Todd M. v. Richard L.

696 A.2d 1063 | Conn. Super. Ct. | 1995

The plaintiffs claim that on or about June 6, 1988, and for some time prior thereto, Todd M., the minor plaintiff, was a student at an elementary school in a town in Connecticut. During the 1987-88 school year, while being transported to and from school on a school bus, the minor plaintiff was allegedly subjected to repeated physical and sexual abuse by other students being similarly transported, whereby he was forced, through the threat and use of physical violence, to engage in sexually self-abusive conduct. This alleged conduct caused him to suffer the severe personal and emotional injuries set forth in the plaintiffs' complaint.

The several defendants in this action were responsible for providing, selecting or conducting all or part of the transportation of Todd M. and the other students to and from the elementary school. The named defendant, Richard L., as the director of transportation for the town's board of education, was responsible for securing and supervising the transportation of children to and from the town's public schools. The defendant, Jody O., was an employee of the town's board of education, and was acting within the scope of his duties for the town's board of education as the driver of the bus which transported the minor plaintiff to and from school.

The plaintiffs brought this claim by an amended complaint, dated November 7, 1994, in which it is alleged that the defendants were negligent in the provision, selection and conduct of Todd's transportation. The complaint further alleges that as a result of this negligence, Todd M. was subjected to abuse and to injuries suffered as a result thereof. On March 28, 1995, the defendants filed an "Amended Answer to Plaintiffs' Amended Complaint" in which they asserted several special defenses. These defenses are the subject of this motion to strike.

The first special defense asserts that the plaintiffs' claim is barred by the limitations period provided in General Statutes § 52-584.¹ The second special defense asserts that this claim is barred by the limitations period provided in General Statutes § 52-577.² The defendants' third special defense claims that "[l]iability of these defendants is barred by General Statutes § 52-557n."³ The fourth special defense alleges governmental immunity and the fifth special defense maintains the claims are barred by the doctrine of sovereign immunity. The sixth special defense raises the doctrine of laches. The seventh special defense asserts that the conduct of the other students involved in this incident is a superseding cause of the plaintiff's injuries.

A special defense is a pleading used by a defendant who seeks the admission of evidence that is not inconsistent with the claim by the plaintiff but nevertheless tends to show that the plaintiff has no cause of action. Practice Book § 164; Pawlinski v. Allstate Ins. Co.,165 Conn. 1, 6, 327 A.2d 583 (1973).

A motion to strike challenges the legal sufficiency of the allegations of a complaint, or any one or more counts thereof, to state a claim upon which relief may be granted. Practice Book § 152(1). "In deciding upon a motion to strike . . . a trial court must take the facts to be those alleged in the complaint . . . and cannot be aided by the assumption of any facts not therein alleged." Liljedahl Bros., Inc. v. Grigsby,215 Conn. 345, 348, 576 A.2d 149 (1990) (Citations omitted; internal quotation marks omitted.) The facts are to be construed in the light most favorable to the pleader. Bouchard v.People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). If the facts provable under the allegations of the pleadings would support a cause of action, the motion to strike must fail. Mingachos v. CBS, Inc., 196 Conn. 91, 109,491 A.2d 368 (1985). A defendant may raise the doctrine of sovereign immunity on a motion to strike. See Heigl v.Board of Education, 218 Conn. 1, 2, 587 A.2d 423 (1991).

In the first and second special defenses, the defendants invoke §§ 52-584 and 52-577 respectively in asserting that the plaintiff's claims are time barred. The plaintiff maintains, however, that the applicable statute of limitations is provided in General Statutes § 52-577d, in which case the plaintiff's claim is timely.

Section 52-577d provides: "Limitation of action for damages caused by sexual abuse, exploitation or assault. Notwithstanding the provisions of section 52-577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault may be brought by such person later than seventeen years from the date such person attains the age of majority."

The plain language of this section provides that this period of limitations applies to all claims for personal injuries to a minor caused by sexual assault or sexual exploitation. The statute provides that, regardless of the general limitations period for torts, such as those relied upon by the defendants, no action seeking redress for injuries suffered as a result of misconduct of a sexual nature may be brought later than seventeen years from the date of majority. This action, brought on behalf of this minor plaintiff, seeks redress for personal injuries caused by a sexual assault. Under this statute, as long as this action was brought within seventeen years from the date that the minor plaintiff attains the age of majority, it is timely.

The defendants argue that § 52-577d only applies to actions brought against the actual perpetrators of the sexual assault.

A review of the legislative history of § 52-577d is instructive. This extended statute of limitations was originally enacted in 1986 as part of "An Act Concerning Victims Rights"; Public Acts 1986, No. 86-401; which was intended to assure that victims of crime and their families were educated as to their rights and to facilitate the exercise of these rights.

The portion of the victims' rights bill that was later codified as § 52-577d was authored and introduced by Representative Richard Tulisano who remarked upon the legislation after moving for its adoption: "Mr. Speaker, this amendment effectively tolled the statute of limitations in civil cases in which a minor who has been victimized by sexual assault could bring an action against the offender — a civil action against the offender." 29 H.R. Proc., Pt. 12, 1986 Sess., pp. 4387-88, remarks of Representative Richard D. Tulisano.

A review of the record of debate on this bill demonstrates that it was intended to provide minor victims of sexual abuse with an opportunity to exercise their rights against the offender once they had attained the age of majority and could exercise control over their lives. See generally 29 H.R. Proc. Pt. 12, 1986 Sess., pp. 4387-97.

The legislature revisited the issue in 1991 when the period of limitations was extended from seven years from the date of the alleged abuse to seventeen years from the age of majority. Public Acts 1991, No. 91-240. At that time, the Joint Standing Committee on the Judiciary heard extensive testimony from professionals and victims about the frequency of repressed memories of abuse and the need to "redress a fundamental inequity and hardship that is worked upon adult victims of childhood incest abuse when traditional rules of actual accrual are applied to the civil claims." Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1991 Sess., p. 1141, remarks of Gail Burns Smith of the Connecticut Sexual Assault Crises Services Association; 34 H.R. Proc., Pt. 13, 1991 Sess., pp. 4704-4707, remarks of Representative Sally M. Bolster. In describing the amended legislation, Tulisano, its chief author, once again noted that "Connecticut was among the first states to recognize that minor victims of sexual assault often do not have the independence and the opportunity to bring civil actions against the perpetrators of crimes against them . . . ." (Emphasis added.) Id., 4705. Tulisano elaborated that in these cases the only way it was thought the legislature might be able to help a victim become whole was to be able to bring a civil cause of action against the perpetrator. Id., 4706-4707.

The defendants further argue that of all of the states having extended statutes of limitations for civil actions for sexual abuse, only one, Minnesota, specifically provides for an action against a person who negligently permitted sexual abuse to occur. Minn. Stat. § 541.073 (1994). By contrast, a clear majority of states specifically provide for an action against a perpetrator only and thereby exclude an action against a nonperpetrator, such as these defendants, from the scope of their extended statutes.⁴ The remaining state statutes, including Connecticut, are silent as to the definition of "an action based on childhood sexual abuse."

This issue has been considered in a thoughtful and well reasoned opinion of United States District Court Judge Alan Nevas in Almonte v. New York MedicalCollege, 851 F. Sup. 34 (D. Conn. 1994), wherein the court determined that § 52-577d was not limited in application to perpetrators only. The court found that the unambiguous language of the statute indicated that the focus is on the particular type of harm that is the basis of the action rather than on the parties that are involved. In so holding, the court pointed out that "in defining the scope of the statute, courts should look to whether the underlying harm was allegedly `caused by sexual abuse, sexual exploitation or sexual assault' . . . rather than whether the named defendants are potentially primarily or secondarily liable for the alleged harm." (Citation omitted.) Id., 37. In the court's opinion, such a "harm-based" approach was consistent with the intent of the legislature. Citing the Supreme Court case of Roberts v. Caton, 224 Conn. 483, 493, 619 A.2d 844 (1994), Nevas stated that one of the purposes of §52-577d was to allow the plaintiffs sufficient time to recall the traumatic offenses. Id. The legislature recognized that victims of abuse and exploitation may take an extended period of time to bring an action. Accordingly, the Almonte court determined that limiting § 52-577d to offenders would virtually immunize an entire class of prospective and potentially liable parties. The court determined that such a result was both contrary to public policy and inconsistent with the Connecticut legislature's intent to broaden the remedies available to victims of child sexual assault, abuse or exploitation.⁵ Id., 38. This court agrees with that analysis.

The facts of Almonte involve an individual who, while a psychiatric postgraduate student at the defendant, New York Medical College, sexually assaulted and threatened a ten year old boy. Almonte v. New YorkMedical College, supra, 851 F. Sup. 36. As a result of the sexual assaults, the child suffered severe personal injury. The child's parents filed a lawsuit on behalf of their son against the perpetrator and against the perpetrator's analyst⁶ as well as against the medical school. The analyst subsequently moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure from which the court rendered theAlmonte decision.

The Connecticut state courts have infrequently addressed this issue. On several occasions the issue was raised by a motion to strike or as a challenge to the constitutionality of the statute.⁷ On both of these occasions, the trial courts did not reach the precise issue presented by the first and second special defenses in the present case. One published Superior Court case, however, has dealt with the issue raised by the defendant in the present case and has ruled that § 52-577d applies to nonperpetrators. See v. Bridgeport Roman Catholic DiocesanCorp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV930300948S, (September 16, 1993, 10 Conn. L. Rptr. 51).⁸

The plaintiffs in See and Rosado brought personal injury claims against the perpetrators of the sexual assaults and against the Bridgeport Diocesan Corporation. The Diocesan Corporation moved for summary judgment on the ground that the claims against it were barred by § 52-584, the general negligence statute of limitations, which it claimed was the applicable limitations period. The court, S. Freedman, J., denied the defendant's motions. The court determined that the two statutes "should be harmoniously construed so the more specific statute controls." See Bridgeport RomanCatholic Diocesan Corp., supra, 10 Conn. L. Rptr. 52, quoting McKinley v. Musshorn, 185 Conn. 616, 624,441 A.2d 600 (1981). Thus, the court held that § 52-577d, the specific statute, provided the applicable statute of limitations for the claims against the Diocesan Corporation.

The facts of the present case are analogous to bothAlmonte and the Bridgeport Diocesan cases. The facts include actions by individuals over which the defendants have supervision and control. These individuals allegedly perpetrated abuse of a sexual nature against a minor which, in the exercise of reasonable and proper care, the nonperpetrator defendants, it is maintained, could and should have prevented. The courts in those cases determined that the applicable statute of limitations was provided by § 52-577d which specifically addresses actions for personal injuries caused by sexually abusive behavior.

Accordingly, the motion to strike the first and second special defenses is granted.

The defendant's third special defense alleges that the "[l]iability of the defendants is barred by General Statutes § 52-557n." The plain language of § 52-557n, which is designed at once to both confer and to limit the liability of persons serving in political subdivisions, local boards and commissions includes an exception, however, "[e]xcept as otherwise provided by law," which nullifies the use of this statute as a special defense. One of the statutes which falls under the exception is General Statutes § 52-557 entitled "Injury to children being transported to school" which provides in pertinent part that "it shall be no defense that such transportation is in the line of governmental duty." The statute explicitly eliminates the defense relied on by the defendants in the present action.

The motion to strike the defendants' third special defense, therefore, is granted as § 52-557 and not §52-557n is the controlling statute.

The defendants fourth special defense raises the issue of governmental immunity. A lawsuit against a town is not a suit against a sovereign. Unlike the state, towns do not benefit from sovereign immunity and may sue or be sued in any action. Murphy v. Ives,151 Conn. 259, 264, 196 A.2d 596 (1963). Municipalities and their employees have only a qualified immunity in the performance of a governmental duty. Burns v. Board ofEducation, 228 Conn. 640, 645, 638 A.2d 1 (1994). In certain circumstances, municipalities do enjoy governmental immunity from liability for their tortious acts. Id.;Ryszkiewicz v. New Britain, 193 Conn. 589, 593,479 A.2d 793 (1984). In order to receive this qualified immunity, the actor must necessarily be engaged in a governmental duty. Section 52-557 prevents a town, school district, or municipality from claiming that transportation of school children is a governmental duty and thus exempting them from liability. For this reason, the fourth special defense is unavailable to the defendant.

Additionally, governmental immunity may be abrogated by statute. Ryszkiewicz v. New Britain, supra,193 Conn. 593. A second facet of § 52-557 is that it abrogates governmental immunity in the area of transportation of school children. For these two reasons, the plaintiff's motion to strike the defendant's fourth special defense must be granted.

The fifth special defense raises the issue of sovereign immunity. A few specific facts are necessary for a resolution of this issue. The minor plaintiff, Todd M., during the 1987-88 school year, was a special education student in the town's school district. He was transported to school in accordance with the individualized education program developed for him as mandated by statute. See generally General Statutes § 10-76a et seq.

In developing and maintaining a special education program, a board of education acts under state mandate and, thus, acts as an agent of the state. See Cheshirev. McKenney, 182 Conn. 253, 258, 438 A.2d 88 (1980). Administrative regulations adopted pursuant to § 10-76 specifically mandate that "[e]ach board of education shall provide, as a related service, safe and appropriate transportation as required to implement the individualized education program for each child requiring special education and related services . . . ." Regs. Conn. State Agencies § 10-76d-19.

The transportation of Todd M. to the elementary school involved duties and activities for which the board was responsible as an agent of the state. The doctrine of sovereign immunity, it is maintained, should apply in this instance.

This question was addressed by the court in Crandallv. Groton Board of Education, Superior Court, judicial district of New London, Docket No. 102935 (November 26, 1993, 9 C.S.C.R. 34). In that case, the court, Hendel,J., granted the defendants' motion to strike the plaintiff's claims of negligence against the board arising from alleged verbal and physical abuse by aides on the special education bus. The court reviewed the distinction between a local board of education as an agent of the state and as an agent of a municipality. When fulfilling statutory duties imposed upon them pursuant to the mandate of article eighth, § 1 of the state constitution, boards of education act as agents of the state and are protected by the doctrine of sovereign immunity. Id., 35, citing Cheshire v. McKenney, supra, 182 Conn. 258. When acting on behalf of a town in maintaining control over the town's public schools, however, a local board of education is an agent of the town and is not afforded sovereign immunity. Id. "A local board of education can be an agent of the state for some purposes and an agent of the municipality for others. . . . Thus, a local board of education potentially enjoys immunity under two different theories of immunity for acts carried out within its governmental capacity, sovereign immunity and governmental immunity. . . . There is no question but that local boards of education act as agencies of the state when they are fulfilling the statutory duties imposed upon them pursuant to the constitutional man date of article eighth, § 1. . . . They are also agents of the towns, subject to the law governing municipalities, when acting on behalf of the municipality in its function of mandating control over the public schools within the municipality's limits. . . . When acting on behalf of the town, local boards of education are not shielded by sovereign immunity. See, e.g., Kosloff v. Fairfield CityCouncil of Boy Scouts of America, 6 Conn. L. Rptr. 88 (February 25, 1992, Spear, J.) (sovereign immunity does not bar a claim against school board by minor plaintiff who was injured when several older and larger children fell on him during a roller-skating event sponsored by a Boy Scouts Council and held at a school, since board was not acting as a state agency in maintaining control over the school with respect to the conduct of the skating event). But see Arvoy v. City of Stamford,2 Conn. L. Rptr. 317 (August 21, 1990, Lewis, J.) (sovereign immunity bars claim against school board by plaintiff student who was assaulted by another student on the grounds of a high school, since board of education while performing its educational functions is a state agent)." Id. (Citations omitted; internal quotation marks omitted.) Accordingly, the plaintiff's claims in Crandall were stricken.

The cases cited by the plaintiffs in opposition to this principle, are inapposite. In Belanger v. Glastonbury, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 90380529 (April 22, 1991,3 Conn. L. Rptr. 478), the plaintiff alleged that the school bus that had struck a minor student was owned by the town of Glastonbury. The court reasoned that since maintenance of school property is not included within the educational activities of the state, the board was acting as an agent of the municipality and the court rejected the sovereign immunity argument in that instance. In Nunes v. Blake Bus Service, Inc., Superior Court, judicial district of Milford, Docket No. CV90030469S, (January 4, 1991, 3 Conn. L. Rptr. 149), the court relied upon General Statutes § 10-220, which is not the controlling statute in this matter.

Since the provision of special education services, which specifically include transportation as a part of an individualized education plan, is carried out by a board of education pursuant to a specific educational mandate of the state, the doctrine of sovereign immunity applies and bars the plaintiffs' claims of negligence in the present case. The plaintiffs' motion to strike the defendants' fifth special defense is denied.

The defendants' sixth special defense raises the issue of laches in the following manner: "Plaintiff's claims are barred by the doctrine of laches." The Connecticut courts have held that a special defense of laches must be stricken if it fails to plead facts sufficient to support the legal conclusion that the claim is barred by laches.Shawmut, N.A. v. Concord Steel Corp. of Connecticut, Superior Court, judicial district of Middlesex, Docket No. 67176 (June 2, 1993); Hydro-Kem Services v. UnitedIlluminating Co., Superior Court, judicial district of New Haven, Docket No. CV910324789S (October 30, 1992); D'Addario v. Bergman, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV900266582S (January 17, 1992). In Shawmut, the court, J. Walsh, J., struck the defendant's special defense of laches for failure to plead sufficient facts to show that the defendant was indeed prejudiced by the plaintiff's delay in bringing the action. Id. Similarly, inKydro-Kem Services, the court, Celotto, J., granted the plaintiff's motion to strike the defendant's special defense when it held that the laches defense contained no more than conclusions and was demurrable. Id., citing Warner v. Liimatainen, 153 Conn. 163,215 A.2d 406 (1965).

The defendants' sixth special defense merely states that the "[p]laintiff's claims are barred by the doctrine of laches." As such, this defense fails to allege any facts to support the contention that the plaintiff's delay is prejudicial to the defendants.

In addition, the Supreme Court has held that the equitable defense of laches is barred in an action at law. A. Sangivanni Sons v. F.M. Floryan Co.,158 Conn. 467, 262 A.2d 159 (1969); Weil v. Poulsen,121 Conn. 281, 184 A. 580 (1936). In Sangivanni, the court held that "laches is purely an equitable defense and is not imputed to one who has brought an action at law within the statutory time period." A. Sangivanni, Sons v. F.M. Floryan Co., 474. Similarly, in Weil v.Poulsen, supra, 286, the court stated that the equitable defense of laches cannot be asserted in an action at law seeking damages. The defendants' sixth special defense is insufficiently and inappropriately pleaded; the motion to strike is granted.

The defendants' seventh special defense states that "[a]ny alleged injuries sustained by plaintiffs were the result of the intentional, intervening tortious conduct of the other students on [the] bus . . . which conduct was a superseding cause of plaintiffs' injuries."

Section 315 of the second Restatement of Torts provides that there is generally no duty to control the conduct of a third person to prevent harm to others unless there is a special relationship giving the injured party a right to such protection. 2 Restatement (Second), Torts § 315 (1965). The types of relationships that impose a duty because of the relation of the actor to a third person include parents, employers, and landowners. Id., § 316-319. The types of relationships that impose a duty based on the relation of the actor to the victim include that of innkeeper, common carrier, police and the like. Id., § 314. Where one of these special relationships exists, there is a duty to so control the intentional conduct of third persons. Kargul v. SandpiperDunes Limited Partnership, Superior Court, judicial district of New London, Docket No. 505600, (January 28, 1991, 6 C.S.C.R. 243, 243-46).

In the present case, there are elements of both types of "special relationship." Here, the defendants had a duty imposed by law to protect the minor plaintiff from harm and to prevent the intentional harm to the school children in their care. Members and employees of boards of education stand as surrogate parents to their pupils. See