William Leuze, Jr. v. Connecticut Rivers Council, Inc., Boy Scouts of America (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 112)

FACTS

On November 18, 2011, the plaintiff, William Leuze, Jr., filed his second amended complaint against the defendant, Connecticut Rivers Council, Inc., Boy Scouts of America.   This is an action to recover damages for personal injuries allegedly sustained by the plaintiff as a result of a fall from a bench that occurred on October 19, 2008 at Camp Tadma in Bozrah.   The second amended complaint alleges the following facts.   At the time of the incident, the plaintiff, an adult volunteer, was standing on a wooden bench hanging decorations for a “Haunted Woods” event to be held at the camp.   The plaintiff claims that the bench was unstable and caused him to fall and sustain serious injuries.   The first count of the second amended complaint alleges negligence against the defendant, while the second count alleges claims against the defendant pursuant to General Statutes § 19a–420, et seq., and Regs., Conn. State Agencies § 19–13–B27a(q).

On February 17, 2012, the defendant filed a motion to strike count two and a memorandum in support on the ground that it fails to state a legally sufficient cause of action.   On April 5, 2012, the plaintiff filed a memorandum in opposition.   This matter was heard at short calendar on April 9, 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, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ 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).   Nevertheless, “[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 defendant argues that count two of the second amended complaint is legally insufficient because § 19a–420, et seq., and Regs., Conn. State Agencies § 19–13–B27a(q) do not expressly or implicitly confer a private right of action to an individual.   In response, the plaintiff argues that § 19a–420, et seq., and Regs., Conn. State Agencies § 19–13–B27a(q) implicitly confer a private right of action to an individual.¹

Our Supreme Court has stated that there is a “well settled fundamental premise that there exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute.   In order to overcome that presumption, the [plaintiff bears] the burden of demonstrating that such an action is created implicitly in the statute ․ In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant.   First, is the plaintiff one of the class for whose ․ benefit the statute was enacted ․ ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?  ․ Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ․

“Consistent with the dictates of [General Statutes] § 1–2z, however, we do not go beyond the text of the statute and its relationship to other statutes unless there is some textual evidence that the legislature intended, but failed to provide expressly, a private right of action.   Textual evidence that would give rise to such a question could include, for example, language granting rights to a discrete class without providing an express remedy or language providing a specific remedy to a class without expressly delineating the contours of the right.”  (Internal quotation marks omitted.)  Perez–Dickson v. Bridgeport, 304 Conn. 483 (2012).

Section 19a–420 is a definitional section.²  Section 19a–422 provides in relevant part:  “Requirements for licensing of camps.   To be eligible for the issuance or renewal of a youth camp license ․ the camp shall satisfy the following requirements:  ․ (2) each dwelling unit, building and structure shall be maintained in good condition, suitable for the use for which it is put, and shall present no health or fire hazard as so certified by the department and the State Fire Marshal or local fire marshal, as indicated by a current fire marshal certificate dated within the past year and available on site when the youth camp is in operation;  (3) there shall be an adequate and competent staff, which includes the camp director or assistant director, one of whom shall be on site at all times the camp is in operation, activities specialists, counselors and maintenance personnel, of good character and reputation;  ․ (5) all hazardous activities, including, but not limited to, archery, aquatics horseback riding and firearms instruction, shall be supervised by a qualified activities specialist who has adequate experience and training in such specialist's area of specialty ․”

Section 19a–423 provides in relevant part:  “Disciplinary actions.   Due process and appeal procedures.   No review of denial of initial license applications. (a) The commissioner may take any of the actions authorized under subsection (b) of this section if the youth camp licensee ․ (4) fails to comply with the statutes and regulations for licensing youth camps;  ․ (8) fails to provide, maintain, equip and keep in safe and sanitary condition premises established for or used by the campers pursuant to minimum standards prescribed by the department or by ordinances or regulations applicable to the location of such facility ․”

Regs., Conn. State Agencies § 19–13–B27a(q) provides:  “General sanitation requirements.   The camp site shall be owned by the operator or the operator shall have a written lease giving permission to use the site for a youth camp.   The location of the camp shall be such as to provide for adequate drainage of all areas occupied by campers, the food preparation and service area and other activity areas.   Buildings shall be maintained in a safe and sanitary condition.   When the state department of health or the local director of health so directs, a certificate of approval shall be obtained from the local or state fire marshal.   All hot water and space heaters shall be properly located and vented.”

None of the above statutes or regulations expressly confer a private right of action to an individual.   Therefore, no such action can be brought unless the plaintiff can satisfy the three-part test used to imply a private right of action.   See Perez–Dickson v. Bridgeport, supra, 304 Conn. 483.   In the present case, the test cannot be satisfied because the first prong requires that the plaintiff is “one of the class for whose ․ benefit the statute was enacted.”  Id. Here, the statutes and regulations cited to by the plaintiff were enacted to benefit and protect youth campers from unsafe campsites.   For example, the requirement that “each dwelling unit, building and structure shall be maintained in good condition ․ as indicated by a current fire marshal certificate dated within the past year and available on site when the youth camp is in operation “by its own terms is designed to protect campers from health and fire hazards while they are attending a youth camp.  (Emphasis added.)  General Statutes § 19a–422(2).   The plaintiff cites to other statutes and regulations that create similar responsibilities on the part of a campsite to protect its campers, not the public or other individuals who happen to be on the campsite like the plaintiff, who was an “adult Scout volunteer.”   (Second Amended Complaint, ¶ 8.) ³  Moreover, the camp was not participating in typical camp activities at the time of the plaintiff's accident, such as “archery, aquatics, horseback riding and firearms instruction” that required special supervision; ⁴  rather, the camp was participating in a “Haunted Woods” event.   The plaintiff is not one of the class for whose benefit the statutes or regulations were enacted.   Consequently, no private right of action can be implied.   The court does not need to consider the remaining factors because the first one cannot be satisfied.

CONCLUSION

For the foregoing reasons, it is submitted that the defendant's motion to strike count two should be granted.

Cosgrove, J.

FOOTNOTES

FN1. In his memorandum in opposition, the plaintiff also argues that he is asserting a claim for breach of contract concerning the premises (the youth camp) upon which the incident occurred.  “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Meyers v. Livingston, Adler, Pulda, Meiklejohn and Kelly, P.C., 134 Conn.App. 785, 790 (2012).   There is no allegation in the second amended complaint that there was an agreement between the parties.   Accordingly, the plaintiff cannot maintain a cause of action for breach of contract..  FN1. In his memorandum in opposition, the plaintiff also argues that he is asserting a claim for breach of contract concerning the premises (the youth camp) upon which the incident occurred.  “The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Meyers v. Livingston, Adler, Pulda, Meiklejohn and Kelly, P.C., 134 Conn.App. 785, 790 (2012).   There is no allegation in the second amended complaint that there was an agreement between the parties.   Accordingly, the plaintiff cannot maintain a cause of action for breach of contract.

FN2. Section 19a–420 provides definitions for the following words:  “Youth camp,” “Resident camp,” “Day camp, “Person,” “Commissioner” and “Department.”.  FN2. Section 19a–420 provides definitions for the following words:  “Youth camp,” “Resident camp,” “Day camp, “Person,” “Commissioner” and “Department.”

FN3. Paragraphs one through fifteen are incorporated by reference into count two..  FN3. Paragraphs one through fifteen are incorporated by reference into count two.

FN4. General Statutes § 19a–422(5)..  FN4. General Statutes § 19a–422(5).

Cosgrove, Emmet L., J.