51 A.3d 367 (Conn. 2012), 18640, Grenier v. Commissioner of Transportation

Docket Nº:18640.
Citation:51 A.3d 367, 306 Conn. 523
Opinion Judge:NORCOTT, J.
Party Name:Marc GRENIER, Administrator (Estate of Nicholas Grass) v. COMMISSIONER OF TRANSPORTATION et al.
Attorney:Steven D. Ecker, Hartford, with whom were M. Caitlin S. Anderson and, on the brief, Michael A. Stratton and Joel T. Faxon, New Haven, for the appellant (plaintiff). Catherine L. Creager, Fairfield, with whom, on the brief, was Kevin A. Coles, for the appellees (defendant Delta Kappa Epsilon Natio...
Judge Panel:NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.[*] In this opinion PALMER, ZARELLA, McLACHLAN and HARPER, Js., concurred. EVELEIGH, J., concurring in part and dissenting in part.
Case Date:September 25, 2012
Court:Supreme Court of Connecticut
 
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51 A.3d 367 (Conn. 2012)

306 Conn. 523

Marc GRENIER, Administrator (Estate of Nicholas Grass)

v.

COMMISSIONER OF TRANSPORTATION et al.

No. 18640.

Supreme Court of Connecticut.

September 25, 2012

Argued March 20, 2012.

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Steven D. Ecker, Hartford, with whom were M. Caitlin S. Anderson and, on the brief, Michael A. Stratton and Joel T. Faxon, New Haven, for the appellant (plaintiff).

Catherine L. Creager, Fairfield, with whom, on the brief, was Kevin A. Coles, for the appellees (defendant Delta Kappa Epsilon National Fraternity et al.).

NORCOTT, PALMER, ZARELLA, McLACHLAN, EVELEIGH and HARPER, Js.[*]

NORCOTT, J.

[306 Conn. 526] In this appeal, we consider whether a national fraternity and one of its local Connecticut Chapters may be held liable in common-law negligence for the death of one of its members, which occurred while driving back to New Haven after a fraternity event held in New York City. On appeal, 1 the plaintiff, Marc Grenier, as administrator of the estate of Nicholas Grass, claims that the trial court improperly rendered summary judgment for the defendants Delta Kappa Epsilon National Fraternity (Delta National) and its Delta Kappa Epsilon Phi Chapter (Phi Chapter) (collectively, fraternity defendants),2 because: (1) the complaint alleged a claim for common-law negligence rather than a negligence per se claim arising from a violation of General Statutes § 53-23a,3

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the Connecticut statute [306 Conn. 527] prohibiting hazing; (2) holding the fraternity defendants liable for negligence is appropriate because Grass' injuries were foreseeable and imposing a duty of care under these circumstances is consistent with public policy; and (3) Phi Chapter voluntarily assumed a duty of care by providing transportation for Grass from the fraternity event in New York City. The plaintiff also claims that the trial court improperly refused to allow him to replead his negligence claim to include § 53-23a or more specific duty allegations. Because we conclude that the plaintiff sufficiently alleged a claim of common-law negligence, Phi Chapter, as a matter of law, voluntarily assumed a duty of reasonable care in the circumstances, and that the plaintiff raised a material question of fact regarding Delta National's control over Phi Chapter, we reverse the judgment of the trial court.

The record, viewed in the light most favorable to the nonmoving party, the plaintiff in the present case, [306 Conn. 528] reveals the following relevant facts and procedural history. Beginning in the fall of 2002, Grass began pledging to become a member of Phi Chapter, Yale University's local chapter of Delta National. During the pledging process, Grass and the other pledges learned the history and traditions of the fraternity and participated in activities that required the pledges to submit to the control and authority of the fraternity members, and which were intended to prove their dedication to the organization and to create bonds with the fraternity members and their fellow pledges. At the beginning of the spring, 2003 semester, the pledging process culminated in what the fraternity members referred to as " ‘ Hell Week,’ " a weeklong series of events designed to push the pledges to their " ‘ breaking point.’ " Included in these events were ongoing efforts by the fraternity members to keep the pledges awake every night during the week. Every year, Hell Week concluded with an off-campus " search and rescue mission," during which a fraternity member would be " captured" by the pledges while the remaining members would try to locate their captured comrade, after which the fraternity members and the pledges would spend the rest of the evening socializing.4 Phi Chapter

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officers arranged for the search and rescue event in which Grass and his fellow pledges were expected to participate to take place in New York City beginning on the night of January 16, 2003. Some of the pledges traveled to New York City via train, while other pledges were transported by fraternity members who had volunteered to be designated drivers for the event.

According to Nicholas Sinatra, the president of Phi Chapter from 2002 to 2003, the pledges were supposed [306 Conn. 529] to take a train back to New Haven after the conclusion of the search and rescue event. At approximately 3:30 a.m. on January 17, 2003, however, as the event concluded, Sinatra directed that, rather than have all of the pledges take a train, the fraternity members who had driven to New York City should take as many pledges as would fit in the vehicles back with them to Yale University. Although there apparently was no formal assignment of which pledges would ride in which vehicles on the return trip to New Haven, Grass rode in a Chevrolet Tahoe driven by Sean Fenton, a member who had volunteered to be a designated driver at the start of the event.

On the drive back to New Haven, a series of unfortunate circumstances combined to cause Fenton to crash the Tahoe. First, prior to the group's departure from New York City, it began snowing, and Interstate 95(I95), the route Fenton traveled back to New Haven, was only partially plowed where the collision occurred. In addition to the inclement weather, during construction being performed on I-95 prior to Fenton's accident, a light pole had been knocked down, and the overhead lighting in the area of the collision had become disabled. Then, at approximately 4:50 a.m. that morning, a tractor trailer crashed into the concrete median barrier separating the northbound and southbound lanes of the highway. When the tractor trailer came to rest after it crashed, it blocked a portion of the northbound travel lanes. Finally, although Fenton had abstained from drinking alcohol during the course of that evening,5 he had participated in the overnight activities designed to keep the pledges awake during two nights of Hell Week. As a result, Fenton had slept a total of only twenty-five [306 Conn. 530] to thirty hours during that week and was suffering from fatigue.

Thus, shortly after 5 a.m. on January 17, 2003, the slick, dark road conditions and Fenton's reduced reaction time due to his fatigue combined to create a situation in which Fenton was unable to avoid colliding with the disabled tractor trailer, which was blocking his travel lane. Four of the eight occupants of Fenton's vehicle, including Grass, died from injuries sustained in that collision, and the four other occupants suffered serious injuries.

Following the collision, the plaintiff filed several claims against the named defendant, the commissioner of transportation, and the companies responsible for the construction site on the highway (contractor defendants), grounded primarily on the safety hazards at the construction site that precipitated the accidents. See footnote 2 of this opinion. The contractor defendants, as apportionment plaintiffs, then filed apportionment complaints against the

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driver of the tractor trailer, his employer, Fenton and the fraternity defendants.6 Thereafter, [306 Conn. 531] the plaintiff amended his complaint pursuant to General Statutes § 52-102b (d)7 to include a claim against the fraternity defendants. In the fifth count of the amended complaint, the plaintiff alleged that, " the plaintiff does not believe that the [fraternity defendants] were in any way negligent, but brings this action in accordance with ... § 52-102b (d), for purposes of apportionment," incorporated by reference the apportionment complaint allegations, and relied on the apportionment plaintiffs " to prove, if they can" the negligence claims against the fraternity defendants. The fraternity defendants subsequently filed a motion for summary judgment claiming that the plaintiff, in his amended complaint, had admitted that the fraternity defendants were not negligent. The plaintiff, with the trial court's permission, then filed a second amended complaint, stating that his basis for bringing a claim against the fraternity defendants was that the contractor defendants, as the apportionment plaintiffs, " believe[d] that the [f]raternity [d]efendants were negligent." He also again incorporated by reference the apportionment complaint and, further, set forth the specific allegations of negligence that the apportionment plaintiffs had alleged against the fraternity defendants in the apportionment complaint.

[306 Conn. 532] In response to the plaintiff's second amended complaint, the fraternity defendants denied that they were negligent, and by way of a special defense, claimed that the accident and the injuries complained of were the sole, direct, proximate and substantial result of the negligence of the contractor defendants. Subsequently, the fraternity defendants also moved to

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dismiss the second amended complaint, arguing that the trial court lacked subject matter jurisdiction over the plaintiff's negligence claim because it did not relate back to the original amended complaint, and thus was time barred by the statute of limitations. Specifically, the fraternity defendants claimed that the plaintiff did not allege a claim for negligence in the original amended complaint, which all parties agreed was timely, because, even though he had incorporated the negligence allegations brought by the apportionment plaintiffs by reference, he also had stated that he did not believe that the fraternity defendants were in any way negligent. Stating that pleadings should be construed liberally, however, the trial court, Shay, J., concluded that the plaintiff had pleaded sufficient facts in the original amended complaint and in the second...

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