Marianne Berthiaume, Administratrix of the Estate of Rayond Berthiaume v. LLC (2013)

MEMORANDUM OF DECISION

This matter is before the court concerning the defendant's motion for summary judgment (# 116).   In support of its motion, the defendant argues that the plaintiff has not disclosed a medical expert to establish the standard of care and, because this case was not properly brought as a medical malpractice claim, it must be dismissed.   As to the plaintiff's breach of contract claim, the defendant asserts that the plaintiff cannot couch claims for personal injury in contract garb.

In response, the plaintiff contends that her first count is not a medical malpractice claim;  instead, it is an ordinary negligence claim.   As to the second count, the plaintiff argues that she has alleged a simple breach of contract claim and damages.

The court heard oral argument concerning the motion for summary judgment on July 1, 2013.   After consideration and for the reasons stated below, the motion for summary judgment is granted in part and denied in part.

I

Background

In her two-count complaint, the plaintiff alleges that the defendant, Day–Break at Waterbury, LLC (Day–Break) operated an adult day care center in Waterbury, Connecticut for persons with cognitive and memory impairments/disorders.   She alleges that in June 2007, Raymond Berthiaume (Berthiaume) entered into an agreement with Day–Break to provide adult day care services to him and he was accepted as a participant.   The plaintiff alleges that DayBreak had knowledge that he had cognitive impairments, including confusion and short-term memory deficits.   See complaint, first count, ¶ 4.

The plaintiff further alleges that, on August 18, 2009, Day–Break transported Berthiaume from his home to its facility in the usual fashion, and, upon exiting the transport vehicle, Berthiaume “walked away unnoticed and without supervision from the facility to the nearby Dunkin Donuts where he fell in the parking lot.”   See complaint, first count, ¶ 6.   It is alleged that Berthiaume suffered a hip fracture, necessitating a hip replacement, and other injuries.

The plaintiff alleges that Berthiaume's injuries were a result of Day–Break's negligence, including:  failure to monitor/supervise participants while exiting the transport to assure safe passage into the facility;  failure to protect him from harm, accident and injury upon his arrival at the facility and his exit from the transport;  failure to provide a safe zone for his arrival;  failure to provide adequate staffing to meet his needs on arrival at the facility and exit from the transport;  failure to train its staff on appropriate measures to avoid elopement and/or wandering of participants so as to avoid their unsupervised and/or unassisted and/or unnoticed departure from the facility;  and failure to develop and maintain appropriate policies and/or protocols and/or guidelines for its staff so as to prevent elopement and/or wandering of participants so as to avoid their unsupervised and/or unassisted and/or unnoticed departure from the facility.   See complaint, first count, ¶ 8.

In the second count, the plaintiff alleges that Day–Break breached its agreement with Berthiaume, which included Terms of Participation.   In paragraph 5, the plaintiff alleges that the Terms of Participation required completion of an individual plan of care.   In paragraph 10, the plaintiff alleges that Day–Break breached the Terms of Participation/Plan of Care, in that it failed to maintain him free from fracture and injury.   The same fall and injuries alleged in the first count are alleged to have resulted from the breach of contract.

In support of its motion, Day–Break submitted affidavits and exhibits.   Its chief operating officer avers that Day–Break provides medical supervision and employs licensed nurses who utilize professional judgment to assess medical conditions and the necessary level of care and attention for specific patients.   See affidavit of Rephael Max, ¶ 7.   In paragraph 10 of his affidavit, Max avers that Day–Break provides “specialized transportation services depending on the medical needs of the individual.   The medical needs and transportation requirements are assessed by our nurses during the intake process and throughout their participation in the program.”   See also affidavit of Jo–Ann Doner, former Day–Break nurse, ¶ 8 (same).

Both parties cite the deposition testimony of Day–Break's transport driver, Herminio Acevedo.   Acevedo testified that he is employed at Day–Break as a bus driver.   See Acevedo deposition, pp. 8–9.   He described his job as involving picking up Day–Break clients at their houses, bringing them to the bus, and making sure they sit down and buckle up.   See Acevedo deposition, p. 20.  “When I just get them to Day–Break, I just stand by the door of the bus, whoever need assistance because some of them don't, some of them reject it, I just help to get from the bus to the building.   That's my job.”   See Acevedo deposition, p. 20.   His job included making sure they got into the building according to the schedule.   See Acevedo deposition, p. 21.

Acevedo was instructed to beep the horn when he picked up Berthiaume at his house.   See Acevedo deposition, p. 25.   Acevedo testified that he became aware that Berthiaume had dementia by using Acevedo's common sense, since he was instructed that he could not leave Berthiaume by himself going into the house if no one was there.   See Acevedo deposition, pp. 40–42.

In addition, Acevedo testified that, on two or three prior occasions, Berthiaume wandered off the bus while he was helping another passenger into the Day–Break building.   See Acevedo deposition, p. 31.

When bringing a passenger into the building, Acevedo did not see it as necessary to close the bus door so other passengers could not get off.   See Acevedo deposition, p. 34.   Instead, he instructed passengers to stay put.   See Acevedo deposition, p. 34.   When Acevedo needed help getting passengers into the building he would call the building and other Day–Break staff would help him.   See Acevedo deposition, p. 52.   He did not see the need for help on the date of the alleged incident.   See Acevedo deposition, p. 52.

On the date of the alleged incident, he took another passenger inside the building and, when he came out, he learned that Berthiaume had fallen in the Dunkin Donuts parking lot.   See Acevedo deposition, pp. 36–37.

Additional references to the factual background are set forth below.

II

Standard of Review

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.”  (Internal quotation marks omitted.)  Rodriguez v. Testa, 296 Conn. 1, 6–7, 993 A.2d 955 (2010).

“When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).

“The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

III

DiscussionA

Day–Break asserts that this case sounds in medical negligence and that the alleged negligence is the failure to identify Berthiaume as a wandering risk due to his medical condition and to provide him with proper oversight.   The court further summarizes Day–Break's contentions by quoting from its reply (# 124), page 2:  “The undisputed material facts are that ․ Berthiaume received specialized medical supervision from Day–Break, a medical model adult day care.   The professional judgment of Day–Break's licensed nurses was used to make decisions about the level of care and supervision necessary for Mr. Berhtiaume.   These medical decisions influenced the supervision during transportation provided to Mr. Berthiaume.   Plaintiff alleges that Mr. Berthiaume fell when he wandered away from the transport bus as a symptom of his dementia.   Medical negligence is alleged in that Defendant left Mr. Berthiaume unsupervised when it should have known that due to his medical condition he was prone to wandering.   The failure to make this assessment and implement proper supervision is alleged medical malpractice.”

Day–Break argues that the alleged negligence is related to Berthiaume's medical diagnosis and involved the exercise of medical judgment, concerning whether he was a risk due to dementia, and the level of oversight required.   Citing Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 357, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001), Day–Break contends that the plaintiff's case requires a medical expert, and, since the plaintiff failed to attach a good faith certificate, as required by General Statutes § 52–190a, the plaintiff cannot introduce a medical expert and, therefore, cannot get to a jury.

“[T]he grant[ing] of a motion to dismiss ․ is the proper statutory remedy for deficiencies under § 52–190a.”  (Internal quotation marks omitted.)   Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).   “[T]he failure to provide a written opinion letter ․ constitutes insufficient process, which implicates personal jurisdiction over the defendant.”  (Internal quotation marks omitted.)  Id., 351.   Since the defendant did not move to dismiss within the time afforded under the Practice Book, its argument concerning lack of compliance with § 52–190a was waived.   See Morgan v. Hartford Hospital, 301 Conn. 388, 401–04, 21 A.3d 451 (2011).

A good faith certificate is not required in cases against health care providers which sound in ordinary negligence.   See Kelly v. Bridgeport Health Care Center, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 10 6007389 (September 2, 2010, Tobin, J.) (50 Conn. L. Rptr. 582, 585) (since complaint sounded in ordinary negligence and recklessness as opposed to medical malpractice, plaintiffs were not obligated to file a good faith certificate or a written opinion from a similar health care provider pursuant to § 52–190a);  in contrast, see Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 364 (plaintiff's claim against medical professionals with whom she had a medical professional-patient relationship involved negligent act or omission during an activity that was substantially related to her treatment;  as such, certificate of good faith pursuant to § 52–190a was required).

“As [the Supreme Court] explained in Gold v. Greenwich Hospital Assn., 262 Conn. 248, [254–55,] 811 A.2d 1266 (2002), ‘[t]he classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred.  [P]rofessional negligence or malpractice ․ [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services ․ Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] ․ the failure to exercise requisite medical skill ․ From those definitions, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment ․” (Emphasis in original;  internal quotation marks omitted.)  Jarmie v. Troncale, 306 Conn. 578, 587–88, 50 A.3d 802 (2012), citing Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 357–58.

In the present case, Day–Break argues that the allegations involve medical issues regarding the level of supervision required of Berthiaume and that expert testimony is necessary to determine the applicable standard of care and, therefore, the plaintiff's claims sound in medical malpractice.  “Medical malpractice claims do not necessarily require expert testimony.   Although a court requires expert testimony to establish the relevant standard of care in most cases;  ․ [s]ome aspects of a medical malpractice action are considered to be within the realm of a jury's knowledge ․ and, thus, do not require expert testimony.   The characterization of a claim as ordinary negligence or medical malpractice, therefore, does not turn on whether expert testimony is required.”  (Citations omitted;  internal quotation marks omitted.)  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 360.

The court notes, however, that expert testimony as to Berthiaume's condition may be helpful to establish allegations of ordinary negligence because such testimony may provide the trier of fact with evidence of his condition relevant to the extent to which he should have been supervised.   See Badrigian v. Elmcrest Psychiatric Institute, 6 Conn.App. 383, 386–87, 505 A.2d 741 (1986).   “[M]edical testimony may be appropriate as to whether the suspected illness or symptomology of [Berthiaume] was such as to produce particular risks ․ Such limited testimony ․ does not, however, convert an ordinary negligence case into a medical malpractice claim.”   Mason v. Rockville General Hospital, Superior Court, judicial district of Tolland at Rockville, Docket No. 98 068416 (January 19, 2000, Sullivan, J.) [26 Conn. L. Rptr. 239].   Accordingly, the likelihood of expert testimony does not necessitate a finding that the plaintiff's claims sound in medical malpractice.

The court in Trimel used a Supreme Court case, Levett v. Etkind, 158 Conn. 567, 573, 265 A.2d 70 (1969), and an Appellate Court case, Badrigian v. Elmcrest Psychiatric Institute, Inc., supra, 6 Conn.App. 383, to illustrate the distinction between allegations that constitute medical malpractice and those that sound in ordinary negligence.   The court in Levett held that, when a person is in a physician's office as a patient, the determination of whether the patient needed help disrobing and what course of conduct to pursue called for a medical judgment on the part of the physician predicated on his knowledge of her physical and mental condition on that day.   See Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 361.   On the other hand, in Badrigian, the court held that an outpatient on his lunch break from scheduled treatment who was encouraged to cross a highway to get lunch at the facility's cafeteria and was subsequently struck and killed by a passing automobile sounded in ordinary negligence, not medical malpractice.   See Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, supra, 61 Conn.App. 363.  “The mere fact that the treatment facility encouraged the patient to eat at its facility, which was designed in such a way as to require patients to cross a major highway, did not make meals a part of the treatment and thereby transform the claim into one sounding in medical malpractice.   The facility in Badrigian owed a duty to any customer to provide a safe facility, not just to patients, and in failing to do so the plaintiff properly asserted a claim of ordinary negligence.”  Id.

The present case is more analogous to Badrigian than Levett.   Here, as in Badrigian, the alleged negligence was not of a specialized medical nature and did not occur during medical treatment.   The alleged negligence was not substantially related to medical diagnosis or treatment, involving the exercise of medical judgment.

Thus, the circumstances here differ from those in other cases cited by Day–Break.   For example, in Consiglio v. Streeto, Superior Court, judicial district of New Haven, Docket No. CV 06 5001967 (March 24, 2009, Lager, J.) (47 Conn. L. Rptr. 387), the plaintiff was admitted to a hospital for abdominal pain and gastrointestinal bleeding, was noted to be dizzy, and received medications for pain and anxiety.  “The manner in which the hospital treated him for his medical conditions, the way in which his medications were administered and any decisions it made regarding his capacity to ambulate unsupervised within and without the hospital, involved the exercise of medical judgment ․ Moreover, Consiglio was admitted as an inpatient to the hospital for the purposes of treatment and the underlying premise of his claim is that walking around unsupervised was contraindicated due to his diagnosed medical conditions and the treatment that the hospital was administering to him for those conditions.”  (Citations omitted;  footnote omitted;  internal quotation marks omitted.)  Id. Thus, there, the decision regarding a hospital in-patient's capacity to ambulate involved medical judgment.   In contrast, here, a bus driver's decision to leave Berthiaume alone outside Day–Break's facility did not involve medical judgment.

Similarly unavailing is Day–Break's reliance on Jefferson v. Waveny Care Center, Inc., 52 Conn.Sup. 254, 40 A.3d 825 (2010), affirmed per curiam, 134 Conn.App. 727, 39 A.3d 1239, cert. denied, 305 Conn. 925, 47 A.3d 884 (2012).   There, the trial court, citing the second consideration set forth in Gold v. Greenwich Hospital Assn., supra, 262 Conn. 254, stated, “[T]here is no real material fact in issue that the alleged negligence was of a specialized medical nature and arose out of a medical professional-patient relationship ․ [T]he allegations of negligence arise from the prevention and treatment of pressure ulcers and the treatment of [Methicillin-resistant Staphyloccus Aureus (MRSA) ]. There is no question these are medical conditions, and therefore the claims are of a specialized medical nature because they directly involve the plaintiff's medical condition.”  Jefferson v. Waveny Care Center, Inc., supra, 52 Conn.Sup. 262–63.   Berthiaume was not receiving medical treatment when Acevedo transported him to Day–Break's facility.

Similarly, Sullivan v. Manchester Memorial Hospital, Superior Court, judicial district of Hartford, Docket No. 00 0598429 (January 8, 2001, Wagner, J.) (28 Conn. L. Rptr. 704), involved the plaintiff's allegations that “at age 87 she was admitted to defendant hospital for observation following complaints of an intermittent confusion, walking difficulty and general weakness and the next morning she was negligently permitted to sit on the edge of her bed, alone, whereupon she fell causing her injuries.”   The court concluded that the allegations of negligence concerning the plaintiff, who was admitted for a CT scan and physical therapy evaluation, required expert testimony on the standard of care and sounded in medical malpractice.   There, the plaintiff was admitted to a hospital for the purpose of medical diagnosis related to confusion, walking difficulty, and weakness.   In contrast, here, when the incident occurred, Berthiaume had not been admitted to a hospital for observation and diagnosis of medical conditions.   The alleged negligence here involved supervision during transport to Day–Break's facility.

Day–Break's reliance on Ferrara v. St. Joseph's Living Center, Superior Court, judicial district of New London at Norwich, Docket No. CV 97 0112858 (December 16, 1998, Hurley, J.T.R.) (23 Conn. L. Rptr. 567), is also unavailing.   There, the court determined that an alleged failure to lock wheelchair wheels or apply wheelchair break locks was “merely negligence” and also that the alleged negligent supervision of the plaintiff was an allegation of ordinary negligence.  Id.

Also, in Likier v. Sunrise Senior Services, Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. CV 06 5008024 (October 12, 2007, Thompson, J.), cited by Day–Break, the complaint sounded in medical malpractice where the plaintiff alleged that the healthcare facility's negligent acts were directly related to its responsibility to monitor the decedent's medications and medical condition, thereby satisfying the third consideration set forth in Gold v. Greenwich Hospital Assn., supra, 262 Conn. 254.   Here, as discussed above, the alleged negligence of the bus driver was not so related.

The alleged facts in Kelly v. Bridgeport Health Care Center, Inc., supra, Superior Court, Docket No. CV 10 6007389, provide a useful illustration.   There, the plaintiff alleged that “the decedent was confined to a wheelchair and was admitted to Bridgeport Manor suffering from dementia, periods of confusion, memory loss and forgetfulness ․ Over the next year, the decedent repeatedly tried to leave the facility unsupervised, causing Bridgeport Manor to assign staff to monitor the decedent or require staff to be on heightened awareness of his location.   On June 22, 2008, the decedent left the building in his wheelchair, passing both nurses' stations and the reception desk, culminating in his fatal fall from the front steps.   Based on these facts, the plaintiffs allege that the defendant failed to supervise the decedent, failed to stop him from leaving the facility, and failed to stop him from falling over the stairs.”  Id. The court concluded that the allegations “do not challenge any medical judgment as to the need for supervision of the decedent.   The complaint alleges that the decedent attempted to leave the facility on multiple occasions prior to the accident culminating in his death, and based on that history, the defendant either assigned staff or placed staff on heightened awareness, or instituted a policy to prevent the defendant from exiting the facility unsupervised.   Consequently, the complaint does not allege that a different medical judgment should have been made, but merely that the nursing home breached its duty by failing to prevent the decedent from leaving its facility and placing himself in harm's way.”  Id. The court found that the allegations sounded in ordinary negligence since they did “not require any specialized medical knowledge or involve medical judgment.”   The allegations made here are of a similar nature.

As the court in Cortes v. Visiting Nurse Assn. of Central Connecticut, Inc., Superior Court, judicial district of New Britain at New Britain, Docket No. CV 10 6006066 (November 10, 2011, Shortall, J.T.R) (52 Conn. L. Rptr. 874), stated, “[c]ourts have held that negligence is not of a ‘specialized medical nature’ where a health care provider neglects to follow or implement an administrative or routine procedure not directly related to a patient's medical care.”  (Emphasis in original;  alleged failure of home health care aide to ensure that bedrail was locked in place.)  “The allegations of the complaint here do not involve the exercise of medical judgment because Ms. Cortes is not questioning the medical decision that her condition required her to be secured in a locked bed, or alleging that a different medical decision regarding her needs should have been made.   Instead, the allegations against Ms. Velez challenge her failure to follow a routine procedure to secure the bed or to seek assistance in securing it, which are tasks ․ that do not require the exercise of medical judgment.”  (Citations omitted.)  Id. Further, as to the third prong of the Gold/Trimel test, “[c]onsistently, courts have held that allegations of negligent supervision [by health care providers] amount to ordinary negligence and not medical malpractice.”  (Internal quotation marks omitted.)  Id.

Again, the analogy to Badrigan, utilized by the Appellate Court in Trimel, is appropriate here.   In Badrigan, there apparently was no allegation made that for persons who were not mentally ill it was unsafe to cross the highway without supervision.   The evidence there “related to the mental condition of the decedent and, in turn, whether the defendant should have known that he needed assistance in crossing the highway.   The court correctly decided that this was not a medical malpractice action, but an action sounding in ordinary negligence and subject to proof of the standard of care owed by a reasonably prudent person under the particular facts and circumstances.”  Badrigan v. Elmcrest Psychiatric Institute, Inc., supra, 6 Conn.App. 386.   The plaintiff's allegations in the first count amount to no more than ordinary negligence.¹

Under these circumstances, the court also is unpersuaded by Day–Break's argument that no duty can be established absent medical judgment.  “Duty is a legal conclusion about relationships between individuals, made after the fact ․ The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ․ Although it has been said that no universal test for [duty] ever has been formulated ․ our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant.   The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.”  (Internal quotation marks omitted.)  Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).

Here, there is evidence that Day–Break had an agreement to provide services to Berthiaume as an adult day care participant, that it was aware that he had dementia, and that he had wandered off previously.   A duty to exercise reasonable care is at issue.   See id., 407–08.²

B

As discussed above, in the second count the plaintiff seeks to recover based on alleged breach of contract.   The plaintiff seeks damages for the alleged personal injuries suffered by Berthiaume as a result of his fall.   See complaint, second count, ¶¶ 11–14.   The defendant contends that the plaintiff cannot recast a tort claim as a contract claim.   The plaintiff asserts that she has properly alleged a simple breach of contract claim and damages.

A trial court may rule on a motion for summary judgment that is used to challenge the legal sufficiency of the complaint when it is clear that the motion is being used for that purpose and the nonmoving party does not object to the use of the motion for that purpose.   See Larobina v. McDonald, 274 Conn. 394, 402–03, 876 A.2d 522 (2005).   Here, the parties briefed the issue and the plaintiff raised no objection to the use of the motion for that purpose.   Also, the plaintiff did not seek to replead.   See American Progressive Life & Health Ins. Co of New York v. Better Benefits, LLC, 292 Conn. 111, 124–25, 971 A.2d 17 (2009) (trial court should have treated motion for summary judgment as motion to strike where nonmoving party had offered to amend pleadings to clarify factual basis for claim).

“[P]utting a contract tag on a tort claim will not change its essential character.   An action in contract is for the breach of a duty arising out of a contract;  an action in tort is for a breach of duty imposed by law.  [W]hen the claim is one for personal injury, the decision usually has been that the gravamen of the action is the misconduct and the damage, and that it is essentially one of tort, which the plaintiff cannot alter by his pleading.”   (Internal quotation marks omitted.)  Gazo v. Stamford, 255 Conn. 245, 263, 765 A.2d 505 (2001).

“When determining whether an action lies in tort or contract, Gazo instructs us to ‘look beyond the language used in the complaint to determine what the plaintiff really seeks.’  Gazo v. Stamford, supra, 255 Conn. 263.   In Gazo, the court focused on the injury alleged and the nature of the relief sought to define the cause of action.”  Pinette v. McLaughlin, 96 Conn.App. 769, 773–74, 901 A.2d 1269, cert. denied, 280 Conn. 929, 909 A.2d 958 (2006).

Here, the plaintiff does not seek to recover fees paid for Berthiaume's participation at Day–Break.   Rather, among the damages sought, the plaintiff seeks to recover for Berthiaume's alleged losses of his ability to carry on and enjoy life's activities, for pain and suffering, and to recover expenses for medical and hospital care.   The use of breach of contract language in the second count does not change the essential nature of the cause of action, that of a negligence claim for personal injuries.

Where, as here, a plaintiff alleges personal injury damages resulting from a slip and fall, regardless of the parties' agreement, “the plaintiff's claim is one of negligence, rather than breach of contract.”  (Footnote omitted.)   Pinette v. McLaughlin, supra, 96 Conn.App. 774.   In view of this appellate authority, the plaintiff's reference to Couto v. Vista Vocational & Life Skills Center, Inc., Superior Court, judicial district of New London at New London, Docket No. CV 07 5004704 (November 3, 2010, Cosgrove, J.), where the plaintiffs sought to recover damages arising from the theft of their daughter's medication by an employee of the defendant, is unavailing.

“[T]he negligent performance of a contract may give rise to an action and recovery in both tort and breach of contract ․ To sustain an action in both tort and contract, however, on the basis of negligent performance of a contract, the plaintiff must allege facts and damages sufficient to maintain those causes of actions separately.”  (Citation omitted;  emphasis added.)   Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 872 n.7, 794 A.2d 997 (2002).   Here, what is alleged in the second count is still, in essence, a cause of action seeking recovery for personal injuries based on claimed negligence arising from a contractual relationship.

Accordingly, as a matter of law, summary judgment is warranted as to the second count.

CONCLUSION

For the reasons stated above, the defendant's motion for summary judgment is granted in part and denied in part.   Judgment may enter for the defendant on the second count of the complaint.   The motion for summary judgment is denied as to the first count.   It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. The inclusion of allegations concerning failure to train staff and failure to develop appropriate policies, protocols and guidelines (see complaint, first count, ¶ 8e and 8f) may require expert testimony.   As discussed above, that expert testimony is needed does not necessarily convert a claim of ordinary negligence into a medical malpractice claim..  FN1. The inclusion of allegations concerning failure to train staff and failure to develop appropriate policies, protocols and guidelines (see complaint, first count, ¶ 8e and 8f) may require expert testimony.   As discussed above, that expert testimony is needed does not necessarily convert a claim of ordinary negligence into a medical malpractice claim.

FN2. Day–Break also asserts, without citation to authority, that there is no evidence of causation.  “Cause in fact, occasionally referred to as actual cause, asks whether the defendant's conduct ‘caused’ the plaintiff's injury.   Thus, if the plaintiff's injury would not have occurred ‘but for’ the defendant's conduct, then the defendant's conduct is a cause in fact of the plaintiff's injury.”  Stewart v. Federal Dept. Stores, Inc., 234 Conn. 597, 605, 662 A.2d 753 (1995).   Here, there is evidence that his fall would not have occurred if Berthiaume had not been left unattended..  FN2. Day–Break also asserts, without citation to authority, that there is no evidence of causation.  “Cause in fact, occasionally referred to as actual cause, asks whether the defendant's conduct ‘caused’ the plaintiff's injury.   Thus, if the plaintiff's injury would not have occurred ‘but for’ the defendant's conduct, then the defendant's conduct is a cause in fact of the plaintiff's injury.”  Stewart v. Federal Dept. Stores, Inc., 234 Conn. 597, 605, 662 A.2d 753 (1995).   Here, there is evidence that his fall would not have occurred if Berthiaume had not been left unattended.

Shapiro, Robert B., J.