MARTIN, J.
On October 15, 2007, the plaintiffs, Timothy and Loretta Bemis, administrators of the estate of Treau Bemis, filed an application for a prejudgment remedy, to which they attached a single-count complaint against the defendant, Kimberly Bemis, alleging negligence. In the complaint, the plaintiffs alleged the following facts. The plaintiffs are the natural parents of Treau Bemis, who died on September 16, 2007, at the age of two years old. At the time of her death, Treau Bemis was living with the defendant, who had been awarded temporary custody of the child by the Probate Court. On the day of Treau Bemis' death, the defendant entrusted the care of the child to Craig Betancourt, the defendant's live-in boyfriend. Betancourt caused the death of Treau Bemis, and was arrested for her murder. Betancourt made a detailed confession to the police regarding his actions in causing Treau Bemis' death.
The following day, the plaintiffs filed an ex parte application for a prejudgment remedy, to which they attached the same complaint against the defendant.
On October 23, 2007, the court, Peck, J., granted the plaintiffs' request for a temporary restraining order, which was later vacated, by agreement, on January 28, 2008. On December 11, 2007, the court, Peck, J., denied the plaintiffs' application for a prejudgment remedy.
On December 3, 2007, the defendant filed an answer to the plaintiffs' complaint. Thereafter, on December 21, 2007 the defendant filed a motion for summary judgment on the grounds that: (1) she did not breach a duty of care to the plaintiffs because there is no evidence that she had actual or constructive notice of Betancourt's violent tendencies; and (2) she is immune from suit under the doctrine of parental immunity. The defendant submitted a memorandum of law in support of the motion. On February 13, 2008, the plaintiffs filed a memorandum of law in opposition.
On January 22, 2008, the plaintiffs filed a request for leave to amend the complaint. In response, on January 28, 2008, the defendant filed an objection to the plaintiffs' request. The court has granted the plaintiffs' request for leave to amend the complaint. In the amended complaint, the plaintiffs omit their previous allegations that Betancourt caused the death of Treau Bemis, was arrested for her murder, and made a detailed confession to the police. The plaintiffs now allege CT Page 11393 the following facts. Prior to Treau Bemis' death, the defendant and other family members had complained that Betancourt did not supervise children appropriately, and would become distracted by watching television and chatting on the computer. While in Betancourt's care, Treau Bemis died unexpectedly.
The summary judgment matter was heard on the short calendar on March 10, 2008. Pursuant to Practice Book § 10-61, the court regards the defendant's motion for summary judgment as applicable to the plaintiffs' amended complaint.
Practice Book § 10-61 provides in relevant part that "pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.'
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). "[T]he court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).
"[T]he existence of a duty of care is an essential element of negligence." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 578 (2008). "[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Court. 904, 823 A.2d 1221 (2003). Nevertheless, "the existence of the duty or its absence often hinges on what the facts are, and if in dispute, a summary judgment decision ought not rest on the unsettled foundation." McGuire v. Derby Savings Bank, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 97 0056878 (April 24, 2002, Nadeau, J.). "A duty to use care may arise from . . . circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., supra, 286 Conn. 578.
In her memorandum of law in support of the motion for summary judgment, the defendant argues that she did not breach a duty of care to the plaintiffs because the actions of Betancourt were unforeseeable. The defendant submits an affidavit, in which she states that she was awarded temporary custody of Treau Bemis by the Probate Court because the CT Page 11394 plaintiffs, who are the defendant's brother and sister-in-law, were unable to care for the child. The defendant states that prior to the award of temporary custody, the department of children and families (DCF) conducted a home study evaluating the defendant and Betancourt. The defendant states that DCF made no adverse findings regarding Betancourt's ability to parent, and raised no issues concerning any history of violence. The defendant further states that she and Betancourt have a seven-year-old daughter together, and that the defendant has never seen Betancourt exhibit any behavior that would lead her to believe that he has violent tendencies.
The defendant also submits portions of a certified transcript of testimony under oath from a hearing on the plaintiffs' application for a prejudgment remedy, which took place on December 11, 2007, before the Honorable A. Susan Peck. The transcript includes the brief testimony of James Bemis, the paternal grandfather of Treau Bemis, which the court does not find to be relevant to the present motion for summary judgment. The transcript also includes the testimony of the defendant, who testified about a time, prior to Treau Bemis' death, when Betancourt was responsible for supervising Tiffany Bemis, the defendant's seven year old niece. The defendant testified that although Tiffany Bemis ended up with "hickeys" on her neck during this visit, the defendant was not concerned because the child had been "playing Lion King" with the defendant's seven-year-old daughter.
The court finds that the defendant's evidence fails to show that no genuine issue of material fact exists as to whether a reasonable person, knowing what the defendant knew or should have known, would anticipate that harm or injury was likely to result if Betancourt was entrusted with the care of a child. "On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008). Here, the documents submitted in support of the motion for summary judgment fail to establish that there is no genuine issue of material fact, and the court need not consider the document submitted by the plaintiffs.
The plaintiffs submit an affidavit from Timothy Bemis, which is identical to the affidavit that the plaintiffs attached to their ex parte application for a prejudgment remedy. In his affidavit, the plaintiff makes statements that largely mirror the allegations contained in the complaint, such as the statement that Betancourt caused the death of Treau Bemis while the child was in Betancourt's care and the defendant was at work.
The defendant also moves for summary judgment on the ground that the doctrine of parental immunity is applicable to the present case because the defendant was Treau Bemis' legal guardian. The plaintiffs counter that the defendant was merely the temporary custodian of Treau Bemis, CT CT Page 11395 Page 11395 and that they were the child's legal guardians.
The doctrine of parental immunity "bars an unemancipated child from suing his or her parents for personal injuries . . . Under this doctrine a parent is not liable civilly to his child for personal injury inflicted during [the child's] minority . . ." (Citations omitted; internal quotation marks omitted.) Crotta v. Home Depot, Inc., 249 Conn. 634, 638, 732 A.2d 767 (1999). The primary focus of the parental immunity doctrine "is the protection of the relationship between the parent and the child. The protection of that relationship enables the parent to raise the child effectively without undue interference from the state . . . It is for those reasons that the parental immunity doctrine affords special protection to acts of parental control, authority and discretion." (Citations omitted; internal quotation marks omitted.) Id., 643.
A partial record of the Probate Court proceedings indicates that on November 6, 2006, Jacqueline Bemis, the paternal grandmother of Treau Bemis, filed an application for immediate temporary custody of the child. Subsequently, the Probate Court issued an order granting the defendant immediate temporary custody. The defendant remained the temporary custodian of Treau Bemis until the time of the child's death. On November 6, 2006, Jacqueline Bemis also filed a separate application seeking the plaintiffs' removal as guardians of the child. It appears that the application was never ruled on by the Probate Court, and that the plaintiffs were, at all times, Treau Bemis' legal guardians.
It is noted, however, that on December 5, 2006, the Probate Court reversed the temporary order, and returned custody of the child to the plaintiffs. Nevertheless, on December 18, 2006, that order was vacated, and the defendant was again given temporary custody of the child by the Probate Court.
With respect to probate matters, General Statutes § 45a-606 provides in relevant part:
"The father and mother of every minor child are joint guardians of the person of the minor. General Statutes § 45a-604 defines "guardianship" as meaning "guardianship of the person of a minor, and [including]: (A) The obligation of care and control; (B) the authority to make major decisions affecting the minor's education and welfare, including, but not limited to, consent determinations regarding marriage, enlistment in the armed forces and major medical, psychiatric or surgical treatment; and (C) upon the death of the minor, the authority to make decisions concerning funeral arrangements and the disposition of the body of the minor . . ." As for temporary custodians, General Statutes § 45a-608 provides in relevant part: "Any person . . . awarded the temporary custody of a minor . . . shall have the following rights and duties regarding the minor: (1) The obligation of care and control; (2) the authority to make decisions regarding routine medical treatment or school counseling and emergency medical, psychological, psychiatric or surgical treatment; and (3) other rights and duties which the court of probate having CT Page 11396 jurisdiction may approve."
Even if the court were to assume, arguendo, that the doctrine of parental immunity can extend to temporary custodians, there are genuine issues of material fact as to the respective relationships between the plaintiffs and the defendant with Treau Bemis, as well as the allocation of caretaking responsibilities.
Based on the foregoing, the defendant's motion for summary judgment is hereby denied.
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