DocketNumber: No. CV 99 0174453
Citation Numbers: 2003 Conn. Super. Ct. 1949
Judges: LEWIS, JUDGE TRIAL REFEREE.
Filed Date: 2/5/2003
Status: Non-Precedential
Modified Date: 4/18/2021
On October 9, 2001, the defendant, Mern Palmer-Smith, moved (155) for summary judgment. The defendant argues that she is entitled to judgment as a matter of law because the "doctrine of parental immunity" applies and the plaintiff cannot satisfy the requirements of either exception to the doctrine. The defendant further argues that there are no questions of material fact regarding whether Nolan had dangerous tendencies of which the defendant either was or should have been aware, and that the plaintiff cannot produce any evidence to raise any issues of material fact. The plaintiff responds that because Nolan was involved with marijuana prior to the incident in question, because he attended a school where other students used drugs and alcohol, because he was on his school's wrestling team, because his mother could not point to specific occasions during which she expressed her negative opinions about drug use, and because, on the day of the incident in question, she attended a social event in New York City and did not arrange for someone to watch her sixteen-year-old son while she was out, genuine issues of material fact exist regarding whether the defendant satisfied the standard of care in controlling her son's conduct.
"Summary judgment procedure is designed to dispose of actions in which there is no genuine issue as to any material fact." (Internal quotation CT Page 1950 marks omitted.) Fraser v. United States,
The doctrine of parental immunity "bars an unemancipated child fromsuing his or her parents for personal injuries . . . Under this doctrine a parent is not liable civilly to his child for personal injury inflicted during [the child's] minority . . ." (Citations omitted; emphasis added; internal quotation marks omitted.) Crotta v. Home Depot, Inc., supra,
The Supreme Court also concluded "that the doctrine of parental immunity operates to preclude the parent of a minor plaintiff from being joined as a third party defendant for purposes of apportionment of CT Page 1951 liability, contribution or indemnification based on the parent's allegedly negligent supervision of the minor plaintiff." Crotta v. HomeDepot, Inc., supra,
Because the plaintiff has not alleged that the defendant entrusted her son with a dangerous instrumentality, this court must decide whether, viewing "the evidence in the light most favorable to the nonmoving party"; Buell Industries Inc. v. Greater New York Mutual Ins. Co.,
The defendant argues that the plaintiff cannot show "1. that [Nolan Palmer-Smith's] alleged dangerous tendency, drug use, has a dangerous tendency to harm others; 2. that the defendant . . . knew or should have CT Page 1952 known that Nolan Palmer-Smith was engaged in drug activity; and 3. that the defendant . . . failed to restrain her child properly." She maintains not only that the plaintiff has no evidence that drug use constitutes a dangerous tendency, but also suggests that drug use is a "poor personal choice" and has little, if any, connection to the injury of another. In addressing the second requirement, the defendant, assuming arguendo that drug use is a dangerous tendency, contends the plaintiff cannot present any evidence which shows that the defendant knew or should have known that her son was involved in drug activity. Finally, the defendant argues that even if drug use is a dangerous tendency, even if she either knew or should have known that her son had dangerous tendencies, the plaintiff has no evidence to show that the defendant had reason to suspect that the drug use could lead to injury of another and that she had a "reasonable way" of restraining her son. The defendant has submitted a "Drug/Alcohol Evaluation Report" by Leonard A. Kenowitz, Ph.D./CADC and her own affidavit to support her motion for summary judgment.
In response, the plaintiff has presented a certified transcript of the defendant's deposition taken January 8, 2002. To rebut the defendant's arguments, in his memorandum in opposition, the plaintiff continually points to sections of the transcript where: the defendant admits knowledge of Nolan's use of marijuana prior to the incident which is the subject of this action; the defendant admits knowledge of drug and alcohol use by children who attended Nolan's school around the time during which the incident which is the subject of this action occurred; although she claimed her children knew her negative opinion of and intolerance of drug use, the defendant could not relate an exact conversation where she expressed these opinions; and the defendant admits knowledge of Nolan's membership on his school's wrestling team. The plaintiff also focuses on the defendant's own work and social plans and knowledge of her son's whereabouts on September 26, 1997, the day of the incident.
Our Supreme Court has "emphasize[d] the important point, that [a]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Buell Industries, Inc. v. Greater NewYork Mutual Ins. Co., supra,
The plaintiff has not disclosed any evidence to support his contention that Nolan had any dangerous tendencies, drug use or otherwise, of which the defendant either was or should have been aware. Although the plaintiff has revealed, through the defendant's deposition testimony, that Nolan was implicated in a situation involving marijuana, the plaintiff has not submitted any evidence that Nolan's involvement with marijuana either created, encouraged or was indicative of a tendency within him to harm others. While, as the plaintiff asserts, wrestling may be an aggressive sport, the plaintiff has submitted no evidence tending to show that Nolan's participation in the school-sponsored extracurricular activity either created, encouraged or was indicative of a dangerous tendency.
In addition to the involvement with marijuana and participation on the wrestling team, to support his contention that the defendant either knew or should have known that the defendant had a tendency to harm others and had a duty to control her son's actions, the plaintiff relies further on the defendant's admission that she was aware of drug and alcohol use among Nolan's schoolmates, and that, although she claims that her children were aware of her feelings about drug use, the defendant could not refer to any specific conversations with Nolan during which she expressed her opinions.
"Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Fogarty v. Rashaw,
As quoted above, "[a] very clear enunciation of the duty of parents to control the conduct of their children is to be found in the Restatement, 2 Torts, § 316, as follows: `A parent is under a duty to exercise CT Page 1954 reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.'" Repko v. Seriani, supra, 3 Conn. Cir. Ct. 376. Therefore, at common law, a parent's duty to control his or her child is not absolute and a parent is not strictly liable for his or her child's conduct. As in most questions of duty, foreseeability is involved. The problem for the law is to determine, in hindsight, what harm is foreseeable. The Supreme Court has held that one must consider the "attenuation between [the defendant's] conduct, on the one hand, and the consequences to and the identity of the plaintiff, on the other hand." RK Constructors, Inc. v.Fusco Corp. ,
Essentially, the plaintiff asks this court to make linear connections among the facts presented. The plaintiff argues that because, before the incident in question, Nolan had been involved with marijuana, was on his school's wrestling team and attended a school where other children used drugs and alcohol that he had dangerous tendencies to harm others and his mother should have known about these tendencies and had a duty to control her son's behavior. The plaintiff asserts that there are genuine issues of material fact regarding whether the defendant either knew or should have known that, based on the evidence presented, Nolan was likely to ingest hallucinogenic drugs and violently attack his friend, the plaintiff, and whether the defendant took adequate steps to control Nolan's conduct. The connection between the defendant's conduct and the plaintiff's injuries are, however, in this case, too attenuated.
It is understood that summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." Miller v. UnitedTechnolopies Corp. ,
Based on the evidence presented, viewed in the light most favorable to the plaintiff, this court holds that, in this situation, the defendant did not have a duty to exercise reasonable care to control the conduct of her minor child. Therefore, the defendant is entitled to judgment as a matter of law and her motion for summary judgment is granted.
So Ordered.
Dated at Stamford, Connecticut, this 5th day of February 2003.
William B. Lewis, Judge CT Page 1955
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