Colman v. Notre Dame Convalescent Home, Inc., Civil Action No. 3:96 CV 0486(GLG).

• Citation: 968 F.Supp. 809
• Decision Date: 07 July 1997
• Docket Number: Civil Action No. 3:96 CV 0486(GLG).
• Parties: Corrine COLMAN, Plaintiff, v. NOTRE DAME CONVALESCENT HOME, INC. and Gail Kemp, Conservator of the Person of mary Denittis and Mary Denittis, Individually, Defendants.
• Court: U.S. District Court — District of Connecticut

968 F.Supp. 809

Corrine COLMAN, Plaintiff, v. NOTRE DAME CONVALESCENT HOME, INC. and Gail Kemp, Conservator of the Person of mary Denittis and Mary Denittis, Individually, Defendants.

Civil Action No. 3:96 CV 0486(GLG).

United States District Court, D. Connecticut.

July 7, 1997.

L. Douglas Shrader, R. Kelley Franco, Shrader & Knapp, Westport, CT, for Corrine Colman.

Carolyn Roberts Linsey, Owens, Schine, Nicola & Donahue, Trumbull, CT, for Notre Dame Convalescent Home, Inc.

Richard H. Raphael, Westport, CT, for Gail Kemp, Mary Denittis, I.

MEMORANDUM DECISION

GOETTEL, District Judge.

This a motion for summary judgment by defendants Gail Kemp, Conservator of the Person of Mary Denittis., and Mary Denittis, individually (collectively "Denittis"). Denittis moves for summary judgment on counts two (negligence) and three (battery) of plaintiff Corrine Colman's ("Colman") complaint. We have supplemental jurisdiction over this matter pursuant to 28 U.S.C. § 1367(a), as plaintiff's first count brought against defendant Notre Dame Convalescent Home, Inc. arises under the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. For the following reasons, defendant's motion (document # 47) is GRANTED in part and DENIED in part.

FACTS

The material facts related to this motion are not in dispute. Plaintiff is a recreational therapist employed by defendant Notre Dame Convalescent Home. Plaintiff is completely blind.

Defendant Denittis suffers from senile dementia and has been a resident of the convalescent home since November, 1994. She was admitted sometime after being declared an incompetent person in a probate proceeding in the New Canaan Probate Court on August 11, 1993.¹ It is undisputed that, as a result of her condition, defendant suffers from severe memory deficit and confusion.

On May 17, 1995, while plaintiff vas entertaining residents of the convalescent home by playing her guitar, Denittis wrestled the guitar away from plaintiff and used it to beat her on the head. As a result of the attack, plaintiff suffered injuries and was unable to work for three weeks. Plaintiff returned to work in June, 1995. Approximately two months later, on August 30, 1995, Denittis again attacked plaintiff, causing her to lose her balance and fall. As result of this incident, plaintiff injured her cervical and lumbar spines. Plaintiff claims that, as a result of these suffers from depression, post-traumatic stress disorder, and panic disorders. She has not yet returned to work at the convalescent home.

DISCUSSION

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In determining whether or not the record presents genuine issue for review, the court must resolve all factual disputes in favor of the non-moving party. See Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). "If, as to any issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Gummo v. Village of Depew, N.Y., 75 F.3d 98, 107 (2d Cir.) cert. denied, ___ U.S. ____, 116 S.Ct. 1678, 134 L.Ed.2d 780 (1996). The party seeking summary judgment bears the burden of demonstrating the absence of any genuine factual dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)

Count Three: Battery

Denittis argues that she is entitled to summary judgment on plaintiff's third count, which alleges battery, on the grounds that she "is unable to comprehend her actions and act as a reasonable person [and] she is unable to form the intent necessary to commit an intentional tort." Defendant's Memorandum of Law, p. 8.

However, the Connecticut Supreme Court has held otherwise. In Polmatier v. Russ, 206 Conn. 229, 537 A.2d 468 (1988), the Court adopted the rule followed by the majority of jurisdictions to have considered the issue that insane persons may be held liable for their intentional torts. Id. at 234, 537 A.2d 468. In so doing, the Court. reasoned that such liability was consistent with "the common law principle that where one of two innocent persons must suffer loss from an act done, it is just that it should fall on the one who caused the loss rather than upon the other who had no agency in producing it and could not by any means have avoided it." Id. at 236, 537 A.2d 468 (internal quotations omitted). Accordingly, defendant's motion for summary judgment on court three is denied.

Count Two: Negligence

Denittis also argues that she is entitled to summary judgment on plaintiff's second count which alleges negligence. Her principle argument is that, as an individual suffering from senile dementia, she is incapable of acting reasonably, and therefore her behavior should not be evaluated against that of the "reasonably prudent person", as is required by Connecticut law.

While there are no Connecticut Supreme Court cases on that point, courts of other jurisdictions which have considered the issue unanimously have adopted the common law rule that an insane or mentally disordered person is civilly liable for injuries resulting from her negligence. See Bashi v. Wodarz, 45 Cal.App.4th 1314, 53 Cal.Rptr.2d 635, 641 (1996); Delahanty v. Hinckley, 799 F.Supp. 184, 187 (D.D.C.1992); C.T.W. v. B.C.G., 809 S.W.2d 788, 793 (Tex.Ct.App.1991); Mujica v. Turner, 582 So.2d 24, 25 (Fla.Dist.Ct.App. 1991) (recognizing majority rule, but applying exception); Goff v. Taylor, 708 S.W.2d 113, 115 (Ky.Ct.App.1986); Schumann v. Crofoot, 43 Or.App. 53, 602 P.2d 298, 301 (1979) (affirming trial court's instruction that defendant's mental state was not a defense to negligence); Banks v. Dawkins, 339 So.2d 566, 568 (Miss.1976); Kuhn v. Zabotsky, 9 Ohio St.2d 129, 224 N.E.2d 137, 141 (1967); Johnson v. Lambotte, 147 Colo. 203, 363 P.2d 165, 166 (1961) (adopting general rule stated in 44 C.J.S. Insane Persons § 122, p. 281 that "an insane person may be liable for his torts the same as a sane person").

The reasoning behind those decisions is one of public policy. Such a rule avoids "[t]he difficulty of drawing any satisfactory line between mental deficiency and those variations of temperament, intellect, and emotional balance which cannot, as a practical matter be taken into account in imposing liability for damage done." This rule also avoids "the difficulties which the triers of fact must encounter in determining [the] existence, nature, degree, and effect [of mental illness]." Comments to Restatement (Second) of Torts § 283B. The rule further expresses the belief that "if mental defectives are to live in the world they should pay for the damage they do ... [and] that their liability will mean that those who have charge of them or their estates will be stimulated to look after them, keep them in order, and see that they do not do harm." Id.²

We conclude, therefore, that the inability to act rationally is not, per se, a bar to liability for negligence. However, in a recent Connecticut Supreme Court case, Jawarski v. Kiernan, 241 Conn. 399, (Sup.Ct.1997) (holding that adult participants on opposing sports teams owe duty to refrain from only reckless or intentional conduct toward other participants), the Court set forth the analysis to be followed in determining negligence liability generally:

Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owned, are determined by the circumstances surrounding the conduct of the individual. Although it has been said that no universal test for duty ever has been formulated, our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that ha may result if it is not exercised. By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary person in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally "foreseeable," yet for pragmatic reasons, no recovery is allowed. A further inquiry must be made, for we recognize that "duty" is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.

Jawarski v. Kiernan, 241 Conn. 399, ____, 696 A.2d 332, ____ (Sup.Ct.1997).

Applying the above analysis, to the undisputed facts of this case, we conclude that Denittis is not liable for injuries suffered by Colman as a result of defendant's negligence. Plaintiff's injuries were certainly foreseeable, as Denittis was confined to the convalescent home because she was incapable of caring for herself or controlling her behavior. In addition, while some courts have expressed concern over the difficulties which...