PPA v. Waller Brothers Express et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 103)

FACTS

The minor plaintiff, Isabella Cohen, commenced an action through her parent and next fiend, Angelita Cohen, by serving a summons and complaint on the defendants, Waller Brothers Express, LLC and Terry Waller on August 1, 2011.   The one-count complaint, sounding in negligence, alleges the following facts.   On August 6, 2009, the minor plaintiff was walking down the front interior stairs in a building located at 130 South Water Street in East Windsor, Connecticut.   As a result of the negligence of the defendants, the minor plaintiff was caused to trip and fall and suffered injuries.

The defendants filed an answer and special defenses on October 3, 2011.   The plaintiffs filed a motion to strike the second special defense on October 21, 2011.   The defendant did not file any opposition.   The court took the papers on November 7, 2011.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any [pleading] ․ 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).  “Whenever a party wishes to contest ․ the legal sufficiency of any answer to any complaint ․ or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested ․ part thereof.”  Practice Book § 10–39.  “In ․ ruling on the ․ motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and [construes] the defenses in the manner most favorable to sustaining their legal sufficiency.”  Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).

The plaintiffs assert that the defendants' second special defense alleges that the minor plaintiffs injuries were caused, in whole or in part, by the failure of her mother, Angelita, to properly supervise her.   The plaintiffs argue that “the doctrine of parental immunity precludes this special defense from being asserted against a minor plaintiff's parent ․”

[The Connecticut Supreme Court] first adopted the doctrine [of parental immunity] in Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753 (1929), and it remains the general rule in this state that unemancipated minor children and their parents may not sue one another for personal injuries.”  Ascuitto v. Farricielli, 244 Conn. 692, 697, 711 A.2d 708 (1998).   The court extended the doctrine to third parties seeking to bring a claim directly against a parent for negligent supervision in Crotta v. Home Depot, Inc., 249 Conn. 634, 732 A.2d 767 (1999).   The court reasoned that “[t]he parental immunity doctrine ․ precludes [a parent] from being liable to [his child].   Thus, allowing the defendants' third party claims against [a parent] ․ would permit the defendants to accomplish indirectly that which could not be accomplished directly.”  Id., 644.

While no appellate case has considered whether a negligent supervision claim can be brought as a special defense, Superior Courts have done so and an overwhelming majority of those cases have concluded that the special defense is barred by the doctrine of parental immunity.   See Beverly v. Tarragon Management, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 10 6006773 (September 24, 2010, Dooley, J.) [50 Conn. L. Rptr. 650];  Lake v. Butt, Superior Court, judicial district of New Haven, Docket No. CV 09 5027235 (April 28, 2010, Lager, J.) (49 Conn. L. Rptr. 705);  Ray v. Wal-mart, Superior Court, judicial district of New Haven, Docket No. CV 08 5016956 (April 9, 2009, Holden, J.) (47 Conn. L. Rptr. 499);  Kochian v. Central CT Coast YMCA, Superior Court, judicial district of Fairfield, Docket No. CV 07 5011527 (March 31, 2008, Frankel, J.) (45 Conn. L. Rptr. 351);  Lyons v. Morrocco, Superior Court, judicial district of New Britain, Docket No. CV 02 0515601 (February 2, 2004, Cohn, J.) (36 Conn. L. Rptr. 616);  Kuzoian v. Saybrook Country Barn, Inc., Superior Court, judicial district of New Britain, Docket No. CV 00–0501052 (January 22, 2001, Shapiro, J.);   Bartlett v. First Union Corp., Superior Court, judicial district of New Haven, Docket No. CV 00–0272108 (October 11, 2000, Robinson, J.);   Hart v. Torello, Superior Court, judicial district of New Haven, Docket No. CV 99–042 1294 (September 24, 1999, Devlin, J.) (25 Conn. L. Rptr. 506);  Wright v. Rogers, Superior Court, judicial district of New Haven, Docket No. CV 98–417078 (August 4, 1999, Lager, J.);   Tobin v. Connecticut Housing Finance Authority, Superior Court, judicial district of New Haven, Docket No. CV 92–333231 (June 17, 1997, Lager, J.);   Feer v. Santini, Superior Court, judicial district of Hartford, Docket No. CV 93–0531207 (June 13, 1997, Sullivan, J.) (19 Conn. L. Rptr. 612);  but see Sedgwick v. Halfpenny, Superior Court, judicial district of New Haven, Docket No. CV 99–065513 (August 15, 2000, Shea, J.) (28 Conn. L. Rptr. 42).

The reasoning in these cases is persuasive.  “[T]o allow this special defense of negligence would be to place at issue the nature and adequacy of the plaintiff's exercise of parental discretion.   This is precisely what the doctrine of parental immunity is designed to prevent ․ The purpose of the doctrine is to preserve the integrity and unity of the family and to avoid unnecessarily injecting the machinery of the state into the day-to-day exercise of parental discretion.”  (Citation omitted;  internal quotation marks omitted.)  Beverly v. Tarragon Management, Inc., supra, Superior Court, Docket No. CV 10–6006773.

In the present case, the defendants allege that Angelita “failed to properly supervise the minor plaintiff in that she failed to keep the minor plaintiff within her physical control;  that she failed to keep a proper lookout;  and that she failed to exercise reasonable care.”   Such an allegation is not permitted as a special defense under the doctrine of parental immunity.   Therefore, the motion to strike is granted.

Woods, J.

Woods, Glenn A., J.