Cimino v. Yale University

• Decision Date: 30 June 1986
• Docket Number: Civ. No. N-84-666 (PCD).
• Citation: 638 F. Supp. 952
• Parties: Margaret CIMINO, et al. v. YALE UNIVERSITY, et al.
• Court: U.S. District Court — District of Connecticut

638 F. Supp. 952

Margaret CIMINO, et al. v. YALE UNIVERSITY, et al.

Civ. No. N-84-666 (PCD).

United States District Court, D. Connecticut.

June 30, 1986.

Kenneth J. Finger, Finger & Finger, White Plains, N.Y., for plaintiffs.

John R. FitzGerald, Noble K. Pierce, James M. Moher, Howard, Kohn, Sprague & FitzGerald, Hartford, Conn., for defendants Yale, Ryan, Kavanaugh, Festa, Dorfman, Cappiello and Jankowski.

W. Martyn Philpot, Jr., Carolyn W. Kone, Edward Mattison, Charles G. Albom, New Haven, Conn., for defendants City of New Haven, Farrell, Gill, O'Connor, Kendall, Harris, Stephenson, Dease, Gianotti, Zercie, Fonteyn and Garcia.

RULING ON PENDING MOTIONS

DORSEY, District Judge.

Background

Plaintiffs are suing for injuries sustained by Ms. Cimino while a spectator at the Harvard-Yale football game at the Yale Bowl on November 19, 1983. Ms. Cimino was seriously injured when she was struck by a goalpost which was being pulled down at the conclusion of the game.

The first count charges that Yale University and the City of New Haven (and the sixty New Haven police officers who worked at the game) were negligent in failing to provide adequate crowd control and security and for agreeing in advance not to try to prevent the razing of the goalposts. The second count asserts that the conditions at the Yale Bowl resulted in the creation of a nuisance. The third and fourth counts, respectively, on behalf of the father and mother of Margaret Cimino, allege damages for time lost from their employment, for certain medical expenses incurred by Ms. Cimino and for the loss of services, society and companionship of their daughter. The fifth count seeks indemnity under Conn.Gen.Stat. § 7-465¹ from the City of New Haven for the conduct of its employees. The sixth count may be, and is, dismissed as moot, since the City of West Haven, along with defendant Ogden Security, Inc., has reached a settlement agreement with plaintiffs. In the seventh count of the complaint, plaintiffs invoke Conn.Gen.Stat. § 7-108 which purports to waive governmental immunity for the negligent failure of a municipality to suppress a mob, riotous assembly, or group engaged in disturbing the peace.

Pending are: (1) Yale University's motion to dismiss counts two, three and four; (2) New Haven's motion for summary judgment with respect to counts three and four; (3) Yale's motion to dismiss the cross-complaint in which the City of New Haven and the individual members of its police department seek indemnification against Yale; (4) cross-motions for summary judgment with respect to counts one, two, five, and seven of the complaint filed by plaintiffs and the City of New Haven; (5) New Haven's motion to have certain questions in the case certified to the Connecticut Supreme Court; and (6) plaintiffs' motion to revise the schedule for compliance with the court's trial preparation order.

Discussion

(1) Yale's Motion to Dismiss Counts Two, Three and Four

Defendants contend that plaintiffs have no viable cause of action for public nuisance; that the parents have no cause of action for loss of consortium resulting from their daughter's injuries; and that the parents may not recover their own expenses, or loss of wages, attributable to their daughter's injuries. These arguments will be considered seriatim.

A. The Public Nuisance Claim

"Nuisances are public where they violate public rights ... that is, the rights enjoyed by citizens as part of the public." Higgins v. Connecticut Light & Power Co., 129 Conn. 606, 611, 30 A.2d 388 (1943). Defendants assert that Ms. Cimino was not exercising a public right by attending the game.

The typical public nuisance action is brought against a municipality or other governmental entity and involves public areas such as thoroughfares, waterways or parks. See, e.g., Laspino v. New Haven, 135 Conn. 603, 67 A.2d 557 (1949) (waterway).

When it comes to private property,

One who enters premises at the express or implied invitation of a tenant does not come upon them in the exercise of any public right, but is there by reason of a right extended to him by the tenant; and, if injured, the visitor to the premises cannot base his right to recover upon the existence of a public nuisance.

Webel v. Yale University, 125 Conn. 515, 524-525, 7 A.2d 215 (1939). The same principles of law apply whether the defendant is the owner of the property or a tenant in possession. Dahlstrom v. Roosevelt Mills, Inc., 27 Conn.Supp. 355, 357, 238 A.2d 431 (1967). An unguarded cable, which cut the leg of a child visiting an amusement park, was not a public nuisance. Clark v. Pierce & Norton Co., 131 Conn. 499, 40 A.2d 752 (1945). Similarly, a patron who slipped in defendant's market could not claim public nuisance. Hoffman v. Mohican Co., 136 Conn. 392, 71 A.2d 921 (1950). Public nuisance has been found inapplicable to an injury to a patron in defendant's restaurant, LaPalme v. Tottle, 16 Conn.Supp. 121 (1949); at defendant's bathing resort, Arachy v. Schopen, 22 Conn.Supp. 20, 158 A.2d 604 (1960); in defendant's store, Dahlstrom; and in defendant's parking garage, Mulcahey v. ITT, 31 Conn.Supp. 1, 318 A.2d 804 (1974).

The Yale Bowl is not alleged to be public property. That the public and Ms. Cimino, as she alleges, Complaint ¶¶ 8 and 9, are invited to view sports events there by purchasing tickets does not change the status of the property. "Members of the general public were unquestionably welcome to enter ... and even solicited to do so; nevertheless they were not entitled to do so by virtue of any public right enjoyed by citizens as part of the public." Dahlstrom, 27 Conn.Supp. at 357, 238 A.2d 431. The status of the Yale Bowl as private property is determined as a question of law, as framed by the complaint, and is not a jury question.

Plaintiffs also claim that Conn. Gen.Stat. § 52-557h, which specifically provides liability "for injury suffered ... where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof," expresses the legislature's intention to allow recovery for injury to paying users of recreational property. However, the type of recovery contemplated by the statute is that resulting from an action in negligence, not nuisance. Also, that statute is not broadly cast to embrace a claim by a spectator as opposed to one actively participating in recreational activity. Absent explicit statutory authorization, it would be improper to eliminate the public nuisance requirement that the public must have an unfettered right to go upon the property.

Accordingly, defendants' motion to dismiss the public nuisance claim is granted.

B. The Loss of Consortium Claim

Both sides agree that the Connecticut Supreme Court has not sustained a parental cause of action for the loss of consortium due to a child's injuries.

In Taylor v. Keefe, 134 Conn. 156, 56 A.2d 768 (1947), the Connecticut Supreme Court declined to recognize a child's cause of action for alienation of a parent's affection. The court expressly rejected the notion that modern conceptions of the family warranted creation of a legal right to intangible elements of affection, moral support and guidance in all family members. Id. at 161, 56 A.2d 768. Children have no valid cause of action for loss of consortium due to their mother's wrongful death. Foran v. Carangelo, 153 Conn. 356, 216 A.2d 638 (1966). These cases reflect a disinclination toward claims for loss of consortium. Indeed, only in 1979 was a cause of action for loss of spousal consortium due to personal injuries recognized. Hopson v. St. Mary's Hosp., 176 Conn. 485, 408 A.2d 260 (1979).

A child's cause of action for loss of consortium resulting from a parent's injuries has been rejected in Connecticut's trial court. See Hinde v. Butler, 35 Conn.Supp. 292, 408 A.2d 668 (1979); Reilly v. DiBianco, Conn.L.Trib., Mar. 20, 1981 at 13 (Super.Ct. Feb. 17, 1981). "Consortium is an element of a marital relationship and cannot be extended to the children of the marriage." Hinde, 35 Conn.Supp. at 296, 408 A.2d 668. Similarly, a parent's cause of action for loss of consortium resulting from a child's wrongful death has been rejected. Shattuck v. Gulliver, 40 Conn. Supp. 95, 99, 481 A.2d 1110 (1984) ("Although Connecticut has not yet addressed this precise issue, it appears that it would follow the majority of jurisdictions in denying recovery of a parent's loss of an injured or deceased child's society, love, aid and companionship.").

The federal courts in Connecticut have followed the path staked out by the state courts. See Clark v. Romeo, 561 F.Supp. 1209 (D.Conn.1983) (no recovery by child for loss of consortium due to parent's wrongful death); Thurman v. Torrington, 11 Conn.L.Trib., July 8, 1985 at 7 (D.Conn. Jan. 2, 1985) (no recovery by child for loss of consortium due to negligent injuries to parent).

The majority of jurisdictions, including Connecticut, have held to "the view that a parent may not recover, from a third-party tortfeasor, as an element of damages for injury to his child, for loss of the child's society and companionship attributable to the injury." Annot., 69 A.L.R. 3d 553, 555 (1976).

Accordingly, defendants' motion to dismiss so much of the third and fourth counts of the complaint which assert claims for loss of consortium is granted.

C. Recovery of Expenses and Lost Earnings

Defendants move to dismiss plaintiffs' claims for damages resulting from the parents' expenditures and lost earnings attributable to their daughter's injuries. Defendants contend that the expenses may only be recovered by a minor's parents,² and there is no dispute that Ms. Cimino is legally an adult. Plaintiffs contend that Ms. Cimino, though not a minor, is an unemancipated child and that there is no case or statutory authority preventing recovery for these damages.

Plaintiffs seek support in Conn.Gen. Stat. § 52-204 which provides that, if the parent of a plaintiff "has...