Kaminski v. Town of Fairfield

• Decision Date: 31 July 1990
• Docket Number: No. 13913,13913
• Court: Connecticut Supreme Court
• Parties: Edward T. KAMINSKI, Administrator (ESTATE OF Joseph J. KAMINSKI), et al. v. TOWN OF FAIRFIELD et al.

Page 1048

578 A.2d 1048

216 Conn. 29

Edward T. KAMINSKI, Administrator (ESTATE OF Joseph J KAMINSKI), et al. v. TOWN OF FAIRFIELD et al.

No. 13913.

Supreme Court of Connecticut.

Argued June 6, 1990.

Decided July 31, 1990.

Paul E. Burns, with whom, on the brief, was Barbara J. O'Brien, Fairfield, for appellant (defendant Ronald Thompson).

Frank A. Bailey, for appellees (plaintiffs).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and BORDEN, JJ.

PETERS, Chief Justice.

The sole issue in this appeal is whether a request for mental health assistance to control the behavior of an adult son supports the imposition of tort liability on his parents for injuries inflicted by the son on a police officer accompanying the requested mental health workers to the parents' home. The appeal arises out of a counterclaim to a wrongful death action brought by the plaintiffs, Edward L. and Leokadja Kaminski and Edward T. Kaminski, administrator of the estate of Joseph J. Kaminski, against the named defendant, the town of Fairfield, and the defendant Ronald Thompson (defendant). The wrongful death action sought damages for the fatal shooting of Joseph J. Kaminski by the defendant. The defendant's counterclaim sought damages from the plaintiffs for injuries that he sustained when Joseph struck him with an axe before being shot. The trial court, Thim, J., granted the plaintiffs' motion to strike the counterclaim. The court, Ballen, J., thereafter granted the defendant's motion for judgment on his counterclaim. The defendant filed an appeal, pursuant to Practice Book § 4002(b), which we transferred here. Practice Book § 4023. We affirm.

In an appeal from a judgment following the granting of a motion to strike a counterclaim, we take the facts to be those alleged in the counterclaim and construe the counterclaim in the manner most favorable to sustaining its legal sufficiency. Warner v. Konover, 210 Conn. 150, 152, 553 A.2d 1138 (1989); Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988); Blancato v. Feldspar Corporation, 203 Conn. 34, 36, 522 A.2d 1235 (1987). Accordingly, we assume the following factual circumstances concerning the injury sustained by the defendant.

Joseph J. Kaminski, the adult son of the plaintiffs, lived at the Kaminski family home after his discharge from the Fairfield Hills Mental Hospital, where he had been diagnosed as a paranoid schizophrenic. Concerned that Joseph might need to be rehospitalized, his mother called the Greater Bridgeport Community Mental Health Center, where Joseph was an outpatient, to request a community visit to evaluate his mental status. In making her request, his mother informed the mental health center that Joseph had been acting in an increasingly bizarre, agitated and aggressive fashion, that he had allegedly broken a neighbor's car windshield the night before, that he was carrying an axe around with him, and that he had asked his sister whether she was suicidal.

The crisis team of the mental health center responded by having one of its nurses contact the Fairfield police department to obtain an escort for the community evaluation visit. Accordingly, the defendant and Officer Joseph Peddle accompanied nurses Geraldine January and Lowri Jones to the Kaminski home. When the nurses attempted to interview Joseph, he became increasingly agitated and ran upstairs to his bedroom. The nurses, together with Joseph's mother and the defendant, followed Joseph up to his bedroom and persuaded him to return downstairs. Nonetheless, Joseph's agitation not only continued but was exacerbated by the suggestion that the crisis team would take him to see a doctor at the mental health center. Resisting this suggestion, Joseph again retreated upstairs to his bedroom. When the defendant, in the course of his professional duties, followed Joseph there, Joseph attacked and struck the defendant with an axe, causing severe and permanent injuries to the defendant. The defendant in turn shot and killed Joseph.

The defendant's counterclaim alleged that the plaintiffs had, through their negligence, proximately caused his injuries in three ways. The defendant claimed that the plaintiffs had failed properly to care for and supervise Joseph in permitting him to keep axes when they knew or should have known of his dangerous propensities. The defendant also claimed that the plaintiffs had failed to warn him of Joseph's dangerous and violent propensities and of his possession of several axes. Finally, the defendant claimed that the plaintiffs had failed to take steps to restrain and control Joseph prior to the arrival of the crisis team, when they knew or should have known of his dangerous and violent propensities and should have anticipated that these propensities would be aggravated by the crisis team's visit.

The plaintiffs responded to the counterclaim with a motion to strike, in which they relied on the absence of an allegation citing a common law or statutory basis for holding parents liable for the torts of their child. The defendant's objection to the motion to strike claimed that his counterclaim was legally sufficient because it properly alleged a duty as set forth in the Restatement (Second) of Torts § 319. The trial court, Thim, J., granted the motion to strike without issuing a memorandum of decision. ¹ Thereafter, by agreement of the parties, judgment was rendered for the plaintiffs on the counterclaim in order to enable the defendant to pursue the present appeal.

In his appeal, the defendant has recast the basis for his claim of negligence into two principal contentions. He argues that the plaintiffs are liable in accordance with the rule of law contained in the Restatement (Second) of Torts § 319, which he urges us to adopt as the law of Connecticut in the factual circumstances alleged in this case. Alternatively, he argues that the plaintiffs are liable on the theory of a common law duty to warn of known impending danger. We are persuaded by neither argument.

I

The defendant relies on the Restatement (Second) of Torts § 319 as the foundation for his claim that the plaintiffs owed him a duty of care because, in permitting their adult but schizophrenic son Joseph to live with them, they undertook a custodial relationship that encompassed responsibility for controlling his behavior. Section 319 provides: "One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm." This court has not previously considered whether to adopt § 319 as an exception to the common law rule that, absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another. See 2 Restatement (Second), Torts § 315 (1965); F. Harper, F. James & O. Gray, The Law of Torts (2d Ed.1986) § 18.7; W. Prosser & W. Keeton, Torts (5th Ed.1984) § 56.

Before addressing the merits of the defendant's contention, we must clarify the precise contours of his claim. Correctly, he does not assert that the plaintiffs' alleged duty of care arises directly out of their parental relationship between the plaintiffs and Joseph. At common law, the torts of children do not impose vicarious liability upon parents qua parents, although parental liability may be created by statute; see General Statutes § 52-572; ² or by independently negligent behavior on the part of parents. LaBonte v. Federal Mutual Ins. Co., 159 Conn. 252, 256, 268 A.2d 663 (1970). The defendant alleges, therefore, that the plaintiffs are liable to him not because they are vicariously responsible for Joseph's assault but because they are independently responsible for not having prevented Joseph's assault.

The circumstances under which § 319 has been held to impose a duty to control the conduct of another are far removed from the facts of this case. Both of the official illustrations to § 319 deal with the liability of institutions, such as hospitals, that have formal custodial responsibility for those in their charge. ³ Similarly, the reported cases that have recognized a duty to control have generally done so in the context of professional custodians with special competence to control the behavior of those in their charge. Citing § 319, courts have found that third parties have stated a cause of action in negligence against: a prison warden; Frett v. Government of Virgin Islands, 839 F.2d 968, 975 (3d Cir.1988); security guards; Karbel v. Francis, 103 N.Mex. 468, 471, 709 P.2d 190 (1985); a mental hospital and its personnel; White v. United States, 780 F.2d 97, 103 (D.C.Cir.1986); Johnson v. Village of Libertyville, 146 Ill.App.3d 834, 839, 100 Ill.Dec. 154, 496 N.E.2d 1219 (1986); Allentown State Hospital v. Gill, 88 Pa.Commw. 331, 488 A.2d 1211, 1213 (1985); a children's center; Nova University, Inc. v. Wagner, 491 So.2d 1116, 1118 (Fla.1986); and a retirement home. Garrison Retirement Home Corporation v. Hancock, 484 So.2d 1257, 1261 (Fla.App.1985).

These cases suggest that, in the proper factual circumstances, this court may want to consider whether to recognize the principles of § 319 insofar as they impose a special duty upon custodians to control the behavior of their wards. Some custodians already have a statutory tort duty to protect their wards from the wards' self-destructive behavior. See, e.g., Mahoney v. Lensink, 213 Conn. 548, 563, 569 A.2d 518 (1990). Arguably, legally designated custodians may also have a common law duty to protect foreseeable third parties from their wards' aggressive behavior.

The present circumstances are, however, markedly different. Neither the defendant nor our own research has disclosed any case in which a parent, merely by making a home for an adult child who is a mental patient, has been held to be "[o]ne who takes charge of a third person" for the purposes of § 319. It would be anomalous,...