Elizabeth Whalen v. Companions & Homemakers, Inc. (2012)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

This four-count complaint seeks damages against defendant Companions & Homemakers, Inc. (“Companion”) and its employee, Rosina Addow, for various thefts and attempted thefts committed by Addow who was assigned to be plaintiff's live-in companion.

On July 12, 2011, Companion filed this motion to strike counts two (negligence) and four (respondeat superior) of the complaint on the ground that they are legally insufficient.

-I-

Companion argues that count two of the complaint should be stricken because it does not allege that Companion knew or should have known that its employee had a propensity to engage in the alleged misconduct.   The plaintiff argues that count two is legally sufficient because Companion owed the plaintiff a duty in that it was foreseeable that the plaintiff could have been harmed as a result of Companion's insufficient screening, training and supervision of employees and potential employees.   The plaintiff further argues that Companion owed a duty to exercise care in selecting and assigning caretakers because it places employees in positions of care for incapacitated clients.

It is well settled that a defendant cannot be held liable for its alleged negligent hiring, training, supervision or retention of an employee accused of wrongful conduct unless it had notice of said employee's propensity for the type of behavior causing the plaintiff's harm.   Lara v. Legionaries of Christ, Superior Court, judicial district of Hartford, Docket No. CV 10 6016974 (August 30, 2011, Miller, J.).

In the present case, the plaintiff alleges that Companion failed to adequately screen, train and supervise employees, but the complaint contains no allegation that Companion knew or should have known of the employee's propensity for the type of behavior alleged to have caused the plaintiff's injury.   There is no special exception for circumstances in which an employer placed an employee in a position to care for an incapacitated person.

Motion to strike count two is granted.

-II-

Companion claims that count four, alleging liability against the plaintiff based on the doctrine of respondeat superior, is legally insufficient because the plaintiff has not alleged, and cannot allege, that Addow's actions were undertaken in the course of her employment or in furtherance of Companions & Homemakers' business.   The plaintiff counters that Companions & Homemakers may be liable because Addow was acting in the course of Companions & Homemakers' business and did not abandon her role as a caregiver.

While an employer generally is liable for intentional torts committed by his employees to the same extent that he is liable for damages arising out of the negligent or reckless conduct of those employees.  Matthiessen v. Vanech, 266 Conn. 822, 839, 840 n.16, 836 A.2d 394 (2003).   However, “in order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer's business ․ [I]t must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply.”  A–G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990).

The plaintiff alleges that Addow accessed or attempted to access the plaintiff's bank accounts as well as attempting to set up bank accounts in the plaintiff's name;  and that she had stolen her personal information, including her social security card, credit cards and bank account information.   These allegations, however, run entirely contrary to the alleged purpose of the service Companions purports to provide.   Further, there is no allegation in the complaint that Companions gained or could have gained anything from Addow's actions or that Addow was acting in furtherance of Companion's business.   Since the plaintiff has failed to state a legally sufficient claim for liability under respondeat superior the motion to strike count four is granted together with the motion to strike count two.

Wagner, J.T.R.

Wagner, Jerry, J.T.R.