Delmedico v. Panda Properties, LLC

Vincent Delmedico PPA et al. v. Panda Properties, LLC et al

No. KNLCV166027376S

Superior Court of Connecticut, Judicial District of New London, New London

August 7, 2017

UNPUBLISHED OPINION

RULING RE PLAINTIFFS' MOTION TO STRIKE

Robert F. Vacchelli Judge, Superior Court.

This case is an action for money damages by Vincent Delmedico, a minor, by his mother, Betty Larsen, and by Betty Larsen individually. The complaint is in ten counts against four defendants for negligence and recklessness alleging that Vincent was seriously injured when he fell ten feet from a deck at their apartment when the railing gave way. Three of the defendants, Panda Properties, LLC, Andrew Zeeman and Leigh Zeeman (" defendants"), filed a counterclaim against Betty Larsen alleging that she failed to properly supervise her child, and they seek to hold her responsible for any money damages and costs that they might incur in this matter, in three counts: common-law indemnification (First Count); contractual indemnification (Second Count) and breach of contract (Third Count). Pending before the court is a motion to strike by the plaintiffs seeking to strike all three counts of the counterclaim. Doc. No. 150.00. For the following reasons, the motion is granted.

I

A motion to strike is used " [w]henever any party wishes to contest . . . the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defenses contained therein . . ." Practice Book § 10-39(a)(5). " 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." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn 480, 498, 815 A.2d 1188 (2003). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Citation omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). These same standards apply to motions to strike counterclaims. See JP Morgan Chase Bank v. Rodrigues, 109 Conn.App. 125, 128-29, 952 A.2d 56 (2008). " The role of the trial court [is] to examine the [counterclaim], construed in favor of the [defendants], to determine whether the [defendants have] stated a legally sufficient cause of action." (Citations omitted; internal quotation marks omitted.) Dodd v Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). " It is fundamental that in determining the sufficiency of a [counterclaim] challenged by a [plaintiff's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Citations omitted; internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn 240, 252-53, 990 A.2d 206 (2010).

II

As mentioned above, this case is an action for money damages by Vincent Delmedico, a minor, by his mother, Betty Larsen, and by Betty Larsen individually. The complaint is in ten counts against four defendants for negligence and recklessness alleging that Vincent was seriously injured on June 19, 2014 when he fell ten feet from a deck at their apartment when the railing gave way. Betty Larsen alleges that she has incurred and is reasonably likely to incur expenses for Vincent's medical treatment. The plaintiffs seek to hold the defendants liable for the plaintiffs' injuries and losses because the defendants were responsible for the maintenance inspection and general upkeep of the premises as owners, or otherwise owed a duty of care to the plaintiffs, and that they breached their duty.

In their counterclaim, the defendants deny liability and allege, in pertinent part, as follows: As to the First Count, asserting common-law indemnification, the defendants allege that Betty Larsen should be held responsible for any money damages awarded in this case because, if in fact any act of negligence is proven to exist, and it is found that said negligence proximately caused the minor plaintiffs' injuries and damages, the plaintiff Betty Larsen's negligence in failing to adequately supervise the minor plaintiff directly caused said injuries and damages. Any negligence on the part of the defendants was solely passive in nature. Furthermore, they allege that the plaintiff, Betty Larsen, exercised exclusive control of the outside deck of the apartment, of which she was a tenant, and exercised control over the minor plaintiff's supervision and care, to the exclusion of the defendants. At all times relevant to the events, the defendants did not know of the negligence of the plaintiff, Betty Larsen, and had no reason to anticipate it. At all times relevant, the defendants could reasonably rely upon Betty Larsen to undertake her responsibility with respect to the supervision of her minor child, including assuring that the minor plaintiff did not fall from the outside deck. If the defendants are found liable to the plaintiffs, they allege, said liability arises directly from the active negligence of Betty Larsen, which negligence was the proximate cause of the minor plaintiffs' damages, if any.

As to the Second Count, for contractual indemnification, they allege that Betty Larsen's negligence in failing to adequately supervise the minor plaintiff directly cause said injuries and losses and that Betty Larsen should be held responsible for any money damages awarded in this case because, at all times relevant, the defendants had a valid lease agreement in effect for the lease of the premises to the plaintiff, Betty Larsen. They allege that paragraph 25 of that lease expressly stated, " Lessee agrees to insure against all losses that may occur to him/herself or visitors or occupants, and name the lessor as additional insured on the policy. Lessee agrees to hold the lessor harmless from all legal action resulting from said losses to self or property." Paragraph 24 of that lease also stated, " Lessor shall not be liable for any damage or injury to families or visitors . . . either directly or related to how the lessee has maintained the unit or immediate area and lessee and family agrees to hold lessor harmless from any claims of damage no matter how caused."

As to the Third Count, alleging breach of contract, they allege that Betty Larson's negligence in failing to adequately supervise the minor plaintiff directly cause said injuries and losses and they allege that Betty Larson has caused and may continue to cause them damages because, pursuant to the aforementioned lease, she was contractually obligated to obtain insurance against all losses to herself or visitors or occupants, and name the defendants, as lessors, as additional insureds on the policy. They allege that she failed to secure any insurance policy for the premises despite the aforementioned lease provision requiring the same. They allege that the defendants are contractually entitled to indemnification from Betty Larsen for plaintiffs' claim pursuant to the lease yet, to date, she has failed to provide a defense and/or indemnity to the defendants despite due demand for the same, and that by refusing and failing to indemnify and hold the defendants harmless, Betty Larsen has breached the terms of the contract.

III

The plaintiffs contend that all three counts of the defendants' counterclaim should be stricken as legally insufficient because they assert claims against a parent that are barred by the doctrine of parental immunity. Additionally, they contend that the Second and Third Counts should be stricken because they are based on lease provisions that are unenforceable under General Statutes § 47a-4. The issues are discussed seriatim.

A

Plaintiffs argue that all three of defendants' counterclaims seek to hold the child's mother responsible for the injuries and damages sustained in this case premised on the mother's negligent supervision of her child. They argue that these types of claims are barred by the doctrine of parental immunity. The court agrees with the plaintiffs.

The doctrine of parental immunity bars an unemancipated child from suing his or her parents for personal injuries. Ascuitto v. Farricielli, 244 Conn. 692, 697, 711 A.2d 708 (1998). " Under this doctrine a parent is not liable civilly to his child for personal injury inflicted during[the child's] minority . . ." (Citations omitted; internal quotation marks omitted.) Dubay v Irish, 207 Conn. 518, 523, 542 A.2d 711 (1988). The doctrine prevents not only direct actions by a child against a parent, it also operates to preclude the parent of a minor plaintiff from being joined as a third-party defendant for purposes of apportionment of liability, contribution or indemnification based on the parent's allegedly negligent supervision of the minor plaintiff. Crotta v. Home Depot Inc., 249 Conn. 634, 644-45, 732 A.2d 767 (1999). " The primary focus of the parental immunity doctrine in Connecticut is the protection of the relationship between the parent and the child . . . Third-party actions against a parent based on that parent's allegedly negligent supervision of his child would be no less disruptive of parental management of family affairs than would be a direct negligent action by the child against the parent . . . Permitting such actions would undermine parental authority." (Citations omitted; internal quotation marks omitted.) Id., 643-44.

All of the defendants' counterclaims are third-party actions based on the parent's alleged negligent supervision of her child. All are within the purview of the doctrine of parental immunity as defined in Crotta v. Home Depot Inc., supra . The doctrine is not limited to tort...