Lockman v. Barys, CV136005708S

• Decision Date: 18 March 2016
• Docket Number: CV136005708S
• Court: Connecticut Superior Court
• Parties: Cheryl Lockman v. Delores Barys et al

Cheryl Lockman v. Delores Barys et al

No. CV136005708S

Superior Court of Connecticut, Judicial District of New Haven, Meriden

March 18, 2016

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Kathleen McNamara, Judge.

PROCEDURAL HISTORY

On December 12, 2012, the plaintiff, Cheryl Lockman, filed an eleven-count complaint alleging negligence, recklessness intentional infliction of emotional distress and negligent infliction of emotional distress against Frances Dwyer, the Child Guidance Center for Central Connecticut, Delores Barys and John Barys.^[1] In her complaint, the plaintiff alleges the following facts. From approximately 1971 to 1976 the defendants repeatedly exposed the plaintiff to Helen Costa, having Costa serve as a babysitter for the plaintiff. The defendants entrusted Costa to care for the plaintiff. Costa exposed the plaintiff to pornography and also physically exposed herself to the plaintiff. At some point prior to 1979, Costa also allegedly directed the plaintiff to take at least one sexually suggestive photograph and repeatedly engaged the plaintiff in sexually explicit conversations. Costa also groped the plaintiff's breasts in an inappropriate manner.

The plaintiff further alleges that when the defendants entrusted Costa to care for the plaintiff, Costa's son, Frank Costa, Jr. (Frank), was residing in the same residence as Helen Costa. From the fall of 1976 through the fall of 1979 when the plaintiff was between the ages of eleven and fourteen, Frank repeatedly held the plaintiff at knife point at least once a week, sexually abused the plaintiff, and physically battered the plaintiff. Frank also showed the plaintiff pornography and forced the plaintiff to have sexual intercourse and engage in other sexual acts with him. During this time, the defendants knew or should have known that they were entrusting the plaintiff into the care of individuals who were sexually and/or physically abusive to the plaintiff. The defendants were negligent and careless in that they: failed to adequately supervise the minor plaintiff; breached their duty to care for the plaintiff; put the plaintiff in harm's way; placed the plaintiff in a high risk situation likely to cause her harm; and contributed to the delinquency of the plaintiff.

The plaintiff alleges a claim of recklessness as to each of the defendants. In these counts, the plaintiff re-alleges the allegations contained in paragraphs one through seven of count one. Additionally, the plaintiff alleges that the defendants were reckless in that they: violated Connecticut General Statutes § 53-21(1)^[2] when they knowingly placed the plaintiff in an intimate situation that impaired the plaintiff's morals; violated Connecticut General Statutes § 53a-64^[3] when they recklessly engaged in conduct which created a risk of physical injury to the plaintiff; recklessly failed to supervise the plaintiff; recklessly breached a duty of care owed to the plaintiff; recklessly permitted the plaintiff to be exposed to pornography; and recklessly contributed to the delinquency of the plaintiff.

The plaintiff alleges a claim of intentional infliction of emotional distress as to each of the defendants. In these counts, the plaintiff re-alleges the allegations contained in paragraphs one through seven of count one. Additionally, the plaintiff alleges that the defendants intended to inflict emotional distress upon the plaintiff by exposing the plaintiff to abusive supervision and exposing the plaintiff to Frank, whom the defendants knew had previously assaulted and battered the plaintiff. Such conduct was extreme, outrageous, and intentional. Furthermore, the defendants' conduct violated Connecticut General Statutes § 53a-62(a)(1)^[4] in that they caused harm to the plaintiff in a planned and premeditated manner.

The plaintiff alleges a claim of negligent infliction of emotional distress as to each of the defendants. In these counts, the plaintiff re-alleges the allegations contained in paragraphs one through seven of count one. Additionally, the plaintiff alleges that the defendants negligently inflicted emotional distress upon the plaintiff in that they knew or should have known that emotional distress was the likely result of exposing the plaintiff to abusive supervision by Costa and Frank; and that the defendants exposed the plaintiff to Frank, whom they knew had previously physically battered and sexually abused the plaintiff. The plaintiff seeks money damages for injuries sustained.

A bench trial was held on November 24, 2015 and evidence was presented on November 24, December 1, and December 2, 2015. At the close of trial, in lieu of closing arguments, the parties filed closing briefs.

DISCUSSION

As a preliminary matter, the plaintiff argues that the defendants did not timely file their special defense of parental immunity. Practice Book § 10-50 provides in relevant part: " No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." " Unlike a counterclaim, a special defense is not an independent action; rather, it is an attempt to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn.App. 436, 447 n.10, 897 A.2d 624, cert. denied, 280 Conn. 933, 909 A.2d 963 (2006).

" While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment . . . The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court." (Internal quotation marks omitted.) Dow & Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 583, 833 A.2d 908 (2003). In that case, the defendant filed an amended answer and special defenses on the day that trial was scheduled to begin. Our Supreme Court upheld the trial court's decision to allow the special defense, noting that " the new affirmative defense did not inject any new factual issues into the case, but instead raised a purely legal issue." Id., 584. The court finds that, although the defendants filed their special defense on the eve of trial, they did not inject any new facts into the case, but rather raised the legal issue of asserting parental immunity as a special defense.

Accordingly, the court finds that the defendants properly filed their special defense.

NEGLIGENCE

Next the parties dispute whether the special defense of parental immunity bars the plaintiff's claims in the present action. Our Connecticut Supreme Court first adopted the doctrine of parental immunity in Mesite v. Kirchenstein, 109 Conn. 77, 145 A. 753 (1929). The doctrine of parental immunity was described in Mestite as follows, " Authority in the parent to require obedience in the child is indispensable to the maintenance of unity in the family. Anything which undermines this authority, brings discord into the family, weakens its government and disturbs its peace, is an injury to society and to the State. Few things could bring about this unhappy condition more quickly or widen the breach further than the bringing of an action of law for personal injuries against the parent. Such unseemly family discord is injurious to the public welfare, to such a degree that all the courts of this country, which have had occasion to express their opinions upon the right of the minor to maintain such an action, have declared that the exercise of this right is against sound public policy." Id. at 84. Moreover, it " remains the general rule in this state that unemancipated minor children and their parents may not sue one another for personal injuries." Ascuitto v. Farricielli, 244 Conn. 692, 697, 711 A.2d 708 (1998).

" The purpose of the doctrine [of parental immunity] is to preserve the integrity and unity of the family and to avoid unnecessarily injecting the machinery of the state into the day-to-day exercise of parental discretion." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 115, 708 A.2d 937 (1998). " Even in those jurisdictions that have, in part, abrogated parental immunity . . . the overwhelming majority of them have specifically retained the doctrine in the area of parental supervision, or have at least recognized that the doctrine may have continued validity where the negligent act involves the exercise of ordinary parental discretion with respect to the care and control of a minor child." Dubay v. Irish, 207 Conn. 518, 526, 542 A.2d 711 (1988).

" [P]arental immunity applies unless an exception can be identified . . ." Ascuitto v. Farricielli supra, 244 Conn. 706; see also Squeglia v. Squeglia, 234 Conn. 259, 264-65, 661 A.2d 1007 (1995). Connecticut law recognizes certain exceptions to the parental immunity doctrine. " First, an unemancipated minor can sue the employer of a parent whose negligence in the course of employment injured the child, thereby putting the parent at risk of an indemnity suit . . . Second, a minor can sue a parent if the child was emancipated prior to the tortious conduct . . . Third, an unemancipated minor can sue a parent for injuries received through the negligent conduct of a business...