Salamone v. Wesleyan Univ.

Decision Date01 February 2022
Docket NumberAC 43819
Citation210 Conn.App. 435,270 A.3d 172
Parties Craig SALAMONE et al. v. WESLEYAN UNIVERSITY et al.
CourtConnecticut Court of Appeals

Eamon T. Donovan, Cromwell, for the appellants (plaintiffs).

Richard E. Fennelly III, with whom were Jonathan P. Ciottone and Eric S. Larson, Hartford, for the appellee (named defendant).

Elgo, Cradle and Flynn, Js.

CRADLE, J.

The plaintiffs, Craig Salamone and Doug Cartelli, commenced this action, claiming that they were sexually assaulted by a resident advisor or head resident on the campus of the defendant Wesleyan University.1 In this appeal, the plaintiffs challenge the summary judgment rendered in favor of the defendant on the ground that a genuine issue of material fact existed as to whether the harm alleged was reasonably foreseeable. We affirm the judgment of the trial court.

The record before the court, viewed in the light most favorable to the plaintiffs as the nonmoving parties, reveals the following relevant facts and procedural history. In September, 2017, the plaintiffs commenced this action, claiming that they were sexually assaulted on the defendant's campus between 1982 and 1984. By way of a revised complaint dated September 26, 2018, they alleged that they were sexually assaulted by Andrew Barer, while he was a student and a resident advisor or head resident in a dormitory on the defendant's campus. At the time of the alleged incidents, Barer also "was a member of the official basketball team for the defendant" and "used the basketball facilities located on the property owned by the defendant ... to engage with minor children, including the plaintiff[s]," who were between the ages of thirteen and fifteen at the time. The plaintiffs alleged that "Barer's ... engagement with minor children was in the guise of instructing them in plyometrics, stretching, and other physical activity in order to enhance their athletic ability, but, in reality, it was a means to allow him to commit sexual abuse, sexual assault, and sexual exploitation of said minor children." They further alleged that, in the winter of 1983, as to Salamone, and between 1982 and 1984, as to Cartelli, "Barer made arrangements for [each of them] to meet with Barer alone in Barer's dormitory room located in the housing facilities on the [defendant's] campus." They alleged that "Barer's arranging the meeting with [them] in [his] dormitory room was in the guise of teaching [them] exercise and stretching routines when the actual purpose was for Barer to sexually abuse, sexually assault, and sexually exploit [them]." The plaintiffs alleged that Barer allowed them into the dormitory in his capacity as a resident advisor or head resident, and that, at the meetings in Barer's dormitory room, "under the guise of teaching [them] exercise and stretching routines, Barer sexually abused, sexually assaulted, and sexually exploited [them]." The plaintiffs alleged that, prior to the incidents involving them, Barer "engaged in a pattern of behavior wherein he lured other minor children into his dormitory room and sexually abused, sexually assaulted, and sexually exploited them" and that the "general risk of harm or injury of the type suffered by the plaintiff[s] ... was foreseeable by the defendant ...." The plaintiffs alleged that the defendant "failed to properly monitor and supervise [Barer] in order to prevent injuries to minors such as [them]" and "allowed [Barer] to be alone with [them] inside housing facilities owned by the defendant ... without monitoring or supervising him in any way."2 The plaintiffs alleged that, as a result of the defendant's negligence and carelessness, they suffered bodily injury and severe emotional distress.

On April 15, 2019, the defendant filed a motion for summary judgment, claiming that it was entitled to judgment as a matter of law on the grounds that Barer was not an employee of the defendant when the alleged sexual assaults involving the plaintiffs occurred and that those incidents were not reasonably foreseeable. On September 6, 2019, the plaintiffs filed an objection to the defendant's motion for summary judgment, arguing that there existed genuine issues of material fact as to whether Barer was "an agent, servant, and/or employee of the defendant" and whether the defendant had a duty to supervise Barer and to alleviate danger posed to the plaintiffs due to the fact that the defendant knew or should have known of prior instances of Barer engaging in similar conduct. In support of their objection, the plaintiffs submitted affidavits from three individuals, who averred that, prior to the incidents involving the plaintiffs, Barer brought those individuals, who were teenage boys at the time, to his dormitory room on the defendant's campus, "without concealing [their] presence and in plain sight," and sexually assaulted them.

On September 20, 2019, the defendant filed a reply to the plaintiffs’ objection to the motion for summary judgment, arguing that the plaintiffs had failed to show that a genuine issue of material fact existed that the alleged sexual assaults were foreseeable because, "[e]ven if Barer brought the affiants into [his] dorm[itory] ‘without concealing them’ and ‘in plain sight,’ these facts are insufficient to show that [the defendant] should have known that Barer would likely commit sexual assault." The defendant argued that, because there was no record that Barer had committed any crimes, had never been accused of a crime, had never been accused of unlawful sexual conduct, and had never been the subject of any complaints, there was no evidence demonstrating that the defendant had any reason to know that Barer would engage in the alleged conduct.

On October 3, 2019,3 the plaintiffs filed a surreply to the defendant's reply to their objection to the motion for summary judgment, reiterating their argument that the affidavits that they previously filed with the court were evidence of prior instances of Barer bringing teenage boys into his dormitory room for the purpose of sexually assaulting them. They contended that such evidence gave rise to a genuine issue of material fact as to whether the defendant knew or should have known of the danger Barer posed to teenage boys in general and to the plaintiffs specifically.

By way of a memorandum of decision filed on January 8, 2020, the court granted the defendant's motion for summary judgment on the ground that there was no genuine issue of material fact that the alleged sexual assaults of the plaintiffs were not reasonably foreseeable.4 The court concluded that the defendant did not know or have reason to know that Barer would allegedly sexually assault the plaintiffs in his dormitory room. The court reasoned that the defendant met its burden of demonstrating the absence of any genuine issue of material fact as to the foreseeability of the alleged sexual assaults of the plaintiffs when it submitted evidence indicating that Barer had no criminal history before or during his enrollment as a student at the defendant or before or during his period of allegedly serving as a resident advisor or head resident at the defendant, that it never received any complaints about Barer during his attendance at the defendant, and that it did not locate any records indicating that disciplinary action has ever been taken against him. The court therefore reasoned that the burden shifted to the plaintiffs to present evidence to demonstrate the existence of a factual dispute as to the issue of foreseeability. The court noted the affidavits submitted by the plaintiffs in opposition to summary judgment and reasoned: "With regard to the alleged negligent monitoring or supervision of Barer, the plaintiffs do not submit any additional evidence to suggest that anyone personally witnessed or would have witnessed Barer leading the boys to his dormitory room, that any particular campus security protocols were breached ... or that anyone reported any suspicious behavior to [the defendant] that would have provided [the defendant] with the requisite knowledge to prompt an investigation.

"Therefore, it appears that the plaintiffs merely rely on (1) the affidavits stating that Barer brought teenage boys ... to his dormitory room ‘without concealing [their] presence and in plain sight’ ... and (2) the broad-brush allegation in their complaint that ‘administrators, professional staff, coaching staff, security officers and other employees knew, should have known or could have known upon investigation, that ... Barer ... took the plaintiff[s] ... into his dorm[itory] room ... on ... [the defendant's] campus.’ ... Without more evidentiary support to suggest that someone in particular witnessed the incidents or reported Barer's improper conduct to [the defendant], however, this is insufficient to dispute the defendant's evidence demonstrating that [the defendant] had no knowledge that Barer allegedly had or would sexually assault the plaintiffs or anyone else." (Citations omitted; footnote omitted.) On that basis, the court concluded that the plaintiffs failed to demonstrate the existence of a genuine issue of material fact as to whether the alleged incidents were reasonably foreseeable and, accordingly, rendered summary judgment in favor of the defendant. This appeal followed.

"The fundamental purpose of summary judgment is preventing unnecessary trials. ... If a plaintiff is unable to present sufficient evidence in support of an essential element of his cause of action at trial, he cannot prevail as a matter of law. ... To avert these types of ill-fated cases from advancing to trial, following adequate time for discovery, a plaintiff may properly be called upon at the summary judgment stage to demonstrate that he possesses sufficient counterevidence to raise a genuine issue of material fact as to any, or even all, of the essential elements of his cause of action. ...

"Practice Book § [17-49] provides that summary...

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