Jane Doe # 2 v. Norwich Roman Catholic Diocesan Corporation et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT # 201 AND MOTION TO STRIKE # 218

In this civil action, the plaintiff, Jane Doe # 2, alleges that she was sexually assaulted by a Catholic priest, Father Thomas Shea, on numerous occasions between 1967 and 1986.   The plaintiff, a resident of Massachusetts, alleges that Father Shea was an agent, servant and/or employee of the defendant Norwich Roman Catholic Diocesan Corporation (diocese) during the time of the abuse.   Presently before the court are two motions for which the court heard oral argument on October 10, 2013.   The first is a motion for summary judgment filed by the defendant diocese as well as the co-defendant, Bishop Daniel Reilly.¹  The second motion is the plaintiff's motion to strike the defendants' special defenses.   In its July 8, 2013 memorandum of decision denying the defendants' motion to strike, the court outlined the factual background in this matter.  (Docket entry no. 189.)   The court will only further elaborate on the facts in this case as is necessary to resolve the two motions that are currently before it.

I

THE MOTION FOR SUMMARY JUDGMENT

The defendants move for summary judgment (docket entry no. 201) as to the plaintiff's operative complaint on four grounds:  (1) the Massachusetts three year tort statute of limitations, General Laws c. 260, § 2A,² applies to this action and, as a result, the plaintiff's case is barred by that statute of limitations;  (2) in the event that the court applies a Connecticut statute of limitations, the applicable statute is the general tort and/or negligence statutes of limitations, General Statutes §§ 52–577 ³ and/or 52–584,⁴ as opposed to the longer time period allowed in General Statutes § 52–577d ⁵ in a case where the plaintiff alleges injuries arising out of sexual abuse;  (3) Section 52–577d, as applied in this case, violates the defendants' substantive due process rights under article first, §§ 8 and 10, of the constitution of Connecticut and (4) the defendants have no duty concerning the conduct alleged in this action because it occurred off the defendants' premises and no chattel of the defendants was used.   The court will address each of these grounds and reference the plaintiff's countervailing arguments when necessary.

The standard for deciding a summary judgment motion is well established.   “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.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)   Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   The burden is on the moving party to demonstrate an absence of any triable issue of material fact and “[t]o 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 ․ 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 insufficiency 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.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).

As to the first ground raised in their summary judgment motion, the defendants argue that conflict of laws principles dictate that the three-year Massachusetts statute of limitations bars this action.   The defendants urge the court to apply the conflict of laws test espoused by the Connecticut Supreme Court in Jaiguay v. Vasquez, 287 Conn. 323, 948 A.2d 955 (2008), in which the court adopted the most significant relationship test from §§ 6 and 145 of the Restatement (Second) of Conflict of Laws as to tort cases generally.   From the summary judgment record, it appears undisputed that the vast majority of the alleged sexual abuse incidents occurred in Massachusetts as opposed to Connecticut.⁶  Accordingly, the defendants contend that Massachusetts law should govern this action.

Nevertheless, as admitted by the defendants' counsel at oral argument, Jaiguay does not explicitly overrule the Supreme Court's prior decision in Baxter v. Sturm, Ruger & Co., 230 Conn. 335, 644 A.2d 1297 (1994).   In Baxter, the court affirmed the long-standing principle that “[u]nder the general rule applicable in the usual case ․ statutes of limitation relate to the remedy as distinguished from the right ․ It is undisputed that, as a principle of universal application, remedies and modes of procedure depend upon the lex fori.”  (Citation omitted;  internal quotation marks omitted.)  Id., 339,⁷ Therefore, according to Baxter, this court must apply a Connecticut statute of limitations.   As Baxter is still good law and was not overruled by Jaiguay, this court, as a trial level court, is constrained to follow Baxter and apply one of the Connecticut statutes of limitations to this action.   See, e.g., Doe # 1 v. Knights of Columbus, 930 F.Sup.2d 337, 350–58 (D. Conn 2013) (where the court analyzed the current state of law and concluded that it must apply the Connecticut statute of limitations to a diversity case brought in Connecticut because “[n]o Connecticut case ․ has given any indication that the present rule, treating statutes of limitations as procedural in nature, has been purposefully abrogated.”).   Accordingly, the defendants' first summary judgment ground is denied.⁸

Next, the defendants contend that they are entitled to judgment as a matter of law on the basis of statute of limitations even if the court applies Connecticut law.   Specifically, the defendants argue that § 52–577d, which sets forth a thirty-year period in which a sexual abuse victim can bring an action after he/she reaches the age of majority, only applies to cases brought against the alleged perpetrator of the sexual abuse, as opposed to an institutional defendant.   Accordingly, the defendants posit that the shorter statute of limitations from either §§ 52–577 or 52–584 applies, and that this action is time barred because the plaintiff does not allege that she suffered any sexual abuse after the late 1980s.   The defendants admit that they cite to no Connecticut authority to support this proposition.   Rather, the defendants claim that the complete legislative history, which they believe has been given to a court for the “first time,” suggests that § 52–577d is limited to the perpetrators of sexual abuse.

When interpreting a statute, the court is guided by the mandates of General Statutes § 1–2z, which provides that “[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes.   If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”   The court notes that there is nothing in the language of § 52–577d that limits its applicability to the perpetrator of sexual abuse.   Moreover, even in the event that the court were to find that § 52–577d is ambiguous as to its scope, the court fails to find that the legislative history presented by the defendants is particularly instructive as to this issue.

Rather, the court finds itself persuaded by the numerous Connecticut Superior Court cases that have applied § 52–577d to actions brought against institutional defendants.   For instance, in Doe v. Burns, Superior Court, judicial district of Middlesex, Docket No. CV 03 0100254 (July 19, 2005, Aurigemma, J.) [39 Conn. L. Rptr. 815], the court cited to Almonte v. New York Medical College, 851 F.Sup. 34 (D.Conn.1994), and concluded that § 52–577d “does not expressly limit its application to offenders;  rather, reference to the unambiguous language of the statute indicates that the statutory focus is on actions flowing from a particular type of harm, and not parties.   In other words, in defining the scope of the statute, courts should look to whether the underlying harm was allegedly ‘caused by sexual abuse, sexual exploitation or sexual assault,’ ․ rather than whether the named defendants are potentially primarily or only secondarily liable for the alleged harm.”   (Citation omitted;  internal quotation marks omitted.)  Id. The alleged conduct at issue in this case is clearly within the parameters of § 52–577d.   As it is stipulated;  (docket entry no. 210);  that the plaintiff was born on July 6, 1964, and turned eighteen on July 6, 1982,⁹ this action, which was commenced in April 2012, is clearly within the § 52–577d statute of limitations.¹⁰  Therefore, summary judgment as to ground two is denied.

The defendants next argue that § 52–577d is an unconstitutional violation of the defendants' substantive due process rights under the Connecticut constitution.   Specifically, the defendants note that the statute of limitations found in § 52–577d was not enacted until 1986 (and later amended in 1991 and 2002), and as a result, it is unconstitutional because it “permits the revival of an expired claim ․”

Initially, the court must note that “[t]he party attacking a validly enacted statute ․ bears the heavy burden of proving its unconstitutionality beyond a reasonable doubt and we indulge in every presumption in favor of the statute's constitutionality.”  State v. Ross, 269 Conn. 213, 346, 849 A.2d 648 (2004).   In Roberts v. Caton, 224 Conn. 483, 619 A.2d 844 (1993), our Supreme Court addressed the very issue of the legality of the retroactivity of § 52–577d.   When the Roberts plaintiff obtained majority status in October 1986, § 52–577d only allowed for a claim to be brought within two years of the age of majority.   In 1991, however, the statute was amended to allow for a seventeen year period after the age of majority.   The Roberts plaintiff then brought suit in 1992.   As a result, the Roberts defendant argued that the retroactive application of § 52–577d was improper.   When rejecting this argument, the Supreme Court stated that “[a]lthough substantive legislation is not generally applied retroactively absent a clearly expressed legislative intent, legislation that affects only matters of procedure is presumed to [be] applicable to all actions, whether pending or not, in the absence of any expressed intention to the contrary ․ Statutes of limitation are generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action ․” (Citations omitted;  internal quotation marks omitted.)  Id., 488.  “This court ․ has never recognized a vested right in the lapsing of a statute of limitations.   Although changes in the statute of limitations may not retroactively bar actions already pending ․ they do govern actions brought subsequent to the effective date of the amended statute ․ We have consistently interpreted the limitations period to be part of the remedy alone, unless the statute in which the period of limitations is found itself creates the right ․ Therefore, the expansion or reduction alone of the period of limitations, if the statute in which the limitations period is fixed does not also create the right of action, does not by itself alter a substantive right.   We conclude, therefore, that § 52–577d as amended did not create a substantive change in the law that would preclude its retroactive application.”  (Citations omitted;  internal quotation marks omitted.)  Id., 492.

Given this discussion found in Roberts, the court cannot rule that § 52–577d violates the defendants' substantive due process rights under the state constitution.   Although the memorandum of law in support of the defendants' summary judgment motion is replete with citations to post-Roberts Connecticut appellate cases and persuasive authority from our sister states that the defendants maintain suggest a different conclusion, these are arguments better addressed to an appellate court.   This court must, and it will, follow Roberts so long as it is good law.   Accordingly, summary judgment on ground number three is denied.

Finally, the defendants move for summary judgment on the grounds that they have no duty concerning the conduct alleged in this action because it occurred off the defendants' premises and no chattel of the defendants was used.   In making this argument, the defendants primarily rely on Cannizzaro v. Marinyak, 139 Conn.App. 722, 57 A.3d 830 (2012), cert. granted, 308 Conn. 902, 60 A.3d 286 (2013), and Murdock v. Croughwell, 268 Conn. 559, 848 A.2d 363 (2004).   Both of those cases interpret the scope of §§ 314 through 317 of the Restatement (Second) of Torts.   In particular, the defendants focus on § 317 of the Restatement, which provides in relevant part:  “A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment 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 (a) the servant (i) is upon the premises in possession of the master ․ or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.”   The defendants contend that because sexual abuse is outside the scope of a priest's employment and none of the prongs of § 317 have been met, they are entitled to judgment as a matter of law.¹¹  The plaintiff responds, somewhat unconvincingly, that there are genuine issues of material fact as to whether acts of abuse occurred on property owned or controlled by the diocese and whether Father Shea used a chattel of the diocese during his abuse of the plaintiff.   Additionally, the plaintiff argues that the defendants could have owed the plaintiff a duty of care under traditional principles of foreseeability.

Recently, in Doe v. Saint Francis Hospital & Medical Center, 309 Conn. 146, 72 A.3d 929 (2013), a majority of the Supreme Court rejected dissenting Justice Zarella's view that “all negligent supervision claims must be brought under § 317 rather than § 302B of the Restatement (Second) of Torts.”   Id., 192 n.37. As noted by our Supreme Court, § 302B, which is titled “Risk of Intentional or Criminal Conduct,” provides that:  ‘[a]n act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.’  ․ Thus, ‘[i]f the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.’  “ (Citation omitted.)   Id., 176.  “[T]here are ․ situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even criminal, misconduct of others.   In general, these situations arise where ․ the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account.”  (Internal quotation marks omitted.)   Id., 178–79.

The summary judgment record contains evidence demonstrating that the diocese was aware of Father Shea's proclivities and the harm that could result from his actions.   Therefore, the plaintiff could certainly state the claims brought in this case under § 302B of the Restatement.¹²  Accordingly, as the defendants have failed to meet their burden to demonstrate, as a matter of law that they could not possibly owe a duty to the plaintiff under the facts and circumstances of this case, summary judgment as to ground four is denied.   As a result, the defendants' motion for summary judgment is denied in its entirety.

II

THE MOTION TO STRIKE

On August 29, 2013, the defendants filed an amended answer (docket entry no. 199) that interposed five special defenses.   Via its motion to strike dated September 26, 2013 (docket entry no. 218),¹³ the plaintiff moves to strike all of these special defenses.   The first special defense is that this action is barred by the Massachusetts statute of limitations, General Laws c.260, §§ 2A and/or 4C. Special defense number three is that this action is barred by the Connecticut statute of limitations found in either §§ 52–584 and/or 52–577.   The fourth special defense is that the application of § 52–577d to this case would violate the defendants' substantive due process rights under the Connecticut Constitution.   The legal veracity of these special defenses has already been adequately addressed in this court's ruling on the defendants' motion for summary judgment.   For the reasons discussed therein, these special defenses are ordered stricken.

The defendants' fifth special defense is that “[t]he plaintiff's action” is barred by the first amendment to the United States Constitution, as well as article seventh of the Connecticut Constitution and General Statutes § 52–571b.   The defendants' argument with respect to the applicability of these constitutional and statutory provisions to this case has already been rejected by this court when it denied the defendants' motion to strike.  (See docket entry no. 189.)   That ruling is law of the case.   Therefore, the fifth special defense is ordered stricken.¹⁴

Special defense number two is that pursuant to Massachusetts General Laws c.231, § 85k, the plaintiff's recovery against the diocese is limited to $20,000.   The plaintiff moves to strike this special defense on the basis that c.231, § 85k, is a procedural law, and, as a result it should not be applied in a Connecticut court.   Alternatively, the plaintiff argues that even if this court were to determine that c.231, § 85k, is substantive in nature, the statute does not apply here because Connecticut has the most significant relationship to the occurrence and the parties in this case.   The plaintiff urges the court to apply Connecticut substantive law to this matter, and as a result, a Massachusetts statute would be irrelevant.   In response, the defendants argue that c.231, § 85k, is properly characterized as a substantive law.   Therefore, c.231, § 85k, would be applicable to this matter if the court applies Massachusetts substantive law.   The defendants also argue that the court cannot decide whether it is going to apply Massachusetts or Connecticut substantive law within the context of a motion to strike.

Under Connecticut law, “the traditional approach to choice of law issues applies the law of the forum state in all procedural matters while applying applicable foreign law as to substantive matters.”  Mariculture Products Ltd. v. Certain Underwriters at Lloyd's of London, 142 Conn.App. 484, 494, 70 A.3d 92, cert. denied, 309 Conn. 911, 69 A.3d 307 (2013).   Accordingly, the court will have to determine whether the Massachusetts statute at issue is best characterized as procedural or substantive.  “The distinction between procedural and substantive laws is well settled.   Procedural statutes have been traditionally viewed as affecting remedies, not substantive rights, and therefore leave the preexisting scheme intact ․ While there is no precise definition of either [substantive or procedural law], it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress.”   (Internal quotation marks omitted.)  Weber v. U.S. Sterling Securities, Inc., 282 Conn. 722, 738–39, 924 A.2d 816 (2007).

In order to make a determination as to whether c.231, § 85k is procedural or substantive in nature, the court will examine the text and history of the statute.   General Laws c.231, § 85k, provides in relevant part:  “It shall not constitute a defense to any cause of action based on tort brought against a corporation, trustees of a trust, or members of an association that said corporation, trust, or association is or at the time the cause of action arose was a charity;  provided, that if the tort was committed in the course of any activity carried on to accomplish directly the charitable purposes of such corporation, trust, or association, liability in any such cause of action shall not exceed the sum of twenty thousand dollars exclusive of interest and costs ․”

In Massachusetts, before the passage of c.231, § 85k, “the common-law doctrine of charitable immunity precluded any tort liability against a charitable organization ․ However, in 1971, the Legislature abolished absolute charitable immunity and replaced it with limited liability.”   (Citation omitted.)  Doe No. 4 v. Levine, 77 Mass.App.Ct. 117, 118, 928 N.E.2d 951 (2010).   Accordingly, it can be seen that c.231, § 85k, authorized claims to be brought against charitable institutions, albeit with a damages cap, when such claims did not exist at common law.   Soon after the passage of c.231, § 85k, the Massachusetts Supreme Judicial Court determined that the statute was only to have prospective effect.   The court reached this conclusion because of its “reluctance to revise rules of law of long standing, where that more appropriately and more flexibly may be done by legislation having prospective effect.”  Ricker v. Northeastern University, 361 Mass. 169, 171, 279 N.E.2d 671 (1972).   The fact that the Massachusetts Supreme Judicial Court only applied c.231, § 85k, prospectively strongly suggests that it determined that the statute was a substantive law.   See, e.g., Investment Associates v. Summit Associates, Inc., 309 Conn. 840, 867, 74 A.3d 1192 (2013) (stating that “statutes affecting substantive rights shall apply prospectively only”).   In further support of the conclusion that c.231, § 85k, is a substantive law, the court notes that multiple federal courts have applied the statute to cases brought outside of Massachusetts, but where the court applied Massachusetts substantive law.   See, e.g., Mason v. Southern New England Conference of Seventh–Day Adventists, 696 F.2d 135 (1st Cir.1982) (affirming a Maine Federal District Court's decision to apply the Massachusetts charitable damages cap);  Schulgen v. Stetson School, United States District Court, Docket No. CIV.A.99–4536 (E.D. Pa. April 3, 2000);  Kathryn P. v. Philadelphia, United States District Court, Docket No. CIV.A.97–6710 (E.D.Pa. May 27, 1999) (both cases indicating that c.231, § 85k, may apply to tort actions brought in a Pennsylvania federal court).

“Although technically a limitation on liability, the charitable cap set forth in § 85k has been treated as an affirmative defense that must be pleaded ․ Factual matters related to the cap may need to be determined by the fact finder, with the burden on the defendant to prove both that it is a charitable organization and that the tort complained of fell within the range of activities covered by the cap.”  (Citations omitted.)  Keene v. Brigham & Women's Hospital, Inc., 439 Mass. 223, 238–39, 786 N.E.2d 824 (2003).   Accordingly, the defendants have properly placed c.231, § 85k, before the court by pleading it as a special defense.   Moreover, although there is a relative paucity of authority on the subject, at least one Massachusetts trial level court has applied the charitable damages cap in a case where the plaintiff alleged that she was sexually abused by a priest.   Martin v. Kelley, Massachusetts Superior Court, Hampden County, Docket No. 02684 (August 12, 2004, Agostini, J.).   For all of these reasons, the court concludes that c.231, § 85k, is a valid special defense so long as the court applies Massachusetts substantive law to this action.

Recognizing that c.231, § 85k, may be interpreted as a substantive law, the plaintiff further argues that the court must apply Connecticut substantive law to this action because Connecticut has the most significant relationship to the parties and the acts giving rise to this matter.   When evaluating this argument, it is important to be mindful of the motion that is currently before the court.   It is axiomatic that when ruling on a motion to strike, the court is limited to the allegations of the pleadings.   Consequently, “as a general rule, Connecticut courts have refused to address choice of law issues in a motion to strike because it is premature to conduct the requisite searching case-by-case inquiry into the significance of the interests that the law of competing jurisdictions may assert in [the] particular controversy ․ Where a choice of law issue is present on a motion to strike ․ it is unusual to determine the issue at this procedural stage.”  (Citation omitted;  internal quotation marks omitted.)   Retirement Program for Employees of the Town of Fairfield v. NEPC, LLC, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 09 5013326 (December 8, 2011, Blawie, J.) (53 Conn. L. Rptr. 194, 197).   At this procedural posture, the court simply cannot determine whether it should apply Connecticut or Massachusetts substantive law to this case.   As a result, the plaintiff's argument with respect to this issue is unavailing.   Nevertheless, as previously noted, because c.231, § 85k, may apply to this case in the event that the court applies Massachusetts substantive law, the plaintiff's motion to strike the second special defense is denied.¹⁵

For all of the reasons previously stated, the court denies the plaintiff's motion to strike count two, but it grants the motion to strike all of the other special defenses.

Dubay, J.

FOOTNOTES

FN1. The plaintiff alleges that Reilly was the bishop and executive director of the diocese from 1975 to 1994..  FN1. The plaintiff alleges that Reilly was the bishop and executive director of the diocese from 1975 to 1994.

FN2. Massachusetts General Laws c. 260, § 2A, provides:  “Except as otherwise provided, actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues.”.  FN2. Massachusetts General Laws c. 260, § 2A, provides:  “Except as otherwise provided, actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues.”

FN3. General Statutes § 52–577 provides:  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”.  FN3. General Statutes § 52–577 provides:  “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

FN4. General Statutes § 52–584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ․”.  FN4. General Statutes § 52–584 provides in relevant part:  “No action to recover damages for injury to the person ․ caused by negligence ․ shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ․”

FN5. General Statutes § 52–577d provides:  “Notwithstanding the provisions of section 52–577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority.”.  FN5. General Statutes § 52–577d provides:  “Notwithstanding the provisions of section 52–577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than thirty years from the date such person attains the age of majority.”

FN6. According to the defendants' moving papers, out of approximately sixty instances of sexual abuse, only two were reported to have occurred in Connecticut, one at Albertus Magnus College in New Haven, and the other at Marianapolis Preparatory School in Thompson..  FN6. According to the defendants' moving papers, out of approximately sixty instances of sexual abuse, only two were reported to have occurred in Connecticut, one at Albertus Magnus College in New Haven, and the other at Marianapolis Preparatory School in Thompson.

FN7. The only exception to the general rule that a court applies its own statute of limitations is when “the limitation is so interwoven with ․ the cause of action as to become one of the congeries of elements necessary to establish the right, that limitation goes with the cause of action wherever brought.”  (Internal quotation marks omitted.)  Baxter v. Sturm, Ruger & Co., supra, 340.   The defendants do not argue that the claims alleged by the plaintiff fit within the parameters of this exception to the general rule..  FN7. The only exception to the general rule that a court applies its own statute of limitations is when “the limitation is so interwoven with ․ the cause of action as to become one of the congeries of elements necessary to establish the right, that limitation goes with the cause of action wherever brought.”  (Internal quotation marks omitted.)  Baxter v. Sturm, Ruger & Co., supra, 340.   The defendants do not argue that the claims alleged by the plaintiff fit within the parameters of this exception to the general rule.

FN8. In making this ruling, it must be noted that the court is not expressing any opinion on which state's substantive law applies to this action.   Therefore, this court has no reason to determine whether Connecticut or Massachusetts has the most significant relationship to the acts alleged by the plaintiff.   Furthermore, having made the determination that it will apply the Connecticut statute of limitations, it is unnecessary to examine the plaintiff's argument that this action is timely pursuant to the Massachusetts discovery rule..  FN8. In making this ruling, it must be noted that the court is not expressing any opinion on which state's substantive law applies to this action.   Therefore, this court has no reason to determine whether Connecticut or Massachusetts has the most significant relationship to the acts alleged by the plaintiff.   Furthermore, having made the determination that it will apply the Connecticut statute of limitations, it is unnecessary to examine the plaintiff's argument that this action is timely pursuant to the Massachusetts discovery rule.

FN9. General Statutes § 1–1d provides that the “ ‘age of majority’ shall be deemed to be eighteen years.”.  FN9. General Statutes § 1–1d provides that the “ ‘age of majority’ shall be deemed to be eighteen years.”

FN10. The defendants do make a valid point that some of the alleged instances of sexual abuse that occurred after the plaintiff turned eighteen may be barred by the statute of limitations.   By its plain language, § 52–577d only applies to “damages for personal injury to a minor ․” Nevertheless, as the plaintiff alleges acts occurring as far back as when she was three years old and it is generally inappropriate to grant summary judgment as to portions of count, the court still denies summary judgment on the basis of the statute of limitations..  FN10. The defendants do make a valid point that some of the alleged instances of sexual abuse that occurred after the plaintiff turned eighteen may be barred by the statute of limitations.   By its plain language, § 52–577d only applies to “damages for personal injury to a minor ․” Nevertheless, as the plaintiff alleges acts occurring as far back as when she was three years old and it is generally inappropriate to grant summary judgment as to portions of count, the court still denies summary judgment on the basis of the statute of limitations.

FN11. In their moving papers, the defendants state that they do not own either Albertus Magnus College or Marianapolis Preparatory School.   Those are the only two locations of alleged abuse in Connecticut..  FN11. In their moving papers, the defendants state that they do not own either Albertus Magnus College or Marianapolis Preparatory School.   Those are the only two locations of alleged abuse in Connecticut.

FN12. Additionally, the court also finds itself persuaded by the Pennsylvania case cited by the plaintiff in her summary judgment opposition.   In Hutchison v. Luddy, 560 Pa. 51, 742 A.2d 1052 (1999), the Pennsylvania Supreme Court overturned that state's intermediate appellate court's determination that the plaintiff had failed to establish liability pursuant to § 317 of the Restatement.   The Hutchison court applied the portion of § 317 that allows for the imposition of liability on a master for the conduct of its servant when the wrongful activity occurs on property upon which “the servant is privileged to enter only as his servant ․” The Hutchison court stated that the defendants could be held liable because the priest was able to gain access to the victim “because of his position as a priest ․” Id., 67.   The testimony at trial in this matter could certainly lead the trier of fact to conclude that Father Shea had unique access to the plaintiff because of his employment as a priest, and he used this access to assault her sexually..  FN12. Additionally, the court also finds itself persuaded by the Pennsylvania case cited by the plaintiff in her summary judgment opposition.   In Hutchison v. Luddy, 560 Pa. 51, 742 A.2d 1052 (1999), the Pennsylvania Supreme Court overturned that state's intermediate appellate court's determination that the plaintiff had failed to establish liability pursuant to § 317 of the Restatement.   The Hutchison court applied the portion of § 317 that allows for the imposition of liability on a master for the conduct of its servant when the wrongful activity occurs on property upon which “the servant is privileged to enter only as his servant ․” The Hutchison court stated that the defendants could be held liable because the priest was able to gain access to the victim “because of his position as a priest ․” Id., 67.   The testimony at trial in this matter could certainly lead the trier of fact to conclude that Father Shea had unique access to the plaintiff because of his employment as a priest, and he used this access to assault her sexually.

FN13. The plaintiff's motion to strike did not state the grounds upon which the plaintiff was moving to strike the defendants' special defenses as required by Practice Book § 10–41.   In their opposition to the motion to strike, the defendants objected to this defect.   As a result, the court would ordinarily be required to deny the motion to strike because non-compliance with § 10–41 is a fatal defect absent waiver by the opposing party.  Stuart v. Freiberg, 102 Conn.App. 857, 927 A.2d 343 (2007).   Nevertheless, at oral argument, the defendants' counsel agreed to waive the plaintiff's non-compliance with § 10–41 in exchange for the plaintiff waiving her argument that the special defenses must be stricken because they were not timely filed.   Consequently, the court is able to consider the motion to strike in the form that it is presented.  Id..  FN13. The plaintiff's motion to strike did not state the grounds upon which the plaintiff was moving to strike the defendants' special defenses as required by Practice Book § 10–41.   In their opposition to the motion to strike, the defendants objected to this defect.   As a result, the court would ordinarily be required to deny the motion to strike because non-compliance with § 10–41 is a fatal defect absent waiver by the opposing party.  Stuart v. Freiberg, 102 Conn.App. 857, 927 A.2d 343 (2007).   Nevertheless, at oral argument, the defendants' counsel agreed to waive the plaintiff's non-compliance with § 10–41 in exchange for the plaintiff waiving her argument that the special defenses must be stricken because they were not timely filed.   Consequently, the court is able to consider the motion to strike in the form that it is presented.  Id.

FN14. In its July 8, 2013 memorandum of decision denying the defendants' motion to strike, the court did note that some of the specifications of negligence found in the complaint may be barred by the first amendment.   The court stands by this conclusion.   Nevertheless, in their fifth special defense, the defendants clearly allege that “[t]he plaintiff's action” is barred by the federal and state constitutions, as well as § 52–571b.   The court has already ruled that this is not the case..  FN14. In its July 8, 2013 memorandum of decision denying the defendants' motion to strike, the court did note that some of the specifications of negligence found in the complaint may be barred by the first amendment.   The court stands by this conclusion.   Nevertheless, in their fifth special defense, the defendants clearly allege that “[t]he plaintiff's action” is barred by the federal and state constitutions, as well as § 52–571b.   The court has already ruled that this is not the case.

FN15. The plaintiff also briefly argues that because the diocese is a Connecticut corporation, it cannot avail itself of a Massachusetts statutory damages cap.   Although this position does make some logical sense, the plaintiff makes this assertion without any citation to relevant authority, and the text of c.231, § 85k, does not clearly limit itself to domestic corporations.   The court's own research into this issue also has failed to reveal much authority on whether c.231, § 85k, applies to charitable entities that are not incorporated in Massachusetts.   See, e.g., Justice–Hughes v. Quayside, Inc., Massachusetts Superior Court, Worcester County, Docket WOCV200901231 (September 27, 2011, Tucker, J.) (where the court briefly mentioned this issue but did not make any final determinations).   Given that the plaintiff did not adequately brief this issue and the law is not clear, this is an insufficient basis to strike this special defense..  FN15. The plaintiff also briefly argues that because the diocese is a Connecticut corporation, it cannot avail itself of a Massachusetts statutory damages cap.   Although this position does make some logical sense, the plaintiff makes this assertion without any citation to relevant authority, and the text of c.231, § 85k, does not clearly limit itself to domestic corporations.   The court's own research into this issue also has failed to reveal much authority on whether c.231, § 85k, applies to charitable entities that are not incorporated in Massachusetts.   See, e.g., Justice–Hughes v. Quayside, Inc., Massachusetts Superior Court, Worcester County, Docket WOCV200901231 (September 27, 2011, Tucker, J.) (where the court briefly mentioned this issue but did not make any final determinations).   Given that the plaintiff did not adequately brief this issue and the law is not clear, this is an insufficient basis to strike this special defense.

Dubay, Kevin G., J.