DocketNumber: No. CV-02-0078510S
Citation Numbers: 2003 Conn. Super. Ct. 1480, 34 Conn. L. Rptr. 27
Judges: LAGER, JUDGE.
Filed Date: 1/30/2003
Status: Non-Precedential
Modified Date: 4/18/2021
The general rule under the common law of this state is that a parent is not liable for the torts of a minor child unless the parent either makes a dangerous instrumentality available to the child which the child is incapable of handling or the parent fails to control a child's known dangerous propensities. See generally Wright Fitzgerald, Connecticut Law of Torts, § 77 (2d Ed. 1968); LaBonte v. FederalMutual Ins. Co.,
In ruling on this motion to strike, "the court is limited to the facts alleged in the complaint." Waters v. Autuori,
The fourth count alleges the following facts. On January 27, 2001, Trinkaus, an experienced skier, was skiing on the beginner's trail at Mohawk behind his five-year-old son who was connected to him by a tether. (¶¶ 1, 2, 7, 8, 9.) Montoni, a minor, was a member of the Housatonic Council, Troop #55, of the Boy Scouts of America ("the troop") from Shelton. (¶ 10.) Keirstead was an assistant scout master of the troop and was acting as its agent, along with the defendants Robert Atkin ("Atkin"), the scout master, and Russell Shimer ("Shimer"), another assistant scout master. (¶ 13.) From January 26, 2001 through January 28, 2001, the troop sponsored a weekend ski trip to Mohawk. (¶ 14.) Keirstead attended the trip and had agreed to supervise each participant and be responsible for their safety. (¶¶ 15, 16.) The parents of each scout participating had to sign a "Permission for Ski" form provided by the troop, thereby entrusting their children to the care and supervision of the troop leaders. (¶ 17.) Although the ski trip began on Friday, Keirstead and the others agreed that Montoni could join the group on Saturday. (¶ 18.) Before arriving, Montoni had purchased a combination ticket from Mohawk that included use of ski lifts, equipment rental and a lesson. (¶ 19.) When Montoni arrived at Mohawk on January 27, 2001, he went directly to the ski rental shop and obtained snowboard equipment. He was not required to nor did he check in with Atkin, Shimer or Keirstead or any other adult representative of the troop. (¶ 20.) Montoni then went directly to the beginner's trail, rode the ski lift to the top and began to ride down the hill although he had never been on a snowboard before. (¶ 21.) While riding down the mountain, Montoni crashed into Trinkaus from behind. (¶ 22.)
The fourth count then alleges a series of acts and omissions, claimed to constitute negligence on Keirstead's part. (¶ 23. a — k.)1 In the majority of these allegations, Trinkaus maintains that Keirstead failed to control or supervise Montoni. Trinkaus also alleges that Keirstead entrusted to Montoni "a dangerous instrumentality, namely a snowboard, when he knew or should have known that he was incapable of CT Page 1482 handling it and it was foreseeable he would injure someone while riding it." (¶ 23. k.) Trinkaus claims that this allegation alone suffices to state a cause of action against Keirstead because a snowboard can be considered to be inherently dangerous. He also claims that under the particular circumstances, in which Montoni was allowed to pick up the equipment and use it to ride down the mountain without supervision although he had never been on a snowboard before and did not receive any lessons, the snowboard was a dangerous instrumentality.
The court cannot conclude that a snowboard is a dangerous instrumentality as a matter of law. Only "instrumentalities which, by their nature, are calculated to cause injury, are considered dangerous per se." Levenstein v. Yale University,
In this case, the plaintiff alleges that Keirstead made a snowboard available to Montoni although he knew or should have known that Montoni was not capable of handling it because he had never used a snowboard before and had not taken lessons and also alleges that under these circumstances it was foreseeable that Montoni would pose a hazard to others. (¶ 23 f, g, k.) These allegations suffice to state a cause of action under the first exception, that is, making a dangerous instrumentality available to a child which the child is incapable of handling.2 CT Page 1483
As a result of this conclusion, it is technically unnecessary to determine whether the allegations of the fourth count adequately support the second exception, that is, failing to control a child's known or specific dangerous propensities. However, to prevail on such a claim, Trinkaus must allege and prove that Keirstead knew or should have known that Montoni had a propensity to engage in a specific dangerous activity. The factual allegations of the fourth count do not appear to support such a claim. See Santagata v. Woodbridge, Superior Court, judicial district of New Haven, Docket No. 384914 (Dec. 26, 1997, Zoarski, J.) (complaint must allege defendant failed to restrain a minor who he knew or should have known had specific dangerous propensities).
When any allegation of a count suffices to support a cause of action, the count cannot be stricken. Accordingly, Keirstead's motion to strike the fourth count against him is denied.
LINDA K. LAGER, JUDGE
Lutteman v. Martin , 20 Conn. Super. Ct. 371 ( 1957 )
Levenstein v. Yale University , 40 Conn. Super. Ct. 123 ( 1984 )
Honea v. Bradford , 39 N.C. App. 652 ( 1979 )
Jarboe v. Edwards , 26 Conn. Super. Ct. 350 ( 1966 )
Godfrey v. Connecticut Co. , 98 Conn. 63 ( 1922 )