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Michael Doe v. Shawn Pahl et al.
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The plaintiff brings this civil action against the named defendant Shawn Pahl and others for damages for sexual abuse the plaintiff suffered as a minor. The plaintiff claims that Pahl abused him while Pahl was working for the defendant Church of St. John the Evangelist, which was part of the Archdiocese of Hartford. Among the defendants that Doe is suing are the parents of Shawn Pahl—Donald Pahl and Barbara Pahl (hereinafter “parents”). Doe alleges that the parents “owed the plaintiff a duty not to cause him injury.” Second Revised Complaint, Count Thirteen, ¶ 9. The defendant parents have filed a Motion to Strike, arguing that they owed no legal duty to the plaintiff. Because the plaintiff has failed to plead a recognized duty in this complaint, the motion to strike must be granted.
STANDARD FOR A MOTION TO STRIKE
In deciding a Motion to Strike, the court must read the allegations in the contested pleading in the light most favorable to the pleader. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The purpose of a motion to strike is to contest the legal sufficiency of the allegations in the complaint and to challenge whether they state a claim upon which relief can be granted. Peter–Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). The element of a legal duty which one may owe to another is one that can be challenged by way of a motion to strike. Ganim v. Smith & Wesson Corp., 258 Conn. 313, 364, 780 A.2d 98 (2001); Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001); Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998).
THE ALLEGATIONS OF DUTY IN THE COMPLAINT
The plaintiff alleges that from July 2003 to July 2005, while he was a minor and a member of the church choir, he was sexually molested by Pahl, an adult who was the church organist, at the residence of Pahl's parents and at other locations. In Count Four and Five, the plaintiff alleges that these facts constitute the tort of reckless assault and battery by the parents. In Count Nine and Ten, the plaintiff alleges that these facts constitute the tort of negligent assault and battery by the parents.
In Count Thirteen, the plaintiff makes these additional allegations against the parents: that they owed the plaintiff a duty not to cause him injury, ¶ 9; that they knew of their adult son's “sexual proclivities,” ¶ 10a; that they knew of the impropriety of allowing their son to sponsor the plaintiff for confirmation, ¶ 10b; that they knew of the assault and battery engaged in by their son against the plaintiff in their home, ¶ 10c; and that they knew of the impropriety of allowing their son to be alone in a room for extended periods of time with the minor plaintiff, ¶ 10d. This alleged conduct by the parents, presumably the knowledge of certain facts coupled with a failure to act to prevent the assaults, is alleged to constitute negligence on the part of the parents for which the plaintiff seeks damages.
The parents assert that notwithstanding any knowledge they had of their adult son's activities, they owed no duty legal to the plaintiff.
THE DUTY TO THIRD PARTIES
A defendant is liable for the tort of battery if s/he intends to and does engage in harmful or offensive physical contact with the person of the plaintiff. Restatement (Second) of Torts, §§ 13, 18. An assault occurs when the plaintiff is placed in imminent fear of such physical contact. Id. § 21. In this case, the plaintiff does not allege that there was any physical contact by the parents. Since the torts of assault or battery alleged in Counts Four, Five, Nine, and Ten require an actual or imminent touching of the plaintiff, he cannot maintain an action against the parents for assault or battery without alleging this essential element of the tort.
In Count Thirteen, the plaintiff alleges that because the parents knew or should have known certain facts about their son, they are liable to the plaintiff because they had a duty to protect the plaintiff from their son's conduct. While this might be true in certain circumstances, none of those circumstances is alleged here.
At common law, there is no duty to aid or protect one in peril, absent special circumstances. “The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not in and of itself impose upon him a duty to take such action.” Restatement (Second) Torts, § 314. So one must turn to the other allegations of the complaint to search for any special circumstances for the source of such a duty.
One circumstance alleged is that the person causing harm to the plaintiff was the son of the parents. But the common law recognizes no duty of parents to control the actions of their child who is no longer a minor. The Restatement (Second) Torts, § 316, obligates parents to “exercise reasonable care the control [their] minor child as to prevent [the minor child] from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm [to others].” Id. There is no concomitant legal duty on parents to use any care with respect to the actions of an adult, regardless of their knowledge about the risk such a child might pose. See also, Kaminsky v. Fairfield, 216 Conn. 29, 36 (1990).
Another allegation is that certain of the offensive conduct took place at the home of the parents, and that the parents “knew or should have known” that Shawn Pahl was engaging in an assault and battery against the plaintiff in the parents' home. The common law does not impose a duty on all possessors of land to prevent tortious conduct on their premises. There may be a duty to use reasonable care to protect the plaintiff if one were an innkeeper or were one who holds out the premises as open to the public or were one who has special custody of the plaintiff on the premises, none of which applies here. See, Restatement (Second) Torts, § 314A.
As for the fact that the parents are alleged to have known that their son was engaging in tortious conduct at their residence, the Restatement (Second) Torts, § 318, states, in pertinent part:
If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others ․
There is no allegation that the parents were present in their home when any of the conduct in their home took place, and no duty arises as a result. Moreover there is no allegation about what access the son had to the home; he is not alleged to have been a resident of the home. The fact that one knows that a tort is occurring at a particular location, even if one owns the location, does not translate, by itself, into a duty to the plaintiff to prevent the tort from occurring.
Finally the plaintiff argues that the parents owed a duty to the plaintiff arising out of the theory that the plaintiff was a social invitee to the home and that their premises—their home—was unreasonably dangerous because of the presence of their son. But this analysis cannot stop there. Rather, if a possessor of land is to be held liable for the intentional injurious conduct of a third party that takes place on the land, then the plaintiff must allege more than that the defendant who controlled the premises was aware or ought to have been aware of the assailant's “proclivities.” The plaintiff must allege that the possessor of land was aware that a harm of the same general nature had previously occurred on the premises such that it was reasonably foreseeable that unless precautions were taken it was likely to occur again. See Stewart v. Federated Department Stores, 234 Conn. 597, 613 (1995). No such allegations are contained in the Second Revised Complaint.
CONCLUSION
The allegations in the Second Revised Complaint do not contain facts that indicate a legal duty existed on the part of the parents of Shawn Pahl to the plaintiff. Accordingly the Motion to Strike Counts Four, Five, Nine, Ten, and Thirteen is granted.
Patti Jenkins Pittman, Judge
Pittman, Patty Jenkins, J.
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Docket No: HHBCV105014881
Decided: June 08, 2011
Court: Superior Court of Connecticut.
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