Angeles v. State of Connecticut Department of Children and Families, HHDCV166071643S

Hugo Angeles, Administrator of the Estate of Athena Angeles et al. v. State of Connecticut Department of Children and Families

No. HHDCV166071643S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

October 10, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION RE MOTION TO STRIKE (#103)

Kevin G. Dubay, J.

The present action arises from a dispute between the plaintiffs Hugo Angeles (Hugo)--individually and as administrator of the estate of his deceased daughter, Athena Angeles (decedent)--and his minor daughter Artemisa Angeles (Artemisa), ^[1] and the defendant, the Department of Children and Families, ^[2] regarding personal injuries that the decedent and Artemisa allegedly suffered as a result of child abuse or neglect. Currently pending before the court is a motion to strike the entirety of the plaintiffs' complaint and portions thereof, which was filed by the defendant. For the reasons set forth subsequently in this memorandum, the court grants in part and denies in part the defendant's motion to strike.

FACTS

The following facts and procedural history are relevant to the court's disposition of the defendant's motion to strike. On September 29, 2016, the plaintiffs filed a complaint, which is the operative complaint, against the defendant. The complaint consists of three counts: (1) wrongful death pursuant to General Statutes § 52-555 ^[3] brought by Hugo, as administrator of the decedent's estate; (2) loss of consortium, brought by Hugo individually, resulting from the decedent's death; and (3) negligence, brought by Hugo, as parent and next friend of Artemisa.

In their complaint, the plaintiffs allege the following facts. As sisters, the decedent and Artemisa lived with their mother and her live-in boyfriend, Fred Riz, in Willimantic. The defendant knew--or should have been aware of--this fact. Throughout October 2011, and November 2011, the defendant received at least four reports that the decedent was being abused or neglected. One report was submitted by the decedent's pediatrician, who conveyed to the defendant that the decedent had two black eyes and a swollen face. Two of the reports came from a Head Start worker at the decedent's preschool, who informed the defendant that over a period of two consecutive days, the decedent arrived to school with bruises to various portions of her face and head.

The fourth report was submitted by a personnel member at the decedent's preschool. This report was submitted on November 21, 2011, the same day on which a family advocate from the preschool conducted a home visit with the decedent, Artemisa, and their mother. During the visit, the family advocate noticed that the decedent had an abrasion on her lip, and Artemisa's left eye and face were bruised. The injuries of the decedent and Artemisa were referenced in the November 21, 2011 report. Consequently, the defendant received at least one report that Artemisa--in addition to the decedent--was being abused or neglected.

The decedent sought emergency care at Windham Hospital (hospital) twice on November 23, 2011. At 1:30 a.m., the decedent arrived at the hospital with a fever and a laceration on the back of her head. The laceration was, in turn, stapled together. Subsequently, at 9:39 p.m., the decedent arrived at the hospital in cardiac arrest and with internal bleeding. She had bruises on her abdomen and extremities as well. Eventually, the decedent died that evening.

One day following the decedent's death, Artemisa underwent physical and radiologic examinations at the hospital. Several areas of her upper body were bruised, and a fracture was discovered in her right hand, which was approximately two to four weeks old. On that same day, the defendant invoked a ninety-six-hour hold over Artemisa. As a result, she was removed from her home in Willimantic and placed in foster care.

On January 30, 2013, the Probate Court appointed Hugo as administrator of the decedent's estate. Subsequently, he filed three notices of claim with the Claims Commissioner (commissioner) pursuant to General Statutes § 4-160(a). In each of the three notices, Hugo sought authorization from the commissioner to bring an action against the defendant as administrator of the decedent's estate, individually, and as parent and next friend of Artemisa. In a memorandum of decision dated September 7, 2016, the commissioner granted the plaintiffs permission to sue the defendant.^[4] The present action commenced thereafter.

On November 10, 2016, the defendant filed a motion to strike the entirety of the plaintiffs' complaint and portions thereof pursuant to Practice Book § 10-39.^[5] A memorandum of law accompanies the motion to strike. The plaintiffs filed an objection to the defendant's motion to strike on December 29, 2016. Subsequently, on February 7, 2017, the defendant filed a reply memorandum in further support of its motion to strike. Oral argument was heard at short calendar on June 13, 2017.^[6]

DISCUSSION

The procedural standard that governs motions to strike is well settled. " The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 815 A.2d 1188 (2003). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " 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." (Citations omitted; internal quotation marks omitted.) Liljedahl Brothers, Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

Turning to the present case, the defendant seeks to strike the entirety of the plaintiffs' complaint and various parts thereof. First, the defendant claims that its motion to strike should be granted as to the entirety of the plaintiffs' complaint on the ground that it did not owe a duty of care to the decedent and Artemisa. With respect to this point, the defendant seemingly argues that a particular section of the Connecticut child protection statutes, General Statutes § 17a-101g, did not impose on it an affirmative duty to exercise due care towards the decedent and Artemisa.^[7] Second, the defendant claims that its motion to strike should be granted with respect to the entirety of the plaintiffs' complaint--to the extent that the plaintiffs allege that the defendant is liable for failing to seek temporary custody of the decedent and Artemisa--on the ground that their claims are barred by the doctrine of absolute immunity.^[8] Moreover, the defendant claims that its motion to strike should be granted as to count two of the plaintiff's complaint on the ground that, under Connecticut law, loss of filial consortium is not a cognizable legal claim.

Before the court addresses the defendant's claims, it is important to emphasize that counts one and two of the plaintiffs' complaint are premised on a theory of negligence.^[9] " Negligence is conduct which creates an undue risk of harm to others." (Internal quotation marks omitted.) Logan v. Greenwich Hospital Asso., 191 Conn. 282, 299, 465 A.2d 294 (1983). " The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . If a plaintiff cannot prove all of those elements, the cause of action fails." Madsen v. Gates, 85 Conn.App. 383, 392, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004).

Count one sounds in wrongful death pursuant to § 52-555. " The elements of a cause of action . . . for a wrongful death are clear from the explicit language of the statute, which as a statute in derogation of the common law is limited to matters clearly within its scope . . . The plaintiff must prove not only a violation of a standard of care as a wrongful act, but also a causal relationship between the injury and the resulting death." (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 546, 839 A.2d 1259 (2004). " A wrongful death cause of action, therefore, requires that the party seeking relief allege an underlying theory of legal fault and that such fault is the proximate cause of the injury." Id., 547. Here, the allegations of count one indicate that the legal theory that undergirds the wrongful death claim is negligence. In this regard, the plaintiffs particularly rely on § 17a-101g.

On its face, count two of the complaint sounds in loss of consortium. Under Connecticut law, loss of consortium is a derivative cause of action. Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 62 n.5, 882 A.2d 1254 cert. denied, 276 Conn. 926, 888 A.2d 93 (2005). " [B]ecause it is a derivative cause of action, loss of consortium is dependent on the legal existence of the predicate action . . . That is to say, if an adverse judgment bars the . . . [predicate] cause of action, any claim for loss of consortium necessarily fails as well." (Internal quotation marks omitted.) Milton v. Robinson, 131 Conn.App. 760, 781 n.19, 27 A.3d 480 (2011), cert. denied, 304 Conn. 906, 39 A.3d 1118 (2012). In the present case, the allegations of count two reveal that Hugo's...