interest of clarity, the family members will be referred to by their first names.   The relationships described are those at the time of the events in question.

Ann was the mother of two adult daughters, Melissa and Karen.   Melissa was married to David, and Karen was married to Timothy.   Karen and Timothy had a four-month-old child named Makayla.   Ann owned a house in North Haven.   David and Melissa lived with her in the house.   Karen, Timothy, and Makayla lived elsewhere.

On the evening of October 26, 2009, Ann, Melissa, and Karen went to the theater.   Makayla was left in the control of David in Ann's house.   Later that evening, Makayla died of physical injuries.   On October 27, 2009, David was arrested for manslaughter.   He is currently awaiting trial on that criminal charge.   Timothy was subsequently appointed the Administrator of Makayla's estate.

In August 2010, Timothy, in his capacity as Administrator, brought the present action for wrongful death against Ann and David.   The complaint consists of four counts, only the First Count of which is at issue here.   The First Count charges Ann with negligence.   That count specifically alleges that Ann was the owner of the real estate where Makayla's death occurred, that she ought to have known of David's “dangerous propensities,” and that she was negligent in failing to warn Makayla and Makayla's parents of those propensities.   The remaining counts are directed at David and are not presently before the Court.

In October 2011, Ann filed the Motion For Summary Judgment now before the Court.   The Motion contends that Ann “had no duty to act.”   The Motion was heard on January 3, 2012.

The existence of a duty, the pivotal issue in this case, is a matter of law.   Murdock v. Croughwell, 268 Conn. 559, 565, 848 A.2d 559 (2004).   On this issue, Connecticut follows the Restatement (Second) of Torts § 315 (1965):

There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless

(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.

Murdock v. Croughwell, supra, 268 Conn., at 567.

The facts and allegations of this case do not implicate § 515(a).   David, an adult, was Ann's son-in-law.   The plaintiff does not contend that Ann had a special relationship with David.   Paragraph 15 of the First Count instead alleges that Ann “owed a duty to her guests and invitees to provide a safe environment without unnecessary and unreasonably [sic] exposure to known harms and dangerous conditions.”  (Emphasis added.)

Given the allegations of the Complaint, the real battleground of this case is Restatement § 315(b).  Did a “special relation” exist between Ann and Makayla which gave to Makayla a right to protection?

Makayla was Ann's grandchild, but the plaintiff does not contend that a special relation existed because of that biological connection.   When asked, at argument, if Ann would be liable if the events in question had occurred between the same family members in a home owned by a third party, the plaintiff forthrightly answered No. The special relation, in his view, arises instead out of Ann's ownership of the premises where the tragic events occurred.

It is well established that, under certain circumstances, a property owner may have “a duty of care to business invitees who are attacked intentionally on the premises by assailants with whom the invitees are acquainted.”  Monk v. Temple George Associates, LLC, 273 Conn. 108, 110, 869 A.2d 1255 (2005).  (Emphasis added.)  Monk, however, does not address the question of whether the owners of nonbusiness premises have a similar duty with respect to family members.   That question must now be addressed here.

“Foreseeability notwithstanding, it is well established that Connecticut courts will not impose a duty of care ․ if doing so would be inconsistent with public policy.”  Monk v. Temple George Associates, LLC, supra, 273 Conn., at 116.  “In considering whether public policy suggests the imposition of a duty, we ․ consider the following four factors:  (1) the normal expectations of the participants in the activity under review;  (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants;  (3) the avoidance of increased litigation;  and (4) the decisions of other jurisdictions.”  Id., at 118.  (Internal quotation marks, brackets, and citations omitted.)   These factors must now be applied to the circumstances of this case.

The activity in question here is visiting a family home.   People do not visit family homes with the same set of expectations used in visiting commercial premises.   People who visit commercial premises reasonably expect that the owners of those premises will use reasonable care in selecting and training the persons employed to work on those premises.   It is, however, a well-known fact of life that people can choose their friends but not their relatives.   No one visiting a grandmother living in a family home reasonably expects the grandmother to have done a security check on her son-in-law.

The second factor, encouraging participation in the activity, militates against imposing a duty here.   It is, of course, desirable, to encourage citizens to visit the homes of family members.   But a policy that home owners must make disclosures concerning relatives in the home when extending invitations to other members of the same family where all the relatives know each other anyway (Karen was the sister of David's wife) is likely to decrease, rather than increase, the number of social invitations.

“The third factor, which is the likelihood that imposing such a duty would avoid increased litigation, is an admittedly weaker factor.”  Monk v. Temple George Associates, LLC, supra, 273 Conn., at 119.   That factor was discounted in Monk because, by encouraging businesses to take reasonable care to decrease the likelihood of crime occurring on their premises, it was at least possible that, if care was duly taken, litigation could even decrease.   The same economic analysis does not apply here.   Temple George Associates could pay for additional security by charging increased fees.   The owner of a family home cannot.

The fourth factor is the decisions of other jurisdictions.   No discovered case has considered the specific issue of whether a special relation exists between a homeowner and another person in the context of a physical assault of a minor by a family member in the home.   There is some authority governing the arguably analogous case of sexual assaults on minors occurring in the home.   The results of this authority are, however, mixed, and it is, in any event, far from clear just how analogous the two cases are in the first place.

“Many courts have struggled with whether and under what conditions individuals may be held liable for failing to warn other individuals about the sexually abusive propensities of third parties.”  Gritzner v. Michael R., 611 N.W.2d 906, 917 (Wis.2000).  Gritzner contains a helpful summary of the authority on that issue, pro and con, existing as of the date of that decision.  Id., at 917–18 n. 12.   Two more recent decisions have declined to find a special relation in this area.  D.W. v. Bliss, 112 P.3d 232 (Kan.2005);  J.S. v. Harris, 237 P.3d 1089 (Okla.Civ.App.2009).   The majority of courts considering this issue have declined to equate the acts of a sexually abusive relative with dangerous and defective property conditions.   See D.W. v. Bliss, supra, 112 P.3d, at 240–43 (summarizing authority).

The merits of the sexually abusive relative cases are not, however, presented here.   Whatever the merits of a judicial policy requiring disclosure of the sexually abusive propensities of a relative may be, the merits of a judicial policy requiring disclosure of a relative's propensity to physical abuse are relatively weaker.   Because sexual abuse is inherently a secretive, and typically a recidivist, act, the societal interest in disclosing propensities to sexual abusive tendencies involving minors is particularly strong.   No discovered judicial authority has imposed a duty of disclosure of known tendencies involving physical abuse in a context like that of the present case.

Given this lack of authority, it is appropriate for the Court to move cautiously before imposing new areas of liability in the family context.   After a full consideration of Connecticut's four-factor test, the Court concludes that, as a matter of public policy, there is no special relation between a possessor of land and an invitee which creates a duty upon the possessor to protect or warn family invitees of the violent propensities of other family members.   See T.A. v. Allen, 669 A.2d 360, 364 (Pa.Super.Ct.1995), allocatur denied, 676 A.2d 1201 (Pa.1996).

The Motion For Summary Judgment is granted.   Judgment shall enter in favor of the defendant, Ann Massella, on the First Count of the Complaint.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.