Almyra Keller et al. v. Diane Toro (2014)

MEMORANDUM OF DECISION

The defendants, Diane Toro and Elizabeth Hansen,¹ move for summary judgment on the first, third, and fifth counts of the plaintiffs' amended complaint dated February 10, 2014.   This action arises from a fire that occurred on April 11, 2011, and involved a multi-family dwelling located on Olivia Street in Derby, Connecticut.

The material fasts are not disputed for purposes of deciding this motion.   The defendants are the daughters of Louise Vitello.   Their mother resided at the premises from 1945 until the time of her death.²  By quitclaim deed received for record in the Derby land records on October 25, 1989, Vitello transferred her interest in the property to the defendants, while reserving a life use for herself.   Vitello lived alone for many years on the first floor of the dwelling.   The dwelling consisted as five apartments, including Vitello's apartment.   At the time of the fire, the plaintiffs were tenants residing on the second and third floors.

The fire occurred when Vitello, then 92 years of age, was home alone and cooking on a gas stove in her unit.   Vitello's use of the gas stove resulted in a fire igniting and causing damages to the second and third floors of the dwelling.   Generally, the plaintiffs claim damages relating to the loss of personal property and use of the dwelling.

The defendants move for summary judgment claiming that they did not owe a legal duty of care to the plaintiffs to control the conduct of Vitello and prevent the property losses to the plaintiffs allegedly caused by Vitello's conduct.   Additionally, the defendants assert that there is no question of material fact that they did not possess or control Vitello's premises, and that the plaintiffs failed to show that a specific defect caused the plaintiffs' injuries.   In support of their motion, each defendant submitted an affidavit.   Therein, the defendants collectively state that Vitello was the landlord of the premises, and that they did not maintain or control the premises.   The defendants also state that Vitello was a legally competent adult who was living on her own at the time of the fire.

The plaintiffs oppose the motion contending that there are questions to be resolved by the trier of fact as to whether the defendants possessed and controlled the premises.   Among other things, the plaintiffs claim that the defendants failed to keep the premises in reasonably safe condition, and that the defendants breached their duty to alleviate known and dangerous conditions on the premises.³  The plaintiffs do not directly address the defendants' claim that they do not owe a duty of care to the plaintiffs.

The plaintiffs submitted opposing affidavits from a plaintiff, Almyra Keller, a second floor tenant at the time of the fire, and her daughter, a nonparty.   The affidavits are essentially identical in content.   Therein, the affiants state that the defendants knew that Vitello had medical problems and physical limitations, and that Vitello could not have lived by herself at the property without the assistance of the defendants.   Additionally, the affiants assert that the defendants took some actions to assist Vitello in her home.

Initially, the court sets forth the requisite standard of review.   “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.”   (Internal quotation marks omitted.)  DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).

The court will first consider the defendants' claim that they did not have a duty to take action to prevent injury to third persons like the plaintiffs here.  “Existing Connecticut precedents impose only a limited duty to take action to prevent injury to a third person.   Our point of departure has been that ‘absent a special relationship of custody or control, there is no duty to protect a third person from the coinduct of another.   See 2 Restatement (Second), Torts § 315 (1965);  F. Harper, F. James & O. Gray, The Law of Torts (2d Ed.1986) § 18.7;  W. Prosser & W. Keeton, Torts (5th Ed.1984) § 56.’   Kaminski v. Fairfield, 216 Conn. 29, 33–34, 578 A.2d 1048 (1990);  see also Dennison v. Klotz, 12 Conn.App. 570, 578–79, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988).   In any determination of whether even a special relationship should be held to give rise to a duty to exercise care to avoid harm to a third person, foreseeability plays an important role.”  Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996).

“The existence of a duty of care is a prerequisite to a finding of negligence ․ 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 [breached] 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 ․

“Our Supreme Court has stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case ․

“In negligence cases [such as the present one] in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty [owed] to the plaintiff ․ The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ․ Essential to determining whether a legal duty exists is the fundamental policy of the law that a tortfeasor's responsibility should not extend to the theoretically endless consequences of the wrong ․ Even where harm was foreseeable, [our Supreme Court] has found no duty when the nexus between a defendant's negligence and the particular consequences to the plaintiff was too attenuated ․ Put another way, [i]t is a well-established tenet of our tort jurisprudence that [d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable ․

“Ordinarily in tort law, whether a defendant's conduct is tortious is determined by the jury;  the jury decides whether the defendant acted reasonably, which ordinarily includes, either explicitly or implicitly, whether that defendant should have reasonably foreseen the adverse consequences of its conduct ․ When, however, a court determines that no tort duty exists because the consequences of the alleged tortfeasor's conduct were too remote to be reasonably foreseeable, what the court is doing is concluding, as a matter of law, that no reasonable juror could find that the defendant should have foreseen the adverse consequences of its conduct.   Thus, the question of foreseeability is, in the first instance, a jury question on the issue of negligence, and only becomes a legal question for the court when the defendant claims that the consequences of its conduct were not reasonably foreseeable and, therefore, it owed no duty of care to the plaintiffs.”  (Citations omitted;  internal quotation marks omitted.)  Ruiz v. Victory Properties, LLC, 135 Conn.App. 119, 123–25, 43 A.3d 186, cert. granted, 305 Conn. 922, 47 A.3d 882 (2012).

Here, the plaintiffs do not claim that defendants intentionally harmed them or failed to protect them from the intentional acts of Vitello.   Rather, the plaintiffs allege that the defendants failed to keep the premises under their possession and control reasonably safe from the risk of fire caused by the conduct of their ninety-two-year-old mother, Louise Vitello, in the daily activities of her life.   The nature and scope of the plaintiffs' claims against the defendants are negligent supervision and assistance.

The plaintiffs' affidavits incorporate, and essentially mirror, the allegations of the complaint.   Therein, they state that starting in June 2010, Vitello needed the assistance of nursing aides;  that the daughters knew that Vitello “should not be cooking with oils and/or grease on the stove”; ⁴  and that the defendants “or representatives” put large letters for the on and off positions on the stove.

In the present action, the plaintiffs were tenants at the time of the fire.   The defendants are alleged to have possessed and controlled the property, which they deny.   The defendants owned the property at the time of the incident, and their mother, Vitello, retained a life interest in it.   The general nature of the harm is damages to personal property caused by a house fire unintentionally ignited by an adult living alone in the premises.   Viewed through that prism, the court concludes, based upon the pleadings, affidavits and other proof, that no tort duty exists because the consequences to the plaintiffs of the negligence of the alleged tortfeasors, here the defendants, are too remote to be reasonably foreseeable.   Vitello was a legally competent adult living, as she did for many preceding years, by herself, and whose daughters provided general care and assistance to her.   Viewing the evidence most favorably to the plaintiffs, it demonstrates that Vitello had physical health problems normally associated with her age.   There is no evidence that Vitello was legally incompetent and the defendants were in a special relationship with her, such as a conservatorship.   It is not foreseeable to a reasonable person in the defendants' position that the defendants should have foreseen the fire loss suffered by the plaintiffs as a result of their periodically assisting and caring for their mother, Vitello.

“[I]f it is not foreseeable to a reasonable person in the defendant's position that harm of the type alleged would result from the defendant's actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff.”   Fraser v. United States, supra, 236 Conn. 633.   Therefore, the court need go no further, and summary judgment may be rendered for the defendants.⁵

However, even if the court were to conclude that the harms to the plaintiffs were foreseeable, based on a public policy analysis, the defendants' responsibility for their alleged negligent conduct should not extend to the circumstances relating to the house fire that occurred in the present action.   The second consideration in the duty calculation is whether there arc reasons of public policy to extend the duty to the defendants under the circumstances.   As our Supreme Court has noted, “[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 these 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.)  Greenwald v. Van Handel, 311 Conn. 370, 375–76, 88 A.3d 467 (2014).

“[I]n considering whether public policy suggests the imposition of a duty, we consider the following four factors:  (1) the normal expectations of the participants in the activity under review;  (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants;  (3) the avoidance of increased litigation;  and (4) the decisions of other jurisdictions ․ [A] totality of the circumstances rule, ․ is most consistent with the public policy goals of our legal system, as well as the general tenor of our tort jurisprudence.”  (Citation omitted;  internal quotation marks omitted.)  Ruiz v. Victory Properties, LLC, 135 Conn.App. 128–29.  “[W]e are not required to address the [issue of] foreseeability if we determine, based on ․ public policy ․ that no duty of care existed.”  (Internal quotation marks omitted.)  Greenwald v. Van Handel, supra, 311 Conn. 376.

Connecticut law places considerable limitations on an individual's responsibility to protect a third party from the actions of another.  “[T]here generally is no duty that obligates one party to aid or to protect another party.   See 2 Restatement (Second), Torts § 314, p. 116 (1965).   One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another.   See W. Prosser & W. Keeton, Torts (5th Ed.1984) § 56, pp. 373–74;  see also 2 Restatement (Second), supra, §§ 314A, 315 ․ In delineating more precisely the parameters of this limited exception to the general rule, [the Supreme Court] has concluded that, [in the absence of] a special relationship of custody or control, there is no duty to protect a third person from the conduct of another.”  (Internal quotation marks omitted;  emphasis omitted.)  Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004).

“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.”   2 Restatement (Second), supra, § 315.  “The relations between the actor and a third person which require the actor to control the third person's conduct are stated in §§ 316–19.”  Id., comment (c).  “Sections 316, 318 and 319 of the Restatement (Second) all identify specific relationships that give rise to a duty to control a third party pursuant to § 315(a).   Section 316 imposes a duty on a parent to prevent his minor child from intentionally harming a third party.   Section 318 imposes a duty on the possessor of land or chattels to control the conduct of a licensee ․ [Section] 319 requires those exercising custodial control over an individual, such as sheriffs or wardens, to prevent such an individual from harming third parties.”  (Footnotes omitted.)   Murdock v. Croughwell, supra, 268 Conn. 568–69.  “Section 317 imposes a duty on an employer to control the conduct of an off-duty employee when the conduct complained of occurs on the employer's premises or utilizes a chattel of the employer's, if the employer knows or has reason to know that he can control the employee and recognizes the necessity of doing so.”  (Emphasis omitted.)   Id., 570.

Our courts have been generally refused to extend liability for a party's failure to control the behavior of a third party.   In Kaminski v. Fairfield, 216 Conn. 29, 31–32, 578 A.2d 1048, the Supreme Court addressed the situation where a police officer was wounded while pursuing the mentally ill adult son living with his defendant parents.   The court held that the parents under these circumstances did not owe a duty to the police officer, noting that no case had held merely making a home for an adult child was the equivalent of taking charge under § 319 and that “[a] familial relationship does not, per se, establish the capacity to control that § 319 envisages as a basis for liability.”  Id., 36.

In Patterson v. Foley, Superior Court, judicial district of New London, Docket No. CV–08–5007342 (June 16, 2009, Martin J.) (48 Conn. L. Rptr. 108), the court considered a motion to strike where the defendant mother was sued by the administrator of a decedent's estate for various injuries caused to the decedent by her mentally disabled son.  Id., 108.   Among other claims, the administrator brought actions for negligent monitoring, supervision, or control of her son premised on § 319 and common-law negligence.  Id., 110–14.   In particular, it was alleged that:  the son had been prescribed a variety of drugs due to the mental and emotional issues that he suffered;  at the relevant times, the defendant had taken responsibility for her son's daily needs, including overseeing and regulating his medications;  and that she was aware of her son's various disabilities and had the ability to control his behavior and restrain him.  Id., 108.

The court found that no duty existed under either claim.   First, with regards to the claim pursuant to § 319, the court noted that the requisite custody or control under applicable Connecticut authority required a demonstration of either legal custody or guardianship over the son.  Id., 111.   With regards to the claim of common-law negligence, the court considered whether policy considerations ⁶ would justify extending liability to the mother.  Id., 112–14.   In determining they would not, the court noted that the great weight of authority in Connecticut and elsewhere has failed to hold a family member liable for the actions of their adult relative absent a right to control that relative's actions;  id., 112–14;  and that recognizing a duty under these facts could potentially discourage the involvement of parents in the care of their disabled children.   Specifically, the court noted that “exposing the parents of such children to liability for their conduct might make the parents less willing to provide a home for their children, which would ultimately have a negative impact on society.   On the other hand, recognition of the cause of action may cause the parents to reassess their ability to control the children's conduct, and to pursue alternative remedies if they conclude that their control may not be adequate.”  Id., 108.

Here, applying these principles to the first and second factor of the public policy analysis, the court concludes that the defendants did not owe a duty to the plaintiffs.   There is no evidence of a special relationship, as defined and delineated in 2 Restatement (Second) Torts, supra, §§ 315–19, between the plaintiffs and the defendants creating a duty on behalf of the defendants to protect the plaintiffs from the conduct of their mother, Viteilo.   At the time of the fire, Vitello was an adult living alone in the premises, and the defendants had no custodial control over her.⁷  That the defendants assisted Vitello in her activities of daily living does not constitute legal custody or control.   A familial relationship between parties as exists in the present action, standing alone, is not a special relationship sufficient to create a duty of care.   Absent the defendants' legal ability to personally or financially control Vitello, there is no basis to hold the defendants liable for her conduct and the alleged resulting harms to the plaintiffs.   The court's conclusion is consistent with societal expectations of children caring for their elderly and infirm, but still independent, parent.   A contrary conclusion likely would adversely affect that expectation.

Concerning the third factor in the public policy analysis, clearly an extension of the duty as advocated by the plaintiffs would result in increased litigation involving the same or similar facts.   With regards to the fourth factor of reviewing decisions of other jurisdictions, our Appellate Court has previously found that factor to be “not particularly helpful because there are multiple ways in which our sister state handle the question of duty with respect to premises liability.”  Ruiz v. Victory Properties, LLC, supra, 135 Conn.App. 130.   Nevertheless, the general authority in the country is in accord with that Connecticut precedent in holding that the situations under which a party can be held liable in negligence for the actions of a relative are limited.⁸  Thus, the third and fourth factors do not support recognizing a duty of care in this case.

Here, the court determines, as a matter of law, that the defendants owe no duty to the plaintiffs to protect them against the conduct of Vitello as alleged by the plaintiffs.⁹  The court finds that a reasonably prudent person, knowing what the defendants here knew or should have known, would not foresee that the fire loss harm suffered by the plaintiffs was likely to result.   Even if the court were to find otherwise, as a matter of public policy, the defendants' responsibility for their alleged negligence conduct should not extend to the particular consequences of the defendants' claimed negligence.   In view of the foregoing, the defendants are entitled to a judgment as a matter of law and their motion for summary judgment (140.00) on the first, third and fifth counts of the plaintiffs' amended complaint (123.00) is granted.

TYMA, J.

FOOTNOTES

FN1. There are five defendants.   Only two of the defendants presently move for summary judgment.   As used in this decision, any reference to the defendants means Toro and Hansen..  FN1. There are five defendants.   Only two of the defendants presently move for summary judgment.   As used in this decision, any reference to the defendants means Toro and Hansen.

FN2. Vitello died sometime after the fire from causes unrelated to the fire..  FN2. Vitello died sometime after the fire from causes unrelated to the fire.

FN3. At oral argument on the motion, counsel for the plaintiff explained his position that Vitello putting everyone in a dangerous situation by being an “infirm elderly person” constitutes a specific defect on the premises..  FN3. At oral argument on the motion, counsel for the plaintiff explained his position that Vitello putting everyone in a dangerous situation by being an “infirm elderly person” constitutes a specific defect on the premises.

FN4. The parties have not submitted any evidence as to the cause of the fire, other than that they do not dispute that the fire originated from the stove while Vitello was using it..  FN4. The parties have not submitted any evidence as to the cause of the fire, other than that they do not dispute that the fire originated from the stove while Vitello was using it.

FN5. Our Supreme Court has previously stated “that the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading.”  Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).   In this case, the complaint which contained all relevant and necessary facts and which allegations were repeated in the affidavits, cannot be cured through repleading.   Therefore, to the extent that the defendants' motion for summary judgment can be construed as a challenge to legal sufficiency, the defendants have properly raised the issue..  FN5. Our Supreme Court has previously stated “that the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading.”  Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).   In this case, the complaint which contained all relevant and necessary facts and which allegations were repeated in the affidavits, cannot be cured through repleading.   Therefore, to the extent that the defendants' motion for summary judgment can be construed as a challenge to legal sufficiency, the defendants have properly raised the issue.

FN6. Specifically, the court considered “whether the recognition of the cause of action would (1) require arbitrary limitations, (2) impose additional economic burdens on the general public, (3) yield significant social benefits, (4) increase the risk of double recovery, and (5) be in accord with the weight of judicial authority.”  Patterson v. Foley, supra, 48 Conn. L. Rptr. 112, citing Mendillo v. Board of Education, 246 Conn. 456, 485, 717 A.2d 1177 (1990)..  FN6. Specifically, the court considered “whether the recognition of the cause of action would (1) require arbitrary limitations, (2) impose additional economic burdens on the general public, (3) yield significant social benefits, (4) increase the risk of double recovery, and (5) be in accord with the weight of judicial authority.”  Patterson v. Foley, supra, 48 Conn. L. Rptr. 112, citing Mendillo v. Board of Education, 246 Conn. 456, 485, 717 A.2d 1177 (1990).

FN7. That Vitello retained a life estate in the premises further evidences her independence in her daily living, in Smith v. Planning & Zoning Board, 203 Conn. 317, 524 A.2d 1128 (1987), our Supreme Court discussed the nature of a life estate as held by Vitello in this case.  “The plaintiff's freehold estate is an estate for her own life.   Her reserved life interest remains subject to her direction and control as long as she is alive.   In every beneficial sense, she is the owner of the premises ․ By the common law, a tenant for life, where he is under no restriction in the deed by which he holds, could use the land in the same manner as the holder in fee.   Every life tenant had the right to the undisturbed possession of the land and to the income and profits derived from such land ․ In addition, the alienable quality of a life estate allowed a life tenant to convey his whole estate to a third person ․ A life tenant, as a holder of a freehold estate, was considered seised of the land ․ The concept of seisin has diminished somewhat in importance today.   Under the common law, however, it was extremely significant.   It connoted something beyond possession.   It means ownership in so far as the common law admits of ownership;  and in many practical respects, the interest of the life tenant was treated as essentially equivalent to outright ownership.”  (Citations omitted;  internal quotation marks omitted.)  Id., 323.   By reserving a life use in the premises, Vitello was a beneficial owner of the premises with rights to undisturbed possession and income.   The quitclaim deed creating her interest in the property contained no restrictions on her life interest.   Vitello continued to reside by herself at the premises, and to receive the benefit of the rents generated from the property..  FN7. That Vitello retained a life estate in the premises further evidences her independence in her daily living, in Smith v. Planning & Zoning Board, 203 Conn. 317, 524 A.2d 1128 (1987), our Supreme Court discussed the nature of a life estate as held by Vitello in this case.  “The plaintiff's freehold estate is an estate for her own life.   Her reserved life interest remains subject to her direction and control as long as she is alive.   In every beneficial sense, she is the owner of the premises ․ By the common law, a tenant for life, where he is under no restriction in the deed by which he holds, could use the land in the same manner as the holder in fee.   Every life tenant had the right to the undisturbed possession of the land and to the income and profits derived from such land ․ In addition, the alienable quality of a life estate allowed a life tenant to convey his whole estate to a third person ․ A life tenant, as a holder of a freehold estate, was considered seised of the land ․ The concept of seisin has diminished somewhat in importance today.   Under the common law, however, it was extremely significant.   It connoted something beyond possession.   It means ownership in so far as the common law admits of ownership;  and in many practical respects, the interest of the life tenant was treated as essentially equivalent to outright ownership.”  (Citations omitted;  internal quotation marks omitted.)  Id., 323.   By reserving a life use in the premises, Vitello was a beneficial owner of the premises with rights to undisturbed possession and income.   The quitclaim deed creating her interest in the property contained no restrictions on her life interest.   Vitello continued to reside by herself at the premises, and to receive the benefit of the rents generated from the property.

FN8. Specifically, in addressing such liability in the context of a relative's physical assault, it has been noted that, “[t]ypically, courts are reluctant to find family members liable for an assailant's actions when the liability is premised on negligence-based actions which charge the family member with such things as failure to warn of the assailant's dangerous propensities or failure to control the assailant.”   Annot., 25 A.L.R. 5th 1, § 2(a).   This principle has been applied to limit liability not just for the action of the defendant's violent children, but to other family relationships as well such as siblings and spouses of the perpetrator.  Id..  FN8. Specifically, in addressing such liability in the context of a relative's physical assault, it has been noted that, “[t]ypically, courts are reluctant to find family members liable for an assailant's actions when the liability is premised on negligence-based actions which charge the family member with such things as failure to warn of the assailant's dangerous propensities or failure to control the assailant.”   Annot., 25 A.L.R. 5th 1, § 2(a).   This principle has been applied to limit liability not just for the action of the defendant's violent children, but to other family relationships as well such as siblings and spouses of the perpetrator.  Id.

FN9. In view of the court's conclusion on the issue of duty, the defendants' other arguments in support of summary judgment need not be addressed..  FN9. In view of the court's conclusion on the issue of duty, the defendants' other arguments in support of summary judgment need not be addressed.

Tyma, Theodore R., J.