Jessica Swift v. Krzysztof Jodlowski et al. (2014)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

BACKGROUND

The plaintiff, Jessica Swift, an employee of Lake Compounce Amusement Park in Bristol, Connecticut, claims she sustained injuries and damages as a result of an altercation which occurred at the park on August 28, 2010.   The defendants are Krzysztof Jodlowski [Krzysztof], his wife, Malwina Jodlowski [Malwina], their five-year-old son, Adam Jodlowski [Adam] and Krzysztof's parents, Jan and Alina Jodlowski [Jan and Alina].

The following allegations are contained in the complaint.   Swift observed Krzysztof assault a woman while he was holding Adam. When Swift intervened, Krzysztof attacked Swift, causing her injury.   Swift suffered additional injury when Adam subsequently caused her to fall.   Swift further alleges that Krzysztof had previously consumed alcohol, failed to take insulin and was suffering from a diabetic shock.

In the first count, Swift claims negligence of Krzysztof.   In the second count, Swift claims intentional assault by Krzysztof.   In the third and fourth counts, Swift claims negligence of Malwina.   In the fifth and sixth counts, Swift claims negligence of Jan. In the seventh and eighth counts Swift claims negligence of Alina.   In the ninth count, Swift claims intentional assault by Adam. In the tenth count, Swift claims a violation of General Statutes § 52–572 by Krzysztof and Malwina as parents of Adam. In the eleventh count, Swift claims negligence of Adam. In the twelfth count, Swift claims negligence of Krzysztof and Malwina, as parents of Adam.

All of the defendants have filed a motion for summary judgment, asserting that Swift “has not stated a legally sufficient claim against the Defendants that would permit recovery based on negligent tort liability or intentional tort liability.”   An attack of the legal sufficiency of pleadings is properly addressed by a motion to strike.   However, the defendants waived such motion by filing an answer and special defense pursuant to Practice Book § 10–7.   Therefore, in considering this motion for summary judgment, the court is limited to the criteria for a motion for summary judgment.   The plaintiff filed an objection to the motion for summary judgment.¹  The matter was heard on February 24, 2014.

LEGAL STANDARD

Practice Book [§ 17–49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ A material fact ․ [is] a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 312–13, 77 A.3d 726 (2013).

“[A] motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”   Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “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 issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).  “[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.”  (Internal quotation marks omitted.)   Id., 752.  “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Emphasis in original.)  Id.

“A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  (Citation omitted;  internal quotation marks omitted.)  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).  “[T]he genuine issue aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.”  (Internal quotation marks omitted.)  Id., 378–79.  “Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  (Internal quotation marks omitted.)  Id., 379.

ANALYSIS

The defendants attack the legal sufficiency of the plaintiff's claims by way of a motion for summary judgment.   As stated above, the defendants waived their ability to do so with the filing of their answer to the complaint.   Therefore, the court declines to address the defendants' contention that the various allegations are legally insufficient.   The defendants, however, also assert that they owed no legal duty to the plaintiff.   That assertion is properly the subject of a motion for summary judgment.

The defendants' memorandum in support of their motion is not broken down by count or even by individual defendants.   The court has attempted to parse out the various assertions of the defendants, which may be appropriate for consideration on summary judgment, by viewing the memorandum in support of the motion for summary judgment as a whole.

It appears that the defendants are asserting that they owed no legal duty to the plaintiff because of the lack of foreseeability.   The basis of this claim is that Krzysztof was “suffering from a diabetic shock” when the series of incidents occurred, the consequences of which were unforeseeable.   The defendants have provided no evidence in support of this contention.   At oral argument, the defendants' counsel conceded that the foreseeability of Krzysztof having a medical issue and its alleged resultant consequences are genuine issues of material fact.   Whether there is sufficient evidence, or any evidence, that the actions of Krzysztof were unforeseeable remains a genuine issue, rendering summary judgment inappropriate.

Presumably addressing his argument to the allegations of the first and the second counts, Krzysztof asserts that the plaintiff was the aggressor.  “On the date of the alleged incident, Krzysztof was faced with an unfortunate medical condition that was exacerbated by unauthorized interference by the Plaintiff.”   As this is clearly a disputed issue of fact, summary judgment cannot lie.

The defendants assert additional bases for a lack of legal duty to the plaintiff.   Presumably addressing their argument to the second, fourth, sixth, eighth, ninth and tenth counts, which contain allegations of intentional conduct either directly or derivatively, the defendants claim that the actions of Krzysztof and/or Adam were not intentional because the plaintiff did not have any visible injuries.   It is unclear how visibility of resultant injuries equates to intent.

Presumably addressing all counts, the defendants assert that they have no legal duty because the plaintiff caused a dangerous situation by inserting herself into harm's way and creating a hostile environment.   The underlying facts in support of this contention are very much disputed by the plaintiff and create a genuine issue of material fact.

Presumably addressing the ninth, tenth,² eleventh and twelfth counts, directed to the conduct of Adam, the son of Krzysztof and Malwina, the defendants merely assert that his actions were not wilful, wanton or malicious.   Again, the plaintiff disputes this and the intention of Adam to cause injury to the plaintiff is a genuine issue of material fact, as is his ability to formulate such intention at his presumably tender age.³  While the claims against Adam may be overreaching, this is not an issue for the court to decide in a motion for summary judgment.   As the claims against Adam remain, so too, the derivative causes of action survive a motion for summary judgment.

There is merit, however, to the assertions by Jan and Alina concerning the claims that they owed a legal duty to the plaintiff.   Jan and Alina are Krzysztof's parents.   These causes of action are contained in the fifth, sixth, seventh and eighth counts.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Contained within the first element, duty, there are two distinct considerations ․ First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty ․ The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand ․ If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.”  (Citation omitted;  internal quotation marks omitted.)  Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 593, 945 A.2d 388 (2008).

“A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists.   Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed ․ A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ․ The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.”  (Internal quotation marks omitted.)  Id., 594.

Although both sides are focused on the issue of the degree of foreseeability, the initial analysis is whether Jan and Alina owed a legal duty to the plaintiff.   The court finds that there is no evidence in support of the allegation that Jan and Alina owed a legal duty to the plaintiff to prevent the actions of Krzysztof.⁴  There is no claim that Jan and Alina had legal custody, control or conservation of their son.   Unlike the allegation against Malwina, there is no allegation that Jan and Alina set in motion the events of that day.   They were not even present.   Rather, the general claim is that Jan and Alina failed to prevent the incident.   As the only connection between Jan, Alina and Krzysztof is that he lived at their home, the plaintiff has failed to set forth any factual basis upon which a trier of fact could hold Jan and Alina accountable to the plaintiff.   Therefore, as to these two defendants, summary judgment is appropriate.

ORDER

The motion for summary judgment is granted in favor of the defendant Jan Jodlowski as to the Fifth Count and the Sixth Count.   The motion for summary judgment is granted in favor of the defendant Alina Jodlowski as to the Seventh Count and the Eighth Count.   The motion for summary judgment is denied as to the remaining three defendants and their respective counts.

Robert E. Young, J.

FOOTNOTES

FN1. The plaintiff and the defendants have all attached to their submissions uncertified pages of deposition transcripts and unauthenticated documents.   Although each party has failed to comply with Practice Book § 17–45, all agree that the court should consider the others' submissions.   Therefore, the court will consider these submissions as if they were properly certified.   See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006);  but see Bruno v. Geller, 136 Conn.App. 707, 714–15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 372 (2012)..  FN1. The plaintiff and the defendants have all attached to their submissions uncertified pages of deposition transcripts and unauthenticated documents.   Although each party has failed to comply with Practice Book § 17–45, all agree that the court should consider the others' submissions.   Therefore, the court will consider these submissions as if they were properly certified.   See Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006);  but see Bruno v. Geller, 136 Conn.App. 707, 714–15, 46 A.3d 974, cert. denied, 306 Conn. 905, 52 A.3d 372 (2012).

FN2. It is presumed that the plaintiff intended in the tenth count to incorporate by reference the twenty-six paragraphs of the ninth count, although the tenth count actually states, “1–26.   Paragraphs 1 through 26 of Count Ten are hereby realleged and made paragraphs 1–26 of Count Ten as if more fully set forth herein.”.  FN2. It is presumed that the plaintiff intended in the tenth count to incorporate by reference the twenty-six paragraphs of the ninth count, although the tenth count actually states, “1–26.   Paragraphs 1 through 26 of Count Ten are hereby realleged and made paragraphs 1–26 of Count Ten as if more fully set forth herein.”

FN3. There is no evidence of Adam's age in the complaint or in any of the supporting exhibits filed by the parties.   The plaintiff, in her objection to the motion for summary judgment, refers to Adam as “a five-year-old.”.  FN3. There is no evidence of Adam's age in the complaint or in any of the supporting exhibits filed by the parties.   The plaintiff, in her objection to the motion for summary judgment, refers to Adam as “a five-year-old.”

FN4. In paragraph 28(g) of the fifth and seventh counts and paragraph 21(g) of the sixth and eighth counts, the plaintiff alleges that Jan or Alina “failed to properly and responsibly supervise and/or control the defendant, Adam Jodlowski's emotions, behaviors and actions.”   The remaining allegations of these paragraphs all concern the conduct of Krzysztof.   Neither side has addressed the claims of the plaintiff as to this particular allegation concerning the underlying conduct of Adam. However, the analysis is the same as that concerning legal duty for the acts of Krzysztof..  FN4. In paragraph 28(g) of the fifth and seventh counts and paragraph 21(g) of the sixth and eighth counts, the plaintiff alleges that Jan or Alina “failed to properly and responsibly supervise and/or control the defendant, Adam Jodlowski's emotions, behaviors and actions.”   The remaining allegations of these paragraphs all concern the conduct of Krzysztof.   Neither side has addressed the claims of the plaintiff as to this particular allegation concerning the underlying conduct of Adam. However, the analysis is the same as that concerning legal duty for the acts of Krzysztof.

Young, Robert E., J.