Roe 1 v. Boy Scouts of America Corp.

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JOHN ROE #1 v. BOY SCOUTS OF
AMERICA CORPORATION ET AL.
(AC 35155)
Lavine, Keller and Schaller, Js.
Argued October 17, 2013—officially released January 21, 2014
(Appeal from Superior Court, judicial district of
Hartford, Hon. Jerry Wagner, judge trial referee [motion
to determine sufficiency of discovery responses];
Schuman, J. [summary judgment, motions to reargue].)
Frank C. Bartlett, Jr., for the appellant (plaintiff).
Philip T. Newbury, Jr., with whom, on the brief, was
Ondi A. Dybowski, for the appellees (named defendant
et al.).
Opinion
LAVINE, J. The plaintiff, John Roe #1, appeals from
the summary judgment rendered by the trial court in
favor of the defendants, Boy Scouts of America Corpo-
ration (Boy Scouts) and Connecticut Rivers Council,
Inc. (council). On appeal, the plaintiff claims that the
trial court (1) abused its discretion by sustaining the
defendants’ objection to his discovery request and erred
by (2) granting the defendants’ motion for summary
judgment and (3) denying his motions for reconsidera-
tion. We affirm the judgment of the trial court.
The plaintiff served the defendants with a summons
and complaint on September 28, 2009. The plaintiff’s
complaint sounds in six counts. The first three counts
allege corporate negligence, breach of duty on the basis
of a fiduciary or confidential relationship, and breach
of special duty of care owed to children, respectively
against the defendants. At all times relevant, the plaintiff
was a minor living in Connecticut.
The plaintiff also alleged that that the defendant
James W. Harris III1 was an agent of the defendants,
acting as a troop leader and campmaster who super-
vised and participated in camping trips with members
of the Boy Scouts such as the plaintiff. The plaintiff
further alleged that Harris took the plaintiff on numer-
ous camping trips sponsored by the defendants during
which he subjected the plaintiff to sexual abuse, moles-
tation, and assault.2
As a result of Harris’ sexual abuse, the plaintiff alleged
that he suffered physical pain, humiliation, degradation,
fear, extreme emotional distress, anger, confusion,
among other negative emotions, and was deprived of
the opportunity to enjoy his childhood and adolescence.
Consequently, the plaintiff alleged that he was required
to expend considerable sums for medical and psychiat-
ric care in the past and may do so in the future. The
defendants denied the material allegations of the com-
plaint and asserted the special defense that each count
of the complaint failed to state a cause of action for
which relief can be granted.
On or about August 12, 2010, the plaintiff served
interrogatories and requests for production on the
defendants. On or about December 20, 2010, the Boy
Scouts filed responses and objections to the discovery
requests. The parties appeared before the court, Hon.
Jerry Wagner, judge trial referee, to resolve their dis-
covery dispute.
On April 30, 2012, the defendants filed a motion for
summary judgment as to the three counts of the com-
plaint alleged against them. The plaintiff filed an objec-
tion to the motion, and the parties thereafter presented
arguments to the court, Schuman, J. Judge Schuman
granted the defendants’ motion for summary judgment
3
The plaintiff filed motions to reargue, which Judge
Schuman denied. Thereafter, the plaintiff appealed.
I
The plaintiff first claims that the court improperly
sustained the defendants’ objection to his ‘‘request for
documents maintained by the defendants evidencing
their knowledge of the pervasiveness of sexual abuse
within scouting for the time prior to the plaintiff’s
abuse.’’ We conclude that Judge Wagner properly exer-
cised his discretion with regard to discovery by limiting
the scope of the plaintiff’s initial discovery request.
The plaintiff’s claim centers on interrogatory 14 of
the plaintiff’s discovery requests. The plaintiff’s request
and the defendants’ December 20, 2012 response to the
discovery follow:
‘‘14. Please state whether [the Boy Scouts have], at
any time, conducted or requested any reports, surveys,
studies, analyses, research or other similar work regard-
ing sexual abuse in the Boy Scouts. If so, as to each
report, survey, study, analysis, research or other similar
work (collectively, ‘report’), please state:
‘‘(a) the title or designation of the report;
‘‘(b) the author or authors of the report;
‘‘(c) the date or dates of the report;
‘‘(d) to whom the report was given or distributed; and
‘‘(e) a description of the content of the report.
‘‘RESPONSE: The defendant objects to this interroga-
tory on the ground that it is overly broad, unduly bur-
densome, vague, ambiguous and not reasonably
calculated to lead to the discovery of admissible evi-
dence. The defendant further objects to this interroga-
tory insofar as it seeks materials protected by personal
privacy rights, the attorney-client privilege, attorney
work-product and materials prepared in anticipation
of litigation.
‘‘Without waiving this objection, the defendant
responds that it has funded national conferences and
studies regarding sexual abuse and has produced litera-
ture and other information aimed at educating adults,
scouts and their parents as to the warning signs of
sexual abuse and how to minimize the risk.’’ (Empha-
sis added.)
The parties appeared before Judge Wagner on
November 18, 2011, to resolve their discovery disputes.
In response to the argument of the plaintiff’s counsel,
the court stated with regard to interrogatory 14: ‘‘What
do you want, the history of the . . . beginning of the
Boy Scouts?’’ Counsel for the plaintiff responded: ‘‘If
they have it, yes, Your Honor.’’ Counsel for the plaintiff
further stated that ‘‘we are asking for defendants to
turn over their knowledge about sexual abuse, the very
subject of this lawsuit. I don’t think that’s overly broad
or unreasonable, Your Honor.’’ The court thought that
the request was overly broad and instructed the plain-
tiff’s counsel to narrow his approach.
Three times the court stated that interrogatory 14, in
asking for the history of the Boy Scouts’ knowledge of
sexual abuse, was overly broad and that the plaintiff
should narrow his approach ‘‘to what might be consid-
ered responsive and competent evidence in the case.’’4
The plaintiff’s counsel did not voluntarily narrow the
scope of interrogatory 14. The court therefore ordered
that if the Boy Scouts ‘‘have an archive in Connecticut
dealing with their experiences . . . for the last ten
years, because it goes back to [the] seventies or so on,
and it’s in written form on their experiences with sexual
complaints and how it’s been handled or so on. Proto-
col, I guess you’re entitled to have it. If he hasn’t got
it, you’re . . . not entitled to have it. You’ll get it on
deposition.’’5 During the course of argument, the defen-
dants made clear what information they had and what
information they specifically had disclosed to the plain-
tiff, particularly with respect to Harris.
Our Supreme Court has ‘‘long recognized that the
granting or denial of a discovery request rests in the
sound discretion of the [trial] court, and is subject to
reversal only if such an order constitutes an abuse of
that discretion. . . . [I]t is only in rare instances that
the trial court’s decision will be disturbed. . . . There-
fore, we must discern whether the court could [have]
reasonably conclude[d] as it did.’’ (Internal quotation
marks omitted.) Blumenthal v. Kimber Mfg., Inc., 265
Conn. 1, 7, 826 A.2d 1088 (2003).
‘‘In any civil action . . . where the judicial authority
finds it reasonably probable that evidence outside the
record will be required, a party may obtain in accor-
dance with the provisions of this chapter discovery of
information or disclosure, production and inspection
of papers, books or documents material to the subject
matter involved in the pending action, which are not
privileged, whether the discovery or disclosure relates
to the claim . . . of the party seeking discovery . . .
and which are within the knowledge, possession or
power of the party or person to whom the discovery
is addressed. Discovery shall be permitted if the disclo-
sure sought would be of assistance in the prosecution
. . . of the action and if it can be provided by the
disclosing party . . . with substantially greater facility
than it could otherwise be obtained by the party seeking
disclosure. . . .’’ Practice Book (2011) § 13-2.
In his appellate brief, the plaintiff claims that a plain-
tiff in a negligence action has the right to inquire as
to what the defendant knew or should have known
regarding the foreseeability of harm of the same general
nature as that sustained by the plaintiff. See Grenier
v. Commissioner of Transportation, 306 Conn. 523,
539, 51 A.3d 367 (2012) (duty of care may arise from
circumstances under which reasonable person, know-
ing what he knew or should have known, would antici-
pate harm of general nature of that suffered as a result
of failure to act). The plaintiff further claims that the
Boy Scouts had a duty to provide safeguards that pro-
tected youth in scouting from abuse at the hands of
adult scouting volunteers. He sought discovery aimed
at determining what the Boy Scouts knew about the
pervasiveness of sexual abuse in scouting in the entire
country. He claims that the information was necessary
to determine whether the defendants had a duty to
protect him specifically.
The plaintiff further argues that ‘‘[i]f the evidence
presented showed that the Boy Scout[s] . . . did not
know or should not have known that any youth within
scouting had suffered sexual abuse at the hands of
adult scouting volunteers, then that knowledge, or lack
thereof, may militate against imposing a duty to protect
youth within scouting. If, however, the evidence were
to show that prior to the abuse suffered by the plaintiff,
in the time period of 1965-1985, the Boy Scou[ts’] . . .
actual knowledge of in excess of 1,200 adult volunteers
who had perpetrated acts of sexual abuse on minor
scouters, a rate of greater than one adult volunteer
every week for a twenty year period, that knowledge
would be relevant to the court’s determination that the
Boy Scout[s] . . . owed a duty to protect youth in
scouting such as the plaintiff.’’ (Emphasis added; foot-
note omitted.)
We disagree with the premise of the plaintiff’s claim
that the court abused its discretion by sustaining the
defendants’ objection to his discovery requests as
embodied in interrogatory 14. Although the court lim-
ited the scope of the interrogatory to the defendants’
activities in Connecticut for the prior ten years, it did
not by any means prohibit in toto the plaintiff from
seeking the information he wanted. The court merely
exercised its discretion to limit the scope of interroga-
tory 14 by time and place. Moreover, there was nothing
to prohibit the plaintiff from filing a request for addi-
tional discovery following its receipt of the defendants’
supplemental discovery responses, which he failed to
do. See footnote 5 of this opinion. We, therefore, discern
no abuse of discretion in the court’s ruling with respect
to its discovery orders.6
II
The plaintiff claims that it was improper for the court
to grant the defendants’ motion for summary judgment
because the defendants had a duty to protect him from
Harris’ sexual assaults. We disagree.
The following facts and procedural history are rele-
vant to the plaintiff’s claim. On or about April 30, 2012,
the defendants filed a motion for summary judgment
claiming that they could not be held vicariously liable
for the sexual abuse of the plaintiff because they owed
the plaintiff no special duty of care and the plaintiff’s
loss was not foreseeable under the circumstances of
this case.
In their memorandum of law in support of their
motion for summary judgment, the defendants repre-
sented that the plaintiff was born in 1991 and never
knew his biological father. His mother met Harris, a
coworker, when the plaintiff was approximately seven
years old. Harris moved into the plaintiff’s home shortly
after he began dating the plaintiff’s mother and married
her in 1999. Soon after Harris moved into the plaintiff’s
home, he took the plaintiff on a camping trip to Camp
Curtis S. Read in upstate New York. At the time, the
plaintiff was a Cub Scout and Harris was an assistant
scoutmaster for Boy Scout Troop 27. According to the
plaintiff, during the camping trip, he shared a tent with
Harris, and he awakened to find Harris fondling his
penis. Thereafter, Harris regularly molested the plaintiff
at various locations including their home, in Harris’
truck, and during camping trips to Camp Johnson.7 As
the plaintiff grew older, he resisted Harris’ advances,
and Harris’ abuse became more aggressive.
On June 14, 2007, following an altercation with Harris,
the plaintiff left home and went to the home of his
girlfriend where he was urged to inform the police of
the abuse, which he did. Thereafter, Harris was
arrested. Prior to reporting Harris to the police, the
plaintiff had not told anyone of the sexual abuse, except
his girlfriend. The defendants represented that until a
newspaper article concerning Harris’ arrest came to
their attention, neither of the defendants knew that
he had abused the plaintiff or that he had engaged in
inappropriate sexual contact with minors. When the
Boy Scouts learned of Harris’ arrest, the director of field
service sent letters to Harris and the local chartered
organization revoking Harris’ registration as a volunteer
and prohibiting him from any further involvement in
scouting.
The Boy Scouts claim that its organizational structure
is pertinent to the issue of liability in this case. The
defendants submitted two affidavits in support of their
motion for summary judgment: one from Martin Walsh,
manager of the membership impact department of the
Boy Scouts of America,8 and one from Harry L. Pokorny,
the scout executive of the council.9 According to the
Boy Scouts, it is a national volunteer organization that
charters local Boy Scout troops at the request of local
councils. See footnote 8 of this opinion. The local char-
tered organization selects and retains its own volun-
teers to administer the program. The defendants neither
direct nor supervise the activities of the local troops.
The individual units are unincorporated associations,
and the troops and their scoutmasters or volunteer
advisers are responsible to their own troop committees.
Although the Boy Scouts make the scouting program
available, the local charter organization chooses the
parts of the program best suited to the needs of its
youth.
In the trial court, the defendants argued that there
was no agency relationship between them and Harris.
They contended that, under Connecticut law, no institu-
tional defendant has been held vicariously liable for the
sexual abuse of a minor because such acts do not fur-
ther the organization’s business. See, e.g., Doe v. Nor-
wich Roman Catholic Diocesan Corp., 268 F. Supp.
2d 139, 142 (D. Conn. 2003) (respondeat superior not
applicable to hold church liable). The defendants also
argued that they owed no duty to the plaintiff and did
not know of Harris’ sexual abuse until the plaintiff dis-
closed it to the police.
The plaintiff objected to the defendants’ motion for
summary judgment and submitted his own affidavit, in
which he attested that the factual allegations of his
complaint were accurate and true to the best of his
knowledge,10 and that ‘‘[t]hroughout my time in scout-
ing, I was not provided any education, training, instruc-
tion or materials on the subject of youth protection,
the dangers of sexual abuse in scouting, and/or the
prevalence of sexual abuse in scouting, which I now
know the Boy Scouts of America were well aware of
and were collecting significant amounts of records and
data on . . . . In addition, throughout my time in
scouting, I was not provided any education, training,
materials or instruction on what constitutes inappropri-
ate behavior by an adult volunteer, how to report inap-
propriate behavior by an adult volunteer, and/or to
whom those [reports] should be made . . . .’’11
In his objection to the defendants’ motion for sum-
mary judgment, the plaintiff argued with respect to the
defendants’ agency argument that the Boy Scouts had
advanced in the United States Supreme Court that ‘‘not
only do they maintain a right to control the local troops
and troop leaders, but that their ability to control the
local troops and troop leaders is fundamental to the
furtherance of the purpose, mission and goals of the
[Boy Scouts of America].’’ With respect to the defen-
dants’ argument that they owed no duty to him, the
plaintiff argued that the defendants ‘‘voluntarily
assumed the duty to protect youth within [their] organi-
zation. Connecticut courts further recognize that when
children are entrusted to the care of an organization,
it must act with due care and caution for the safety of
its participants.’’
Judge Schuman issued his memorandum of decision
on August 16, 2012. First, the court construed count
one of the complaint, which alleged corporate negli-
gence. The court found that the complaint alleged
twenty-seven ways in which the defendants had
breached their duty to prevent injury to the plaintiff.12
The court found that many of the specifications of negli-
gence alleged are not ways in which the defendants
breached their duty to the plaintiff but, rather, are alle-
gations of fact, such as that certain of the defendants’
agents ‘‘knew, should have known or could have known
upon investigation that Harris sexually assaulted
minors . . . .’’
The court also addressed the controlling law, stating
that negligence often is defined as a breach of duty;
Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379(1982); and that whether a duty exists is a question of
law. Id. It noted that Connecticut’s courts have imposed
‘‘only a limited duty to take action to prevent injury to
a third person.’’ Fraser v. United States, 236 Conn. 625,
632, 674 A.2d 811 (1996). Before a duty may be imposed,
a special relationship of custody and control must exist
between the parties. Id. As to this case, the court con-
cluded that the defendants owed no special duty to the
plaintiff. Although the plaintiff suggests that Harris was
an agent of the defendants, the court found that (1)
the plaintiff failed to create a factual issue concerning
agency and (2) even if there were an agency relationship
between Harris and the defendants, the injury that the
plaintiff suffered was not foreseeable. With respect to
public policy issues, it is significant that Harris is the
plaintiff’s stepfather.
With regard to the question of an agency relationship
between Harris and the defendants, the court was cogni-
zant of the averments in the affidavits submitted by
Walsh and Pokorny. See footnotes 8 and 9 of this opin-
ion. Those affidavits present evidence that organiza-
tions such as the council offer scouting programs
through existing community organizations that have
received a scouting charter. The local chartered organi-
zation selects and retains its own volunteers to adminis-
ter a scouting program. The Boy Scouts and council do
not direct or supervise the day-to-day activities of the
local troops. The affidavits aver that at no time was
Harris an agent, servant or employee of the defendants.
The court found, on the basis of the affidavits, that
when either of the defendants became aware of an
allegation of sexual misconduct on the part of an adult
volunteer, that volunteer was placed on a list of ineligi-
ble volunteers. Immediately upon learning of Harris’
arrest for sexual abuse, the council notified the Boy
Scouts and requested that Harris’ membership be
revoked and that he be placed in the ineligible volunteer
file. The plaintiff failed to present an affidavit or any
evidence to counter the facts averred in the affidavits
submitted by the defendants.
In his objection to the defendants’ motion for sum-
mary judgment, the plaintiff contended that there was
an agency relationship between the defendants and Har-
ris on the basis of the brief filed by the Boy Scouts in
Boy Scouts of America v. Dale, 530 U.S. 640, 120 S. Ct.
2446, 147 L. Ed. 2d 554 (2000).13 The trial court dis-
agreed, concluding that the assertions made in the fed-
eral brief did not contradict the averments in the
affidavits of Walsh and Pokorny. Although the Boy
Scouts admit in the Dale brief that it acts in an advisory
capacity to scoutmasters and that it can refuse to recog-
nize a leader who does not adhere to its beliefs, the
Dale brief does not change the fact that the defendants
do not select scoutmasters and they do not control their
day-to-day activities. The court found that the plaintiff
had failed to create a genuine factual dispute as to the
defendants’ evidence that there was no agency relation-
ship between them and Harris. The court, relying on
Fraser v. United States, supra, 236 Conn. 632,14 there-
fore, concluded that the defendants had no legal duty
to protect the plaintiff.
The court also concluded that, assuming there was an
agency relationship between Harris and the defendants,
the defendants had no duty to exercise care to avoid
harm to a third person in this case because the harm
was not foreseeable. See id., 633. The plaintiff presented
no evidence to dispute the averments in the defendants’
affidavits that they did not know of Harris’ ‘‘sexual
abuse of his stepson, or of any sexual misconduct, until
a newspaper article concerning his arrest was pub-
lished’’ on July 3, 2007. The plaintiff told no one about
the abuse until March, 2007, when he confided in his
girlfriend. The court found no evidence that the defen-
dants knew about the sexual abuse or had constructive
knowledge of it. The court found no indication that
Harris had a criminal record prior to the events at issue
here. The court concluded that an ordinary person in
the position of the defendants, knowing what the defen-
dants knew or should have known, would not anticipate
harm of the general nature that the plaintiff suffered.
See Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717
A.2d 215 (1998).
As to the second part of its foreseeability analysis
concerning public policy, the court framed the question
as whether the defendants’ responsibility for their
alleged negligent conduct should extend to the plain-
tiff’s particular circumstances. See id. The court found
that, although the plaintiff suffered a grievous loss, the
defendants should not bear responsibility for it merely
because loss occurred. The person responsible for the
plaintiff’s injuries and loss is Harris. The defendants
were far removed from the crimes, they did not select
Harris to be a volunteer, and they did not control his
activities. Moreover, the defendants had no reason to
suspect Harris of sexually abusing the plaintiff. The
plaintiff himself presented evidence that the Boy Scouts
perform background checks on potential leaders, and
he did not suggest any information regarding child sex-
ual abuse that a background check of Harris would
have revealed. The court found that although the Boy
Scouts have a general policy prohibiting one-on-one
contact between scout leaders and scouts, that policy
was not violated in this instance due to the parent-child
exception to the policy.
The court concluded that Harris’ sexual abuse of the
plaintiff was not foreseeable to the defendants and that
they had no duty to protect the plaintiff from the harm
perpetrated by Harris. The court granted the defen-
dants’ motion for summary judgment. On appeal, the
plaintiff claims that the court erred by (1) failing to
consider the defendants’ admissions that they have a
duty to protect youth within scouting, (2) determining
that sexual abuse of a minor within scouting is not
foreseeable, and (3) making credibility determinations
and deciding questions of fact. We reject each of the
plaintiff’s claims.
An appellate court’s review of the ‘‘trial court’s deci-
sion to grant the defendant’s motion for summary judg-
ment is plenary.’’ (Internal quotation marks omitted.)
Neuhaus v. DeCholnoky, 280 Conn. 190, 199, 905 A.2d
1135 (2006). ‘‘Summary judgment is a method of resolv-
ing litigation when 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. . . . The 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. . . . However, since litigants ordi-
narily have a constitutional right to have issues of fact
decided by a jury . . . the moving party for summary
judgment is held to a strict standard . . . of demonstra-
ting his entitlement to summary judgment.’’ (Citation
omitted; footnote omitted; internal quotation marks
omitted.) Grenier v. Commissioner of Transportation,
supra, 306 Conn. 534–35; see also Practice Book § 17-49.
‘‘A material fact is a fact that will make a difference
in the result of a case. . . . The facts at issue are those
alleged in the pleadings. . . . The party seeking sum-
mary judgment has the burden of showing the absence
of any genuine issue as to all material facts, which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law. . . . [T]he party
adverse to such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. In deciding a motion for summary
judgment, the trial court must view the evidence in the
light most favorable to the nonmoving party. . . . The
test is whether a party would be entitled to a directed
verdict on the same facts. . . .
‘‘While the court must view the inferences to be
drawn from the facts in the light most favorable to the
party opposing the motion . . . a party may not rely
on mere speculation or conjecture as to the true nature
of the facts to overcome a motion for summary judg-
ment. . . . On appeal, however, the burden is on the
opposing party to demonstrate that the trial court’s
decision to grant the movant’s summary judgment
motion was clearly erroneous.’’ (Citations omitted;
internal quotation marks omitted.) Norse Systems, Inc.
v. Tingley Systems, Inc., 49 Conn. App. 582, 590–91,
715 A.2d 807 (1998).
The following legal principles guide our resolution
of the plaintiff’s claims. The essential elements of a
cause of action sounding in negligence are duty, breach
of that duty, causation, and actual injury. Grenier v.
Commissioner of Transportation, supra, 306 Conn.
538. A duty of care is a prerequisite to a finding of
negligence. Gomes v. Commercial Union Ins. Co., 258
Conn. 603, 614, 783 A.2d 462 (2001). ‘‘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 par-
ticular 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.) Id., 614–15.
‘‘Duty is a legal conclusion about relationships
between individuals, made after the fact . . . .’’ (Inter-
nal quotation marks omitted.) Lombard v. Edward J.
Peters, Jr., P.C., 252 Conn. 623, 632, 749 A.2d 630 (2000).
Our Supreme Court has stated that ‘‘the test for the
existence of a legal duty of care entails (1) a determina-
tion 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 negli-
gent conduct should extend to the particular conse-
quences or particular plaintiff in the case.’’ (Internal
quotation marks omitted.) Grenier v. Commissioner of
Transportation, supra, 306 Conn. 539. ‘‘A duty to use
care may arise from a contract, from a statute, or from
circumstances under which a reasonable person, know-
ing what he knew or should have known, would antici-
pate that harm of the general nature of that suffered was
likely to result from his act or failure to act.’’ (Internal
quotation marks omitted.) Sturm v. Harb Development,
LLC, 298 Conn. 124, 139–40, 2 A.3d 859 (2010).
Generally, there is ‘‘no duty that obligates one party
to aid or to protect another party. . . . 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. . . . In delineating more precisely the
parameters of this limited exception to the general rule,
this court has concluded that, [in the absence of] a
special relationship of custody or control, there is no
duty to protect a third party . . . .’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363(2004); see also 2 Restatement (Second), Torts §§ 314,
314A, 315 (1965).
We have reviewed thoroughly the complaint, the
motion for summary judgment and the plaintiff’s objec-
tion thereto, affidavits of the parties, their arguments
on appeal, and the trial court’s memorandum of deci-
sion. We conclude that the court properly granted the
defendants’ motion for summary judgment. Although
the plaintiff alleged that Harris was an agent of the
defendants, the defendants presented evidence that,
under the organizational structure of the Boy Scouts,
the local chartered organization is responsible for the
selection and supervision of troop leaders. The plaintiff
presented no evidence to counter that fact. Thus, the
plaintiff failed to establish a genuine issue of mate-
rial fact.
In this case, Walsh and Pokorny averred that they
had no knowledge of Harris’ abuse of the plaintiff or
other minors until after the plaintiff went to the police
and facts related to Harris’ arrest were published in a
newspaper.15 The plaintiff acknowledged that he told
no one other than his girlfriend of the abuse until he
went to the police in 2007. Because Harris had no prior
criminal record, nothing untoward would appear on his
background check.16 Since the 1980s, the Boys Scouts
have conducted background checks of volunteers. ‘‘Lia-
bility may not be imposed merely because it might have
been foreseeable that some accident could have
occurred; rather, liability attaches only for reasonably
foreseeable consequences.’’ (Emphasis in original.)
Lodge v. Arett Sales Corp., supra, 246 Conn. 577. As
regrettable and tragic as the circumstances of this case
are for the plaintiff, we agree with the trial court that
the defendants were not in control of the situation and
that Harris is the person responsible for the plaintiff’s
injuries, not the defendants.
We also agree with the trial court that the arguments
contained in the Boy Scouts’ Dale brief; see Boy Scouts
of America v. Dale, supra, 530 U.S. 640; are not an
admission that created a special duty owed to the plain-
tiff. In its brief in Dale, the Boy Scouts stated that ‘‘[n]o
adult leader can be appointed without the approval of
the sponsoring institution, the local Council . . . Adult
leaders have been denied leadership positions in Scout-
ing for various views and behaviors which Boy Scouts
of America deems inconsistent with the Scout Oath and
Scout Law. . . .’’ The plaintiff also relies on the Dale
brief’s further statement that the mission of the Boy
Scouts is ‘‘to instill the values of the Scout Oath and
Law in youth,’’ and that the ‘‘[r]esponsibility for incul-
cating Boy Scouting’s values is entrusted to the volun-
teer Scoutmaster and Assistant Scoutmaster.’’ Those
statements, however, do not contradict the affidavits
submitted by the defendants in this case. Although the
Boy Scouts can discharge a scoutmaster or refuse to
register a particular scoutmaster on the basis of con-
flicts with scouting philosophy, those facts do not
negate the facts averred by Walsh and Pokorny that the
local chartered organization is responsible for selecting
and supervising its adult volunteers. The Dale brief actu-
ally is consistent with the facts of this case. As soon
as the defendants learned of Harris’ sexually abusive
behavior toward the plaintiff, he was placed in the ineli-
gible volunteer file and his membership in the Boys
Scouts was revoked.
With respect to the plaintiff’s argument that the defen-
dants presented conflicting evidence as to the degree
of their involvement and control over the scouting pro-
gram, the court found that the defendants make the
scouting program available to local chartered organiza-
tions. The local chartered organization selects the por-
tions of the scouting program each organization deems
appropriate for its youth. The plaintiff presented the
court with an affidavit in which he averred that he was
not provided with any education, training, instruction
or materials on the subject of youth protection, the
dangers of sexual abuse in scouting, and/or the preva-
lence of sexual abuse in scouting. Pursuant to the orga-
nizational structure of the Boy Scouts, the defendants
left to the local chartered organization the responsibility
of selecting programs and materials for the youth it
was serving.
Turning to the court’s conclusion that there was no
special relationship between the defendants and the
plaintiff, we also agree. The plaintiff himself presented
evidence that the defendants have a policy generally of
prohibiting one-on-one contact between scout leaders
and scouts. That policy provides an exception where a
parent-child relationship exists, as it did here. As the
defendants have pointed out in their appellate brief,
the relationship nexus between the plaintiff and Harris
was the plaintiff’s mother, not the defendants. Several
federal courts have declined to find institutional liability
where the nexus of abuse was not the organizational
relationship. See Roe v. Humke, 128 F.3d 1213, 1218
(8th Cir. 1997) (summary judgment properly granted as
police officer’s sexual abuse occurred when he was off
duty on his private property); Becerra v. Asher, 105
F.3d 1042, 1047 (5th Cir.) (no state liability where sexual
abuse did not occur under color of state law), cert.
denied sub nom. Becerra v. Houston Independent
School District, 522 U.S. 824, 118 S. Ct. 82, 139 L. Ed.
2d 40 (1997); D.T. v. Independent School District, 894
F.2d 1176, 1186–88 (10th Cir.) (no nexus between pri-
vate actions of coach and school employment), cert.
denied, 498 U.S. 879, 111 S. Ct. 213, 112 L. Ed. 2d 172(1990). We therefore conclude that the court properly
granted the defendants’ motion for summary judgment.
III
The plaintiff’s third claim is that the court abused its
discretion by denying his motions to reargue. We do
not agree.
The following facts are relevant to the plaintiff’s
claim. On September 4, 2012, the plaintiff filed a motion
to reargue/reconsider the court’s ruling on the defen-
dants’ motion for summary judgment. The plaintiff con-
tended therein that the court had overlooked the
controlling case law of Coville v. Liberty Mutual Ins.
Co., 57 Conn. App. 275, 748 A.2d 875, cert. granted,
253 Conn. 919, 755 A.2d 213 (2000) (appeal withdrawn
March 30, 2001), and Gutierrez v. Thorne, 13 Conn.
App. 493, 537 A.2d 527 (1988). The plaintiff also argued
that the court had misapprehended certain facts of the
case. The defendants objected to the motion to reargue.
On September 20, 2012, following the unofficial release
on the Judicial Branch website of Grenier v. Commis-
sioner of Transportation, supra, 306 Conn. 523, the
plaintiff filed a supplemental memorandum of law in
support of his motion to reargue.17 On September 24,
2012, the defendants filed an objection to the plaintiff’s
supplemental memorandum. On September 26, 2012,
the plaintiff marked as ready his motion to reargue,
which appeared on the October 1, 2012 short calendar.
He asked the court to decide the matter ‘‘on the papers.’’
The plaintiff subsequently received a notice from the
court indicating that Judge Schuman had denied the
motion to reargue on September 16, 2012. The plaintiff
filed a subsequent motion to reargue on September
26, 2012, which was denied by the court on October
12, 2012.
On appeal, the plaintiff contends that in granting the
defendants’ motion for summary judgment, the court
relied on one portion of Gutierrez v. Thorne, supra, 13
Conn. App. 493, but overlooked the portion of the opin-
ion that holds that the foreseeability of sexual assault
is not one susceptible to adjudication by summary judg-
ment and is within the province of the trier of fact.
Moreover, the plaintiff argued, the trial court did not
have the benefit of our Supreme Court’s decision in
Grenier. On appeal, the plaintiff argues that the court
abused its discretion by refusing to consider the control-
ling case law before denying the motion to reargue.
Because Coville, Gutierrez and Grenier are factually
distinguishable from this case, we conclude that the
plaintiff was not harmed by the court’s premature ruling
on his motion to reargue.
‘‘The standard of review for a court’s denial of a
motion to reargue is abuse of discretion. . . . When
reviewing a decision for an abuse of discretion, every
reasonable presumption should be given in favor of its
correctness. . . . As with any discretionary action of
the trial court . . . the ultimate [question for appellate
review] is whether the trial court could have reasonably
concluded as it did. . . .
‘‘[T]he purpose of a reargument is . . . to demon-
strate to the court that there is some decision or some
principle of law which would have a controlling effect,
and which has been overlooked, or that there has been
a misapprehension of facts. . . . It also may be used
to address . . . claims of law that the [movant] claimed
were not addressed by the court. . . . [A] motion to
reargue [however] is not to be used as an opportunity
to have a second bite of the apple . . . .’’ (Internal
quotation marks omitted.) Fortin v. Hartford Under-
writers Ins. Co., 139 Conn. App. 826, 843, 59 A.3d 247,
cert. granted on other grounds, 308 Conn. 905, 61 A.3d
1098 (2013).
Coville and Grenier stand for the proposition that
one who undertakes to perform a service that he has
no duty to provide must provide it with reasonable care.
See Coville v. Liberty Mutual Ins. Co., supra, 57 Conn.
App. 281–82. This argument is related to the plaintiff’s
reliance on the Dale brief. For purposes of this case,
the plaintiff has assumed that the Boy Scouts has under-
taken the duty to protect all scouts from harm. As the
trial court explained, the Boy Scouts has established
certain programs that are available to the local char-
tered organizations, but the defendants do not select the
programs or supervise the troop leaders who implement
them. The defendants did not assume custody of the
plaintiff and were not in control of the programs offered
by the local chartered organization or the selection of
volunteer troop leaders. The uncontradicted evidence
before the court demonstrates that whenever the defen-
dants learn of an adult volunteer who places scouts at
risk of harm, the individual is placed on an ineligible
volunteer list.
In Coville, the plaintiff became intoxicated and her
boyfriend placed her in his truck against her will in
order to drive her home. Id., 277. He neglected to fasten
the plaintiff’s seat belt or lock the passenger door. Id.
As the boyfriend drove the plaintiff home, the plaintiff
opened the passenger door. Id. The boyfriend success-
fully closed the door twice, but on the plaintiff’s third
attempt she fell out of the moving vehicle and suffered
a traumatic brain injury. Id. The issue on appeal con-
cerned the court’s jury instructions. This court deter-
mined that the trial court erred by charging the jury
with the customary duty of reasonable care owed by a
driver to his passenger, rather than the special duty
owed by a driver who takes ‘‘custody of another under
circumstances such as to deprive the other of his or
her normal opportunities for protection,’’ as requested
by the plaintiff. (Internal quotation marks omitted.) Id.,
278. The circumstances of Coville are not the circum-
stances before us in this case. Here, the defendants did
not take custody of the plaintiff. His scout troop and
the selection of adult volunteers was under the control
and supervision of the local chartered organization.
Grenier arose out of a motor vehicle accident on
Interstate 95, which resulted in the death of a number
of Yale University fraternity pledges. Grenier v. Com-
missioner of Transportation, supra, 306 Conn. 526–27.
The plaintiff, as the administrator of the estate of Nicho-
las Grass, brought an action against a number of defen-
dants, including the Delta Kappa Epsilon National
Fraternity and its local Phi Chapter. Id. Following a
night of pledging activity in New York City, the presi-
dent of the Phi Chapter directed one of its members to
drive some of the pledges from New York City to New
Haven. Id., 529. Our Supreme Court determined that
the Phi Chapter did not owe Grass a general duty to
provide safe transportation; id., 538–40; but once it vol-
untarily provided transportation, it assumed a duty to
do so safely. Id., 546–52. In this case, we agree with
the trial court that the defendants did not owe the
plaintiff a general duty of care, and there is no evidence
that they volunteered any service that created a spe-
cial duty.
Gutierrez is readily distinguishable from the present
case because the tortfeasor was an employee of the
Department of Mental Retardation. Gutierrez v.
Thorne, supra, 13 Conn. App. 494. In that case, the
trial court granted the defendant’s motion for summary
judgment. Id., 498. On appeal, the issue was whether it
was ‘‘reasonably foreseeable that a male employee of
the department of mental retardation, who was
assigned to supervise the plaintiff’s living situation and
who was supplied by the department with a key to the
plaintiff’s apartment, would commit a sexual assault
upon the plaintiff in that apartment . . . .’’ Id., 494.
This court determined that the defendant was not liable
to the plaintiff on a theory of respondeat superior; id.,
498; which is consistent with the court’s conclusion in
this case. This court, however, determined that the case
turned on the foreseeability of the injury of the general
nature suffered by the victim. Id., 500. This court further
concluded that foreseeability of the injury was a ques-
tion of fact for the trier of fact to determine, and that
the question was not one appropriate for resolution by
means of summary judgment. Id., 500–501. Again, this
case is different from Gutierrez, which concerned the
tortious acts of an employee. Here, Harris was not an
employee of the defendants; he was a volunteer under
the supervision and control of the local chartered orga-
nization. For all of the foregoing reasons, we conclude
that the court properly denied the plaintiff’s motions
to reargue.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Harris, a self-represented defendant, is not a party to this appeal. The
plaintiff alleged negligence, recklessness, and intentional sexual assault
against Harris. Although it was not alleged, the record discloses that Harris
is the plaintiff’s stepfather.
Harris pleaded guilty to numerous criminal charges, including sexual
assault in the first degree, involving the plaintiff and two other minors.
Harris received a total effective sentence of twenty-five years incarceration,
execution suspended after fifteen years, and ten years of special probation.
2
In his brief on appeal, the plaintiff represents that the first time Harris
abused him sexually, he was not yet old enough to be a member of the
Boy Scouts.
3
The plaintiff appealed, challenging, in part, the court’s rendering of sum-
mary judgment. In his brief, however, the plaintiff only contests the rendering
of summary judgment as to count one of his complaint. We therefore consider
his summary judgment challenge regarding counts two and three to be
abandoned. See, e.g., Merchant v. State Ethics Commission, 53 Conn. App.
808, 818, 733 A.2d 287 (1999).
4
Judge Wagner stated in part: ‘‘Now, just because the corporation is the
defendant, if it’s a worldwide, or even a statewide organization, we got to
limit the inquiries, at least, in the first instance, to those involved in the
years of the locality. Otherwise, it would put a tremendous burden on a
defendant to answer all these inquiries . . . which would exceed the cost
of the case and cost of recovery. At least in the first instance, we get to try
and limit it, limit the scope of discovery.’’
5
The plaintiff never deposed any of the defendants’ representatives.
On November 18, 2011, the defendants filed a supplemental disclosure to
interrogatory 14, stating: The Boy Scouts ‘‘has sponsored such activities as
they relate to American society which is inclusive of the Scouting Movement.
Please see as examples: The Victimization Prevention Programs; A National
Survey: Psychosocial Sequela of Violent Victimization in National Youth
Sample; Victimization of Children, How Does Receiving Information about
Sexual Abuse Influence Boys’ Perceptions of Their Risk?; and Answers to
Important Questions About the Scope and Nature of Child Sexual Abuse.’’
The plaintiff never submitted supplemental discovery requests to the
defendants.
6
In a footnote in his brief to this court, the plaintiff stated that in October,
2012, subsequent to Judge Schuman’s granting the defendants’ motion for
summary judgment, more than 1200 files documenting adult volunteers and
scout leaders who had been banned from scouting as a result of allegations
of suspected abuse between 1965 and 1985 were released to the public. See
Doe v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-
Day Saints, 352 Or. 77, 280 P.3d 377 (2012) . We have read the opinion of
the Supreme Court of Oregon and note the following relevant procedural
history. ‘‘During pretrial discovery, plaintiffs requested that [the Boys Scouts]
produce its ineligible volunteer files. After the [Boy Scouts] objected, plain-
tiffs moved to compel production of the files. The trial court granted plain-
tiffs’ motion to compel and ordered [the Boy Scouts] to produce all
unredacted ineligible volunteer files covering the period 1965 to 1985.’’ Id.,
81. We note that the plaintiff’s request in this case was not similarly discreet.
7
According to the Boy Scouts, Camp Johnson is not affiliated with either
the Boy Scouts or the council.
8
In Walsh’s affidavit, he averred that the Boy Scouts were chartered by
Congress in 1916 to deliver scouting programs through existing community
organizations. The Boy Scouts is governed by a national council of volun-
teers, and the national executive board is comprised of volunteers. The
national executive board appoints a chief scout executive, who hires a
national staff of professional scouters. The professional scouters and their
paid support staff are the only employees of the Boy Scouts.
Walsh further averred that the Boy Scouts charters local organizations
known as local councils, which incorporate as nonprofit organizations in
their respective states to promote the scouting movement at the local level.
The local councils generally are comprised of civic, business, and community
volunteers, as well as small professional staff. Each local council is a separate
level entity that raises and dispenses its own funds and manages its own
affairs. Each local council is managed by an executive board consisting
of volunteers. The council executive board employs a limited number of
professional scouters to administer the scouting program for the region in
which the council sits. The professional scouters and their support staff are
the only full-time employees of the local councils. The Connecticut Rivers
Council is the local council in the present matter.
Moreover, Walsh’s affidavit avers that the local councils offer the scouting
program through existing community organizations such as churches,
schools, service clubs, and fraternal organizations. When a community orga-
nization decides to form a scout troop, it forms a local troop committee
that is responsible for promoting the troop and recruiting participants. After
a local troop committee is formed, the community organization applies to
the local council for a charter that authorizes the community organization
to use those aspects of the scouting program it deems fit. The local chartered
organization owns and operates its own troop; it selects its own volunteer
leaders to administer the program. The Boy Scouts and the local councils
neither direct nor supervise the day-to-day activities of a local scout troop.
The individual units and troops and their scoutmaster are responsible to
their own troop committee.
There are more than 1 million scouting volunteers nationwide who orga-
nize and direct activities for approximately 2.6 million youth in scouting. The
turnover rate of scouting volunteers is approximately one-third each year.
When the Boy Scouts or the local council become aware of any allegation
of sexual misconduct by an adult volunteer, an ineligible volunteer file is
created and that volunteer immediately is placed on the list of ineligible
volunteers. The volunteer and the chartered organization representative are
each sent a letter stating that the volunteer’s registration is revoked. After
an ineligible volunteer file is created for a particular volunteer, that person
is prohibited from ever again participating in scouting.
Walsh’s affidavit concluded that the Boy Scouts ‘‘did not have any notice
or knowledge of [Harris’] sexual abuse of his stepson, or of any sexual
misconduct, until a newspaper article concerning his arrest was published
in the Hartford Courant on July 3, 2007.’’ Immediately upon learning of
Harris’ arrest for sexual abuse, the council notified the Boys Scouts of the
allegations against Harris and requested that his membership be revoked
and that he be placed on the ineligible volunteer file. The Boy Scouts created
an ineligible volunteer file for Harris and placed his name on the list of
ineligible volunteers. On July 3, 2007, the director of field service for the
Boy Scouts sent a letter to Harris and the chartered organization revoking
Harris’ registration as a volunteer. Moreover, Walsh averred that at no time
was Harris acting as an agent or employee of the Boy Scouts.
9
In his affidavit, Pokorny averred that he formerly was employed as the
scout executive of the Connecticut Rivers Council, the Boy Scouts’ local
council. He also set forth the organizational facts of the Boy Scouts identical
to those contained in Walsh’s affidavit. See footnote 8 of this opinion.
Pokorny also averred that the council had no notice of Harris’ sexual abuse
of the plaintiff, his stepson, or of any sexual misconduct on the part of
Harris until news of his arrest was published on July 3, 2007. The remainder
of Pokorny’s affidavit is similar to that of Walsh.
10
The trial court found that the plaintiff’s attestation as to the accuracy
of the complaint was inaccurate. The court found that the complaint does
not contain a consolidated statement of facts, and alleges that Harris’ sexual
abuse of the plaintiff occurred between 1991 and 1997, which ‘‘is obviously
wrong, given that the plaintiff was born in 1991.’’ The transcript of Harris’
guilty plea reveals that he abused the plaintiff between 2001 and 2007.
11
The plaintiff did not make similar allegations in his complaint.
12
The court found that the plaintiff had alleged that the defendants had
breached their duty to prevent injury to him by failing to monitor and
supervise Harris properly, failing to promulgate protocols, rules, or guide-
lines to screen out sexual predators, failing to enforce protocols promulgated
to prevent campmasters from allowing or requiring minors to sleep with
them in the campmaster’s cabin, and failing to investigate, warn, or inform
parents of the danger that Harris posed to children.
13
In Dale, the United States Supreme Court held that the application of
a state public accommodations law to require the Boy Scouts to reinstate
a homosexual scout leader, contrary to the Boy Scouts’ view that homosexu-
ality is inconsistent with its values, violated the Boy Scouts’ first amendment
right of expressive association. Boy Scouts of America v. Dale, supra, 530
U.S. 640.
14
‘‘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 conduct of another.’’ (Internal quotation
marks omitted.) Fraser v. United States, supra, 236 Conn. 632.
15
At oral argument on the defendants’ motion for summary judgment, the
plaintiff argued that the defendants’ knowledge of Harris’ sexual abuse was
constructive and conceded that there is no evidence that the defendants
had actual knowledge of it.
16
See Boy 1 v. Boy Scouts of America, 832 F. Supp. 2d 1282,1285 (W.D.
Wn. 2011) (more extensive background checks began in late 1980s).
17
The only thread that binds Coville, Grenier, and Gutierrez to the facts
of this case is that each plaintiff suffered a loss of tragic proportion.