Dubay v. Irish, No. 13239

CourtSupreme Court of Connecticut
Writing for the CourtBefore PETERS; CALLAHAN
Citation207 Conn. 518,542 A.2d 711
PartiesKevin G. DUBAY, Conservator (ESTATE OF Elizabeth IRISH) v. Inasita IRISH.
Decision Date17 May 1988
Docket NumberNo. 13239

Page 711

542 A.2d 711
207 Conn. 518
Kevin G. DUBAY, Conservator (ESTATE OF Elizabeth IRISH)
v.
Inasita IRISH.
No. 13239.
Supreme Court of Connecticut.
Argued Feb. 3, 1988.
Decided May 17, 1988.

[207 Conn. 519]

Page 712

Rebecca B. Lamont, West Hartford, with whom, on the brief, was Steven L. Seligman, Hartford, for appellant (plaintiff).

Mark V. Connolly, with whom was James G. Kenefick, Jr., New Haven, for appellee (defendant).

Before [207 Conn. 518] PETERS, C.J., and SHEA, CALLAHAN, GLASS and HULL, JJ.

[207 Conn. 519] CALLAHAN, Associate Justice.

The plaintiff, Kevin G. Dubay, as conservator of the estate of Elizabeth Irish, filed the instant appeal from the judgment of the trial court, Noren, J., rendered in favor of the defendant, Inasita Irish, the mother of the plaintiff's incompetent. The trial court granted the defendant's motion for summary judgment, ruling that the first count of the plaintiff's amended complaint, sounding in negligence, was barred by the doctrine of parental immunity, and that the second count, sounding in wilful, wanton and/or reckless conduct, was barred by the statute of limitations. On appeal, the plaintiff raises the following issues: (1) whether the parental immunity doctrine bars the maintenance of a tort action against a parent by an unemancipated child who comes of age prior to filing the action; (2) whether the doctrine of parental immunity is a bar in a case where a parent is covered by liability insurance; (3) whether the parental immunity [207 Conn. 520] doctrine violates

Page 713

article first, §§ 10 and 20 of the Connecticut constitution; and (4) whether the allegations of wilful, wanton and/or reckless conduct set forth in the second count of the amended complaint assert a new cause of action so as to be barred by the statute of limitations. We find no error.

The relevant facts are not in dispute. On March 11, 1983, Elizabeth Irish (hereinafter Elizabeth), the seventeen and one-half year old daughter of the defendant, stayed home from school complaining of an upset stomach. Prior to leaving for work that day, the defendant looked in on Elizabeth and found her sleeping. Thereafter, the defendant went to work and afterward did her grocery shopping before returning home at approximately 8 p.m. Elizabeth greeted the defendant on her return and took a container of yogurt from the groceries the defendant had purchased. Subsequently, Elizabeth refused to eat her dinner and at approximately 9:15 p.m., the defendant heard her daughter vomiting. While attempting to render aid, the defendant learned that Elizabeth had ingested a large number of pills of assorted prescription medications. The medications had been prescribed to the defendant for her asthma, high blood pressure, muscle spasms and back pains. In an attempt to induce her to eject the pills from her stomach, the defendant and another of her daughters placed Elizabeth in a shower and forced her to drink coffee. Those efforts having proved futile, at approximately 1 a.m., the defendant took Elizabeth, who was conscious and coherent, to Mount Sinai Hospital. About four hours elapsed between the time the defendant first discovered Elizabeth had ingested medication and was ill and the time the defendant took Elizabeth to the hospital.

While at Mount Sinai Hospital, Elizabeth began to experience convulsions and, subsequently, went into a coma. Thereafter, she remained unresponsive to stimuli [207 Conn. 521] for two weeks and was required to be maintained on a respirator for six days. As an apparent result of the drug ingestion, Elizabeth suffers from organic brain damage with a significant degree of mental retardation. 1

The medications taken by Elizabeth had been kept by the defendant in their individual containers inside a plastic bag in a cabinet above a broom closet in the kitchen. The defendant had moved the medications to the kitchen cabinet from a dresser near her bed approximately six weeks before the incident in question because she was concerned that her prescriptions were "too exposed to everyone," including her young grandchildren and Elizabeth. The defendant testified that she could reach her medications in the kitchen cabinet only with the aid of a step stool.

After having been appointed Elizabeth's conservator on February 19, 1985, the plaintiff filed this action on February 22, 1985, by which time Elizabeth had reached the age of eighteen. The original single count complaint alleged that the defendant had negligently and carelessly caused Elizabeth to suffer organic brain damage and to become mentally retarded in that: "(a) she maintained within the family premises large quantities of dangerous drugs, when she knew or should have known of the Plaintiff's Incapable's suicidal tendencies and of the likelihood that the Plaintiff's Incapable would consume said drugs; 2 (b) she failed to hide [207 Conn. 522] or secure from the Plaintiff's Incapable aforesaid dangerous drugs, when she knew or should have known of the Plaintiff's Incapable's likelihood to consume them; (c) she failed to

Page 714

warn or otherwise instruct the Plaintiff's Incapable not to consume said drugs; and (d) she failed to determine in a prompt and timely fashion that the Plaintiff's Incapable had consumed said drugs and failed, therefore, to obtain for her prompt and timely medical care." The defendant moved to strike the original complaint on the ground that the action was barred by the doctrine of parental immunity. The trial court, Purtill, J., agreed and granted the defendant's motion to strike. Thereafter, the plaintiff filed the present two count amended complaint sounding in negligence and wilful, reckless, and/or wanton conduct. 3 The defendant then moved for summary judgment and argued that the first count was barred by the doctrine of parental immunity, and that the second count was barred by the statute of limitations because it set forth a new cause of action, filed more than two years after the incident, which did not relate back to the filing of the initial complaint. In the alternative, the defendant argued that, even if it were assumed that the second count related back to the original complaint and was timely, the plaintiff had presented no facts or evidence to demonstrate that the defendant's conduct was wilful, wanton and/or reckless. The trial court, Noren, J., granted the defendant's motion for summary judgment and rendered judgment thereon for the defendant. We find no error.
I

The first claim raised by the plaintiff is that the doctrine of parental immunity bars the initiation of suit [207 Conn. 523] by only an unemancipated minor, and thus, the doctrine is not applicable here because Elizabeth had become emancipated prior to the filing of this action. We disagree.

The parental immunity doctrine bars an unemancipated minor from suing his or her parent for injuries caused by the negligence of that parent. Dzenutis v. Dzenutis, 200 Conn. 290, 293, 512 A.2d 130 (1986); Ooms v. Ooms, 164 Conn. 48, 51, 316 A.2d 783 (1972). Under this doctrine "a parent is not liable civilly to his child for personal injury inflicted during [the child's] minority...." (Emphasis added.) Mesite v. Kirchenstein, 109 Conn. 77, 82-83, 145 A. 753 (1929). Thus, to determine the applicability of the parental immunity doctrine, the age of the child at the time the injury is inflicted governs and not the age of the child at the time the action is filed. "Contrary to the contention of the plaintiff, her emancipation subsequent to her injury gives her no additional right to maintain this action. Her right to sue must exist at the time of the injury and her subsequent emancipation is of no consequence. 'An emancipated child cannot maintain an action against his parent for a tort committed before emancipation if at the time of the wrong the action was not maintainable.' 59 Am.Jur.2d, Parent and Child, § 157...." Lee v. Comer, 159 W.Va. 585, 587-88, 224 S.E.2d 721 (1976); see also London Guarantee & Accident Co. v. Smith, 242 Minn. 211, 214 n. 2, 64 N.W.2d 781 (1954); Franco v. Davis, 51 N.J. 237, 238, 239 A.2d 1 (1968), rev'd in part on other grounds, France v. A.P.A. Transport Corporation, 56 N.J. 500, 267 A.2d 490 (1970).

There is no dispute that, at the time of her injuries, Elizabeth was the seventeen and one-half year old unemancipated child of the defendant. Her subsequent emancipation prior to the filing of this action had no [207 Conn. 524] effect on the applicability of the parental immunity doctrine. The trial court did not err in so holding.

II

The plaintiff next claims that the parental immunity doctrine should not bar a minor's negligence action against a parent where, as here, the parent is covered by liability insurance. The plaintiff argues that the parental immunity doctrine no longer serves the interests of family harmony

Page 715

and is an impediment to the utilization of the very resources that would help the family, i.e., insurance proceeds. The plaintiff relies solely upon the recent case of Dzenutis v. Dzenutis, supra, to support his position. We disagree.

In Dzenutis, we had occasion to address the applicability of the parental immunity doctrine in the limited context of an unemancipated minor who had sustained injuries away from the family environment and by reason of the negligently conducted business activities of his parent. Id., 200 Conn. at 299-300, 512 A.2d 130. While this court sustained the trial court's refusal to apply the parental immunity doctrine in that case, we also specifically disagreed "with the trial court's view that the presence of insurance should be the touchstone of viability of an action by a child against a parent and that recovery should be limited to the insurance policy." Id., at 299, 512 A.2d 130. We went on to note the following: "In Shaker [v. Shaker, 129 Conn. 518, 523-24, 29 A.2d 765 (1942) ], we rejected the claim that the outcome of a case should depend upon...

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166 practice notes
  • In re Enron Corp. Securities, Derivative, MDL No. 1446.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 16, 2005
    ...where a high degree of danger is apparent." Lee v. Coss, 201 F.3d 431, 1999 WL 1314741, *3 (2d Cir.1999), quoting Dubay v. Irish, 207 Conn. 518, 542 A.2d 711, 718-19 (1988); Bordonaro v. Senk, 109 Conn. 428, 147 A. 136, 137 24. CRRA's amended complaint (part of Ex. C to # 1) expressly state......
  • Lee v. Aig Cas. Co., No. 3:08CV01897.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 24, 2013
    ...consciousness with reference to the consequences of one's acts. It is more than negligence, more than gross negligence.” Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988) (internal quotation marks and citation omitted). “Under Connecticut law, recklessness may be inferred from a party......
  • Ascuitto v. Farricielli, No. 15729
    • United States
    • Supreme Court of Connecticut
    • May 12, 1998
    ...indication of whether the parent's actions involved parental discretion and whether the duty breached was a public one. Dubay v. Irish, 207 Conn. 518, 525, 542 A.2d 711 (1988). All of these factors are relevant to the broader determination of whether application Page 712 of the doctrine in ......
  • Sanborn v. Greenwald, No. 13372
    • United States
    • Appellate Court of Connecticut
    • October 27, 1995
    ...v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d 912 (1991); Stein v. Katz, 213 Conn. 282, 567 A.2d 1183 (1989); Dubay v. Irish, 207 Conn. 518, 542 A.2d 711 (1988); Zapata v. Burns, supra, 207 Conn. 496, 542 A.2d 700; Ecker v. West Hartford, supra, 205 Conn., at 219, 530 A.2d 1056;......
  • Request a trial to view additional results
166 cases
  • In re Enron Corp. Securities, Derivative, MDL No. 1446.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • February 16, 2005
    ...where a high degree of danger is apparent." Lee v. Coss, 201 F.3d 431, 1999 WL 1314741, *3 (2d Cir.1999), quoting Dubay v. Irish, 207 Conn. 518, 542 A.2d 711, 718-19 (1988); Bordonaro v. Senk, 109 Conn. 428, 147 A. 136, 137 24. CRRA's amended complaint (part of Ex. C to # 1) expressly state......
  • Lee v. Aig Cas. Co., No. 3:08CV01897.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • January 24, 2013
    ...consciousness with reference to the consequences of one's acts. It is more than negligence, more than gross negligence.” Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988) (internal quotation marks and citation omitted). “Under Connecticut law, recklessness may be inferred from a party......
  • Ascuitto v. Farricielli, No. 15729
    • United States
    • Supreme Court of Connecticut
    • May 12, 1998
    ...indication of whether the parent's actions involved parental discretion and whether the duty breached was a public one. Dubay v. Irish, 207 Conn. 518, 525, 542 A.2d 711 (1988). All of these factors are relevant to the broader determination of whether application Page 712 of the doctrine in ......
  • Sanborn v. Greenwald, No. 13372
    • United States
    • Appellate Court of Connecticut
    • October 27, 1995
    ...v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d 912 (1991); Stein v. Katz, 213 Conn. 282, 567 A.2d 1183 (1989); Dubay v. Irish, 207 Conn. 518, 542 A.2d 711 (1988); Zapata v. Burns, supra, 207 Conn. 496, 542 A.2d 700; Ecker v. West Hartford, supra, 205 Conn., at 219, 530 A.2d 1056;......
  • Request a trial to view additional results

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