Doe v. British Universities North American Club

• Decision Date: 07 April 1992
• Docket Number: Civ. No. H-90-657 (AHN).
• Citation: 788 F. Supp. 1286
• Parties: Richard DOE, Guardian and Next Friend of John Doe, A Minor v. BRITISH UNIVERSITIES NORTH AMERICAN CLUB; Bunac Travel Services, Limited; Bunac U.S.A., Inc.; Long Rivers Council, Inc.; and the Boy Scouts of America, Inc.
• Court: U.S. District Court — District of Connecticut

788 F. Supp. 1286

Richard DOE, Guardian and Next Friend of John Doe, A Minor v. BRITISH UNIVERSITIES NORTH AMERICAN CLUB; Bunac Travel Services, Limited; Bunac U.S.A., Inc.; Long Rivers Council, Inc.; and the Boy Scouts of America, Inc.

Civ. No. H-90-657 (AHN).

United States District Court, D. Connecticut.

April 7, 1992.

COPYRIGHT MATERIAL OMITTED

Douglas B. Thayer, Wieselman, Horowitz & Thayer, Hartford, Conn., for plaintiff.

Edward J. Daly, Jr., Hartford, Conn., Gerald S. Sack, Thomas P. Barrett, Sack, Spector & Barrett, West Hartford, Conn., for defendants.

RULING ON MOTIONS FOR SUMMARY JUDGMENT

NEVAS, District Judge.

Richard Doe, in his capacity as guardian and next friend of John Doe, a minor, (hereafter collectively referred to as "Doe") brings this diversity action against British Universities North America Club ("BUNAC"), BUNAC Travel Services, Limited ("BTS"), BUNAC U.S.A., Long Rivers Council, Inc. ("LRC"), and the Boy Scouts of America ("BSA"). The action arises from an incident on August 16, 1989 in which John Doe was allegedly sexually assaulted by a camp counselor, Mark Drummond ("Drummond"), at Camp Workcoeman, a summer camp operated by LRC and BSA. The six count complaint alleges: (1) all defendants negligently hired Drummond as a counselor; (2) BSA and LRC negligently supervised Drummond; (3) all defendants are liable for Drummond's conduct under the doctrine of respondeat superior; (4) the negligent infliction of emotional distress by all defendants; (5) the conduct of all defendants was malicious; and (6) all defendants violated the Connecticut Unfair Trade Practices Act ("CUTPA"). BUNAC, BTS, and BUNAC USA (hereinafter collectively referred to as the "BUNAC defendants") file a joint motion for summary judgment on all counts. LRC and BSA (hereinafter collectively referred to as the "Boy Scouts") file a separate joint motion for summary judgment on all counts. Doe oppose both motions. For the reasons below, the court grants the BUNAC defendants' motion for summary judgment and denies the Boy Scouts' motion for summary judgment.

The Facts

The court finds the following facts undisputed:

1. BUNAC is legal entity, owned and operated in the United Kingdom as a student membership club. BTS is a wholly owned British service company of BUNAC. BUNAC, USA is a wholly owned service company in the United States. (Buck Aff. ¶ 3.)

2. BSA is a non-profit corporation chartered by Congress in 1916, see 36 U.S.C. § 21, et seq., with its principal office in Irving, Texas.

3. LRC is a local council chartered by BSA.

4. Pursuant to an agreement with LRC, BUNAC screens, interviews, and places job applicants who wish to work as camp counselors in the United States. BUNAC only provides placement services to applicants who are members of its organization. (See Seiser Dep. at 64-76; Liberis Dep. at 128; Buck Dep. at 63; Pltf.'s Mem.Opp.Ex.D.)

5. LRC manages a scout camp facility in Connecticut called Camp Workcoeman (the "Camp"). (See Pltf.'s Mem.Opp.Ex.F; Buck Aff. ¶ 9.)

6. Drummond is a citizen of the United Kingdom. In January of 1987, Drummond filed an application with BUNAC to be a camp counselor in the United States. Between January and February, 1987, BUNAC processed the application, interviewed Drummond, and recommended him for hire by a summer camp in the United States. (Buck Aff. ¶¶ 5-7.)

7. On March 24, 1987, LRC notified BUNAC that Drummond had been accepted as a camp counselor at Camp Workcoeman. (Buck Aff. ¶ 8.)

8. Following Drummond's initial acceptance, BUNAC arranged transportation and a VISA for Drummond for the years that Drummond worked at the Camp, including 1988 and 1989. In return, Drummond paid BUNAC a fee deducted from his salary to cover these costs. In 1989 that fee was 610.00. In addition, BUNAC sent representatives each summer to the Camp to make a one time check on Drummond's status. (Pltf.'s Mem.Opp.Ex.D; Buck Dep. at 82-83.)

9. Drummond received an outstanding performance evaluation at the end of the summer of 1987, and was invited back for the following summer of 1988. (Buck Aff. ¶¶ 10-14.)

10. Drummond negotiated and entered into a contract directly with LRC and the Camp for 1988. (Id.; see also Def. BUNAC's Mem.Supp.Ex.D.)

11. Once again, Drummond received outstanding reviews from the Camp's staff, parents, and the counselors and was invited back for the summer of 1989. (Buck Aff. ¶ 12; see also Def. BUNAC's Mem.Supp. Ex. F, G, H.)

12. Drummond and the Camp entered into another contract for the summer of 1989. Again, the contract was directly between Drummond and the LRC. (Def. BUNAC's Mem.Supp.Ex.H.)

13. On or about August 16, 1989 at approximately 8:00 p.m., Drummond engaged in sexual conduct with John Doe, a fourteen year old camper at the Camp. (See Pltf.'s Mem.Opp.Ex.M, N.)

14. Throughout his employment as a counselor at the Camp, Drummond was directly supervised and evaluated by Mr. Louis Seiser ("Seiser"), the Director of the Camp. (Def. BUNAC's Mem.Supp.Ex.F.)

Discussion

In a motion for summary judgment, the moving party bears the burden of establishing that no genuine issues of material fact are in dispute and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Rule 56(c) mandates summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which the party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). All factual inferences are drawn in favor of the nonmoving party. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989). Applying these rules, the court finds that the BUNAC defendants are entitled to summary judgment on all counts. Conversely, the court finds that summary judgment is inappropriate with respect to the Boy Scouts.

A. The BUNAC Defendants

The BUNAC defendants contend that they are entitled to summary judgment on several grounds. First, they argue that BUNAC did not owe Doe a legally cognizable duty and, thus, cannot incur liability for any claim predicated on negligence. Second, the BUNAC defendants assert that Doe cannot establish causation, as a matter of law, between any alleged negligence on the part of BUNAC and the injuries suffered by John Doe as a result of Drummond's conduct. Third, the BUNAC defendants contend that Doe's CUTPA claim is barred by the applicable statute of limitations and that the conduct complained of falls outside the scope of the CUTPA statute.¹ The court agrees.

1. BUNAC's Legal Duty

Negligence is often defined as "`a breach of duty.'" Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). It is axiomatic, therefore, that "where there is no legal duty, there can be no actionable negligence." Frankovitch v. Burton, 185 Conn. 14, 20, 440 A.2d 254 (1981). "`Unless some relationship exists between the person injured and the defendant, by which the latter owes a duty to the former, there can be no liability for negligence.'" Burton, 185 Conn at 20, 440 A.2d 254, quoting Neal v. Shiels, Inc., 166 Conn. 3, 12, 347 A.2d 102 (1974); see also McDowell v. Federal Tea Co., 128 Conn. 437, 440, 23 A.2d 512 (1941).

In considering a claim of negligence, courts distinguish between the existence of a legal duty and the actual violation of that duty by the defendant. Shore, 187 Conn. at 151, 444 A.2d 1379. The former is "a question of law" to be decided by the court. Id., citing Nolan v. New York, N.H. & H. R.R., 53 Conn. 461, 471, 4 A. 106 (1885). The latter, is an issue of fact, to be decided by the trier of fact "only if such a duty is found to exist ..." by the court. Id. Accordingly, whether BUNAC owed Doe a duty of care in this case is a matter of law properly determined on a motion summary judgment.

BUNAC's role in this action is best analogized to that of an employment agency. BUNAC, pursuant to an agreement with LRC, screens, interviews, and places members of its organization who wish to work as camp counselors in the United States. (See Seiser Dep. at 64-76; Liberis Dep. at 128; Buck Dep. at 63; Pltf.'s Mem. Opp. Ex. D.) BUNAC interviewed Drummond and recommended him for hire in 1987. (Buck Aff. ¶¶ 7-8; Def. BUNAC's Mem. Supp. Ex. A, B, C.) Once BUNAC recommended Drummond, LRC and Drummond negotiated an employment contract directly. (Buck Aff. ¶ 8; Pltf.'s Mem. Opp. Ex. F.) Thus, after Drummond's initial placement with LRC at the Camp, BUNAC's contact with Drummond was limited to arranging a visa, transportation, and checking with the Camp during the course of the summer to be certain there were no problems. (See Buck Dep. at 82-84; Pltf.'s Mem. Opp. Ex. D.)

Once Drummond entered into the contract with LRC, he became their employee not BUNAC's. Drummond was paid, supervised, and evaluated by LRC. (See Pltf.'s Mem. Opp. Ex. D, F; Def. BUNAC's Mem. Supp. Ex. D, E; Buck Aff. ¶¶ 10-14.) Conversely, there is no evidence to support the claim that BUNAC hired Drummond or that Drummond was BUNAC's employee. (Cf. Pltf.'s Mem. Opp. Ex. D, F.) At best, BUNAC worked for Drummond, attempting to place him with a summer camp in the United States and assisting him with his travel and immigration. The court, therefore, considers Doe's claim that BUNAC owed Doe a duty of care in the context of BUNAC's role as a placement agency for counselors.

In the absence of any direct Connecticut law on the issue, the court turns to Gutzan v. Altair Airlines, Inc., 766 F.2d 135 (3rd Cir.1985). Gutzan addresses the scope and nature of the duty owed by an employment agency for the criminal conduct of a person referred by that agency for hire. In Gutzan, an employment agency referred a person with a previous criminal conviction for raping a co-worker while in the military. The...