Julie Badolato v. Richard Lawlor et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

On July 2, 2009, the plaintiff, Julie Badolato, filed a seven-count complaint against the defendants, Richard Lawlor, Kathleen Lawlor, and Shenna Lawlor, alleging negligence and negligent infliction of emotional distress in counts one and two respectively.¹  On May 9, 2013, the plaintiff filed a motion to substitute the administrator of the estate of Shenna Lawlor for the defendant Shenna Lawlor, accompanied by a substitute complaint, which was granted on June 13, 2013.   The plaintiff alleges the following relevant facts in the substitute complaint.   At all times mentioned in the complaint, the plaintiff and the defendants were residents of Glastonbury, Connecticut.   On July 29, 2007, with the permission of the defendants, their daughter, Shenna Lawlor, resided at 17 Morgan Drive, Glastonbury, Connecticut (the house).   On or before that date, the defendants requested that the plaintiff take care of their dog while they were on vacation.   The plaintiff was given permission to enter the house whenever necessary to feed and care for the dog.   Kathleen Lawlor also asked the plaintiff to assist Shenna Lawlor in cleaning her room, located in the basement of the house.   When the defendants asked the plaintiff to care for their dog and to help Shenna Lawlor clean her room, they knew that such action would cause the plaintiff to be in the house and that she would have contact with Shenna Lawlor.   At that time, the defendants knew or should have known that Shenna Lawlor had serious drug addiction and mental health issues and had a propensity to become violent, but they did not notify the plaintiff of these facts.   On July 29, 2007, Julie Badolato was at the house, assisting Shenna Lawlor when, “without any just cause or provocation, Shenna Lawlor maliciously and violently assaulted and battered the plaintiff ․ by striking her in the head, face, and back with a variety of assaultive devices, including an umbrella stand and a piece of wood, as well as forcibly striking her head and face on the stairs and ground.”   As a result, the plaintiff suffered serious injuries and incurred medical expenses.

The plaintiff alleges that her injuries were caused by the negligence and carelessness of the defendants in the following ways:  that the defendants failed to adequately protect the plaintiff from being assaulted;  that they failed to properly supervise their daughter while she was residing at their house;  that they failed to properly control or restrain their daughter;  that they permitted their daughter to live in their house when they knew or should have known that she was using illegal drugs and was suffering from mental health problems;  that they did not require their daughter to refrain from using drugs while at their house;  that they failed to require their daughter to take all medications prescribed while residing at their house;  that they left their daughter alone in the house and asked the plaintiff to enter the home when they knew or should have known that their daughter would use illegal drugs and then assault the plaintiff;  and that they failed to warn the plaintiff of their daughter's drug addiction and/or mental health issues and her propensity for violence when under the influence of illegal drugs or when suffering from her mental condition.   On September 10, 2013, the defendants filed a request for leave to amend their answer to the substituted complaint, to which the plaintiff did not object.

On January 6, 2011, the defendants filed a motion for summary judgment addressed to counts one and two on the ground that they owed the plaintiff no duty of care with respect to the conduct of their adult daughter because they are not her designated guardians or custodians.   A memorandum of law in support of the motion was incorporated therein.   On February 28, 2011, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment.   On March 2, 2011, the plaintiffs filed a supplemental memorandum of law in opposition to the defendants' motion for summary judgment.   The defendants filed a reply memorandum on March 12, 2013, and the plaintiff filed a surreply on August 2, 2013.

“Summary judgment is a method of resolving litigation when 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 ․ [T]he moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  footnote omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).   “Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”   (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).

“As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ 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.”   (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

In support of their motion for summary judgment, the defendants argue that, because the undisputed evidence shows that there is no legal relationship of custody and control between their adult daughter and themselves, they owed no duty to supervise, control, or restrain their adult daughter and protect the plaintiff from the alleged assault, and they are therefore entitled to judgment as a matter of law.

In opposition to the motion for summary judgment, the plaintiff maintains that the duty of care arises not from the defendant's control over the person who assaulted her, but from the defendants' control over the premises on which the assault occurred.   They contend that the defendants, as owners of the house, owed the plaintiff a nondelegable duty to care for the safety of the plaintiff, who was an invitee on the premises at the time of the alleged assault.   Specifically, the plaintiff argues that the defendants had a duty to warn her of the danger posed by the presence in the house of their daughter, whom they knew suffered from emotional disorders and drug addiction.   The plaintiff further maintains that, in light of the evidence that the defendants had possession and control of the premises where the alleged assault took place, and that they had knowledge of their daughter's emotional and drug problems, the defendants had a duty to control or expel their daughter from the premises to protect the plaintiff from their daughter's intentional acts.   For these reasons, they argue, the defendants' motion must be denied because they have not met their burden of establishing the absence of a duty to the plaintiff with respect to count one or that the defendants' acts or omissions did not cause the infliction of emotional distress alleged in count two.

In response to these arguments, the defendants insist that the plaintiff has not brought a premises liability claim because she has not alleged the elements of such a claim.   They assert that the plaintiff has alleged only that the defendants owned the property, not that they had possession and control over that property.   They also argue that the plaintiff has not alleged that the defendants had a duty to inspect and maintain the premises.   They argue that the plaintiff's failure to allege these essential elements of a premises liability claim renders the plaintiff's premises liability argument without merit.   They maintain that the plaintiff has merely alleged a claim based on the various ways in which the defendants allegedly failed to prevent their daughter from injuring the plaintiff, and that there is no genuine issue of material fact that the defendants did not owe the plaintiff a duty to prevent their daughter from causing her injury.

As a preliminary matter, the court must examine the complaint and determine whether the plaintiff's negligence claim in count one is based on a traditional premises liability theory or on the defendants' alleged failure to control a third party.  “In Connecticut, [p]leadings are intended to limit the issues to be decided at the trial of a case and [are] calculated to prevent surprise ․ [The] purpose of pleadings is to frame, present, define, and narrow the issues and to form the foundation of, and to limit, the proof to be submitted on the trial ․ The construction of pleadings is a question of law ․” (Citation omitted;  internal quotation marks omitted.)  Perez v. Cumba, 138 Conn.App. 351, 51 A.3d 1156, cert. denied, 307 Conn. 935, 56 A.3d 712 (2012).  “In premises liability, [t]he law is clear that [a] possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe ․ In addition, the possessor of land must warn an invitee of dangers that the invitee could not reasonably be expected to discover.”  (Internal quotation marks omitted.)  Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 48, 58 A.3d 293 (2013).   In the present case, the plaintiff argues that the premises were not reasonably safe due to the presence of a dangerous and threatening third party.   Nevertheless, the plaintiff does not allege in the complaint that the defendants failed to inspect and maintain the premises, but that the defendants failed to warn the plaintiff that their daughter posed a risk despite their knowledge that she was residing at the premises and that she had dangerous propensities.   The issue, therefore, is whether the dangers alleged in the complaint, which are based only on the presence of a potentially dangerous person, and not on the condition of the premises themselves, can give rise to a premises liability claim.

Although some premises liability claims involve injuries resulting from intentional acts of third parties, those claims are typically based on some dangerous aspect of the premises themselves that results in a person committing a violent act on the premises.   Such cases are not based on a duty to control a specific person.   For example, in Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 662 A.2d 753 (1995), the court held that the jury could reasonably have found that the dangerous characteristics of the parking garage in which the plaintiff's decedent was murdered, including inadequate security personnel, inadequate lighting, uncontrolled access by members of the public, and a history of previous robberies on the premises, put the defendant on notice that robberies and associated violence would occur there.  Id., 613.   That claim was not based on a duty to control a violent individual, but was based on the defendant's duty to keep the parking garage safe.

A case that is factually similar to the present case, but also distinguishable, is Irons v. Cole, 46 Conn.Sup. 1, 734 A.2d 1052 (1999).   In that case, the plaintiff's decedent allegedly was shot and killed by the defendants' son in a house owned by the defendants.   After the jury returned a verdict for the plaintiff, the defendants moved to set aside the verdict, arguing that they had no duty to control the actions of their adult son.   Id., 3. The court rejected this argument, explaining that “the charge to the jury indicated that it must determine whether the defendants were in control of the premises where the murder weapon or other guns were kept, and, if so, whether they had acted negligently with regard to their duty of care toward persons coming onto the premises.”  Id. The court further explained:  “This court specifically did not charge that the defendants had a duty arising from a relationship of control over their son, and the movants' references to Kaminski v. Fairfield, 216 Conn. 29, 578 A.2d 1048 (1990), are simply misplaced, as the charge was based not on custodial control pursuant to § 319 of the Restatement (Second) of Torts, the only claimed source of duty at issue in that case, but on a duty of care of the type explicitly recognized by the Supreme Court in Stewart arising from control of the premises.”  Id., 4. Thus, although Irons presents a factual scenario similar to that of the present case insofar as it involves a claim against the parents of a person who committed a violent act, the claim in Irons was based on the defendants' control over the premises with respect to the storage of guns, not on the defendants' failure to control their son.

Nevertheless, negligence claims may also arise from injuries caused by intentional acts of third parties as a result of the defendants' failure to protect the plaintiff from injury from such intentional acts.   In Merhi v. Becker, 164 Conn. 516, 325 A.2d 270 (1973), the plaintiff was injured at a picnic when one of the other guests drove his car into the picnic area in an attempt to hit a different guest with his car.  Id., 519.   The plaintiff brought an action against the defendant, the sponsor of the picnic, and argued that the defendant was negligent “(1) in failing to provide adequate police protection;  (2) in failing to monitor the actions of its patrons in light of their consumption of alcoholic beverages;  (3) in failing to arrest, restrain or evict [the driver who injured the plaintiff] after his involvement in two physical altercations;  and (4) in failing to prevent [that person] from reentering the immediate picnic area with his car.”  Id. The court explained that the plaintiff, a paying guest at the picnic, was an invitee to whom the defendant, as possessor of the land during the picnic, owed a duty to exercise “reasonable care and control to protect its invitees from dangers which might reasonably be anticipated to arise from the conditions of the premises or the activities taking place there ․ In particular, the possessor must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands.   He must act as a reasonable man to avoid harm ․ even from intentional attacks on the part of such third persons.”  (Citation omitted;  internal quotation marks omitted.)  Id., 520.

Recently, in Perez v. Cumba, supra, 138 Conn.App. 351, the court considered a claim similar to that of Merhi, referring to the claim as “social invitee liability.”   The court considered whether the plaintiff's claim sounded in premises liability or social invitee liability, and held that it was the latter.   In Perez, the plaintiff alleged that the plaintiff's decedent was fatally stabbed at the defendant's house by a third person during a party.   In determining whether the complaint set out a premises liability action, the court reasoned:  “The complaint in the present case does not contain an allegation that the defendant's property was defective in any respect;  indeed, it does not even contain the word ‘defect.’   Rather, it alleges that the defendant failed in various manners to exercise reasonable care and control to protect the decedent from dangers posed by other social invitees that could reasonably be anticipated to arise from the activities taking place on her premises.   Unlike the standard premises liability case in which the actual condition of the property gave rise to a dangerous condition ․ the complaint in the present case alleges that it was the intentional conduct of third persons on the property, rather than the property itself, that created the dangerous condition.   Accordingly, we agree with the plaintiff that her allegations do not advance a traditional defective premises theory of recovery, but rather one predicated on social invitee liability arising from the intentional acts of a third party, as recognized in Merhi.”  (Citations omitted;  footnote omitted.)  Id., 367–69.

The allegations of count one of the plaintiff's complaint are analogous to those of Merhi and Perez.   As in those cases, the complaint herein does not allege that the defendants' premises were themselves defective.   Instead, it alleges in ten paragraphs the various ways in which the defendants were negligent in failing to protect the plaintiff from Shenna Lawlor, in that they, for example, failed to properly control and/or restrain her so as to prevent the assault, failed to require her to refrain from using drugs while residing in the home, and failed to warn the plaintiff of her dangerous propensities.   For these reasons, the court finds that the claim in count one of the operative complaint does not sound in traditional premises liability, but is analogous to the negligence claims at issue in Merhi and Perez.

The court must next determine whether the defendants have established the absence of a genuine issue of material fact with regard to whether they had a duty to control the actions of their adult daughter.   The defendants correctly note that generally, “absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another at common law.”  Bebry v. Zanaukas, 81 Conn.App. 586, 841 A.2d 282 (2004), citing Kaminski v. Fairfield, supra, 216 Conn. 33;  see also 2 Restatement (Second), Torts § 315 (“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection”).   However, the “special relationship” set forth in § 315 of 2 Restatement (Second), Torts is not limited to custodial relationships, but includes all of the relations set forth in §§ 316–19, including parent/child, master/servant, and “professional custodians with special competence to control the behavior of those in their charge, such as a mental hospital, a prison and a children's center.”  Kaminski v. Fairfield, supra, 216 Conn. 35.

The undisputed evidence submitted by the defendants, specifically the affidavit of Richard Lawlor and the affidavit of Kathleen Lawlor, establishes the absence of a genuine issue of fact that neither of them were ever appointed to be the legal guardians or conservators of their adult daughter and, therefore, were never her legally designated custodians.   Nevertheless, the “special relationship” set forth in § 315 also refers to the relation set forth in § 318, that is, the relationship between a possessor of land and a licensee.   Thus, the absence of a custodial relationship is not fatal to the type of negligence claim set forth in the present case.   As notes above, the claim at issue herein is not based on a custodial relationship between the defendants and their adult daughter, nor is it a traditional premises liability theory based on a defect in the premises themselves.   Rather, the claim at issue is analogous to the claims at issue in Merhi and Perez.   Moreover, as the duty owed to the plaintiffs in those cases did not depend on a custodial or guardianship relationship over the person who directly caused the plaintiff's injuries, the defendants' argument in support of the motion for summary judgment that they owed no duty to the plaintiff due to the absence of such a relationship must necessarily fail.

In order to determine whether the defendants owed a duty to the plaintiff, therefore, the court must apply the duty analysis set forth in Merhi v. Becker, supra, 164 Conn. 516, and Perez v. Cumba, supra, 138 Conn.App. 351.   In those cases, the court explained that “the possessor of the premises ․ had the duty of exercising reasonable care and control to protect its invitees from dangers which might reasonably be anticipated to arise from the conditions of the premises or the activities taking place there” and that “the possessor must exercise the power of control or expulsion which his occupation of the premises gives him over the conduct of a third person who may be present, to prevent injury to the visitor at his hands.   He must act as a reasonable man to avoid harm ․ even from intentional attacks on the part of such third persons.   (Emphasis added;  internal quotation marks omitted.)  Merhi v. Becker, supra, 164 Conn. 520;  accord Perez v. Cumba, supra, 138 Conn.App. 359–60.   Similarly, § 318 of 2 Restatement (Second), Torts provides:  “If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor (a) knows or has reason to know that he has the ability to control the third person, and (b) knows or should know of the necessity and opportunity for exercising such control.”   Comment c. of § 318 further explains in relevant part:  “The duty to exercise reasonable care to control the conduct of third persons for the protection of others requires the actor to exercise his ability to control such third person's conduct not only when he knows of the necessity for so doing, but also when as a reasonable man he should know of it ․” Accordingly, the determination of whether the defendants owed a duty to the plaintiff depends on whether the defendants were in possession and control of the premises and whether the plaintiff's injuries were a foreseeable consequence of the defendants' failure to warn the plaintiff and to control the actions of Shenna Lawlor.

Although possession and control of the house are not expressly alleged in the plaintiff's complaint, possession and control may be implied from the allegations.   The term “control” has been interpreted by the courts to have “no legal or technical meaning distinct from that given in its popular acceptance ․ and refers to the power or authority to manage, superintend, direct or oversee” and “is to be determined in the light of all of the significant circumstances.”  Sweeney v. Friends of Hammonasset, supra, 140 Conn.App. 50.   Viewing the complaint in the light most favorable to the plaintiff, it may be reasonably implied from the allegations that the defendant had the authority to “manage, superintend, direct or oversee” the premises.   In count one, the plaintiff alleges that the defendants owned the house at issue.   The defendants admit this in their answer.   The plaintiff further alleges that the defendants gave their daughter permission to live there, that they gave permission to the plaintiff to enter the house to feed and care for their dog, and that they asked the plaintiff to assist their daughter in cleaning her room in the house.   The defendants have offered no evidence to refute any of these allegations.   Further, the evidence presented demonstrates that the defendants were in possession and control of the property at which the incident occurred and that they had the power, which they had exercised in the past, to refuse Shenna Lawlor living space in their house, but at the time of the incident were permitting Shenna to live there and specifically took her in and allowed her to remain living there.   R. Lawlor Dep. 5:23–6:2, 18:11–19:3, 52:14–16, 27:7–23.   Kathleen Lawlor also testified that Shenna Lawlor was living with them on the date of the plaintiff's assault.   K. Lawlor Dep. 112:16–18.   Thus, the evidence establishes that the defendants exercised control over those who lived on the premises and those who had permission to enter.   Although the defendants were away on vacation at the time of the alleged assault, there is nothing to suggest that they lacked the power to remove Shenna from the house.   Therefore, the defendants have not met their burden of establishing that they were not in possession and control of the premises.

Finally, the court must address the issue of whether the defendants have demonstrated the absence of a genuine issue of material fact that the harm to the plaintiff, an invitee,² was not a foreseeable consequence of their failure to exercise reasonable care to protect her from danger at the hands of a third party, their daughter.   The defendants have offered no evidence addressing this issue.   On the other hand, the plaintiff has submitted evidence, specifically Richard Lawlor's deposition transcript and two police reports, that create a genuine issue of material fact.   In his deposition, Richard Lawlor testified that he was aware that his daughter had become “increasingly mentally unstable” in the prior two years.   He testified that she had experienced hallucinations and been taken to counselors.   R. Lawlor Deposition 41:4–8.   The defendants had been compelled to contact the police twice due to their daughter's behavior.   See Plaintiff's Surreply dated August 2, 2013, Exhibits B and C. This evidence is sufficient to create a genuine issue of material fact with regard to whether the plaintiff's alleged injuries were a foreseeable consequence of the defendants' failure to warn the plaintiff of their daughter's violent propensities and their failure to prevent the violent conduct that occurred.   Because the defendants have failed to meet their burden of establishing the absence of a genuine issue of material fact that they owed no duty to the plaintiff, the motion for summary judgment must be denied as to count one.

As to the claim of negligent infliction of emotional distress in count two, the defendants have not separately addressed this count in their motion;  nor have they offered any evidence to refute any essential elements of that claim.  “To establish a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements:  (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  (Internal quotation marks omitted.)  Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008), citing Carrol v. Allstate Ins Co., 262 Conn. 433, 444, 815 A.2d 119, 127 (2003).   As neither the defendants' motion nor the evidence submitted address any of these elements, the defendants have not met their burden of establishing the absence of a genuine issue of material fact with respect to count two.   Therefore, the motion for summary judgment as to count two must also be denied.

CONCLUSION

Accordingly, for all foregoing reasons, the motion for summary judgment is hereby denied.

Peck, J.

FOOTNOTES

FN1. Counts one and two are directed solely to Richard Lawlor and Kathleen Lawlor and are the only counts to which the motion for summary judgment is directed.   Accordingly, all references herein to “the defendants” are to Richard and Kathleen Lawlor..  FN1. Counts one and two are directed solely to Richard Lawlor and Kathleen Lawlor and are the only counts to which the motion for summary judgment is directed.   Accordingly, all references herein to “the defendants” are to Richard and Kathleen Lawlor.

FN2. The parties do not dispute the status of the plaintiff on the premises as an invitee.  “The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land, to enter the land and remain on the land.”  (Internal quotation marks omitted.)  Gargano v. Azpiri, 110 Conn.App. 502, 506, 955 A.2d 593 (2009).   The plaintiff alleges that she was asked to come onto the property to care for the defendants' dog and to assist Shenna Lawlor with the task of cleaning her room.   In the February 25, 2011 affidavit of the plaintiff, she avers that despite “inviting me onto their property and into their residence to care for their dog and assist Shenna” the defendants never warned her of their daughter's behavior.  (Emphasis added.)   She also avers in that affidavit that she was normally paid between $75 and $125 to care for the defendants' dog.   Consequently, this evidence demonstrates that her status was that of a business invitee.   Nevertheless, the fact that the plaintiff was a business invitee, as opposed to a social invitee, is irrelevant to the issue of duty.   Pursuant to General Statutes § 52–557a, “The standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee.”.  FN2. The parties do not dispute the status of the plaintiff on the premises as an invitee.  “The distinction between one who is an invitee and one who is merely a licensee turns largely on whether the visitor has received an invitation, as opposed to permission, from the possessor of land, to enter the land and remain on the land.”  (Internal quotation marks omitted.)  Gargano v. Azpiri, 110 Conn.App. 502, 506, 955 A.2d 593 (2009).   The plaintiff alleges that she was asked to come onto the property to care for the defendants' dog and to assist Shenna Lawlor with the task of cleaning her room.   In the February 25, 2011 affidavit of the plaintiff, she avers that despite “inviting me onto their property and into their residence to care for their dog and assist Shenna” the defendants never warned her of their daughter's behavior.  (Emphasis added.)   She also avers in that affidavit that she was normally paid between $75 and $125 to care for the defendants' dog.   Consequently, this evidence demonstrates that her status was that of a business invitee.   Nevertheless, the fact that the plaintiff was a business invitee, as opposed to a social invitee, is irrelevant to the issue of duty.   Pursuant to General Statutes § 52–557a, “The standard of care owed to a social invitee shall be the same as the standard of care owed to a business invitee.”

Peck, A. Susan, J.