246 Conn. 456 | Conn. | 1998
Opinion
The principal issues in this appeal are whether: (1) the named plaintiff, a high school principal who claims to have been wrongfully “constructively discharged” by the defendant board of education, was required to exhaust her administrative remedies under General Statutes (Rev. to 1991) § 10-151 (d),
In the original twelve count complaint,
Thereafter, the plaintiffs filed a substitute complaint reasserting the eight counts still in contention, namely, the four substantive counts by the plaintiff alleging
The defendants moved to dismiss the entire substitute complaint for lack of subject matter jurisdiction, on the grounds that: (1) the plaintiff had failed to exhaust her administrative remedies under § 10-151 (d); (2) the plaintiff had failed to exhaust the grievance and arbitration procedures of an agreement between the board of education and the East Haddam Administrators’ Association, of which the plaintiff had been a member (agreement); and (3) the claims for loss of consortium were merely derivative of the plaintiffs substantive claims. In connection with this motion to dismiss, the defendants filed an affidavit of Thompson, together with a copy of the agreement and excerpts
I
WRONGFUL CONSTRUCTIVE DISCHARGE
We first address the plaintiffs contention that the trial court had subject matter jurisdiction over her wrongful constructive discharge claim because under the circumstances of this case, she was not required to exhaust the administrative procedures of § 10-151 (d) or the grievance procedures of the agreement before asserting that claim. The plaintiff agrees that in the absence of an applicable exception to the exhaustion doctrine, the failure by a tenured teacher to invoke the administrative procedures of § 10-151 (d) deprives the court of jurisdiction over a claim of wrongful termination. School Administrators Assn. v. Dow, 200 Conn. 376, 384-85, 511 A.2d 1012 (1986); LaCroix v. Board of Education, 199 Conn. 70, 83-84, 505 A.2d 1233 (1986). The plaintiff argues, however, that a claim of constructive discharge comes within the exception to the exhaustion doctrine for cases in which recourse to the administrative remedy would be futile or inadequate. We conclude that the plaintiffs claim of constructive discharge, as alleged in her substitute complaint, falls within that exception to the exhaustion doctrine.
We note first that in deciding the defendants’ motion to dismiss, the trial court did not purport to resolve what
The plaintiff alleged that Thompson became the superintendent of schools for the East Haddam school district on January 2, 1991, and at all relevant times he acted as the agent of the board of education. The plaintiff also alleged that since January, 1969, she had been a teacher, as defined in General Statutes (Rev. to 1991) § 10-151 (a) (2),
The plaintiff alleged further that on various dates between January 4, 1991, and November 4, 1991, Thompson “engaged in a deliberate effort to harass and torment the plaintiff . . . making her continued
“The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions. Connecticut Life & Health Ins. Guaranty Assn.
“Despite the important public policy considerations underlying the exhaustion requirement, we have grudgingly carved several exceptions from the exhaustion doctrine. Cahill v. Board of Education, 198 Conn. 229, 241, 502 A.2d 410 (1985). We have recognized such exceptions, however, only infrequently and only for narrowly defined purposes. LaCroix v. Board of Education, [supra, 199 Conn. 79]; see also Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 561, 630 A.2d 1304 (1993). One of the limited exceptions to the exhaustion rule arises when recourse to the administrative remedy would be demonstrably futile or inadequate. O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995); Labbe v. Pension Commission, [229 Conn. 801, 814, 643 A.2d 1268 (1994)].” (Internal quotation marks omitted.) Hunt v. Prior, 236 Conn. 421, 432, 673 A.2d 514 (1996). “An administrative remedy is futile or inadequate if the agency is without the authority to grant the requested relief.” Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 628, 577 A.2d 1017 (1990). This exception applies to the facts of the present case because the issues in controversy between the plaintiff and the defendants are not the issues contemplated by a termination hearing held pursuant to § 10-151 (d).
As the pleadings indicate, the plaintiff claims that, although in form she submitted a letter of resignation, in substance she was forced to submit that letter by
The reciprocal purposes of the provisions of § 10-151 (d); see footnote 2 of this opinion; are (1) to provide both a substantive and procedural framework within which a board of education may terminate a teacher’s contract notwithstanding the teacher’s tenured status, and (2) to protect the teacher’s right to due process of law. See LaCroix v. Board of Education, supra, 199 Conn. 85-86. Under § 10-151 (d), there are six potential grounds for termination of the contract of a tenured teacher: (1) inefficiency or incompetence; (2) insubordination; (3) moral misconduct; (4) medical disability; (5) elimination of the teacher’s position; and (6) “other due and sufficient cause.” If termination of a teacher’s contract is contemplated, the superintendent must first give the teacher written notice “that termination of such teacher’s contract is under consideration . . . .” General Statutes (Rev. to 1991) § 10-151 (d). If the teacher then makes a timely written request, the superintendent must give the teacher a timely “statement in writing of the reasons” for the proposed termination, which must fall within one or more of the six grounds for termination. General Statutes (Rev. to 1991) § 10-151 (d). The teacher may respond by making a timely request for a hearing before the board of education. General Statutes (Rev. to 1991) § 10-151 (d). The function of the hearing is, in general, to resolve the question of whether any of the asserted grounds for termination is supported
To require the plaintiff, under the facts of the present case, to invoke the provisions of § 10-151 (d) would be to attempt to force the proverbial square peg into a round hole. The dispute between the parties is not whether the plaintiff has engaged in any of the six potential grounds for termination. The defendants do not claim that she has. The dispute is whether she resigned voluntarily or was forced to do so by the wrongful conduct of Thompson. That kind of factual dispute simply does not fit within either the purpose or the language of § 10-151 (d). The board of education would not have been empowered, under § 10-151 (d), to determine whether a constructive discharge took place because that question is not one of the statutorily defined subjects of a hearing under the statute. Recourse to the administrative remedy of § 10-151 (d) would, therefore, be futile because the board of education would have been without the authority to grant the relief requested by the plaintiff. Cannata v. Dept. of Environmental Protection, supra, 215 Conn. 628.
This conclusion is buttressed by attempting to envision what would happen under the exhaustion scenario urged by the defendants. Under that scenario, although there had been no formal written notice of proposed termination as required by the statute, the defendants contend that such a notice was not necessary because the plaintiff, by her own allegations, already knew that she had been terminated. The defendants maintain that she then had the obligation to request a hearing before
The hearing, therefore, as framed by her request and Thompson’s reply, would have been to resolve the question of whether Thompson had constructively discharged her or she had resigned. It would not have involved whether any of the six statutory grounds for termination had been proven. Thus, the hearing before the board of education would have borne neither substantive nor procedural resemblance to the kind of hearing contemplated by § 10-151 (d).
In this respect, the present case is analogous, as the plaintiff argues, to what we characterized in LaCroix v. Board of Education, supra, 199 Conn. 81, as the board of education’s “total default” of its obligations under General Statutes (Rev. to 1972) § 10-151 (b), which in that case excused a teacher’s failure to follow the administrative remedies under the statute. In the present case, assuming the plaintiffs allegations to be true, the defendants, by engaging in an intentionally harassing course of conduct that forced the plaintiff to submit her letter of resignation, also would have totally defaulted in their obligations under § 10-151 (d). That is because by doing so the defendants would have wholly
The same reasoning applies to the defendants’ contention that the plaintiff also was required to exhaust the grievance and arbitration remedies provided by the agreement, because the agreement specifically links termination under the agreement to the provisions of the statute. Article one of the agreement provides that the board of education recognizes the East Haddam Administrators’ Association “as the exclusive bargaining agent for those certified professional employees in the East Haddam School District who are employed in positions requiring an intermediate administrator or supervisory certificate, or the equivalent thereof, and who are not excluded” from the bargaining unit by certain statutory provisions. There is no dispute that the plaintiff was a member of the association and covered by the agreement. Article two, § 2.1.8 of the agreement provides that the board of education may “suspend or dismiss the administrators of the school in the manner provided by statute or ordinance . . . .”
II
DEFAMATION AND INVASION OF PRIVACY BY FALSE LIGHT
The plaintiff claims that the trial court improperly dismissed her counts of defamation and invasion of privacy by false light, as alleged in her complaint, because one of the acts underlying those torts did not occur until after her employment by the board of education had terminated. Therefore, she argues, at that time she was no longer a member of the bargaining unit protected by the agreement, namely, administrative or supervisory employees of the school district, and could not have filed a grievance under the agreement. We agree.
In her defamation and invasion of privacy by false light counts, the plaintiff alleged that pursuant to General Statutes § 10-151c,
We agree with the plaintiff that at least to the extent that these counts rely on proof of improper dissemination of the written evaluation at a time when the plaintiff was no longer employed by the school district, she could no longer file a grievance based on that conduct by Thompson because she was no longer covered by the agreement.
They argue, instead, that the plaintiff has failed to exhaust her available contractual remedies insofar as she did not attempt to challenge the content of the written evaluation through the grievance procedure when, in 1991, Thompson wrote the evaluation. The
We note that despite this deposition testimony, the plaintiffs stated in their affidavits that written evaluations are not grievable matters. See footnote 7 of this opinion. It is not necessary for us to resolve this question, however.
First, in these two counts the plaintiff complains not only of what she characterizes as the false and misleading nature of the evaluation, but also of Thompson’s improper dissemination of it. Second, at least one of those disseminations allegedly took place after her employment had terminated, removing her from the bargaining unit. In our view, the failure to file a grievance contesting the contents of an evaluation at its issuance does not destroy the right to challenge its unlawful dissemination after termination of employment. The doctrine of exhaustion of contractual remedies does not require such prescience. Therefore, even if we were to assume that the plaintiff could have contested the contents of her evaluation through the grievance procedure in 1991, her failure to do so does not deprive the trial court of jurisdiction over her defamation and invasion of privacy by false light claims.
Ill
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The plaintiff asserts that the trial court improperly applied the doctrine of exhaustion of contractual remedies to her claim of intentional infliction of emotional
It is true that, as the defendants contend, most of the facts underlying this count are the same as those asserted in the wrongful constructive discharge count. Moreover, they are also the same facts that are alleged in the defamation count. In framing the count alleging intentional infliction of emotional distress, the plaintiff reasserted the essential allegations of both the wrongful constructive discharge count and the defamation count, and added the allegations that Thompson intended to inflict emotional distress on the plaintiff, or should have known that would be its likely result, and that his conduct was extreme and outrageous, causing the plaintiff severe emotional distress. It is also true that a “complaint sounding in tort will not in itself prevent [resort to contractual grievance procedures] if the underlying contract embraces the disputed matter . . . .” (Internal quotation marks omitted.) School Administrators Assn. v. Dow, supra, 200 Conn. 383, quoting Legg, Mason & Co. v. Mackall & Coe, Inc., 351 F. Sup. 1367, 1370-71 (D.D.C. 1972).
It is not true, however, notwithstanding the defendants’ contrary suggestion, that simply because the
In this case, article seven, § 7.2.1 of the agreement defines a “grievance” as “a complaint by an administrator or a group of administrators that there has been a violation, misinteipretation or misapplication of a specific provision or provisions of this contract to the detriment of the administrator or administrators concerned.” We conclude that the plaintiff’s claim that Thompson intentionally caused her emotional distress does not fall within that definition.
The defendants do not point to any “specific provision” of the agreement that would be violated, misinterpreted or misapplied by Thompson’s alleged tortious conduct. Furthermore, our examination of the agreement does not disclose any such provision. The agreement covers, between the members of the bargaining unit and the board of education, what one would normally consider to be matters of compensation and conditions of employment,
IV
LOSS OF PARENTAL CONSORTIUM
The minor plaintiffs contend that we should recognize a claim for loss of parental consortium by a minor child resulting from a serious injury to the child’s parent. They argue, therefore, that the trial court, Gaffney, J., improperly struck counts thirteen, fifteen, sixteen and seventeen of the complaint, in which they had alleged such claims. We conclude, however, that the balance of reasons and public policies tips against the recognition of such a claim. We therefore decline to do so, and we affirm that part of the judgment of the trial court.
We have defined “consortium” in the spousal context “as encompassing the services of the [injured spouse], the financial support of the [injured spouse], and the variety of intangible relations which exist between spouses living together in marriage. Prosser, Torts (4th Ed. 1971) § 124, pp. 881-82. These intangible elements are generally described in terms of affection, society, companionship and sexual relations. Comment, ‘The Action for Loss of Consortium in New Mexico,’ 2 N. Mex. L. Rev. 107, 108 (1972). These intangibles have also been defined as the constellation of companionship,
The minor plaintiffs offer several arguments in favor of recognition of such a claim. First, they argue that the child who, through the defendant’s tortious conduct, has been deprived of those aspects of the parent-child relationship, has suffered “a genuine injury, and a serious one.” See R. Pound, supra, 14 Mich. L. Rev. 185 (A child “has an interest in the society and affection of the parent, at least while [the child] remains in the household. But the law has done little to secure these interests.”). One of the amici curiae, the Connecticut Trial Lawyers Association (amicus), points out that we have recently reaffirmed that it is our state’s public policy to promote the welfare of the family, and that the interest of children “in not being dislocated from the emotional attachments that derive from the intimacy of daily association, with the parent” has constitutional significance. (Internal quotation marks omitted.) Pamela B. v. Ment, 244 Conn. 296, 310, 709 A.2d 1089 (1998).
The minor plaintiffs also argue by analogy to our established recognition of a valid claim for loss of spousal consortium. See Hopson v. St. Mary’s Hospital,
In addition, the minor plaintiffs argue by way of analogy to our decision in Clohessy v. Bachelor, 237 Conn. 31, 49, 675 A.2d 852 (1996), in which we recognized, for the first time and subject to certain limitations, that a parent and a sibling can recover damages for the emotional anguish they had sustained by witnessing the parent’s other young child being fatally injured by the defendant’s negligence. The minor plaintiffs assert: “Application of this court’s logic in Clohessy to the question of whether a tortfeasor’s liability should extend to . . . loss of [parental] consortium properly instructs that the time is similarly ripe to recognize such cause of action in this state.”
The minor plaintiffs argue further that permitting compensation for loss of parental consortium will enable the emotionally injured child to secure the therapy that will, in turn, help to heal the wounds caused by his or her loss. Thus, they contend, not only will the minor children benefit, “but society will also benefit if the child is able to function without emotional handicap. This may well offset any increase in insurance premiums.” Berger v. Weber, 411 Mich. 1, 15, 303 N.W.2d 424 (1981).
The minor plaintiffs also point to what they characterize as “the emerging national trend recognizing such
Although we acknowledge that many of these contentions have considerable appeal, we conclude that on balance, the wiser judicial policy is not to recognize the claim for loss of consortium by a minor child. We note, as a preliminary matter, that the cause of action asserted is a form of third party liability of the defendants. That is, the minor plaintiffs seek to recover from the defendants, not for tortious harms that the defendants inflicted directly on them, but for emotional harms they suffered as a result of the defendants’ tortious conduct committed against another with whom they have a close relationship, namely, their parent. Although we have never specifically said so, our cases suggest that the imposition of third party liability on a tortfeasor is an exception to the general rule of the scope of tort liability that requires satisfaction of a special policy inquiry.
Thus, we have held that, for reasons of public policy, a psychiatrist engaged to examine children for possible sexual abuse owed no duty of care to the children’s father, who was the suspected abuser; Zamstein v. Marvasti, 240 Conn. 549, 559, 692 A.2d 781 (1997); a psychotherapist owed no duty of care to a third party injured by his psychiatric outpatient; Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996); a physician owed no duty of care to his patient’s daughter, who suffered emotional distress from observing her mother’s health deteriorate from the physician’s substandard care; Maloney v. Conroy, 208 Conn. 392, 399, 545 A.2d 1059 (1988); and an attorney owed no duty of care to his client’s intended beneficiaries for failing to arrange for timely execution of estate planning documents. Krawczyk v. Stingle, 208 Conn. 239, 244-46, 543 A.2d
On the other hand, very few decisions have extended a tortfeasor’s liability to a third party, and those decisions have relied heavily upon policy considerations. The primary example, of course, is our recognition of the claim for loss of spousal consortium. Hopson v. St. Mary’s Hospital, supra, 176 Conn. 496. In addition, we have also held that considerations of public policy justified extending a tortfeasor’s liability to the emotional distress suffered by a bystander, where (1) the bystander was closely related to the injured victim, (2) the bystander’s distress was caused by contemporaneous sensory perception of the event, (3) the victim was seriously injured, and (4) the bystander suffered serious emotional injury. Clohessy v. Bachelor, supra, 237 Conn. 52-54. Thus, it is fair to say that imposing third party
Our reluctance to recognize causes of action in tort based on third party liability, in the absence of satisfaction of a special policy inquiry, is based in part upon our realization that the scope of the tortfeasor’s third party liability, measured only by “pure rules of foreseeability could lead to unlimited liability.” Clohessy v. Bachelor, supra, 237 Conn. 50. That is because “[i]t is foreseeable that any injured person will be party to a number of relationships — with the members of his household (who may not form a traditional nuclear family), with relatives, with friends and neighbors, with employer, employees, or co-workers — and that the other party to the relationship will suffer losses, tangible and intangible, should the relationship be interrupted.” Berger v. Weber, supra, 411 Mich. 29.
Moreover, where the primary victim of the tortious behavior recovers for her own injuries, those direct consequences of the wrongful conduct are compensated and the wrongdoer does not escape liability. Consequently, the fundamental policy purposes of the tort compensation system — compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct — are satisfied in large measure, and
Furthermore, as our cases reveal, imposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy. Before imposing such liability, it is incumbent upon us to consider those risks. Thus, in Zamstein v. Marvasti, supra, 240 Conn. 560-61, our decision not to impose upon a psychiatrist a duty of care to a suspected child abuser was based largely on our recognition of “the impermissible risk of discouraging such professionals in the future from performing sexual abuse evaluations of children altogether . . . .” Similarly, in Fraser v. United States, supra, 236 Conn. 634-35, our decision not to impose upon a psychotherapist a duty of care to a third party who was injured by the psychotherapist’s outpatient was based partly on the risk of inhibiting the openness that is essential to the therapist-patient relationship and partly on the risk of over-encouraging involuntary hospitalization of the mentally ill.
Whether an additional policy consideration justifies, in any given case, the imposition of liability for consequential damages, such as those claimed by the minor plaintiffs, is determined through consideration of whether the tortfeasor owes a legal duty to the claimants. See Clohessy v. Bachelor, supra, 237 Conn. 46-47. “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 violated that duty in the particular situation at hand. . . . RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). We have stated that the test for the existence of a legal duty of care entails (1) a determination 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
We acknowledge that, as a general matter, it is foreseeable that causing serious injury to a parent may have deleterious effects on the parent’s minor children. In a tort case involving a claim for consequential damages, however, “[a] simple conclusion that the harm to the plaintiff was foreseeable . . . cannot by itself mandate a determination that a legal duty exists. ... A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results. . . . RK Constructors, Inc. v. Fusco Corp., [supra, 231 Conn. 385-86].” (Internal quotation marks omitted.) Clohessy v. Bachelor, supra, 237 Conn. 45-46.
We conclude in the present case that the general rule of limiting the tortfeasor’s liability to the person directly harmed should prevail. Although, in light of the minor plaintiffs’ arguments, the question is a close one, the
First, if we were to recognize the claim as asserted by the minor plaintiffs — i.e., limited to loss of parental consortium suffered by minor plaintiffs resulting from serious injury to the parent — we would have to impose arbitrary limitations on the scope of the cause of action in order to avoid the creation of a practically unlimited class of potential plaintiffs. In the constellation of family relationships, there are other formally recognized relationships — e.g., siblings, grandparent and grandchild, and aunt or uncle and nephew or niece — and others, less formally recognized but nonetheless just as real in an emotional sense — e.g., stepsiblings, and stepchild and stepparent
It is true that we have, in at least one other circumstance, recognized a cause of action with arbitrary limits. In Clohessy, we required that the bystander seeking damages for emotional distress satisfy the following four conditions: (1) the bystander must be closely related to the victim; (2) the emotional injury must be the result of the contemporaneous sensory perception of the tortious event or conduct; (3) the victim’s injury must be substantial, resulting in death or serious physical injury; and (4) the bystander’s emotional injury must be serious. Clohessy v. Bachelor, supra, 237 Conn. 56. The fact that we have imposed arbitrary limits elsewhere, however, is not a persuasive argument for doing so in the present case.
Courts operating in the quintessential common-law context — that is, when they are asked to recognize a new common-law cause of action — function best, and command the most respect, when their decisions can be defended on grounds of reason and principle. Although courts are, like legislatures, often in the business of drawing lines, how we are expected to draw lines differs significantly from how the legislature is expected to draw lines. Whereas legislatures often must draw arbitrary lines, we are expected to draw lines based on reason and principle, and to rely on arbitrary limits only
Second, a sound analysis of whether, as a matter of public policy, this jurisdiction should recognize a new cause of action requires some consideration, not only of its benefits to those who will assert it, but its costs to those who will pay for it. It cannot be denied that recognition of this cause of action, although creating considerable value to the families of injured parents, “will impose an added economic burden upon society.” Berger v. Weber, supra, 411 Mich. 38. Because “every serious injury to a parent would engender a claim for loss of consortium on behalf of each of his or her [minor] children, the expense of settling or litigating such claims would be sizable.” (Internal quotation marks omitted.) Id., quoting Borer v. American Airlines, Inc., 19 Cal. 3d 441, 447, 563 P.2d 858, 138 Cal. Rptr. 302 (1977). Unlike the claim for spousal consortium, which has a natural boundary of a single claim arising out of any tortious transaction, “the right here debated would entail adding as many companion claims as the injured parent had minor children, each such claim entitled to separate appraisal and award. The
In our view, the proposed offsetting value asserted by the minor plaintiffs — namely, that recovery will give the injured minor child the wherewithal to heal her wounds, thereby helping both her and society at large— is too conjectural, particularly when viewed against the more easily predicted economic cost of the claim, if recognized. Although such a personal and social benefit
Third, recognition of the claim would create a significant risk of double recovery. We do not doubt that under current law and practice, a parent would be entitled, as part of her own damages for loss of life’s ordinary activities, to recover for her inability to care for her minor children. Indeed, in this case the plaintiff on her own behalf seeks compensation for having been deprived of the companionship of her children during the week. When a close relationship between two people is disrupted, it is difficult to differentiate between the loss suffered by each. Thus, to “permit a child to recover for loss of an injured parent’s society and companionship while the parent is also compensated for injury to the relationship creates a substantial risk of double recovery because of the difficulty of distinguishing the respective losses of the parties.” Id., 36.
It is true, as the minor plaintiffs argue, that we ordinarily leave such difficult questions of damages to the jury’s ability to sort out the appropriate limits under proper instructions from the court. That willingness to countenance uncertainty in the calculation of damages for intangible losses is strongest in cases where the plaintiff is the primary victim of the tortious conduct, because it is there that the fundamental purposes of tort recovery — compensation, shifting or spreading of losses, and deterrence — must be vindicated. Where,
Fourth, the overwhelming weight of authority in the nation is against recognition of a cause of action for loss of parental consortium. Thus, we disagree with the minor plaintiffs that there is an “emerging national trend” in favor of such recognition. The following jurisdictions have declined to recognize the cause of action: DeLoach v. Companhia de Navegacao Lloyd Brasileiro, 782 F.2d 438 (3d Cir. 1986) (general maritime law); Pleasant v. Washington Sand & Gravel Co., 262 F.2d 471 (D.C. Cir. 1958); Green v. A.B. Hagglund & Soner, 634 F. Sup. 790 (D. Idaho 1986); Lewis v. Rowland, 287 Ark. 474, 701 S.W.2d 122 (1985); Borer v. American Airlines, Inc., supra, 19 Cal. 3d 441; Lee v. Dept. of Health, 718 P.2d 221 (Colo. 1986); Zorzos v. Rosen, 467 So. 2d 305 (Fla. 1985); W. J. Bremer Co. v. Graham, 169 Ga. App. 115, 312 S.E.2d 806 (1983), cert. denied, 252 Ga. 36, 312 S.E.2d 787 (1984); Halberg v. Young, 41 Haw. 634 (1957), implied overruling recognized by Marquardt v. United Airlines, Inc., 781 F. Sup. 1487 (D. Haw. 1992); Karagiannakos v. Gruber, 274 Ill. App. 3d 155, 157, 653 N.E.2d 932, cert. denied, 164 Ill. 2d 565, 660 N.E.2d 1271 (1995) (noting “[a] clear and consistent line of cases in the Illinois Appellate Court hold[ing] that a minor has no cause of action for loss of parental consortium when the parent survives”); Dearborn Fabricating & Engineering Corp., Inc. v. Wickham, 551 N.E.2d 1135 (Ind. 1990); Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf R. Co., 335 N.W.2d 148 (Iowa 1983) (denying common-law cause of action for
The fact that the minor plaintiffs have suffered a “genuine injury” is insufficient, at least in and of itself, to serve as a basis for imposing third party liability on the defendants. Such an injury is presumably present in all of the cases in which, for policy reasons, we have nonetheless declined to impose such liability. See, e.g., Zamstein v. Marvasti, supra, 240 Conn. 560-61 (plaintiff father of children harmed emotionally and in exercise of custodial rights as result of negligent evaluation by defendant psychiatrist); Fraser v. United States, supra, 236 Conn. 632-33 (plaintiff third party physically harmed by outpatient of negligent defendant psychiatrist); Maloney v. Conroy, supra, 208 Conn. 403 (plaintiff daughter emotionally harmed by witnessing results of defendant physicians’ negligent treatment of mother); Krawczyk v. Stingle, supra, 208 Conn. 244-46 (plaintiff
Furthermore, although it may be appropriate, for purposes of determining the scope of tort liability, to assign some weight to the fact that the parent-child relationship is constitutionally protected, as the amicus suggests, the amount of that weight is limited. Not every constitutional right or relationship gives rise to tort liability for its violation. Compare, e.g., Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 627 A.2d 909 (1993) (no private cause of action based on violation of due process clause of state constitution, article first, § 8), with Binette v. Sabo, 244 Conn. 23, 710 A.2d 688 (1998) (private cause of action based on violation of search and seizure provisions of state constitution, article first, §§ 7 and 9). In addition, the fundamental purposes of tort liability; see Berger v. Weber, supra, 411 Mich. 36-37; are not ordinarily congruent with the purposes behind, or the appropriate analysis of, constitutional provisions.
Finally, although the analogy to Hopson has some appeal because the loss of spousal consortium bears some resemblance to the loss of parental consortium asserted in the present case, and because the parent-child relationship may well be as commanding of legal protection in many respects as the spousal relationship, there are also significant differences between the two. These differences arise out of the fact that the relationship between spouses is different in kind as well as source from the parent-child relationship. Marriage is a “unique human relationship”; Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991); “the closest entity recognized by society”; Albert v. McGrath, 278
Moreover, when we decided Hopson, the judicial trend was in favor of a claim for spousal consortium. See Hopson v. St. Mary’s Hospital, supra, 176 Conn. 494-95 (recognizing “the movement of the law in other jurisdictions where, since 1950, a growing majority of courts have come to recognize a right of action for loss of consortium in either spouse”). That is not, however, the case here.
In addition, in any given case there will be only one spousal consortium claim — even in a case in which the primary plaintiff may have married or remarried during the course of his injuries — because only the spouse at the time of the tort may sue for consortium. Gurliacci v. Mayer, supra, 218 Conn. 561-64. Indeed, the limitation to only one claim for loss of spousal consortium may be seen as resting partly on public policy reasons. See id., 564 n.28. By contrast, in any given case, there would be as many claims for loss of parental consortium as there are minor children. As we have noted, this contrast sets a natural boundary for the scope of the
The final weak link in the chain of analogy to Hopson is that a spouse can choose to bring or forego his derivative consortium claim and thereby subject himself or not to the necessary intrusion by the other side of the case into the details of the spousal relationship. By contrast, a minor child cannot make that choice; it would be made for him, ordinarily by the parent who brings the primary action. Furthermore, this intrusion is likely to be extensive.
We acknowledge that as in any case that involves the question of whether our public policy, as a matter of common law, should recognize a new cause of action, the ultimate decision comes down to a matter of judgment in balancing the competing interests involved. We conclude that the balance of interests lies in declining
The judgment is reversed in part and the case is remanded with direction to deny the defendants’ motion to dismiss the substitute complaint of the plaintiffs and for farther proceedings according to law on the substitute complaint; the judgment is affirmed with respect to the counts of the original complaint by the minor plaintiffs.
In this opinion CALLAHAN, C. J., and NORCOTT, KATZ, PALMER and MCDONALD, Js., concurred.
General Statutes (Rev. to 1991) § 10-151 (d) provides: “The contract of employment of a teacher who has attained tenure shall be continued from school year to school year, except that it may be terminated at any time for one or more of the following reasons: (1) Inefficiency or incompetence; (2) insubordination against reasonable rules of the board of education; (3)
Hereafter, unless otherwise indicated, all references in this opinion are to the 1991 revision of § 10-151 (d).
Because much of our discussion involves only the named plaintiffs substantive claims for wrongful discharge and other torts, and her husband’s derivative claims for spousal consortium related to those torts, hereafter we refer to her individually as the plaintiff and to them collectively as the plaintiffs. We refer to their children as the minor plaintiffs because their claims concern only their derivative claims for loss of parental consortium.
We note, however, that the minor plaintiffs purport to sue in their own names, rather than by way of claims on their behalf by a parent or next friend. Neither they nor the plaintiff seek to explain why they are not governed by the general rule that minor children may only sue by way of a parent or next friend. Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 264, 398 A.2d 307 (1978); Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970). Because this question was not raised in the trial court or this court, however, we decide the validity of their derivative claims on the basis on which it was litigated in the trial court and argued in this court. Petco Insulation Co. v. Crystal, 231 Conn. 315, 320 n.9, 649 A.2d 790 (1994); McLaughlin v. Bronson, 206 Conn. 267, 276, 537 A.2d 1004 (1988).
The plaintiffs and the minor plaintiffs appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this
Although the original complaint contained eighteen counts, the plaintiff subsequently withdrew her second substantive count, and the two derivative consortium counts that relied on that withdrawn count subsequently were stricken by agreement. In addition, the plaintiffs sixth substantive count was stricken by agreement, and the two derivative consortium counts that relied on that stricken count also were stricken by agreement, leaving twelve counts in contention. We therefore refer to the original complaint as containing twelve counts.
In his affidavit, Thompson referred to the pertinent sections of the agreement, a copy of which he attached to the affidavit. In addition, he asserted that the plaintiff had never filed a grievance under the agreement, that the board of education had renewed her contract in March, 1991, and that she had resigned as principal of the high school on November 4, 1991, as evidenced by her letter of resignation, a copy of which he attached. He also denied the allegations of the plaintiffs complaint, which formed the basis of her claims of defamation and invasion of privacy, that he had disseminated his written evaluations of her in the summer of 1991 and the winter of 1992.
In addition, the defendants submitted excerpts from the plaintiffs deposition. In the excerpted portions of that deposition, the plaintiff testified that, in 1991, when Thompson had issued his written evaluation of her, the contractual grievance procedure was in place to challenge the evaluation but that, for various reasons, she had not invoked it.
In her affidavit, the plaintiff asserted that many of the alleged “harassing events” that resulted in her “forced resignation” in November, 1991, occurred after the board of education had renewed her contract in March, 1991. She also offered an explanation of why she believed that it would have been futile to resort to the grievance and arbitration procedures of the agreement. In addition, she repeated many of the allegations of her complaint concerning the alleged deprivation of her rights under § 10-151. Finally, she specifically controverted Thompson’s statements in his affidavit that he had not disseminated his written evaluation of her during the summer of 1991 and the winter of 1992, and she asserted that an end of the year written evaluation of an administrator was not grievable under the agreement.
In his affidavit, the plaintiffs husband asserted that, as a former field representative of the Connecticut Education Association, he was familiar with the requirements of the act. On the basis of that familiarity, he corroborated the plaintiff’s assertions regarding the alleged deprivation of her rights under the act, and her assertion that an end of the year evaluation of an administrator is not grievable under the agreement.
The gist of much of Viggiani’s deposition was that in his opinion, the plaintiff had been mistreated by Thompson and the board of education, and that certain of the members of the board had exhibited a hostile attitude toward the plaintiff.
The plaintiffs letter of resignation is “undisputed” only in the sense that she admits that she signed and submitted it. By her claim of constructive discharge, however, she does dispute its legal effect.
General Statutes (Rev. to 1991) § 10-151 (a) provides in relevant part: “(2) The term ‘teacher’ shall include each certified professional employee below the rank of superintendent employed by a board of education in a position requiring a certificate issued by the state board of education . . . .”
According to the plaintiffs allegations, this effort by Thompson to harass her consisted of: a threat to the plaintiff that her filing of an unfair labor practice complaint against the board of education “ ‘will cost you’ verbal harassment by demanding to know whether she had “ ‘cheated on the mastery test results,’ ” and by stating that the state department of education should not have granted her school compliance; screaming at her for supporting the continued psychiatric placement of a suicidal student because it was too expensive for the town; verbally attacking the plaintiff at a budget meeting by calling her a “ ‘liar’ ” and “ ‘incompetent,’ ” and accusing her of “ ‘hiding in the shadows of ” Thompson’s deceased predecessor as superintendent, with whom the plaintiff had had a close working relationship; informing her at a private meeting that he believed that she was “ ‘learning disabled,’ ” that she had “ ‘weak communication skills’ ” and was “ ‘inarticulate,’ ” that “ ‘people conclude that [she] is a liar because [her] eyes get big when [she] talkfs],’ ” and that it “ ‘would be a good idea’ ” if she resigned; and, despite the fact that she had always received positive evaluations, submitting in June, 1991, a “ ‘misleading and inaccurate’ ” written evaluation of her, portraying her as “ ‘substandard.’ ”
The defendants do not suggest that any ordinance of the town of East Haddam is relevant in this respect.
This conclusion renders it unnecessary to consider the plaintiffs argument that, as a matter of law, the statute provides the sole administrative framework for termination and, therefore, trumps any collective bargaining agreement that might also cover the question of termination.
The same reasoning leads us to reject the defendants’ claim that the judgment of the trial court should be affirmed on the alternate ground that, as a matter of substantive constructive discharge law, “all possible administrative remedies must be exhausted in order to maintain a claim of constructive discharge.” The defendants argue, under this claim, that “there can be no constructive discharge because those administrative [remedies] represented] a reasonable alternative to resignation.” The remedies that the defendants proffer in support of this position, however, are the same statutory and contractual remedies discussed in the text, and they suffer from the same futility in this context as they do in the context of the exhaustion doctrine.
General Statutes § 10-151c provides: “Records of teacher performance and evaluation not public records. Any records maintained or kept on file by any local or regional board of education which are records of teacher
Although Thompson denied these allegations of dissemination in his affidavit in support of the defendants’ motion to dismiss, and the plaintiff reasserted the allegations in her affidavit in response thereto, the trial court did not resolve that factual dispute in the context of the motion.
This does not mean, however, that termination of employment automatically precludes the filing of a. grievance under all circumstances. For example, if the grievance is based on a claim of improper termination, the terminated employee could, and ordinarily would be required to, file a grievance.
The agreement covers the following matters: (1) article two, “Management Rights,” which defines in categorical terms the various subjects that the board of education reserves to itself in its management of the school district; (2) article three, “Insurance,” which defines the various insurance benefits provided by the board to the administrators; (3) article four, “Sick Days,” “Personal Days” and “Professional Days”; (4) article five, “Vacation Days”; (5) article six, the length of the “Work Year”; (6) article seven,
Much of our reasoning in this opinion parallels that of the dissent in Berger v. Weber, supra, 411 Mich. 18-19, because, among the judicial treatments of the question, that dissenting opinion, we think, is the most scholarly and persuasive. Henceforth, therefore, our citations to Weber are to the dissent, unless otherwise indicated.
Indeed, the amicus urges that, in recognizing the minor plaintiffs’ claim, we specifically extend it to stepchildren, and to recognition of a corresponding claim for loss of filial consortium by a parent. As the amicus correctly argues, there is nothing in reason to differentiate, as a categorical matter, the emotional loss by a stepchild from that of his or her stepsibling whose natural parent was injured, and there is nothing in reason to differentiate the parent’s loss of the joy and comfort of his child from that suffered by the child.
Consider, for example, the different approaches of the legislature and the judiciary to the notion of bringing an action in a timely fashion. Statutes of limitations and statutes of repose impose necessarily arbitrary time limits, irrespective of the reason for the delay and of whether the belatedly sued party was harmed by the delay. The analogous judicial concept of laches, however, is based on reason and principle, not on arbitrary limits. “Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant.” (Internal quotation marks omitted.) Papcun v. Papcun, 181 Conn. 618, 620, 436 A.2d 282 (1980).
This difference in the scope of liability and its attendant economic costs distinguishes the asserted recognition of the claim in the present case from the claim for bystander emotional distress that we recognized in Clohessy. The costs of the cause of action for bystander emotional distress can be expected to be marginal, as compared to those of the claim for loss of parental consortium by minor children.
The amicus accurately asserts that a searching inquiry will be required into “the nature and quality of the relationship between the parents and the child . . . .” This will necessarily include “a thorough and complete examination of the love and affection and conduct of each toward the other; the society and companionship that was afforded to the . . . child by the . . . [parent] ... the personality, disposition and character of the [child] and the disposition and susceptibility of the [child] to suffer from the loss.” Thus, not only will there have to be evidence on these factors and the jury be instructed to take all of them into account, but the defendant will have to be permitted to examine the child and parents regarding them by way of discovery and deposition.