Marguerite Shannon v. Leisure Sports, Inc. (2014)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

On April 23, 2013, the plaintiff, Marguerite Shannon, filed a two-count complaint alleging battery against the defendant Karen Voisine (Voisine), in the first count, and negligence against the defendant Leisure Sports, Inc. (Leisure Sports), in the second count alleging the following facts.   On June 4, 2011, the plaintiff and Voisine were patrons at Camp Niantic Family Campground, owned by Leisure Sports.   On that date, Voisine consumed a “negligent amount of alcohol” and struck the plaintiff “with such force that the Plaintiff sustained serious injuries” to her right knee and her wrist, and suffered physical and emotional pain and suffering.   Plaintiff claims that Voisine is liable for the tort of battery and Leisure Sports is liable under a theory of negligence.

On June 2'7, 2013, Leisure Sports filed this motion to strike the plaintiff's second count.

The second count of the plaintiff's complaint alleges that “[i]t was the duty of [Lesiure Sports] to exercise reasonable care to maintain the premises in a safe condition for its invitees” and that it failed to do so by failing to remove alcohol from Voisine's possession, failing to check to see if Voisine had alcohol in her possession, failing to have the necessary security to prevent the incident, failing to have a necessary monitoring process to prevent the incident, failing to have necessary safety procedures to prevent the incident and failing to provide medical assistance or contact a medical provider for assistance.

Leisure Sports moves to strike on the ground that it did not owe the plaintiff a duty of care to protect against the kind of harm the plaintiff suffered.   Leisure Sports contends that being hit by an inebriated patron at its campground is equivalent to a situation in which a plaintiff is injured by a defect in a portion of premises controlled by a tenant who leases those premises.   The defendant cites Bedrossian v. Benoit, Superior Court, judicial district of Windham, Docket No. CV–95–0051640–S (July 26, 1996, Sferrazza, J.), in which the court held that the defendant campground owner did not owe the plaintiff a duty of care to prevent an injury caused by hazardous stairs that were constructed on the leased portion of the campsite by the lessee.   The court determined that under such facts, no duty of care to the plaintiff arose, as the hazardous steps were located entirely on the leased portion of the campsite and constructed entirely by the owners of the trailer Leisure Sports argues that, like the defendant in Benoit, Leisure Sports never assumed a duty of care to protect the plaintiff from the unforeseeable and deliberate act of its lessee.

The plaintiff argues in opposition that Benoit is distinguishable from the present action because the Benoit defendant had no notice or knowledge that the stairs were being constructed by the plaintiff.   The plaintiff contends that Leisure Sports was aware that invitees such as Voisine bring alcohol to the premises, that excessive alcohol may be consumed, and that such consumption may lead to harm to other patrons.   Therefore, the plaintiff argues that Leisure Sports breached its duty to maintain its premises in a reasonably safe manner.

The defendant's argument relies on the wrong theory of premises liability, namely the property owner's liability for a defective condition existing on the premises.   In Perez v. Cumba, 138 Conn.App. 351, 367–69 (2012), the Appellate Court stated:

The complaint ․ 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 ․ invitees that could reasonably be anticipated to arise from the activities taking place on [the] premises.   Unlike the standard premises liability case in which the actual condition of the property gave rise to a dangerous condition ․ the complaint ․ alleges that it was the intentional conduct of third persons on the property, rather than the property itself, that created the dangerous condition.   Accordingly ․ [the] allegations do not advance a traditional defective premises theory of recovery, but rather one predicated on ․ liability arising from the intentional acts of a third party ․

While, as a general rule, “there is no duty to control the conduct of a third person.”  Murdock v. Croughwell, 268 Conn. 559, 567, 848 A.2d 363 (2004).   Connecticut law does recognize notable exceptions.   See e.g., Murdock v. Croughwell, supra, 268 Conn. 667–69;  Merhi v. Becker, 164 Conn. 516, 325 A.2d 270 (1973).   The defendant has not briefed nor argued how these various principles create duty of care exists or whether the scope of any such duty extends to the breaches alleged in the complaint.   However, in ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.  Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).   Accordingly, the motion to strike the second count is denied.

The motion to strike the second count is denied.

Wagner, J.T.R.

Wagner, Jerry, J.T.R.