John Doe PPA v. HARC, Inc.

John Doe PPA Jane Doe et al.^[1] v. HARC, Inc. et al.

No. HHDCV195058572S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

January 3, 2020

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Peck, A. Susan, J.T.R.

MEMORANDUM OF DECISION RE MOTION TO STRIKE #113

PECK JTR

On May 22, 2019, the plaintiffs, John Doe, PPA Jane Doe and James Roe, PPA William Roe, filed a sixteen-count amended complaint seeking recovery for damages against the defendant, HARC Inc.^[2] This action arises from injuries and losses sustained by John Doe and James Roe when they were allegedly sexually abused and assaulted by Ricardo Marchand, a HARC employee, while they participated in the defendant’s enrichment programs. Both John Doe and James Roe allegedly have limited intellectual capacities and related disabilities. Counts one through seven are brought on behalf of John Doe, by his parent, guardian and next friend, Jane Doe. Counts eight through fourteen mirror counts one through seven, but are brought on behalf of James Roe, by his parent, guardian and next friend, William Roe. The defendant has moved to strike counts five and twelve (reckless and wanton misconduct), counts six and thirteen (false imprisonment), and counts seven and fourteen (breach of fiduciary duty), ^[3] on the ground that they are legally insufficient.

Specifically, in counts five and twelve, the plaintiffs incorporate the allegations made in paragraphs 1-15 of counts one and eight, respectively, asserting negligence, which allege, in relevant part, the following: HARC promotes itself as an organization that serves the needs of intellectually challenged individuals; the plaintiffs each have the cognitive ability of four-year-old children; the plaintiffs engaged in HARC’s various enrichment activities as unpaid clients, as well as paid workers under HARC’s job placement program; HARC hired Marchand as a supervisor or job coach in 2010; Marchand was involved in and supervised the plaintiffs during their participation in unpaid activities; Marchand was also their designated supervisor at Allstate, the job placement in which they were paid workers; Marchand sexually assaulted the plaintiffs and forced them to engage in various sexual acts from 2013 to 2017; Marchand’s abuse of the plaintiffs occurred in various areas of the HARC facility and Allstate document retention center; Marchand used his position of authority over the plaintiffs, as well as their cognitive disabilities, to manipulate and threaten the plaintiffs in order to sexually abuse them; and the defendant knew or should have known that Marchand was sexually abusing and exploiting the plaintiffs.

In sum, the plaintiffs allege that the defendant was reckless because it completely disregarded complaints regarding Marchand’s conduct, refused and failed to establish relevant policies to prevent such conduct, knew of Marchand’s sexual misconduct but allowed it to continue and sought to cover it up, refused to investigate and oversee allegations of sexual assault, refused to establish and maintain relevant policies for reporting such conduct, failed to warn Jane Doe and William Roe, and refused to protect the plaintiffs and other clients from such misconduct.

In counts six and thirteen, the plaintiffs incorporate the allegations made in paragraphs 110 of counts one and eight, respectively. In those counts, the plaintiffs further allege that Marchand, as an employee of HARC, was able to direct and control the plaintiffs’ activities and used his superior knowledge, authority, and influence over the plaintiffs to confine them to different areas of the HARC facility and Allstate document retention center against their will; that their confinement occurred when they were both unpaid clients and paid workers at the job placement; and that such confinement constituted false imprisonment.

In counts seven and fourteen, the plaintiffs incorporate the allegations made in paragraphs 1-15 of counts one and eight, respectively. The plaintiffs further allege that HARC and its employees, including Marchand, owed them a fiduciary duty. They allege that as HARC clients, the plaintiffs and their parents relied upon the fiduciary or "specific" relationship they had with HARC when entrusting the plaintiffs’ custody and care to HARC so that they could participate in HARC’s recreational, educational and work activities. Further, they allege that their injuries and damages were the result of the defendant’s breach of its fiduciary duty because it failed to supervise, investigate, and oversee Marchand’s misconduct and failed to take any action to protect the plaintiffs from Marchand.

The defendant filed a motion to strike the aforementioned counts accompanied by a memorandum of law on July 22, 2019. The plaintiffs filed a memorandum in opposition to the motion on August 21, 2019. The defendant thereafter filed a reply memorandum on September 4, 2019. Oral argument was held on September 9, 2019.

DISCUSSION

"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). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). In determining the sufficiency of a complaint, "all well pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). Moreover, in assessing the merits of a motion to strike, the court is required to interpret the plaintiff’s complaint in a manner favorable to the plaintiff. See Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011).

I COUNTS FIVE AND TWELVE- RECKLESSNESS

The defendant moves to strike counts five and twelve on the ground that the plaintiffs have failed to allege sufficient facts to support a cause of action for recklessness. Specifically, the defendant argues that, without more, the plaintiffs’ assertion that HARC knew or should have known about Marchand’s behavior connotes only negligent behavior. The defendant also contends that the plaintiffs’ claims of recklessness fail because they attempt to transform the negligence claim, as set forth in counts one and eight, to a recklessness claim in counts five and twelve, without providing additional facts to support an action for wilful and wanton misconduct. Further, the defendant argues that the plaintiffs’ individual allegations fail because there is no requirement to promulgate or maintain policies prohibiting or policing employee misconduct. In response, the plaintiffs argue that the cumulative effect of the negligence allegations and the reckless-specific factual allegations contained or incorporated in the fifth and twelfth counts are sufficient to establish a cause of action for reckless and wanton misconduct.

"Recklessness is a state of consciousness with reference to the consequences of one’s acts ... It is more than negligence, more than gross negligence. The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... [W]ilful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ... [S]uch aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 532-33, 542 A.2d 711 (1988). "Wanton misconduct is reckless misconduct ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 382, 119 A.3d 462 (2015).

The fact that counts five and twelve "mirror" the assertions of the negligence counts with [little more than the mere addition of the words "willful, wanton and/or reckless" is not determinative when assessing the legal sufficiency of claims of recklessness. "Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted." (Citations omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003). Accordingly, in determining the legal sufficiency of the recklessness counts, "[t]he dispositive question is whether the factual specifications of the recklessness count are sufficient to state a cause of action for recklessness whether or not they are also used to support a negligence claim." McNeil v. Doane, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-16-6022098-S (October 22, 2018, Stevens, J.).

Noting the vulnerability of children attending the defendant’s churches and schools, our Supreme Court has found that given evidence of the defendant’s "commitment...