Peter Barrett, Administrator of the Estate of Ryan O. Tillman v. Edward Dollinger et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 107

Pursuant to Practice Book § 10–39, et seq.   Defendants Arthur Dollinger and Elizabeth Dollinger (collectively, “Defendants”) move this court to strike as legally insufficient the Second and Third Counts of Plaintiff's operative Complaint dated September 28, 2011.   The Defendants argue the Second and Third Counts fail to allege any legally cognizable claim against Defendants because there is no legal duty to protect a third party, such as Plaintiff's Decedent, from the conduct of another, in the absence of a special relationship of custody or control.   The Defendants argue these counts fail to state viable claims in negligence as a matter of law.

The plaintiff opposes the motion to strike on the grounds that read favorably, the complaint alleges a failure of a duty to warn not subject to the requirement of alleging a special relationship.

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).  “[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 & Health Ins. Co. Of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”   (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. Of New York v. Better Benefits, LLC, supra, 292 Conn. 120.

This action involves the alleged fatal injury to Ryan Tillman by the co-defendant Edward Dollinger.   The Second and Third Counts are brought against Defendants Arthur Dollinger and Elizabeth Dollinger in negligence.   Those counts allege the Defendants knew or should have known that Edward Dollinger had threatened Tillman in the past and that the Defendants failed to supervise, restrain or monitor the situation.

The defendant argues his motion should be granted as the Second and Third Counts are devoid of factual allegations concerning any relationship between the Defendants and Edward Dollinger.   There were no allegations giving rise to a special relationship of custody or control.

In the absence of some special relationship of custody or control, there is no duty to protect a third person from the conduct of another.  Fraser v. United States, 236 Conn. 625, 632 (1996) (“Existing Connecticut precedents impose only a limited duty to prevent action to prevent injury to a third person ․ [A]bsent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another”) (citing 2 Restatement of Torts (Second) at § 315 (1965)) (additional citations and internal quotations omitted);  Kolodziej v. Durham Agricultural Fair Ass'n., Inc., 96 Conn.App. 791, 795 (2006) (same).   Here, Plaintiff does not allege any “special relationship” of custody or control between Defendants and Dollinger that would give rise to a legal duty on the part of Defendants.

There is also no special relationship here because the injuries claimed by Plaintiff were not reasonably foreseeable to the Defendants, based on the facts alleged.

In Connecticut there is no duty of care as alleged in Counts Two and Three without foreseeability of harm.   The lack of foreseeability, and the resulting refusal to impose a duty, is heightened when allegedly intentional or criminal acts, such as ones at issue here, intervene between the alleged conduct of the defendants, and the resulting claimed injury to plaintiffs.  Spencer v. Nesto, 46 Conn.Sup. 566, 574 (2000) [27 Conn. L. Rptr. 212] (“ ․ the act of a third person in committing an intentional tort or crime is a superseding cause of the harm to another resulting therefrom ․”);  Manheimer, 212 Conn. 759.

For the above stated reasons the court grants the defendant's motion to strike counts two and three of the plaintiff's complaint.

Brian T. Fischer, Judge

Fischer, Brian T., J.