Opinion
No. CV05-5000575 S
August 1, 2006
MEMORANDUM OF DECISION
This is a decision on the plaintiff's motion to strike the ninth and tenth counts of the plaintiffs' second amended complaint, dated March 22, 2006.
On December 13, 2005, the minor plaintiffs, Jane Doe #1 and Jane Doe #2, filed a ten-count complaint against the defendants, Immanuel St. James Episcopal Church (the church) and Robert A. Nelson, the church organist, for physical and emotional injuries that they allegedly sustained while they were parishioners of the church. In counts one and two, the plaintiffs allege sexual battery against Nelson for his repeated acts of offensive bodily contact, which included dirty talk, the screening of pornographic videos, the taking of pornographic photographs, oral sex, and sexual intercourse. The acts allegedly occurred from approximately 2000 through September 2004 and allegedly resulted in physical injury, psychological trauma and emotional injuries to the plaintiffs. The plaintiffs further allege intentional infliction of emotional distress against Nelson in counts three and four, and negligent infliction of emotional distress against Nelson in counts five and six. In counts seven and eight, the plaintiffs allege negligent hiring against the church for breaching its duty to use reasonable care in hiring and/or retaining Nelson. The plaintiffs allege that a cursory investigation of Nelson's background would have revealed his documented history of sex crimes against minors. In counts nine and ten, the plaintiffs allege negligent supervision against the church, premised on its duty to assure Nelson's fitness and competence to perform his work without posing a risk of harm to the church's parishioners. The church's failure to use reasonable care in monitoring Nelson's activities with the parishioners, the plaintiffs allege, allowed Nelson to prey upon the plaintiffs, resulting in physical injury, psychological trauma and emotional injuries.
The plaintiffs filed an amended complaint on December 19, 2005, to correct the return date and to change the name of the agent for service of process.
On January 31, 2006, the church filed a motion to dismiss counts seven through ten of the amended complaint. On February 8, 2006, the plaintiffs filed both an objection to the motion to dismiss and a second amended complaint. On March 22, 2006, prior to a ruling on the motion to dismiss, the church filed a motion to strike counts nine and ten of the second amended complaint, accompanied by a memorandum in support as required by Practice Book § 10-42(a). On April 5, 2006, the plaintiffs filed an objection to the motion to strike, and the church filed a reply brief on April 18, 2006. On May 1, 2006, this court heard argument on the motion to strike.
The second amended complaint provides in relevant part that the plaintiffs "[bring] this action by and through [their] mother and legal guardian . . ."
I.
There is a preliminary matter that the court must address before it considers the church's motion to strike. As previously indicated, oral argument was heard on the church's motion to strike prior to the court's ruling on the motion to dismiss. This error in procedure is significant, as the motion to dismiss raised subject matter jurisdiction. "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . [O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Emphasis added; internal quotation marks omitted.) Esposito v. Specyalski, 268 Conn. 336, 348, 844 A.2d 211 (2004). Moreover, "parties cannot confer subject matter jurisdiction on the court, either by waiver or consent." Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 192, 676 A.2d 831 (1996). Accordingly, the court must initially determine whether it has subject matter jurisdiction before proceeding further.
The church moves to dismiss counts seven through ten of the plaintiffs' complaint on the ground that the court lacks subject matter jurisdiction to hear these counts because the plaintiffs, who are minors, lack standing because they brought the action in their own names rather than through a guardian or next friend. The plaintiffs argue in opposition that the motion to dismiss is moot because the second amended complaint, which they filed simultaneously with their objection to the motion, clarifies that the action was brought by and through their legal guardian. In Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970), the Connecticut Supreme Court explained that "[i]t has long been the established practice, not only in this state but elsewhere, that a minor may bring a civil action only by a guardian or next friend." Despite this general rule, however, the court further explained that "[t]he bringing of the action for the minor without the aid of a prochein ami was . . . an amendable irregularity which could be waived." Collins v. York, supra, 159 Conn. 154. Accordingly, the court determined that the error was cured when the trial court appointed a guardian for the minor plaintiff without objection from the defendant. Id.
In the present case, the plaintiffs filed a second amended complaint without objection which attempted to repair the procedural infirmity by indicating that the action was brought by the minors' legal guardian. Thus, the defect has been amended by the plaintiff. Therefore, the court is not deprived of subject mater jurisdiction, and the motion to dismiss is denied.
II.
Having addressed the motion to dismiss, the court considers the motion to strike. "[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005). In ruling on a motion to strike, the trial court must "examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
The church filed a motion to strike counts nine and ten of the second amended complaint on the ground that the negligent supervision claims alleged in those counts are legally insufficient because the plaintiffs did not plead facts demonstrating that the church owed them a duty of care. In its memorandum in support, the church asserts that in order to establish that it owed the plaintiffs a duty of care, they must have alleged that when Nelson committed the acts, he was 1) upon church premises, 2) upon premises which he was privileged to enter only as the church organist, or 3) using a church chattel. The church contends that the plaintiffs failed to plead any of those facts.
The church also asserts in a footnote that the plaintiffs did not allege that Nelson was acting within the scope of his employment when the alleged acts occurred, or that the plaintiffs were under the custody, supervision or control of the church at any time.
In their objection, the plaintiffs argue that the harm was foreseeable, and that the church breached its duty to them by failing to supervise Nelson's interactions with vulnerable young girls within the parish. In its reply brief, the church argues that even if the plaintiffs pleaded facts sufficient to prove that the harm was foreseeable, the plaintiffs are further required to demonstrate that the church owed them a duty of care as a matter of public policy.
"Under Connecticut law, an employer may be held liable for the negligent supervision of employees." Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004). "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." Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004). "The test for determining legal duty is a two-prong analysis that includes: (1) a determination of foreseeability, and (2) public policy analysis." Monk v. Temple George Associates, LLC, 273 Conn. 108, 114, 869 A.2d 179 (2005).
"The test that is often applied in determining whether there exists a duty to use care is the foreseeability of harm. Would the ordinarily prudent man in the position of the defendant, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? This does not mean foreseeability of any harm whatsoever or foreseeability that the particular injury which resulted would occur. It is, in short, the foreseeability or anticipation that harm of the general nature of that suffered would be likely to result, which gives rise to a duty to use due care, breach of which might constitute negligence." (Internal quotation marks omitted.) Seguro v. Cummiskey, supra, 82 Conn.App. 194.
In the present case, the plaintiffs allege in counts nine and ten of the second amended complaint that the church "had an ongoing duty to assure that defendant Nelson was fit and competent [to] perform his duties and that he posed no risk of harm to the Church's most vulnerable parishioners" and that "[h]ad it attempted to meet its responsibility through even a cursory review or monitoring of his activities with parishioners, [the church] would have discovered that defendant Nelson posed a great risk of harm . . ." The plaintiffs, however, have not pleaded facts in these counts that the church knew, or should have known, that harm of the general nature was likely to result. This omission is relevant because "[n]early all the Superior Court decisions have required [plaintiffs] in a negligent supervision action to plead and prove injury by the defendant's negligence in failing to properly supervise an employee who the defendant had a duty to supervise and who the defendant knew or should have known would cause the injury." Companions Homemakers, Inc. v. Pogasnik, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 04 0834592 (June 7, 2005, Wagner J.T.R.). Thus, judges of the Superior Court have granted motions to strike in cases where the pleadings in question fail to allege facts that the employer knew or should have known of the employee's propensity for tortious conduct. See Perry v. SBC/SNET, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 04 085367 (September 12, 2005 Moran, J.T.R.) (no claim that defendant knew or should have known that its employees had a propensity for tortious conduct).
The plaintiffs do allege, with respect to negligent hiring in counts seven and eight, that "through even a cursory investigation, [the church] would have discovered that defendant Nelson had a documented history of sex crimes against minors." The plaintiffs did not, however, incorporate those paragraphs into counts nine and ten by reference, as they did throughout the second amended complaint via paragraphs one through twelve of counts one and two.
See also Elbert v. Connecticut Yankee Council, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01 0456879 (July 16, 2004, Arnold, J.) (same); Zides v. Quinnipiac University, Superior Court, judicial district of New Haven, Docket No. CV 02 0470131 (December 15, 2003, Arnold, J.) (same).
In the present case, without more precisely pleading facts establishing that the church had reason to know of Nelson's propensity to commit the alleged acts, the court cannot conclude that the church could have foreseen the plaintiffs' harm. Accordingly, the court grants the church's motion to strike counts nine and ten of the second amended complaint on that basis.