Sophia Flores v. Yolanda Alvarez et al. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 111.00)

FACTS

On August 17, 2011, Sophia Flores,¹ through her appointed guardian, parent and next best friend, Magda Salazar, filed a three-count complaint against the following defendants:  Yolanda Alvarez, First Student Inc., and the Stamford Board of Education.   The guardian Salazar makes the following allegations.   On July 15, 2009, the plaintiff was waiting for the school bus to pick up her brother at her home in Stamford.   The school bus was being operated by Alvarez, the defendant driver, and was owned by First Student Inc., the defendant owner.   The school bus proceeded to stop on the side of the street opposite from the plaintiff's home and opposite from where she and her brother were standing.   Salazar had requested repeatedly to the defendant driver and the defendant board of education, through its school, Westover School, that the defendant driver stop parking on the opposite side of the street.   As the plaintiff began to cross the street with her brother to take him to the school bus, a vehicle passed the school bus and struck the plaintiff, propelling the plaintiff into the air approximately seven feet.

In Salazar's first count, sounding in negligence against the defendant driver, she alleges that the collision was caused by the negligence of the defendant driver in that she failed:  (1) to activate her stopping signal system;  (2) to park her bus adjacent to the plaintiff's residence;  and (3) to warn the plaintiff adequately of oncoming vehicles.   Salazar further alleges that as a direct result of the negligence and carelessness of the defendant driver, the plaintiff has suffered severe and extensive physical and psychological injuries, resulting in financial loss, inability to enjoy fully life's activities and continuing pain and suffering.

Salazar's second count sounds in negligent supervision and vicarious liability against the defendant owner and alleges that the defendant owner was negligent in failing to train, manage and supervise adequately the defendant driver, thereby directly causing the aforementioned injuries and damages to the plaintiff, and that the defendant driver was an employee and/or agent of the defendant owner.   The third count sounds in negligent supervision and vicarious liability against the defendant board and likewise alleges that it was negligent in failing to manage and supervise adequately the defendant owner and the defendant driver, thereby directly causing the plaintiff's aforementioned injuries and damages, and that at all times the defendant owner and the defendant driver were acting as an employee and/or agent of the defendant board.

On January 19, 2012, the defendants filed a motion to strike Salazar's complaint on the ground that the plaintiff was not a member of the class to whom the defendants owed a duty at the time and place of the incident.   The defendants filed a memorandum of law in support of their motion, to which Salazar filed a memorandum in opposition.   The matter was heard on the short calendar on February 6, 2012.

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).  “In ruling on a motion to strike, the count is limited to the facts alleged in the complaint.”   Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)   Id., 588.  “It is fundamental that in 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 ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).   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, 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 defendants argue that the plaintiff was not within the class of persons to whom the defendants owed a duty at the time of the incident.   The defendants contend that, pursuant to General Statutes § 52–557c, the standard of care applicable to a school bus operator is that of a common carrier of private passengers.   The defendants maintain that a common carrier operator does not owe a duty to non-passengers.   The defendants reason that because the plaintiff was not a scheduled student for bus services on the bus being driven by the defendant driver and because the plaintiff never had any intentions of entering the bus for transport to Westover School, she was not owed a duty by a common carrier and, therefore, was not a member of the class whom Section 52–557c was designed to protect.

Salazar agrees that the standard of care of school bus operators is that of a common carrier of private passengers.   Nevertheless, Salazar contends that a special relationship between the plaintiff and the defendant driver was created when Salazar repeatedly told the defendant driver and the defendant board, through Westover School, that the defendant driver needed to stop on Salazar's side of the street when picking up the plaintiff's handicap brother because of the inherent dangers in a “handicap” child crossing a busy street.   Salazar argues that Westover School knew that the plaintiff's brother was handicap and knew or should have known that the plaintiff's brother would be assisted by family members in crossing a busy street.   While these arguments are made, in fact there is no allegation in the complaint that plaintiff's brother was “handicap” or that the brother's handicap required the plaintiff to assist the brother in crossing the street.   Therefore the condition of the brother is not relevant to the disposition of this motion.   Faulkner, supra, 240 Conn. 580.

COUNT ONE:  NEGLIGENCE OF THE DEFENDANT DRIVER

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action ․ Thus, [t]here can be no actionable negligence ․ unless there exists a cognizable duty of care.”  (Internal quotation marks omitted.)  Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007).  “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand ․ We have stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ․ The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy.”  (Internal quotation marks omitted.)   Neuhaus v. DeCholnoky, 280 Conn. 190, 217–18, 905 A.2d 1135 (2006).

“[The] first step in an analysis of whether a duty exists and the extent of the defendant[s'] duty ․ is to determine the foreseeability of the plaintiff [s'] injury ․ It is a well established tenet of our tort jurisprudence, however, that [d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable ․ [A] defendant [is] not required to take precautions against hazards [that are] too remote to be reasonably foreseeable ․ Due care is always predicated on the existing circumstances.”  (Citations omitted;  internal quotation marks omitted.)   Lachowicz v. Rugens, 119 Conn.App. 866, 869, 989 A.2d 651, cert. denied, 297 Conn. 901, 994 A.2d 1287 (2010).  “The requisite duty to use care may stem from a contract, from a statute, or from circumstances under which a reasonable person would anticipate that harm of the general nature of that suffered was likely to result ․ Negligence cannot be predicated upon the failure to perform an act which the actor was under no duty or obligation to perform.”  (Citation omitted.)  Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 45, 492 A.2d 219 (1985).

Application of the foregoing principles is not precluded simply because an individual might also be held to a heightened duty standard.   Because a bus driver and the owner of the bus owe the same duty of care as common carriers of passengers for hire;  see § 52–557c; ²  does not mean that the bus driver and owner are not also held to an ordinary standard of care under general negligence principles.   For instance, in Townsend v. First Student Transportation, Superior Court, judicial district of New Haven, Docket No. CV 095032414 (September 13, 2010, Corradino, J.T.R.) (50 Conn. L. Rptr. 607), a bus collided with the plaintiff, a non-passenger pedestrian who ran into the street.   The plaintiff sustained injuries after falling under the rear wheels of the bus, which proceeded to drive over his legs, and he sued the bus driver and the driver's employer.   The issue was whether the bus driver owed the plaintiff a duty given that General Statutes §§ 14–300c(b) and (e) state that “a pedestrian shall not suddenly leave a curb to enter the street and that pedestrians crossing a street at any point other than within a crosswalk shall yield the right of way to vehicles.”  Id., 608.   In denying the defendants' motion for summary judgment, the court applied ordinary negligence principles to the defendants without even addressing the question of whether the bus driver could be held liable to the plaintiff as a common carrier.  “[E]ven where a pedestrian is not in the crosswalk the driver still has some duty of care to try to avoid colliding with jaywalkers, people dashing across streets, etc ․ [B]oth driver and pedestrian must exercise care commensurate with the danger involved.”  (Citation omitted;  internal quotation marks omitted.)   Id. Thus, the court examined the bus driver's duty to pedestrians under the ordinary standard of care of negligence law, without ever analyzing whether the bus driver's duty as a common carrier also applied.

It would be incorrect for the court in this case to hold, as the defendants urge, that the defendant driver, even though held to a heightened standard of care as a common carrier;  see Josephson v. Meyers, 180 Conn. 302, 305, 429 A.2d 877 (1980);  owed no duty to the plaintiff because she was a non-passenger, whereas if the defendant driver simply happened to be a non-common carrier driver, the court would be required to analyze whether the defendant driver owed the non-passenger a duty under the ordinary, two-part duty test.   The court declines to work such an inconsistent result and, therefore, will proceed to analyze the defendant driver's duty under the ordinary standard of care of general negligence law, just as Judge Corradino did in Townsend.

General Statutes § 14–277(a) provides in relevant part:  “[T]he operator of any school bus, when about to bring his bus to a stop to receive or discharge passengers, shall signal his intention to do so by causing the flashing signal lights to be displayed for not less than fifty feet before he brings the bus to a stop so as to be clearly visible to the operator of any oncoming or overtaking vehicle or motor vehicle ․ The operator of any school bus, having brought his vehicle to a stop, shall not open the door to receive or discharge passengers until all vehicles approaching from the front and overtaking from the rear have stopped in compliance with the indicated signal to stop.   The operator of any school bus equipped with amber flashing signal lights and a stop semaphore, having brought his vehicle to a stop, shall cause the red flashing lights to be displayed and the stop semaphore to be extended and shall not open the door until all vehicles approaching from the front and overtaking from the rear have stopped in compliance with the indicated signal to stop ․” Given the detailed statutory procedures that bus drivers must follow in receiving and discharging passengers, the statute contemplates that an ordinary person in the position of a bus driver should anticipate that individuals crossing the street and those accompanying that individual in crossing the street are subject to harm from approaching cars.   Given that a bus driver must take specific precautions before stopping and opening its doors to receive passengers, it is reasonably foreseeable to a bus driver that an individual accompanying a student in crossing the street to enter the bus is subject to harm from oncoming vehicles.

In this case, Salazar has alleged sufficient facts to sustain a claim that the defendant driver owed a duty to the plaintiff by the sheer fact that the plaintiff was accompanying her brother (whatever his condition) across the street to enter the bus.   It is reasonably foreseeable to a bus driver in the position of the defendant driver that anyone crossing the street is subject to danger by approaching vehicles.   The foreseeability of this danger is heightened if, as alleged, a bus driver fails to activate the statutorily-mandated stopping signal system under § 14–277(a).   Indeed, Salazar alleges that the defendant driver failed to activate her stopping signal system.³  Accordingly, Salazar has alleged sufficient facts to bring a negligence claim, and the court denies the defendants' motion to strike Salazar's first count.

COUNTS TWO AND THREE:  NEGLIGENT SUPERVISION AND VICARIOUS LIABILITY

“Under Connecticut law, an employer may be held liable for the negligent supervision of employees.”  Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004).  “A cause of action in negligent supervision requires pleading and proving that the defendant had a duty to supervise and knew or should have known that a particular behavior would have caused injury of the general nature of the kind suffered by the plaintiff.”   Faggio v. Brown, Superior Court, judicial district of Middlesex, Complex Litigation Docket No. X04 CV 054003488 (June 12, 2007, Beach, J.) (43 Conn. L. Rptr. 643, 647).  “The majority of Superior Court decisions ․ have required the plaintiff in a negligent supervision action to plead and prove injury by the defendant's negligence in failing to properly supervise an employee who the defendant had a duty to supervise and who the defendant knew or should have known would cause the injury ․ Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of foreseeability.”   Seda v. Maxim Healthcare Services, Superior Court, judicial district of Hartford, Docket No. CV 07 5010811 (April 8, 2008, Elgo, J.).

In this case, Salazar alleges in her second count that the defendant owner, First Student Inc., negligently failed to train, manage and supervise adequately the defendant driver, and further alleges in her third count that the defendant school board failed to manage and supervise adequately the defendant owner and the defendant driver.   Regarding the second count, Salazar never alleges that the defendant owner had a duty to supervise the defendant driver or that the defendant owner knew or should have known that the defendant driver would likely cause injury to the non-passenger plaintiff through her negligence.   As to the third count, Salazar fails to allege that the defendant board had a duty to supervise the defendant driver or the defendant owner, or that the defendant board knew or should have known that the defendant driver or the defendant owner would likely cause injury to the plaintiff through their negligence.   Accordingly, the plaintiff has failed to allege sufficient facts to assert a cause of action for negligent supervision.

The plaintiff's second and third counts also sound in vicarious liability under the doctrine of respondeat superior.  “[U]nder the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment.”  (Emphasis in original.)  Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003).  “A master is liable only for those torts of his servant which are done with a view of furthering his master's business within the field of this employment—for those which have for their purpose the execution of the master's orders or the doing of the work assigned to him to do.”  (Internal quotation marks omitted.)  Brown v. Housing Authority of New Haven, 23 Conn.App. 624, 628, 583 A.2d 643 (1990), cert. denied, 217 Conn. 808, 585 A.2d 1233 (1991).  “[A] fundamental premise underlying the theory of vicarious liability is that an employer exerts control, fictional or not, over an employee acting within the scope of employment, and therefore may be held responsible for the wrongs of that employee.”  Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n.16, 849 A.2d 813 (2004).  “[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.”  (Internal quotation marks omitted.)  A–G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990).  “Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable.”  (Internal quotation marks omitted.)  Id., 210.

In this case, Salazar alleges in her second count that at all times the defendant driver was an employee and/or agent of the defendant owner.   Similarly, Salazar's third count alleges that at all times the defendant owner and the defendant driver were acting as an employee and/or agent of the defendant board.   Although these allegations sound in vicarious liability under the doctrine of respondeat superior, the plaintiff never alleges that the defendant driver or the defendant owner were acting within the scope of their employment at the time of the alleged incident.  “While it appears that where one alleges that an actor is an ‘employee and agent’ of another, it may not be necessary to specifically state that one is proceeding in reliance upon the doctrine of respondeat superior, since the complaint must be construed in the manner most favorable to sustaining its legal sufficiency ․ this does not eliminate the requirement that one plead all the requisite elements of the cause of action, although it may be unnecessary to specifically plead that the claim is one sounding in respondeat superior.”  (Citation omitted;  emphasis added;  internal quotation marks omitted.)   Vasudevan v. Pragosa, Superior Court, judicial district of Hartford, Docket No. CV 05 4012416 (January 23, 2006, Keller, J.) (40 Conn. L. Rptr. 617, 618).   Therefore, the plaintiff has failed to allege sufficient facts to bring a cause of action for vicarious liability under the doctrine of respondeat superior, and the court grants the defendants' motion to strike the second and third counts of Salazar's complaint.

CONCLUSION

For the foregoing reasons, the court denies the defendants' motion to strike Salazar's first count and grants the defendants' motion to strike Salazar's second and third counts.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. Hereinafter, Sophia Flores will be referred to as “the plaintiff.”.  FN1. Hereinafter, Sophia Flores will be referred to as “the plaintiff.”

FN2. Section 52–557c provides in relevant part:  “The standard of care applicable to the owners and operators of any school bus ․ or of any motor vehicle registered as a service bus transporting children to and from school or school activities ․ shall be the same as the standard of care applicable to common carriers of passengers for hire.”.  FN2. Section 52–557c provides in relevant part:  “The standard of care applicable to the owners and operators of any school bus ․ or of any motor vehicle registered as a service bus transporting children to and from school or school activities ․ shall be the same as the standard of care applicable to common carriers of passengers for hire.”

FN3. The court is not holding, as a matter of law, that the plaintiff has alleged sufficient facts to sustain a claim against the defendant driver for negligence per se under § 14–277(a), and because the plaintiff's first count sounds in negligence rather than negligence per se, the court need not address whether the plaintiff has alleged sufficient facts to bring a cause of action for negligence per se.   The court cites § 14–277(a) simply to confirm that Salazar has alleged sufficient facts to maintain that the defendant driver owed a duty to the plaintiff..  FN3. The court is not holding, as a matter of law, that the plaintiff has alleged sufficient facts to sustain a claim against the defendant driver for negligence per se under § 14–277(a), and because the plaintiff's first count sounds in negligence rather than negligence per se, the court need not address whether the plaintiff has alleged sufficient facts to bring a cause of action for negligence per se.   The court cites § 14–277(a) simply to confirm that Salazar has alleged sufficient facts to maintain that the defendant driver owed a duty to the plaintiff.

Adams, Taggart D., J.T.R.