author: LAVINE, J.

text:
    JOHN ROE #1 v. BOY SCOUTS OF AMERICA CORPORATION ET AL.
    (AC 36156)
    Lavine, Keller and SchaUer, Js.

      Argued October 17, 2013
    officially released January 21, 2014

      Frank C. Bartlett, Jr., for the appellant (plaintiff).

      Philip T. Newbury, Jr., with whom, on the brief, was OndiA. 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 Corporation (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 reconsideration. We affirm the judgment of the trial court.

The plaintiff served the defendants with a summons and complaint on September 28, 2009. The plaintiffs 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 III was an agent of the defendants, acting as a troop leader and campmaster who supervised 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 numerous camping trips sponsored by the defendants during which he subjected the plaintiff to sexual abuse, molestation, and assault.

As a result of Harris’ sexual abusé, 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 psychiatric care in the past and may do so in the future. The defendants denied the material allegations of the complaint 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 discovery dispute.

On April 30, 2012, the defendants filed a motion for summary judgment as to the three counts of the complaint alleged against them. The plaintiff filed an objection to the motion, and the parties thereafter presented arguments to the court, Schuman, J. Judge Schuman granted the defendants’ motion for summary judgment in a memorandum of decision filed on August 16, 2012. 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 plaintiffs abuse.” We conclude that Judge Wagner properly exercised his discretion with regard to discovery by limiting the scope of the plaintiffs initial discovery request.

The plaintiffs claim centers on interrogatory 14 of the plaintiffs discovery requests. The plaintiffs 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 regarding 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 interrogatory on the ground that it is overly broad, unduly burdensome, vague, ambiguous and not reasonably calculated to lead to the discovery of admissible evidence. The defendant further objects to this interrogatory 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 literature 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.” (Emphasis added.)

The parties appeared before Judge Wagner on November 18, 2011, to resolve their discovery disputes. In response to the argument of the plaintiffs 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 plaintiffs 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 considered responsive and competent evidence in the case.” The plaintiffs 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. Protocol, 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.” During the course of argument, the defendants made clear what information they had and what information they specifically had disclosed to the plaintiff, 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. . . . Therefore, we must discern whether the court could [have] reasonably conclude[d] as it did.” (Internal quotation marks omitted.) Blumenthal v. Kimber Mfg., Inc., 266 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 accordance 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 disclosure 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 plaintiff 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, knowing what he knew or should have known, would anticipate 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 protected 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 Scoufts’] . . . 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; footnote omitted.)

We disagree with the premise of the plaintiffs claim that the court abused its discretion by sustaining the defendants’ objection to his discovery requests as embodied in interrogatory 14. Although the court limited 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 interrogatory 14 by time and place. Moreover, there was nothing to prohibit the plaintiff from filing a request for additional discovery following its receipt of the defendants’ supplemental discovery responses, which he failed to do. See footnote 6 of this opinion. We, therefore, discern no abuse of discretion in the court’s ruling with respect to its discovery orders.

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 relevant to the plaintiffs 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 plaintiffs 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 represented that the plaintiff was bom 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 plaintiffs home shortly after he began dating the plaintiffs mother and married her in 1999. Soon after Harris moved into the plaintiffs 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’ tmck, and during camping trips to Camp Johnson. 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, and one from Harry L. Pokomy, the scout executive of the council. 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 chartered organization selects and retains its own volunteers 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 institutional defendant has been held vicariously liable for the sexual abuse of a minor because such acts do not further the organization’s business. See, e.g., Doe v. Norwich 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 disclosed 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, and that “[tjhroughout my time in scouting, I was not provided any education, training, instruction 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 inappropriate behavior by an adult volunteer, how to report inappropriate behavior by an adult volunteer, and/or to whom those [reports] should be made . . . .”

In his objection to the defendants’ motion for summary 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 defendants’ argument that they owed no duty to him, the plaintiff argued that the defendants “voluntarily assumed the duty to protect youth within [their] organization. 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 negligence. The court found that the complaint alleged twenty-seven ways in which the defendants had breached their duty to prevent injury to the plaintiff. The court found that many of the specifications of negligence alleged are not ways in which the defendants breached their duty to the plaintiff but, rather, are allegations 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 concluded 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 plaintiffs stepfather.

With regard to the question of an agency relationship between Harris and the defendants, the court was cognizant of the averments in the affidavits submitted by Walsh and Pokomy. See footnotes 8 and 9 of this opinion. Those affidavits present evidence that organizations such as the council offer scouting programs through existing community organizations that have received a scouting charter. The local chartered organization selects and retains its own volunteers to administer 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 ineligible 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 summary judgment, the plaintiff contended that there was an agency relationship between the defendants and Harris 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). The trial court disagreed, concluding that the assertions made in the federal brief did not contradict the averments in the affidavits of Walsh and Pokomy. Although the Boy Scouts admit in the Dale brief that it acts in an advisory capacity to scoutmasters and that it can refuse to recognize 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 relationship between them and Harris. The court, relying on Fraser v. United States, supra, 236 Conn. 632, therefore, 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 published” 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 defendants 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 defendants 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 plaintiffs 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 plaintiffs 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 sexual 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 defendants’ 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 plaintiffs claims.

An appellate court’s review of the “trial court’s decision to grant the defendant’s motion for summary judgment is plenary.” (Internal quotation marks omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). “Summary judgment is a method of resolving 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 ordinarily 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 demonstrating his entitlement to summary judgment.” (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, supra, 306 Conn. 634-35; 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 summary 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 judgment. ... 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 plaintiffs 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 particular 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 . . . .” (Internal 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 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 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 negligent conduct should extend to the particular consequences 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, knowing what he knew or should have known, would anticipate 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 plaintiffs objection thereto, affidavits of the parties, their arguments on appeal, and the trial court’s memorandum of decision. 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 material fact.

In this case, Walsh and Pokomy 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. 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. Since the 1980s, the Boys Scouts have conducted background checks of volunteers. “Liability 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 plaintiffs 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 plaintiff. 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 Scouting 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 briefs 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 “ [responsibility for inculcating Boy Scouting’s values is entrusted to the volunteer 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 conflicts with scouting philosophy, those facts do not negate the facts averred by Walsh and Pokomy that the local chartered organization is responsible for selecting and supervising its adult volunteers. The Dale brief actually 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 ineligible volunteer file and his membership in the Boys Scouts was revoked.

With respect to the plaintiffs argument that the defendants presented conflicting evidence as to the degree of their involvement and control over the scouting program, the court found that the defendants make the scouting program available to local chartered organizations. The local chartered organization selects the portions 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 prevalence of sexual abuse in scouting. Pursuant to the organizational 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 plaintiffs 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 private 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.

Ill

The plaintiffs 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 plaintiffs claim. On September 4, 2012, the plaintiff filed a motion to reargue/reconsider the court’s ruling on the defendants’ motion for summary judgment. The plaintiff contended 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. Commissioner of Transportation, supra, 306 Conn. 523, the plaintiff filed a supplemental memorandum of law in support of his motion to reargue. On September 24, 2012, the defendants filed an objection to the plaintiffs 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 opinion that holds that the foreseeability of sexual assault is not one susceptible to adjudication by summary judgment 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 controlling 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 demonstrate 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 Underwriters Ins. Co., 139 Conn. App. 826, 843, 69 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, 67 Conn. App. 281-82. This argument is related to the plaintiffs rebanee on the Dale brief. For purposes of this case, the plaintiff has assumed that the Boy Scouts has undertaken 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 chartered 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 defendants 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 plaintiffs seat belt or lock the passenger door. Id. As the boyfriend drove the plaintiff home, the plaintiff opened the passenger door. Id. The boyfriend successfully closed the door twice, but on the plaintiffs third attempt she fell out of the moving vehicle and suffered a traumatic brain injury. Id. The issue on appeal concerned the court’s jury instructions. This court determined 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 circumstances 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. Commissioner of Transportation, supra, 306 Conn. 526-27. The plaintiff, as the administrator of the estate of Nicholas Grass, brought an action against a number of defendants, including the Delta Kappa Epsilon National Fraternity and its local Phi Chapter. Id. Following a night of pledging activity in New York City, the president 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 voluntarily 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 special 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 plaintiffs living situation and .who was supplied by the department with a key to the plaintiffs 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 injtiry of the general nature suffered by the victim. Id., 500. This court further concluded that foreseeability of the injury was a question 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 organization. For all of the foregoing reasons, we conclude that the court properly denied the plaintiffs motions to reargue.

The judgment is affirmed.

In this opinion the other judges concurred.

       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 plaintiffs 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.

       In Ms 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.

       The plaintiff appealed, challenging, in part, the court’s rendering of summary 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).

       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.”

       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.

       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, plaintiffs moved to compel production of the files. The trial court granted plaintiffs’ 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 plaintiffs request in this case was not similarly discreet.

       According to the Boy Scouts, Camp Johnson is not affiliated with either the Boy Scouts or the council.

       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 volunteers, 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 lo.cal councils offer the scouting program through existing community organizations such as chinches, schools, service clubs, and fraternal organizations. When a community organization 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 organize 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.

       In his affidavit, Pokomy 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. Pokomy 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 Pokomy’s affidavit is similar to that of Walsh.

       The trial court found that the plaintiffs 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 bom in 1991.” The transcript of Harris’ guilty plea reveals that he abused the plaintiff between 2001 and 2007.

       The plaintiff did not make similar allegations in his complaint.

       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 guidelines 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.

       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 homosexuality 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.

       “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.

       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.

       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).

       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.


source: Caselaw Access Project

author: ROBINSON, J.

license: Public Domain

text:
    ANTHONY J. PELLECCHIA, ADMINISTRATOR (ESTATE OF ANTHONY E. PELLECCHIA) v. CONNECTICUT LIGHT AND POWER COMPANY ET AL.
    (AC 34610)
    DiPentima, C. X, and Robinson and Sheldon, Js.

      Argued October 25, 2013
    officially released January 21, 2014

      Michael C. Deakin, for the appellant (defendant-third party plaintiff Quinebaug Valley Emergency Communications, Inc.).

      ScottR. Ouellette, for the appellees (third party defendant Town of Killingly et al.).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ROBINSON, J.

The defendant and third party plaintiff in the underlying wrongful death action, Quinebaug Valley Emergency Communications, Inc. (QVEC), which operates a 911 emergency notification and dispatch center in northeastern Connecticut, appeals from the judgment of the trial court rendered following the granting of a motion to strike QVEC’s third party complaint. The motion to strike,was filed by the third party defendants, the Town of Killingly, David Sabourin, and Anthony Shippee (town defendants). QVEC claims that the court improperly granted the town defendants’ motion to strike based on the court’s erroneous determination that the factual allegations of the third party complaint invoked the municipal highway defect statute, General Statutes § 13a-149. On the basis of that determination, the court ultimately concluded that QVEC could not state a proper cause of action because QVEC had failed to allege that it complied with the notice requirement of § 13a-149, QVEC had not alleged that it was a “traveler” as required under § 13a-149, and indemnification is not appropriate when the allegations of third party negligence invoke § 13a-149. We agree that QVEC cannot, as a matter of law, state a claim for indemnification on the facts alleged and, accordingly, we affirm the judgment of the court.

The following facts, as alleged in the third party complaint, are relevant to our resolution of the present appeal. On July 28, 2006, at approximately 6 p.m., Shippee, acting in his capacity as the assistant highway superintendent for the Town of Killingly (town), observed live, downed power lines on a section of Mas-hentuck Road. Mashentuck Road is a public highway located in the town, and the highway is maintained and controlled by the town. Shippee notified Sabourin, the town’s highway superintendent, of the downed power lines, and the two placed orange cones on the highway where Mashentuck Road intersected with the two nearest crossroads. They then left the area. Thereafter, Anthony E. Pellecchia was electrocuted and died when the motorcycle he was driving came into contact with the downed, energized power lines.

In June, 2008, the administrator of the decedent’s estate commenced a wrongful death action alleging, inter alia, that QVEC, which was notified of the downed power lines at approximately 6:15 p.m. on July 28, 2006, was negligent in failing to provide timely notice of the downed lines to the utility defendants. In August, 2011, QVEC filed a third party complaint seeking indemnification from the town defendants. QVEC alleged in the third party complaint that any negligence attributable to QVEC due to its alleged failure to timely notify the utility defendants of the downed power lines was passive in nature and that the direct and immediate cause of the decedent’s electrocution was the active negligence of the town defendants in failing to close properly that section of Mashentuck Road over which the power lines had fallen to vehicular traffic.

The town defendants filed a motion to strike the third party complaint and accompanying memorandum of law on September 7,2011. The town defendants argued, inter alia, that the third party complaint should be stricken because a claim for indemnification could not be brought against a municipality or its employees for what constituted a defective highway claim under § 13a-149. QVEC filed a memorandum of law in opposition to the motion to strike the third party complaint, arguing that the allegations in the third party complaint properly set forth a claim for common-law indemnification on an active/passive negligence theory.

The court issued a decision granting the motion to strike on January 25, 2012. The court first determined that the allegations in the third party complaint could only reasonably be read as stating a claim against the town for failing to properly maintain a public road. The court reasoned that because such a claim could only be brought pursuant to § 13a-149, QVEC was obligated to comply with all of the requirements of § 13a-149. The court concluded that QVEC failed to allege in the third party complaint that it had provided the town defendants with the statutorily required notice; that the statute permitted recovery only by an injured traveler, but QVEC’s claims were based on injuries sustained by the decedent and not upon injuries of its own; and that QVEC was not entitled to indemnification because such a claim requires multiple tortfeasors and is therefore inconsistent with the requirement of § 13a-149 that the municipality’s negligence be the sole proximate cause of the injuries. On March 7, 2012, the court rendered judgment against QVEC on the stricken complaint. This appeal followed.

QVEC claims on appeal that the court improperly granted the town defendants’ motion to strike its third party complaint on the basis of its erroneous determination that the factual allegations of the third party complaint invoked the municipal highway defect statute, § 13a-149. We disagree.

“A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the [pleading] that has been stricken and we construe the [pleading] in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Kastancuk v. East Haven, 120 Conn. App. 282, 286, 991 A.2d 681 (2010).

QVEC contends that its third party complaint properly states a cause of action for common-law indemnity against the town defendants. “Ordinarily there is no right of indemnity or contribution between joint tort-feasors. . . . Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury. . . . Under the circumstances described, we have distinguished between active or primary negligence, and passive or secondary negligence. . . . Indemnity shifts the impact of liability from passive joint tortfeasors to active ones.” (Internal quotation marks omitted.) Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697, 694 A.2d 788 (1997).

“A plaintiff in an action for indemnification not based on statute or express contract, who had been a codefen-dant in aprior action with a joint tortfeasor, can recover indemnity from that codefendant only by establishing four separate elements: (1) that the other tortfeasor was negligent; (2) that his negligence, rather than the plaintiffs, was the direct, immediate cause of the accident and injuries; (3) that he was in control of the situation to the exclusion of the plaintiff; and (4) that the plaintiff did not know of such negligence, had no reason to anticipate it, and could reasonably rely on the other tortfeasor not to be negligent.” Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 698, 535 A.2d 357 (1988). Accordingly, to survive a motion to strike, QVEC had the burden of alleging facts that, if proven, established each of those elements. See Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 698.

Before turning to the specific allegations raised by QVEC in the third party complaint and deciding whether, on the basis of our plenary review, those allegations are sufficient to state a cause of action for indemnification, a brief discussion regarding claims of liability against municipal defendants is necessary. General Statutes § 52-557n both codifies and limits the common-law doctrine of governmental immunity. See Kumah v. Brown, 307 Conn. 620, 627, 58 A.3d 247 (2013). Section 52-557n (a) provides in relevant part that “no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to [§] 13a-149.” (Emphasis added.) An action in accordance with the provisions of § 13a-149 has been held to provide the exclusive remedy for all claims directed toward a municipality or its agents for damages resulting from a highway defect. See Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001); Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991).

A highway defect is “any object or condition in, upon, or near the traveled path which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result.” (Internal quotation marks omitted.) Horrigan v. Washington, 144 Conn. App. 536, 542, 72 A.3d 1265, cert. denied, 310 Conn. 939, 83 A.3d 344 (2013). “Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law . . . .” (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 255 Conn. 341-42.

The fact that a party fails to reference § 13a-149 in the allegations of a complaint does not preclude a court from construing, on the basis of the facts alleged in the pleading, that the complaint invokes § 13a-149. See id., 337; see also Himmelstein v. Windsor, 116 Conn. App. 28, 39, 974 A.2d 820 (2009) (complaint may contain allegations sufficient to invoke § 13a-149 despite absence of citation to statute), aff'd, 304 Conn. 298, 39 A.3d 1065 (2012); Bellman v. West Hartford, 96 Conn. App. 387, 393-94, 900 A.2d 82 (2006) (“[e]ven if a plaintiff does not plead § 13a-149 as a means for recovery, if the allegations in the complaint and any affidavits or other uncontroverted evidence necessarily invoke the defective highway statute, the plaintiffs exclusive remedy is § 13a-149”).

Perhaps most germane to the discussion now before us, “[o]ur cases clearly hold that a cause of action under § 13a-149 is not based upon negligence. It is settled law in this state that the liability of the defendant under § 13a-149 is purely for breach of statutory duty and does not arise from negligence.” (Internal quotation marks omitted.) Prato v. New Haven, 246 Conn. 638, 645, 717 A.2d 1216 (1998). It is also well settled that “[b]oth the state and the municipal highway defect statutes require that the highway defect is the sole proximate cause of the plaintiffs injuries, which precludes recovery against the state or a municipality in the event that the injury was caused by a combination of the defect and negligence on the part of the injured party or a third party.” Himmelstein v. Windsor, 304 Conn. 298, 313, 39 A.3d 1065 (2012). In other words, “if the negligence of a third party is also responsible for the plaintiffs injuries, the municipality will be completely exonerated.” Smith v. New Haven, 258 Conn. 56, 65, 779 A.2d 104 (2001).

In its third party complaint, QVEC alleges that Mas-hentuck Road is a public highway that is maintained and controlled by the town defendants. QVEC further alleges that the decedent was electrocuted by downed power lines “on” Mashentuck Road. Electrified power lines lying on a roadway necessarily would obstruct or hinder safe travel and, thus, properly are construed as alleging a highway defect. On the basis of our review of all the allegations in its third party complaint, we agree with the court that allegations to the effect that “the town defendants were responsible for maintaining a road upon which travel had become unsafe due to downed electrical .wires” necessarily invoke § 13a-149, because a claim under that statute is the only means by which a town can be held liable for damages resulting from injury to a person by means of a defective road. See General Statutes § 52-557n. QVEC’s arguments to the contrary are unpersuasive.

As set forth previously in this opinion, to state a proper cause of action for indemnification, QVEC needed to allege sufficient facts to show that the town defendants were negligent. Because, as a matter of law, the allegations regarding the actions of the town defendants legally can only be construed as allegations that the town defendants breached their statutory duty pursuant to § 13a-149 and not as allegations of negligence; see Prato v. New Haven, supra, 246 Conn. 645; the third party complaint necessarily fails to state a proper cause of action for common-law indemnification.

Additionally, we agree with the trial court that a cause of action for indemnification is inconsistent with, and thus vitiated by, allegations of acts or omissions that necessarily invoke § 13a-149. This court, by memorandum decision, previously has affirmed a trial court’s decision to strike an apportionment complaint in which the court held that a municipality could not be an apportionment defendant based on allegations of injuries caused by a defective highway. The court in that case reasoned that “in order for apportionment of liability to apply, the apportionment plaintiffs would need to be found partly responsible for the plaintiffs injuries, and thus, the highway defect could not be the sole proximate cause of the accident. Bradley v. Randall, Superior Court, judicial district of Windham, Docket No. CV-95-0052173 (April 8, 1996) (18 Conn. L. Rptr. 636), aff'd, 45 Conn. App. 924, 696 A.2d 1323, cert. denied, 243 Conn. 923, 701 A.2d 339 (1997).” Priore v. Longo-McLean, 143 Conn. App. 249, 262, 70 A.3d 147 (2013).

That same rationale applies equally to defeat QVEC’s indemnification cause of action against the town defendants. As with apportionment, indemnification requires the existence of two tortfeasors. See Smith v. New Haven, supra, 258 Conn. 60; Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 697. In Smith, the defendant city sought to implead a third party whose active negligence the city alleged had caused the plaintiffs injuries. Smith v. New Haven, supra, 58. The trial court granted summary judgment in favor of the third party, noting that two tortfeasors are necessary to state a claim of indemnity. Id., 66. Our Supreme Court affirmed the trial court’s decision, concluding: “A finding of two culpable tortfeasors ... is logically inconsistent with our definition of sole proximate cause because a determination that the defect in question is the sole proximate cause of the plaintiffs injuries implicitly relieves any third parties from liability. . . . Put another way, the presence of third party negligence necessarily results in a finding that the defect was not the sole proximate cause of a plaintiff s injuries. Such a determination would relieve the municipality of all liability, thereby vitiating the basis for indemnification. Because § 13a-149 either renders the municipality, and the municipality alone, liable to the plaintiff, or exculpates the municipality entirely, the equitable obligation to indemnify a municipality . . . does not exist in actions brought under § 13a-149.” (Emphasis added.) Id., 66-67. The very same rationale that precludes a municipality from seeking indemnity from a third party necessarily would also preclude the reverse. Although QVEC argues to the contrary, its arguments are unsupported and unavailing.

In order to recover under a theory of indemnification, QYEC must allege and later be found to have engaged in negligent conduct separate from that of the town defendants. Because the town defendants can only be held hable pursuant to § 13a-149, and § 13a-149 requires that the town defendants’ conduct be the sole proximate cause of the damages alleged in order for liability to attach, any negligence on the part of QVEC negates the possibility of relief from the town defendants on a theory of common-law indemnification.

The judgment is affirmed.

In this opinion the other judges concurred.

       The named plaintiff, Anthony J. Pellecchia, acting in his capacity as the administrator of the estate of the decedent, Anthony E. Pellecchia, and the defendants Connecticut Light and Power Company, Northeast Utilities and Northeast Utilities Services Company (utility defendants) are not parties to the third party complaint and did not participate in this appeal.

       Although not alleged in the third party complaint, it is undisputed that, prior to the discovery of the downed power lines, a severe thunder and lightning storm had moved through the area.

       In addition to QVEC, the administrator also brought allegations of wrongful death against the town defendants and the utility defendants. The trial court rendered judgments of nonsuit against the plaintiff on his claims against the town defendants and the utility defendants, which judgments were affirmed by this court. See Pellecchia v. Connecticut Light & Power Co., 126 Conn. App. 903, 12 A.3d 641 (2011). The administrator later commenced new actions against the utility defendants and the town defendants, but those subsequent actions were dismissed. See Pellecchia v. Connecticut Light & Power Co., 139 Conn. App. 88, 54 A.3d 658 (2012) (affirming judgment dismissing new action brought against utility defendants because action filed outside statute of limitation period and not saved by accidental failure of suit statute), cert. denied, 307 Conn. 950, 60 A.3d 740 (2013); Pellecchia v. Killingly, 147 Conn. App. 299, 80 A.3d. 931 (2013) (same as to new action against town defendants).

       Alternatively, the town defendants argued that the claims against them were barred by governmental immunity pursuant to General Statutes § 52-557n. Because the court agreed that QVEC could not maintain its indemnification action, it did not address the alternative jurisdictional claim.


author: MIHALAKOS, J.

text:
    LYNNE RESSO v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (AC 35171)
    Lavine, Keller and Mihalakos, Js.
    Argued September 17, 2013
    officially released January 21, 2014

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellant (named defendant).

      Ryan Killeen Morse, with whom, on the brief, was Barbara J. Collins, for the appellee (plaintiff).
   Opinion

MIHALAKOS, J.

The defendant, the Administrator of the Unemployment Compensation Act, appeals from the judgment of the trial court reversing the decision of the Employment Security Board of Review (board) denying benefits to the plaintiff, Lynne Resso. On appeal, the defendant claims that the court improperly determined that there were insufficient facts found by the board to establish a finding of wilful misconduct. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, as found by the board, are relevant to this appeal. The plaintiff worked as a part-time teller at Webster Bank (bank) for approximately sixteen years. On September 22, 2011, prior to leaving work, the plaintiff failed to properly count all of the money in her drawer as was required by the bank’s policies. Specifically, she did not account for fifty dollars in mutilated cash that she had received that day and consequently misrepresented the amount of cash in the drawer. The plaintiffs supervisor discovered the error while performing an audit. The bank’s managers met with the plaintiff to discuss the issue, whereupon she admitted that she had not counted all the cash in her drawer. The bank’s policy required tellers to piece count all moneys in their drawers at the end of each shift and prohibited the inaccurate reporting of a drawer’s contents. Violation of this policy was grounds for termination. The plaintiff was suspended and, shortly after, discharged from employment.

Following her termination, the plaintiff filed an application for unemployment compensation benefits. On November 4, 2011, the defendant ruled that the plaintiff was disqualified from receiving benefits pursuant to General Statutes § 31-236 (a) (2) (B) on the basis of the defendant’s finding that the bank had discharged the plaintiff for wilful misconduct in the course of her employment. The plaintiff filed a timely appeal and a hearing was held before an appeals referee (referee). On December 6, 2011, the referee affirmed the defendant’s decision. The plaintiff again filed a timely appeal to the board, which reviewed the record, including a recording of the previous hearing. On February 16,2012, the board adopted the referee’s findings of fact, with limited modifications, and affirmed the referee’s decision. The plaintiff filed a timely motion to open the board’s decision, which was denied. Although she was given notice that in order to dispute the board’s findings of fact, she would need to file a motion to correct those findings pursuant to Practice Book § 22-4, she failed to do so.

The plaintiff then appealed to the Superior Court. The defendant filed a motion for judgment asking the court to dismiss the appeal, arguing that the facts supported the board’s decision and that there was a logical basis for the decision, and noting the plaintiffs failure to file a motion to correct the board’s findings. The court denied the defendant’s motion, concluding that the board had abused its discretion in finding the plaintiffs conduct to be wilful. Concluding that there were insufficient facts in the board’s findings to support its decision, the court sustained the appeal and reversed the decision of the board. The court did not specify why the facts found were insufficient. This appeal followed.

The defendant claims that the trial court improperly determined that the board’s finding of wilful misconduct was an abuse of discretion. Specifically, the defendant argues that the unchallenged record and conclusive factual findings of the board provided a sufficient basis for its conclusion that the plaintiff had engaged in wilful misconduct. We disagree.

The following legal principles guide our decision. General Statutes § 31-249b provides claimants with the right to appeal a decision of the board denying unemployment compensation benefits to the Superior Court. “To the extent that an administrative appeal, pursuant to General Statutes § 31-249b, concerns findings of fact, a court is limited to a review of the record certified and filed by the board .... The court must not retry the facts nor hear evidence. ... If, however, the issue is one of law, the court has the broader responsibility of determining whether the administrative action resulted from an incorrect application of the law to the facts found or could not reasonably or logically have followed from such facts. Although the court may not substitute its own conclusions for those of the administrative board, it retains the ultimate obligation to determine whether the administrative action was unreasonable, arbitrary, illegal or an abuse of discretion.” (Citations omitted; footnote omitted.) United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, 209 Conn. 381, 385-86, 551 A.2d 724 (1988).

“A plaintiffs failure to file a timely motion [to correct] the board’s findings in accordance with [Practice Book] § 22-4 prevents further review of those facts found by the board. ... In the absence of a motion to correct the findings of the board, the court is not entitled to retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether . . . there was any evidence to support in law the conclusions reached. [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses.” (Citation omitted; internal quotation marks omitted.) Tosado v. Administrator, Unemployment Compensation Act, 130 Conn. App. 266, 275, 22 A.3d 675 (2011).

Unemployment compensation is a legislative initiative and determinations of eligibility for benefits are made pursuant to the statutes and regulations governing the program. “[A]n individual shall be ineligible for benefits ... if, in the opinion of the administrator, the individual has been discharged . . . for . . . wilful misconduct in the course of the individual’s employment . . . .” General Statutes §31-236 (a) (2) (B). “Whether the circumstances of an employee’s termination constitute wilful misconduct on the employee’s part is a mixed question of law and fact.” United Parcel Service, Inc. v. Administrator, Unemployment Compensation Act, supra, 209 Conn. 386.

Among other things, the statute defines “wilful misconduct” as “a single knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not a result of the employee’s incompetence . . . General Statutes § 31-236 (a) (16); see also Regs., Conn. State Agencies § 31-236-26. To establish that an individual was discharged or suspended for wilful misconduct under this definition, pursuant to § 31-236-23b of the Regulations of Connecticut State Agencies, all of the following findings must be made. First, there must have been a knowing violation in that “(1) the individual knew of such rule or policy, or should have known of the rule or policy because it was effectively communicated to the individual. ... (2) [T]he individual’s conduct violated the particular rule or policy; and (3) the individual was aware he [or she] was engaged in such conduct.” Regs., Conn. State Agencies § 31-236-26b (a). Second, the rule or policy must be reasonable in that it “furthers the employer’s lawful business interest.” Id., § 31-236-26b (b). Third, the rule or policy must be uniformly enforced in that “similarly situated employees subject to the workplace rule or policy are treated in a similar manner when a rule or policy is violated.” Id., § 31-236-26b (c). Fourth, the rule or policy must be reasonably applied in that “(1) . . . the adverse personnel action taken by the employer is appropriate in fight of the violation of the rule or policy and the employer’s lawful business interest . . . and (2) . . . there were no compelling circumstances which would have prevented the individual from adhering to the rule or policy.” Id., § 31-236-26b (d). Fifth, the violation of the rule or policy must not have been a result of the individual’s incompetence, where “the individual was incapable of adhering to the requirements of the rule or policy due to a lack of ability, skills or training, unless it is established that the individual wilfully performed below his employer’s standard and that the standard was reasonable.” Id., § 31-236-26b (e).

In the present case, the court determined that the facts in the record, as found by the referee and adopted with modifications by the board, were insufficient to establish a finding of wilful misconduct. Although the court did not specify which necessary facts were absent from the board’s findings, our review of the record confirms that the court’s conclusion was correct. Specifically, the board’s findings of fact were devoid of any facts supporting a finding that the bank’s policy was uniformly enforced. The board was required to find that the bank treated other tellers who inaccurately reported the contents of their drawer similarly to the plaintiff. It failed to do so, as its findings contain no mention whatsoever of other tellers violating the policy or the treatment they received for doing so.

The defendant argues that the board need not specifically address all the criteria required for a finding of wilful misconduct contained in the regulations. We disagree. “Valid agency regulations have the force of statutes and constitute state law.” (Emphasis omitted; internal quotation marks omitted.) Canterbury v. Commissioner of Environmental Protection, 62 Conn. App. 816, 819, 772 A.2d 687, cert. denied, 257 Conn. 901, 776 A.2d 1153 (2001). “When interpreting a regulation, [a court] must use common sense.” Fullerton v. Dept. of Revenue Services, 245 Conn. 601, 612, 714 A.2d 1203 (1998). The regulation relating to wilful misconduct under the knowing violation definition expressly states that the administrator “must find all” of the listed criteria in order to establish that a knowing violation has occurred and thereby deny benefits to a claimant. (Emphasis added.) Regs., Conn. State Agencies § 31-236-26b. It is only logical that the satisfaction of these criteria must be announced in the any administrative decision denying benefits on those grounds and predicated on the findings of fact recited therein. See Tosado v. Administrator, Unemployment Compensation Act, supra, 130 Conn. App. 277-78 (reviewing board’s decision for findings related to all criteria contained in regulation pertaining to deliberate misconduct in wilful disregard of employer’s interest).

The referee’s decision, adopted by the board, recognized that all of the criteria contained in the regulation must be found and that the bank, not the plaintiff, bore the burden of proving the criteria to be satisfied. The referee explicitly stated that she found certain elements of the regulation to be fulfilled and carefully recited facts that supported her conclusion. Under the defendant’s theory, this detailed report, meticulous in all respects besides its omission of findings of the uniform enforcement element, would be wholly unnecessary when a succinct statement of denial would suffice. That cannot have been the agency’s intent in promulgating a regulation containing such a precise delineation of the circumstances required to deny benefits. Nor would allowing such summary denials give effect to the legislature’s express mandate that the Unemployment Compensation Act “be construed, interpreted and administered in such manner as to presume coverage, eligibility and nondisqualification in doubtful cases.” (Internal quotation marks omitted.) Mattatuck Museum-Mattatuck Historical Society v. Administrator, Unemployment Compensation Act, 238 Conn. 273, 278, 679 A.2d 347 (1996) (citing General Statutes § 31-274 [c]).

Thus, we conclude that the defendant, or any reviewing administrative authority, in making a finding of wilful misconduct, must expressly make findings as to all of the elements listed in the relevant regulation, including a recitation of the facts that are the basis of those findings. As the board failed to do so in this case, the court’s judgment sustaining the plaintiffs appeal on the basis of the board’s lack of sufficient factual findings was proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs employer, Webster Bank, also was named as a defendant, but did not appear before the trial court and is not a party to this appeal. We refer in this opinion to the administrator of the Unemployment Compensation Act as the defendant.

       The plaintiff argues for the first time on appeal that the notice provided by the board was insufficient and, therefore, deprived her of due process. Even assuming that the issue is properly before this court, the plaintiff was twice provided with a notice of appeal rights stating that “[i]f a party who appeals to the Superior Court wishes to dispute the Board’s findings of fact, it has to file a Motion to Correct Findings.” This notice sufficiently advised the plaintiff of the necessity of filing a motion to correct.

       We note that the defendant did not file a motion for articulation in this case. “It is well established that [a]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. . . . [PJroper utilization of the motion for articulation serves to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal.” (Internal quotation marks omitted.) Priest v. Edmonds, 295 Conn. 132, 140, 989 A.2d 588 (2010).

       It occurs to us that situations may arise where an employee seeking unemployment benefits is the first ever to have been terminated for violating an employer’s policy and, therefore, it would be impossible for the administrator to find that “similarly situated employees subject to the workplace rule or policy are treated in a similar manner when a rule or policy is violated.” It would be illogical to preclude a finding of wilful misconduct in such a situation and, therefore, in those cases a finding by the administrator that the employee was the first to have been terminated for violating the policy would suffice to establish that the policy was uniformly enforced. Regardless, we have no reason to believe that this case fits that description.

       The defendant relies on Ray v. Administrator, Unemployment Compensation Act, 133 Conn. App. 527, 36 A.3d 269 (2012), to support this contention. This rebanee is misplaced. In Ray, this court held that a board need not make expbeit reference to all the factors that a board is required to consider in determining whether a claimant has good cause for filing a late appeal, pursuant to § 31-237g-34 of the Regulations of Connecticut State Agencies. That case is inapposite because the regulation at issue in Ray only requires the board to consider certain factors, not to make specific findings, as is required by the regulation at issue in the present case. Furthermore, in Ray, unlike here, the burden was on the claimant to prove the necessary circumstances.