Berkley J. O'Connell v. Salon Shahin, Inc. et al. (2013)

Memorandum of Decision on Motion for Summary Judgment (No. 153) and on Objection to Motion for Summary Judgment (No. 164)

ISSUE

The issue presented is whether the court should grant the defendants' motion for summary judgment on counts one, two, four, six, nine, and eleven of the plaintiff's complaint on the grounds that there are no genuine issues of material fact that (1) the defendants did not know and should not have known that their employee would commit a sexual assault on the plaintiff customer and thus they had no duty to prevent harm to the plaintiff, and (2) the defendants employee did not act within the scope of his employment when he sexually assaulted the plaintiff.

C

FACTS

The plaintiff's claim arises from an alleged sexual assault by a massage therapist employed by the defendant salon.   On February 11, 2010, the plaintiff, Berkley J. O'Connell, filed an eleven-count complaint against the defendants, Salon Shahin, Inc., Salon Shahin, LLC,¹ and David A. Brown (“Brown”), the therapist.   Counts one, two, four, six, nine, and eleven of the plaintiff's complaint are directed at Salon Shahin and assert the following theories of liability, respectively:  negligent hiring, negligent supervision and retention, professional negligence, negligent infliction of emotional distress, invasion of privacy, and assault and battery.²  The complaint alleges the following facts.   Salon Shahin is a salon providing massage therapy and other services to its clients.   On or about March 21, 2008, the plaintiff received a massage from Brown, a massage therapist employed by Salon Shahin.   Brown was “acting in the performance of his duties and within the scope of his employment or agency and/or with the permission of ․ Salon Shahin” when, during the massage, he “committed various acts of lewd and immoral behavior including digitally penetrating the Plaintiff's vagina.”   The plaintiff further alleges that, as a result of this sexual assault, she suffered injuries and losses, and has incurred expenses for psychological care and other medical treatment.   In its answer, Salon Shahin admits that Brown was its employee, but pleads insufficient knowledge regarding the incident alleged and leaves the plaintiff to her proof.   The answer also asserts special defenses to counts four, six, nine, and eleven, arguing that, in those counts, the plaintiff fails to state claims upon which relief can be granted.

On April 1, 2013, Salon Shahin filed a motion for summary judgment with respect to counts one, two, four, six, nine, and eleven.   The motion was accompanied by a supporting memorandum of law.   In support of its motion for summary judgment, Salon Shahin submits the following evidence:  (1) a signed and sworn affidavit of Shahin Farzam, co-owner of Salon Shahin;  (2) Brown's response to Salon Shahin's request for admissions;  and (3) a certified copy of excerpts from the plaintiff's deposition.   The plaintiff filed a memorandum in opposition to the motion for summary judgment, and in support of its objection thereto, on July 30, 2013.   The memorandum addresses the plaintiff's opposition to the motion for summary judgment only as to counts four, six, nine, and eleven.   In support of her memorandum in opposition, the plaintiff submits the following evidence:  (1) a certified copy of a deposition of Shahin Farzam;  (2) a statement given to the Stamford Police Department by Shahin Farzam regarding the incident;  (3) a statement given to the Stamford Police Department by Shermin Farzam, brother of Shahin Farzam and co-owner of Salon Shahin, regarding the incident; ³  and (4) excerpts from the aforementioned deposition of the plaintiff.   The matter was heard at short calendar on August 5, 2013, at which time the plaintiff represented to the court that she has no factual basis to oppose summary judgment on counts one and two.   The plaintiff did, however, present argument in opposition to the granting of summary judgment on counts four, six, nine, and eleven.

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012).   “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way.”  (Internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Moreover, “[i]n seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ 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 ․ 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.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact ․” (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

I.

NEGLIGENT HIRING, SUPERVISION, AND RETENTION

Counts one and two of the plaintiff's complaint are premised on theories of (1) negligent hiring and (2) negligent supervision and retention.   With regards to its motion for summary judgment on these counts, Salon Shahin argues that it had no duty to the plaintiff to prevent the alleged sexual assault because it was unforeseeable to Salon Shahin that Brown would sexually assault a client.   In other words, the plaintiff argues that because there is no evidence that Salon Shahin knew, should have known, or would have anticipated that Brown would sexually assault the plaintiff, it had no duty to prevent harm to the plaintiff and is entitled to judgment as a matter of law.   In her memorandum in opposition, the plaintiff does not address Salon Shahin's motion for summary judgment on counts one and two, and at short calendar, the plaintiff represented to the court that she does not have a factual basis to oppose the motion as to those counts.⁴

“[N]egligent hiring, retention and supervision ․ are different causes of action.”   Loglisci v. Stamford Hospital, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–08–5009309–S (February 22, 2011, Jennings, J.T.R.).  “The tort of negligent hiring extends to any situation where a third party is injured by an employer's own negligence in failing to select an employee fit or competent to perform the services of employment.”   (Internal quotation marks omitted.)  Id. The tort of negligent supervision requires “a plaintiff [to] plead injury by an employee whom the defendant had a duty to supervise, failed to supervise and whom the defendant knew or should have known would cause the injury.”  (Internal quotation marks omitted.)   Andreoni v. Forest Enterprises, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–07–6000743–S (April 21, 2010, Brazzel–Massaro, J.).  “The claim of negligent retention has been recognized by the Superior Court, but not by the appellate courts of the state ․ It requires a plaintiff to plead and prove that an employer, during the course of employment, became aware of problems that indicate a lack of fitness for the position, that the unfitness was likely to cause the sort of harm incurred by the plaintiff, and that the employer failed to take action.”  Loglisci v. Stamford Hospital, supra.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action ․ Thus, [t]here can be no actionable negligence ․ unless there exists a cognizable duty of care ․ [T]here generally is no duty that obligates one party to aid or to protect another ․ An exception to the general rule that one has no legal obligation to protect another may arise when the defendant's own conduct creates or increases the foreseeable risk that such other person will be harmed by the conduct of a third party, including the foreseeable criminal conduct of that third party.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Doe v. Saint Francis Hospital & Medical Center, 309 Conn. 146, 174–75, 72 A.3d 929 (2013).  “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.)  Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002).  “By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result ․” (Internal quotation marks omitted.)   Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 594, 945 A.2d 388 (2008).

This foreseeability test applies in cases alleging negligent hiring, supervision, or retention.  “Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of foreseeability.”  (Internal quotation marks omitted.)   Taylor v. Webster Bank, N.A., Superior Court, judicial district of Litchfield, Docket No. CV–11–6005350–S (July 20, 2012, Danaher, J.).

In support of its argument, Salon Shahin submits the affidavit of Shahin Farzam.   In his affidavit, Farzam testifies as follows.   Brown held a valid massage therapy license from the state of Connecticut.   Prior to the alleged March 2008 incident, Salon Shahin was not aware of any complaints regarding Brown's conduct, nor was Salon Shahin aware of any inappropriate conduct between Brown and any clients.   Moreover, Farzam observed Brown's behaviors while interacting with clients and other employees at Salon Shahin, and these interactions were always appropriate.   Farzam supervised Brown during his employment at Salon Shahin, but it is not customary in the business for anyone besides the massage therapist and the client to be present in the massage room during a massage.   Salon Shahin also submits excerpts from a deposition of the plaintiff, in which she testifies that it is generally not normal to have anyone other than the massage therapist and the client present during a massage.   In addition to the Farzam affidavit and the deposition of the plaintiff, Salon Shahin submits Brown's response to Salon Shahin's request for admissions.   In Brown's response, he admits that he had no criminal history prior to the alleged March 2008 incident.   Furthermore, Brown admits that he had a valid massage therapy license from the state of Connecticut, which had never been suspended or revoked.   Brown also admits that, prior to March 2008, he was never accused of engaging in any improper conduct with a client and had never been reprimanded for such conduct.   The plaintiff does not submit any evidence with regards to the motion for summary judgment on counts one and two.

Counts one and two of the plaintiff's complaint attempt to hold Salon Shahin liable for a tort allegedly committed by Brown, a third party.   Because there generally is no duty that requires one person or entity to protect another from the tortious acts of a third party, the plaintiff must allege facts that place this case in the exception to this general rule.   That is, the plaintiff must allege facts demonstrating that Salon Shahin's own conduct created or increased the foreseeable risk that she would be harmed by Brown.   Although counts one and two sound in the separate theories of negligent hiring, negligent supervision, and negligent retention, each of these causes of action require this same element:  the plaintiff must allege facts that support the element of foreseeability.

Salon Shahin, the moving party, has introduced evidence indicating that Brown's alleged assault was unforeseeable to it.   First, the evidence presented by Salon Shahin indicates that Salon Shahin hired Brown, a massage therapist who had (1) no criminal history, (2) a valid state license that had never been suspended or revoked, and (3) never been accused of engaging in or reprimanded for any improper conduct with a client.   Second, the evidence indicates that, prior to the alleged March 2008 incident, Salon Shahin was unaware of any inappropriate conduct between Brown and Salon Shahin's clients during Brown's approximately three years of employment.   Third, the evidence submitted establishes that Salon Shahin supervised Brown, but that it was not customary in the spa business for a massage therapist like Brown to be supervised during a massage.

Based on this evidence, viewed in the light most favorable to the plaintiff, the court finds Salon Shahin has met its burden of showing the nonexistence of any genuine issue of material fact as to the unforeseeability of Brown's alleged assault.   Because Salon Shahin, the moving party, has met its burden, the burden shifts to the plaintiff, the non-moving party, who must present evidence that demonstrates the existence of a disputed factual issue as to foreseeability.   The plaintiff, however, fails to submit any evidence indicating that Brown's alleged actions were foreseeable to Salon Shahin.   In fact, the plaintiff represented to the court that she has no factual basis to oppose the motion for summary judgment on counts one and two.   Absent facts supporting the element of foreseeability, Salon Shahin had no duty to protect the plaintiff from Brown's allegedly tortious assault.   Therefore, Salon Shahin's motion for summary judgment is granted as to counts one and two.

II.

RESPONDEAT SUPERIOR

Counts four, six, nine, and eleven assert theories of professional negligence, negligent infliction of emotional distress, invasion of privacy, and assault and battery, respectively.   These counts attempt to hold Salon Shahin vicariously liable for the alleged tortious actions of Brown.   Salon Shahin argues that it is entitled to summary judgment on these counts because there is no genuine issue of material fact that Brown was acting outside the scope of his employment during the alleged sexual assault of the plaintiff.   In response, the plaintiff counters that there are questions of fact because a jury could reasonably find that a massage therapist who sexually assaults a client at a salon during a massage by digitally penetrating the client's vagina was acting within the scope of his employment and in furtherance of the salon's business.

“[U]nder the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment.”  (Emphasis omitted.)  Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003).  “[V]icarious liability is based on a relationship between the parties, irrespective of participation, either by act or omission, of the one vicariously liable, under which it has been determined as a matter of public policy that one person should be liable for the act of [another].   Its true basis is largely one of public or social policy under which it has been determined that, irrespective of fault, a party should be held to respond for the acts of another.”  (Internal quotation marks omitted.)  Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692 n.16, 849 A.2d 813 (2004).

Our Supreme Court has “long adhered to the principle that in order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer's business ․ But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply.”  (Citations omitted;  internal quotation marks omitted.)  A–G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990).  “A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phrase during the period covered by his employment ․ While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful ․ that does not end the inquiry.   Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business ․ Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable.”  (Internal quotation marks omitted.)  Mullen v. Horton, 46 Conn.App. 759, 764, 700 A.2d 1377 (1997).  “In determining whether an employee has acted within the scope of employment, courts ‘look to whether the employee's conduct:  (1) occurs primarily within the employer's authorized time and space limits;  (2) is of the type that the employee is employed to perform;  and (3) is motivated, at least in part, by a purpose to serve the employer.”  Harp v. King, 266 Conn. 747, 782–83, 835 A.2d 953 (2003).  “The test ․ as to whether an employee is acting within the scope of his ․ employment rests on whether the employee was furthering the employer's business.   This standard has been applied to ․ an employee's willful torts ․” (Citation omitted.)  Nutt v. Norwich Roman Catholic Diocese, 921 F.Sup. 66, 70 (D.Conn.1995).

“Ordinarily, it is a question of fact as to whether a wilful tort of the servant has occurred within the scope of the servant's employment and was done to further his master's business ․ But there are occasional cases where a servant's digression from duty is so clear-cut that the disposition of the case becomes a matter of law.”  (Citation omitted;  internal quotation marks omitted.)  A–G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 207.   For example, in Brown v. Housing Authority, 23 Conn.App. 624, 627–28, 583 A.2d 643 (1990), the Appellate Court found that an employee's digression from the duties of his employment was so clear that the case was properly decided as a matter of law in a summary judgment motion.   In Brown, the plaintiff alleged that the defendant's employee, a maintenance mechanic, assaulted him during an altercation that arose when the plaintiff asked the employee, who was driving a van owned by the defendant, to move the van.  Id., 625.   The employee had been driving the defendant's van to a job site when the conduct allegedly occurred.  Id. The Appellate Court held that “[i]t is clear ․ that [the employee] was not furthering the defendant's business interests when he assaulted the plaintiff.   His intentional, criminal acts were in no way connected to the defendant's business.   The mere fact that [the employee] was driving from one job site to another when the assault took place does not change this analysis.”  Id., 628.   The court upheld the trial court's granting of summary judgment for the defendant because “there were no facts before the court from which it could conclude that [the employee] was furthering the defendant's interests ․ [and therefore] the defendant's nonliability under the theory of respondeat superior was properly determined as a matter of law.”  Id.

Similarly, in Gutierrez v. Thorne, 13 Conn.App. 493, 496–97, 537 A.2d 527 (1988), the plaintiff, a client of the Connecticut Department of Mental Retardation, alleged that she was repeatedly sexually assaulted by an employee of the commissioner of mental retardation who was hired to help retarded persons living in a supervised living program.   The Appellate Court held that, as a matter of law, the defendant employer, the commissioner of mental retardation, could not be liable under a respondeat superior theory.  Id., 498–99.  “[I]t is clear that [the employee] was not furthering the defendant's business interests when he sexually assaulted the plaintiff.   He was engaging in criminal conduct which had no connection to the defendant's business of providing supervision and training to mentally retarded persons regarding daily living skills.   Since there were no facts before the court from which it could conclude that [the employee] was furthering the defendant's interests, the defendant's nonliability under a respondeat superior theory was properly determined as a matter of law ․ The plaintiff's statement in her affidavit that [the employee] was ‘on duty’ at the time of each assault, does not alter this conclusion, because his tortious conduct while on duty is not susceptible of an inference that he was acting to further his employer's interest.”   (Citation omitted.)  Id., 499.

Numerous Superior Court decisions have held that a defendant's nonliability under a theory of respondeat superior is properly determined as a matter of law when the plaintiff alleges that the defendant's employee committed a sexual assault.   See, e.g., Hayes v. Norwich Roman Catholic Diocese, Superior Court, judicial district of Tolland, Complex Litigation Docket, Docket No. X07–CV–02–0084286–S (August 24, 2004, Sferrazza, J.) (Roman Catholic diocese and bishop not liable as a matter of law for priest's alleged sexual assaults of a child);  Hoydic v. Genesco, Inc., Superior Court, judicial district of Ansonia–Milford, Docket No. CV–07–5003291–S (April 10, 2008, Levin, J.) (employer not liable for employee's alleged sexual harassment and attempted and actual sexual assault of another employee).   For example, in Nelligan v. Norwich Roman Catholic Diocese, Superior Court, judicial district of Tolland, Complex Litigation Docket, Docket No. X07–CV–02–0084287–S (June 15, 2006, Sferrazza, J.), the court rejected the plaintiff's attempt to impose vicarious liability on the defendants, a Roman Catholic diocese, church corporation, and bishop, for a priest's alleged sexual assaults of a teenage boy.   The court held that “respondeat superior is inapplicable as a matter of law” because “[c]learly, [the priest's] sexual assaults upon the plaintiff were repugnant to his employer's business and in utter contravention of the employer's aims and rules.   Unlike a situation where a servant performs the master's work poorly or misunderstands what the master wants done, the molestation of children is a total abdication of the master's work so that the pedophile priest can satisfy personal lust.”  Id. In dictum, our Appellate Court has observed that cases where a priest sexually molests a minor “clearly represent a situation in which the priest wholly abandoned his pastoral duties ․ [and therefore is] one of those exceptional cases in which the servant's digression from duty is so clear cut that the disposition of the case is a matter of law.”  Mullen v. Horton, supra, 46 Conn.App. 770–71.

Nonetheless, not all respondeat superior actions alleging sexual misconduct are properly disposed of as a matter of law.  “Regardless of the nature of the intentional tort alleged ․ it would be contrary to Connecticut law to adopt a per se rule against vicarious liability in cases involving sexual assault.   Some factual inquiry is mandated by Connecticut law ․” (Emphasis in original.)  Kilduff v. Cosential, Inc., 289 F.Sup.2d 12, 20 (D.Conn.2003).   For example, in Mullen v. Horton, supra, 46 Conn.App. 761–62, the plaintiff sued a religious order, alleging that the religious order's priest engaged in sexual relations with her during counseling sessions.   In addition to his priestly duties, the priest was a practicing psychologist who, “[g]iven [h]s] vow of poverty ․ gave all of the profits he derived from his psychology practice to the [religious order].”  Id., 761.  “[The priest] provided the plaintiff with a combination of pastoral, spiritual and psychological counseling, including psychological discussions, spiritual advice and prayer.”  Id. “[The priest] and the plaintiff began a sexual relationship, with sexual contact taking place during the counseling sessions.  [The priest] continued to bill the plaintiff and her insurance company for these counseling sessions in which sexual contact occurred.   Sexual contact between [the priest] and the plaintiff also occurred at church retreats, sponsored and run by the [religious order], where [the priest] was serving as retreat faculty.”  Id., 761–62.   The Appellate Court reversed the trial court's granting of summary judgment for the religious order, holding that “a trier of fact could reasonably determine that [the priest's] sexual relationship with the plaintiff was a misguided attempt at pastoral-psychological counseling, or even an unauthorized, unethical, tortious method of pastoral counseling, but not an abandonment of church business.”  Id., 765–66.   In reaching this conclusion, the court found that “a trier of fact could reasonably find that the sexual relations between [the priest] and the plaintiff directly grew out of, and were the immediate and proximate results of, the church sanctioned counseling sessions.” ⁵  Id., 766.  “[The priest's] engaging in sexual contact with the plaintiff during counseling sessions ․ could represent an extreme and clearly unauthorized method of spiritually and emotionally counseling the plaintiff and thereby furthering the church's business.   The fact that the specific method a servant employs to accomplish his master's orders is not authorized does not relieve the master from liability.”  (Internal quotation marks omitted.)  Id., 767.

In support of its argument, Salon Shahin submits Brown's response to Salon Shahin's request for admissions.   In Brown's response, he admits that he was aware, both prior to being hired by Salon Shahin and during the entire tenure of his employment, that it is improper to engage in sexual contact with a client during a massage.   Additionally, Salon Shahin submits the affidavit of Shahin Farzam.   In the affidavit, Farzam testifies that Salon Shahin considers it improper for a massage therapist to engage in sexual contact with a client during a massage and does not allow such conduct.   Moreover, Farzam testifies that if Brown sexually assaulted the plaintiff, such alleged conduct would be outside the scope of Brown's job duties and not in furtherance of Salon Shahin's business.   In fact, Farzam testifies that such criminal activity would be harmful and repugnant to Salon Shahin's business.   Furthermore, Salon Shahin submits excerpts from the deposition of the plaintiff.   In the pertinent portions of the deposition, the plaintiff testifies that the alleged conduct by Brown was not part of any legitimate massage, although she states that she “believe[s] [Brown] thinks that it was, maybe.”

In response, the plaintiff submits a deposition of Shahin Farzam.   In the deposition, Farzam testifies that any type of sexual contact during a massage is completely inappropriate.   Farzam also testifies, however, that he has never specifically discussed the subject of inappropriate sexual contact during a massage with Salon Shahin's massage therapists.   The plaintiff's memorandum in opposition to the motion for summary judgment also cites to Farzam's deposition for the proposition that “the Defendant, David Brown, characterized the incident as some type of Chakra treatment given during the massage” and that “[i]n explaining himself after the incident, the masseuse was clearly stating he was engaged in the business of conducting a massage as he saw fit and in doing so he was continuing to serve the business purpose of the salon to provide massage therapy to clients.”   This statement, however, is unsupported by Farzam's deposition, in which Farzam states that Brown said he gave the plaintiff a professional massage and never admitted to any wrongdoing.⁶

This case involves a sexual assault, an intentional tort.   Connecticut law imposes no categorical bar against respondeat superior liability in cases involving sexual relations.   Pursuant to the Appellate Court's reasoning in Mullen v. Horton, supra, 46 Conn.App. 759, it is conceivable that, under certain factual circumstances, a jury could find that a massage therapist's sexual contact with a client during a massage was “a misguided attempt at [massage therapy], or even an unauthorized, unethical, tortious method of [massage therapy], but not an abandonment of the [salon's] business.”   While sexual contact would be an extreme and disobedient method of furthering a salon's business, if the evidence submitted indicated that the employee was motivated, at least in part, by a purpose to serve the employer, the salon could be vicariously liable under the doctrine of respondeat superior.

After careful consideration of all the evidence submitted, and disregarding the unsworn assertions of counsel in plaintiff's memorandum (see fn.6, supra ) the court concludes that this case is governed by the rule of Mullen v. Horton in that a finder of fact could reasonably find that David Brown was activated at least in part by a purpose to serve his employer Salon Shahin by providing Ms. O'Connell with massage therapy as he saw fit by using some type of “Chakra” treatment.   In the sworn statement of Shahin Farzam, signed at the Stamford Police Department on April 11, 2008, he, the co-owner of Shahin Salon “I recall that he [Brown] explained how his method of massage, Chokra, is designed to relieve tensions.   He was explaining his techniques.”   Shahin Farzam then quotes Brown as admitting that “he had put his hands in her” but also said “it was at her request and it was part of the technique to Chakra treatment.”   Farzam then states that he “immediately fired David on the spot,” but that “David still maintained that he only used what the Chakra techniques called for.”   When Shahin Farzam was deposed more than five years later on July 15, 2013, he did not vary from the statement he gave to the police in 2008.   In fact he embellished on it.   After Shahin had testified that “He [Brown] admitted of giving her [Ms. O'Connell] a professional massage for release of tension” (Tr. p. 73), the questioner, Atty Savvaides, quoting from the 2008 statement, continued:

Q. “He was real nervous.   I recall that he explained how his method of massage is designed to release tensions.   He was explaining his techniques.”   Before that day, had you ever hard [heard] the term Chakra?

A. Yes, I have.

Q. Do you know what that is?

A. In different forms of it, yes.

Q. And so, you had an understanding of Chakra massage back then?

* * * *

A. Yes, I did know what Chakra treatments were then.

Q. Your statement goes on to say,”He was explaining his techniques.   The man [plaintiff's boyfriend, Mr. Steel] then kind of point blank told David that he had touched his girlfriend inappropriately.”   I imagine that “he” in that is Mr. Steel accusing David, correct?

A. Yes

Q. The next sentence says “David then put his hand on the man's shoulder and told the man he had put his hands in her, but that it was at her request and it was part of the technique, a Chakra movement.”   Did Mr. Brown say that?

A. Mr. Brown say (sic.) he did Chakra movement on her.

Q. Okay. This sentence goes further according to the sentence, David put his hands in her whatever that means.   What did you understand that to mean?

A. My understanding of Chakra, there are people sit across the room from each other and they give each other Chakra treatment by making somebody feel they are inside them.   That is my understanding of Chakra treatment.

(Tr. 76–77.)

The plaintiff, Berkeley O'Connell was deposed on January 30, 3013.   After describing how Brown had been working on one of her legs, and then worked on the other leg she said:  “I don't remember the exact details.   All I know is, you know, then out of nowhere he stuck two fingers in my vagina.”  (Tr. 94.)   She continued:  “I immediately asked him to get off, not that he was on top of me, but he was leaning over me.   And he said ‘Oh no, no, Chakra, Chakra.’  (Tr. 95.)   She was asked shortly after giving that answer “Do you think what you claim he did was part of any type a legitimate massage technique?”   She answered:  “I believe he thinks that it was, maybe ․” (Tr. 96.)

The issue is not whether the plaintiff, or Shahin Farzam, or anyone else thought that David Brown was engaging in some sort of legitimate massage technique when he did what he did to the plaintiff.   The only issue is whether or not David Brown thought or believed so, and was, motivated at least in part by that belief.   The evidence is far from conclusive that he did.   He would certainly be cross examined, and perhaps hard pressed to reconcile any such belief with his admission pursuant to Practice Book § 13–24 that “ ․ prior to being hired by Salon Shahin as a massage therapist and during the entire tenure of his employment with Salon Shahin, he was aware that it was improper to engage in sexual contact with a client during a massage.”  (Ex. B. to Defendant's Memorandum.)   But the weighing of evidence, or the resolution of conflicting evidence, is the proper function of the jury or judge trying the case, not the function of this court acting on a motion for summary judgment.   The evidence submitted here amounts to at least a factual predicate of a material issue of fact as to the application of the doctrine of respondeat superior, and the motion for summary judgment is therefore denied as to counts four, six, nine, and eleven.

CONCLUSION AND ORDER

For the foregoing reasons the defendant's motion for summary judgment is granted as to counts one and two of the complaint, and denied as to counts four, six, nine, and eleven of the complaint.   Plaintiff's objection to motion for summary judgment is overruled as to counts one and two, but sustained as to counts four, six, nine and eleven of the complaint.

Alfred J. Jennings

Judge Trial Referee

FOOTNOTES

FN1. Throughout their briefs, the parties refer to Salon Shahin, Inc., and Salon Shahin, LLC collectively as “Salon Shahin” or “the salon.”   Both Salon Shahin entities are represented by the same counsel and together filed the present motion for summary judgment.   Therefore, for the sake of clarity, Salon Shahin, Inc., and Salon Shahin, LLC will be referred to collectively as Salon Shahin in this memorandum..  FN1. Throughout their briefs, the parties refer to Salon Shahin, Inc., and Salon Shahin, LLC collectively as “Salon Shahin” or “the salon.”   Both Salon Shahin entities are represented by the same counsel and together filed the present motion for summary judgment.   Therefore, for the sake of clarity, Salon Shahin, Inc., and Salon Shahin, LLC will be referred to collectively as Salon Shahin in this memorandum.

FN2. The remaining counts in the plaintiff's complaint assert claims solely against Brown for professional negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, invasion of privacy, and assault and battery..  FN2. The remaining counts in the plaintiff's complaint assert claims solely against Brown for professional negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, invasion of privacy, and assault and battery.

FN3. The plaintiff's memorandum in opposition to summary judgment describes the statements of Shahin Farzam and Shermin Farzam to the Stamford Police Department as “Voluntary Statement[s]/Affidavit[s].”  The documents are written signed statements voluntarily given by the Farzam brothers to the police that are “subscribed and sworn to” before a notary public.   Although not titled as an “affidavit” the documents are, in fact, sworn affidavits.   They are in compliance with Practice Book § 17–46 in that they are “made on personal knowledge” and set forth, for the most part, “facts as would be admissible in evidence and ․ show affirmatively that the affiant is competent to testify as to the matters stated therein.”   To the extent that these affidavits quote the plaintiff's boyfriend, those statements are presumed to be hearsay and will not be considered, but the quotations of defendant Brown are statements of a party which could be offered against defendant Brown at trial and are therefore covered by an exception to the hearsay rule as statements of party opponent.  Connecticut Code of Evidence § 8–3(1)..  FN3. The plaintiff's memorandum in opposition to summary judgment describes the statements of Shahin Farzam and Shermin Farzam to the Stamford Police Department as “Voluntary Statement[s]/Affidavit[s].”  The documents are written signed statements voluntarily given by the Farzam brothers to the police that are “subscribed and sworn to” before a notary public.   Although not titled as an “affidavit” the documents are, in fact, sworn affidavits.   They are in compliance with Practice Book § 17–46 in that they are “made on personal knowledge” and set forth, for the most part, “facts as would be admissible in evidence and ․ show affirmatively that the affiant is competent to testify as to the matters stated therein.”   To the extent that these affidavits quote the plaintiff's boyfriend, those statements are presumed to be hearsay and will not be considered, but the quotations of defendant Brown are statements of a party which could be offered against defendant Brown at trial and are therefore covered by an exception to the hearsay rule as statements of party opponent.  Connecticut Code of Evidence § 8–3(1).

FN4. The court has reviewed the digital recording of oral argument on this point.   Although admitting that he had submitted no factual basis to oppose summary judgment as to counts one and two counsel for the plaintiff stopped short of consenting to the court's granting of the motion for summary judgment on those two counts but rather left the decision as to counts one and two for the court's determination..  FN4. The court has reviewed the digital recording of oral argument on this point.   Although admitting that he had submitted no factual basis to oppose summary judgment as to counts one and two counsel for the plaintiff stopped short of consenting to the court's granting of the motion for summary judgment on those two counts but rather left the decision as to counts one and two for the court's determination.

FN5. The Mullen court found particular support for this finding in an affidavit of a clinical psychologist who stated that “sexual relations often mistakenly arise out of an emotional therapeutic relationship.   This is known as the transference-countertransference phenomenon.  [The clinical psychologist] further opined in her affidavit that a transference-countertransference phenomenon arose between the plaintiff and [the priest], with the emotional nature of the therapeutic relationship causing the parties to displace feelings and confuse the therapeutic relationship with an intimate sexual relationship.”  Id., 766..  FN5. The Mullen court found particular support for this finding in an affidavit of a clinical psychologist who stated that “sexual relations often mistakenly arise out of an emotional therapeutic relationship.   This is known as the transference-countertransference phenomenon.  [The clinical psychologist] further opined in her affidavit that a transference-countertransference phenomenon arose between the plaintiff and [the priest], with the emotional nature of the therapeutic relationship causing the parties to displace feelings and confuse the therapeutic relationship with an intimate sexual relationship.”  Id., 766.

FN6. In her memorandum in opposition to the motion for summary judgment, the plaintiff argues that “[b]y its very definition, massage therapy can serve to arouse not only the client being massaged but also the masseuse who is performing the massage ․ It takes great professionalism and discipline to avoid temptation.”   Additionally, the memorandum argues that “[i]t is universally known that massage therapy can and does often arouse sexual feelings and temptation.”   It is axiomatic that “[m]ere 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.)   Marinos v. Poirot, 308 Conn. 706, 712, 66 A.3d 860 (2013).  “Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.”  (Internal quotation marks omitted.)  Gough v. Saint Peter's Episcopal Church, 143 Conn.App. 719, 728, 70 A.3d 190 (2013).   The plaintiff has not submitted any evidence, such as an affidavit, to support the factual proposition in her memorandum that massage therapy often arouses sexual feelings and temptation in massage therapists.   Thus, these nonevidentiary assertions of fact cannot be considered by the court in its analysis..  FN6. In her memorandum in opposition to the motion for summary judgment, the plaintiff argues that “[b]y its very definition, massage therapy can serve to arouse not only the client being massaged but also the masseuse who is performing the massage ․ It takes great professionalism and discipline to avoid temptation.”   Additionally, the memorandum argues that “[i]t is universally known that massage therapy can and does often arouse sexual feelings and temptation.”   It is axiomatic that “[m]ere 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.)   Marinos v. Poirot, 308 Conn. 706, 712, 66 A.3d 860 (2013).  “Such assertions are insufficient regardless of whether they are contained in a complaint or a brief.”  (Internal quotation marks omitted.)  Gough v. Saint Peter's Episcopal Church, 143 Conn.App. 719, 728, 70 A.3d 190 (2013).   The plaintiff has not submitted any evidence, such as an affidavit, to support the factual proposition in her memorandum that massage therapy often arouses sexual feelings and temptation in massage therapists.   Thus, these nonevidentiary assertions of fact cannot be considered by the court in its analysis.

Jennings, Alfred J., J.T.R.