Crotta v. Home Depot, Inc.

• Decision Date: 20 July 1999
• Docket Number: (SC 15948)
• Citation: 249 Conn. 634,732 A.2d 767
• Court: Connecticut Supreme Court
• Parties: MICHAEL CROTTA, JR., ET AL. v. HOME DEPOT, INC., ET AL.

249 Conn. 634

732 A.2d 767

MICHAEL CROTTA, JR., ET AL. v. HOME DEPOT, INC., ET AL.

(SC 15948)

Supreme Court of Connecticut.

Argued January 12, 1999.

Officially released July 20, 1999.

Callahan, C. J., and Borden, Berdon, Norcott, Palmer, McDonald and Ment, Js. Matthew E. Frechette, with whom were Roger J. Frechette and Franz P. Frechette, for the appellants (plaintiffs).

Mark K. Ostrowski, with whom, on the brief, was Jason M. Price, for the appellee (named defendant).

Thomas H. Winslow, with whom, on the brief, were Frederick L. Murolo and Karen T. Gerber, for the appellee (defendant Tote-Cart Company).

Opinion

CALLAHAN, C. J.

The principal questions in this case, which comes to us upon our grant of certification¹ from the United States District Court for the District of Connecticut (District Court); Crotta v. Home Depot, Inc., Docket No. 3:95CV958 (PCD) (D. Conn. March 31, 1998); are whether, in the circumstances presented, the doctrine of parental immunity operates to preclude the parent of a minor plaintiff from being joined as a third party defendant for purposes of: (1) apportionment of liability; (2) contribution; or (3) indemnification based on the parent's allegedly negligent supervision of the minor plaintiff. We conclude that it does. The record certified by the District Court provides the following facts. On May 22, 1993, while shopping at a store owned by the named defendant, Home Depot, Inc. (Home Depot), in Orange, Michael Crotta, Sr. (Crotta), placed his son, the plaintiff Michael Crotta, Jr. (plaintiff), a minor, in the cargo portion of a shopping cart that was provided by Home Depot for use by its customers.² The shopping cart was manufactured by the defendant Tote-Cart Company (Tote-Cart). Crotta then guided the shopping cart to the store's hardware department, where he crouched down to examine an item of merchandise. While Crotta was examining the item, the plaintiff fell from the shopping cart and struck his head on the concrete floor, thereby sustaining serious physical injuries. Thereafter, the plaintiff, acting through his mother, Brenda Crotta, brought an action against the defendants in the Superior Court. In his complaint, the plaintiff asserted, inter alia, a product liability claim³ against both defendants on the theory that his injuries had been caused by the defective and unreasonably dangerous condition of the shopping cart. The plaintiff also asserted a common-law negligence claim against Home Depot. Upon the motion of Tote-Cart, the case subsequently was removed to the District Court.

Thereafter, Tote-Cart moved to implead⁴ Crotta for purposes of apportionment of liability pursuant to General Statutes § 52-572h (c),⁵ and for purposes of asserting a common-law claim for indemnification against him on the basis of his allegedly negligent supervision of the plaintiff. Home Depot moved for, inter alia, joinder⁶ of Crotta as a defendant for purposes of apportionment of liability on the basis of his allegedly negligent supervision of the plaintiff.

Both defendants subsequently filed third party complaints against Crotta, alleging that the plaintiffs injuries had been caused by Crotta's negligent supervision of the plaintiff. In their third party complaints, both defendants asserted claims against Crotta for apportionment of liability pursuant to § 52-572h (c), and common-law claims for indemnification. Tote-Cart subsequently amended its third party complaint to include a common-law claim against Crotta for contribution.

The District Court, acknowledging that this court has never considered whether the doctrine of parental immunity operates to bar a defendant from asserting third party claims for apportionment of liability, contribution or indemnification against the parent of a minor plaintiff on the basis of that parent's negligent supervision of the child, certified the following questions to us: "(1) In an action based on [General Statutes] § 52-572m and common law negligence, may the parent of a minor plaintiff be joined as a third-party defendant for the purpose of indemnification based on negligent supervision?"; "(2) In an action based on [General Statutes] § 52-572m and common law negligence, may the parent of a minor plaintiff be joined as a third-party defendant for the purpose of apportioning liability pursuant to [General Statutes] §§ 52-102 and 52-572h (c) based on negligent supervision?"; "(3) Does [General Statutes] § 52-584 apply to joinder of a party for purposes of indemnification, apportionment or contribution?"; "(4) If active negligence and/or active violations of [General Statutes] § 52-572m et seq. are alleged, is a defendant automatically precluded from stating a claim for indemnification under Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, (1965)?"; and "(5) In an action based on [General Statutes] § 52-572m and common law negligence may the parent of a minor plaintiff be joined as a third-party defendant for purposes of contribution based on negligent supervision?" We agreed to answer those questions.

Our analysis begins with the doctrine of parental immunity. This doctrine 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); Squeglia v. Squeglia, 234 Conn. 259, 264-65, 661 A.2d 1007 (1995); Dubay v. Irish, 207 Conn. 518, 523, 542 A.2d 711 (1988). "Under this doctrine a parent is not liable civilly to his child for personal injury inflicted during [the child's] minority .... Mesite v. Kirchenstein, 109 Conn. 77, 82-83, 145 A. 753 (1929)." (Internal quotation marks omitted.) Dubay v. Irish, supra, 523.

The parties do not dispute that the parental immunity doctrine shields Crotta from liability to the plaintiff for his allegedly negligent supervision of the plaintiff. The defendants nevertheless maintain that the doctrine of parental immunity does not operate to bar them from asserting against Crotta, on the basis of his allegedly negligent supervision of the plaintiff, claims for apportionment of liability pursuant to § 52-572h (c), common-law contribution and common-law indemnification.

I

For purposes of clarity, we depart from the order of questions certified to us from the District Court and begin with the second certified question, which addresses the defendants' statutory claim for apportionment of liability.

Section 52-572h, which governs the apportionment of liability among multiple tortfeasors, provides in relevant part: "(c) ... [I]f the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for his proportionate share of the recoverable economic damages and the recoverable noneconomic damages...." (Emphasis added.) Thus, the language of § 52-572h (c) explicitly provides for apportionment of liability only among those parties from whom the plaintiff is entitled to recover damages. It is undisputed that, in the present case, the doctrine of parental immunity precludes the plaintiff from recovering damages from Crotta. Consequently, § 52-572h does not provide a basis for the defendants to assert a claim against Crotta for apportionment of liability in connection with his allegedly negligent supervision of the plaintiff.

II

We turn our attention now to the fifth question certified, which addresses the defendants' common-law claims for contribution.⁷ "Contribution is `a payment made by each, or by any, of several having a common interest or liability of his share in the loss suffered, or in the money necessarily paid by one of the parties in behalf of the others.'" Fidelity & Casualty Ins. Co. v. Sears, Roebuck & Co., 124 Conn. 227, 231, 199 A. 93 (1938); 18 Am. Jur. 2d, Contribution § 1 (1985). "The right of action for contribution, which is equitable in origin, arises when, as between multiple parties jointly bound to pay a sum of money, one party is compelled to pay the entire sum. That party may then assert a right of contribution against the others for their proportionate share of the common obligation. Kaplan v. Merberg Wrecking Corporation, [supra, 152 Conn. 412]; Fidelity & Casualty Ins. Co. v. Sears, Roebuck & Co., [supra, 231-32]; Azzolina v. Sons of Italy, 119 Conn. 681, 692, 179 A. 201 (1935); Waters v. Waters, 110 Conn. 342, 345, 148 A. 326 (1930); Bulkeley v. House, 62 Conn. 459, 467, 26 A. 352 (1893)." (Emphasis added.) Hanover Ins. Co. v. Fireman's Fund Ins. Co., 217 Conn. 340, 353, 586 A.2d 567 (1991).

"As a general proposition, [however] a tortfeasor compelled to discharge a liability for a tort cannot recover contribution from a joint tortfeasor whose participation therein gave the injured person no cause of action against him, since the element of common liability of both tortfeasors to the injured person, essential to the right of contribution, is lacking in such cases...." (Emphasis added.) 25 A.L.R.4th 1123, Joint Tortfeasor Contribution—Family §§ 2 [a] (1983); 18 Am. Jur. 2d, supra, § 65. "The contribution defendant must be a tortfeasor, and originally liable to the plaintiff. If there was never any such liability, as where the contribution defendant has the defense of family immunity ... then there is no liability for contribution." (Emphasis added.) W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 50, pp. 339-40; 18 C.J.S., Contribution § 29 (1990) (recognizing that third party may not recover contribution against parent where child has no cause of action against parent for negligent supervision). Again, it is undisputed that, in the present case, the doctrine of parental immunity bars Crotta from being held liable to the plaintiff. Consequently, the defendants have no basis upon which to assert a common-law claim for contribution against Crotta on the basis of his allegedly negligent supervision of the plaintiff.⁸

III

We next consider the first question certified, which pertains to the...