Doe v. Burns, No. CV-03-0100254-S (CT 7/19/2005), CV-03-0100254-S
| Decision Date | 19 July 2005 |
| Docket Number | No. CV-03-0100254-S,CV-03-0100254-S |
| Court | Connecticut Supreme Court |
| Parties | Jennifer Doe v. James Burns et al. Opinion No.: 89977 |
The defendants, Alice Duckworth, Regional School District Number 4 (RSD #4) and Supervisory Combination District (SCD), have moved for summary judgment on all counts of the plaintiff's Complaint of January 24, 2003 (the "Complaint").1 The Complaint contains nine counts. After the defendants filed their Motion for Summary Judgment, the plaintiff filed a Request to Amend her Complaint so that only Counts Three, Five, Six, Seven and Nine are directed at the moving defendants. The Amended Complaint is not the subject of the motion under consideration here. However, the plaintiff has indicated that she is considering Counts One, Two, Four and Eight to have been withdrawn as to the moving defendants.
The facts are largely undisputed. During the 1977-78 school year, the plaintiff was an 8th grader at the John Winthrop Junior High School in Deep River, Connecticut. The defendant, James Burns, was a math teacher at the school and the coach of the girl's basketball team. During the plaintiff's 8th grade school year she developed a close friendship with Burns. She viewed him as a father figure and confided in him about her poor relationship with her own father.
Burns' classroom was a well-known morning gathering place for many young girls. It was also well known that Burns was very friendly with many female students but not friendly with male students. In the spring of 1978 Burns picked the plaintiff up at her house and brought her as his "date" for an 8th grade awards dinner. During the summer of 1978 Burns asked the plaintiff and another female student to clean his house and mow his lawn. While the plaintiff was at Burns' house for house cleaning he kissed her and touched her inappropriately. He also asked the plaintiff to lie on top of him, but she refused.
In the fall of 1978 the plaintiff told her mother about her sexual encounter with Burns. The plaintiff's mother contacted the plaintiff's uncle, who was the Commissioner of the State Police. The Commissioner contacted defendant Duckworth, Superintendent of Schools, to advise her that Burns engaged in inappropriate conduct of a sexual nature with his niece.
The plaintiff's mother also complained directly to the defendant Duckworth and to Tim Doyle, the principal of the school, about Burns' inappropriate sexual actions. The defendants failed to take any action to investigate the allegations as to Burns.2 The plaintiff suffered emotional distress as a result of the defendants' conduct.
Practice Book §17-49 (formerly §384) provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fojtik v. Hunter, 265 Conn. 385, 389, 828 A.2d 596 (2003); Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002); Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978); Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44, 659 A.2d 1226 (1995).
Summary judgment should only be granted if the pleadings, affidavits and other proof submitted demonstrate that there is no genuine issue as to any material fact. Scinto v. Stam, 224 Conn. 524, 530, cert. denied, 114 S.Ct. 176, 126 L.Ed.2d 136 (1993); Connell v. Colwell, 214 Conn. 242, 246, 571 A.2d 116 (1991). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
The plaintiff has alleged that RSD#4 and SCD are vicariously liable for Burns' negligent conduct in the Third, Fifth and Sixth Counts of the Complaint. The liability of those defendants is based on Connecticut General Statutes §52-557n, which provides in pertinent part:
(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; . . .
This section is a partial codification of the common-law doctrine of respondeat superior, under which a master is liable for the negligent or wilful torts of his servant committed within the scope of the servant's employment and in furtherance of his master's business. Cardona v. Valentin, 160 Conn. 18, 273 A.2d 697 (1970); Antinozzi v. A. Vincent Pepe Co., 117 Conn. 11, 13, 166 A. 392 (1933); Son v. Hartford Ice Cream Co., 102 Conn. 696, 699, 129 A. 778 (1925); Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 500, 656 A.2d 1009 (1995). But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply. Mitchell v. Resto, 157 Conn. 258, 262, 253 A.2d 25 (1968); A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 208. "While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful"; Butler v. Hyperion Theatre Co., 100 Conn. 551, 554, 124 A. 220 (1924), quoting Loomis v. Hollister, 75 Conn. 718, 723, 55 A. 561 (1903); that does not end the inquiry. Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business . . . Butler v. Hyperion Theatre Co., supra, 556." A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 210, 579 A.2d 69 208. Unless the employee is actuated at least in part International Distributing Corporation v. American District Telegraph Co., 569 F.2d 136, 139 (D.C.Cir. 1977).
Whether the employee was acting within the scope of his authority is often a question of fact. However, where the alleged acts of the employee are very clearly outside of the scope of his authority, the Courts of this state have considered the issue to be one of law. Brown v. Housing Authority, 23 Conn.App. 621, 628, 583 A.2d 643 (1990). In Brown the plaintiff and Sam Jones, a maintenance mechanic employed by the defendant, were involved in an altercation which began when the plaintiff asked Jones, who was driving a van owned by the defendant to a job site, to move his vehicle, which was blocking traffic. The two men exchanged words. When Jones refused to move the van, the plaintiff drove around it. Jones followed the plaintiff in the van, rear-ending the plaintiff's car several times. The plaintiff stopped his car and got out to speak with Jones. Jones also exited his vehicle, grabbed a hammer, chased the plaintiff around the car and struck him on the chest with the hammer, seriously injuring the plaintiff. In affirming a summary judgment in favor of the defendant employer, the Court said:
It is clear in the present case that Jones was not furthering the defendant's business interests when he assaulted the plaintiff. His intentional, criminal acts were in no way connected to the defendant's business. The mere fact that Jones was driving from one job site to another when the assault took place does not change this analysis. "`In the course of his employment' means while engaged in the service of the master, and it is not synonymous with the phrase `during the period covered by his employment.'" Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193, 198, 239 A.2d 490 (1968). As there were no facts before the court from which it could conclude that Jones was furthering the defendant's interests, the defendant's nonliability under the theory of respondeat superior was properly determined as a matter of law.
Courts of this state have held as a matter of law that when the tortfeasor-employee's activity with the alleged victim became sexual, the employee abandoned and ceased to further the employer's business. Gutierrez v. Thorne, 13 Conn.App. 493, 537 A.2d 527 (1988); Nutt v. Norwich Roman Catholic Diocese, 921 F.Sup. 66 (D.Conn. 1995) Maule v. Sullivan, Hartford/New Britain J.D. at Hartford. No. CV-92-05176235 (Wagner, J.) (9 Conn. L. Rptr. 542), 1993 Conn.Super. LEXIS 1994. In Maule Judge Wagner found that an alleged sexual assault perpetrated on a hospital patient by a nurse was "clearly outside the scope of his employment." In granting the hospital's motion to strike the plaintiff's respondeat superior claim, Judge Wagner stated: ...
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