Doe v. Saint Francis Hosp. & Med. Ctr.

• Decision Date: 16 July 2013
• Docket Number: SC18912
• Court: Supreme Court of Connecticut
• Parties: DOE v. SAINT FRANCIS HOSPITAL & MEDICAL CENTER

DOE v. SAINT FRANCIS HOSPITAL & MEDICAL CENTER

SC18912

Supreme Court of Connecticut

July 16, 2013

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DISSENT

ZARELLA, J., dissenting. In this appeal involving the sexual exploitation of the plaintiff, Tim Doe #1, by the late George E. Reardon, a physician formerly employed by the defendant, Saint Francis Hospital and Medical Center (hospital), the majority rejects all three of the hospital's jury instruction claims. I agree with the majority's conclusion as to one of those claims, namely, that the trial court properly instructed the jury regarding the existence of a custodial relationship between the plaintiff and the hospital. I strongly disagree, however, with the majority's other conclusions that the trial court properly declined to give the hospital's requested instructions as to knowledge of propensity and use of the hospital's bylaws¹ to establish the standard of care. In my view, both instructions were required by our law, and each instructional error was independently harmful, thus requiring reversal of the trial court's judgment.

With respect to the requested propensity instruction, the plaintiff, the hospital and the trial court all viewed count one of the plaintiff's complaint as a negligent supervision claim in which a key component of the plaintiff's proof would be whether the hospital knew or should have known of Reardon's propensity to sexually abuse children. When it came time to give the jury instructions, however, the court failed to give a charge on actual or constructive notice, despite requests to do so from the plaintiff and the hospital. The court instead gave a charge consistent with the Connecticut Model Civil Jury Instructions on general negligence. For this reason alone, the judgment should be reversed.

On appeal, in order to counter the hospital's claim that the jury charge was improper, the plaintiff argues for the first time that count one was a general negligence claim² for which no charge on notice was necessary and, therefore, the charge given was correct. The majority agrees with the plaintiff's position on appeal that count one was a general negligence claim. The majority is thus faced with a dilemma. Ordinarily, the criminal acts of a third person are deemed unforeseeable as a matter of public policy. There is an exception to this rule, however, in § 302 B of the Restatement (Second) of Torts, that permits a finding of negligence for a third party's criminal acts. Even though the plaintiff neither sought a charge under that section, nor tried the case under that section, nor raised that section on appeal, the majority latches onto it to uphold the jury verdict and concludes that the jury was entitled to determine whether the hospital was liable under § 302 B. Nevertheless, the verdict should be reversed under that theory as well because the trial court did not instruct the jury under § 302 B and the charge was thus insufficient asa matter of law.

With respect to the second instructional issue, the majority concludes that the trial court was not required to give a jury charge that the hospital's bylaws did not establish the legally applicable standard of care in the relevant community because the plaintiff's expert witness testified that the bylaws coincided with that standard. A reading of the transcript, however, shows that this was not the case. The expert witness repeatedly described the hospital's bylaws as the ''rules of the road'' or the ''standard of care'' established by the hospital for governing its daily operations and business. He did not state that the hospital's bylaws coincided with or were consistent with the legally applicable standard of care in the relevant community, nor did he connect the bylaws, by implication or otherwise, with that standard. Accordingly, I respectfully dissent from the majority opinion and would remand the case for a new trial.

I

PROPENSITY INSTRUCTION

AImproper Characterization of the Record

I first disagree with the majority's characterization of the plaintiff's corporate negligence claim as predicated on principles of general negligence, which provides the foundation for its subsequent analysis and conclusion that there was no need for a propensity instruction in connection with that claim. See footnotes 29 and 37 of the majority opinion. Contrary to the conclusion of the majority, count one of the plaintiff's complaint sets forth a classic negligent supervision claim, which requires a plaintiff to plead and prove that he ''suffered an injury due to the defendant's failure to supervise an employee whom the defendant had a duty to supervise.'' Roberts v. Circuit-Wise, Inc., 142 F. Supp. 2d 211, 214 (D. Conn. 2001). The complaint specifically alleges that Reardon was employed by the hospital and that the hospital breached its duty in that it ''failed to properly monitor and supervise Reardon'' and ''allowed Reardon to conduct a purported growth study . . . without . . . monitoring him in any way . . . .''

The trial court also characterized count one as a negligent supervision claim in its June 2, 2011 memorandum of decision on the hospital's motion for summary judgment, in which it stated that the plaintiff's two negligence claims ''sound in negligent supervision, monitoring and retention of Reardon and breach of a special duty to protect [the plaintiff]''; (emphasis added); and that the claims were ''based upon the underlying allegations of the sexual abuse of a minor . . . by Reardon as [the hospital's] employee.'' Thereafter, the court repeatedly characterized count one as alleging negligent supervision, including in its instructions to the jury, when it stated that the issue in count onewas whether the hospital ''was . . . negligent in its supervision of [Reardon] in that it failed to monitor or supervise . . . Reardon's activities," that, ''[i]n the first count, the plaintiff contends that [the hospital] was negligent in that . . . [t]he hospital failed to properly monitor and supervise [Reardon],'' and that, ''[i]f you find that [the hospital] was negligent in either its supervision of . . . Reardon or relative to a special duty it owed to the plaintiff as a child, you must next decide if such negligence was a legal cause of any of the plaintiff's claimed injuries.'' (Emphasis added.)

Furthermore, the plaintiff himself proposed an instruction in his June 10, 2011 preliminary request to charge, stating that, ''[i]f you find that [the] hospital failed to reasonably supervise . . . Reardon and failed to reasonably inspect and oversee his activities, then it is liable for all harms proximately caused by the failure to supervise or inspect." (Emphasis added.) The plaintiff similarly argued in his July 11, 2011 objection to the hospital's motion for a directed verdict following the conclusion of the evidence: ''The central issue is whether the hospital, in its capacity as employer, premises owner and research institution, failed to supervise and monitor . . . Reardon's interactions with the minor plaintiff in the course of a 'growth study' funded by the hospital.'' (Emphasis added.) Likewise, in his August 2, 2011 memorandum of law in opposition to the hospital's postverdict motions, the plaintiff emphatically stated: ''This case is not as complicated as [the hospital] wants it to be. To the contrary, it is this simple: [the] hospital failed completely to provide supervision over an employee whom it knew was taking photographs of the genitalia of many naked children in an isolated location, over numerous years, without parents present. The hospital funded and supported . . . Reardon's 'growth study but provided no supervision whatsoever. (Emphasis altered.)

The hospital also characterized count one as sounding in negligent supervision, including in its June 10, 2011 request to charge and in its proposed interrogatories and special verdict form dated June 13, 2011. The foregoing representations were made either immediately before the trial or after the trial took place in June and July of 2011. Finally, in repeatedly acknowledging that notice of Reardon's propensity to sexually abuse children was a central issue in the case, including at the hearing on the hospital's motion to sever,³ the plaintiff, the hospital and the trial court indicated their understanding that count one of the plaintiff's complaint alleged negligent supervision, not general negligence.⁴ Indeed, the majority itself characterizes count one as alleging negligent supervision when it declares that ''the plaintiff was entitled to a jury determination of whether, under all of the circumstances, the hospital's complete...