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Doe v. Options Unlimited, Inc.

Superior Court of Connecticut, Judicial District of Hartford, Hartford

August 7, 2015

Jane Doe
v.
Options Unlimited, Inc

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #134

PETER EMMETT WIESE, JUDGE.

I

PROCEDURAL HISTORY

This action arises out of the alleged abuse and mistreatment suffered by the plaintiff, Jane Doe, by the defendant, Options Unlimited, Inc. (Options) and its employees. The plaintiff, by and through her conservator, Sara Doe, commenced the present action by writ of summons and complaint on May 7, 2014. On September 25, 2014, the plaintiff filed the operative nine-count complaint. Counts one through eight assert causes of action against Options and/or its agents, apparent agents, servants, and/or employees including, but not limited to, James McCann sounding in negligence, violations of § 17a-227-01 of the Regulations of State Agencies, negligent supervision, negligent training, negligent hiring, negligent infliction of emotional distress, recklessness, intentional abuse/assault and battery. Count nine is a direct negligence claim against James McCann.

On March 30, 2014, James McCann filed a motion for summary judgment and accompanying memorandum of law on all nine counts brought against him on that ground that there is no genuine issue of material fact as to his liability. In addition to the memorandum in support of the motion, McCann provided exhibits which include: his affidavit, excerpts from his deposition, excerpts from Warren Sparrow's deposition, and copies of the consulting agreements entered into between Residential Support Services, Inc. (RSS) and Options. McCann also included the job descriptions for Options' positions of Executive Director/CEO and Vice President of Operations. On May 13, 2015, the plaintiff filed an objection and memorandum in opposition to the motion for summary judgment. The plaintiff provided exhibits accompanying their memorandum which included an excerpt of McCann's deposition, the July 1, 2010 consulting agreement between RSS and Options, and an affidavit of Sara Doe. On May 14, 2015, McCann filed a supplemental memorandum of law. These arguments were heard at short calendar on March 18, 2015.

II

A. DISCUSSION

" Summary judgment is a method of resolving litigation when 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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).

" The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). " It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

B. For purposes of summary judgment, the court notes the following underlying allegations of fact. The plaintiff, Jane Doe, is a resident of East Hartford, Connecticut and has brought this action by and through her conservator, Sara Doe. Options is a Connecticut corporation, founded by James McCann and is licensed to operate community living arrangements (CLA). One such CLA maintained and operated by Options was Woodbridge House, also known as King Street CLA, located in East Hartford. Currently, James McCann is the president and CEO of RSS, a consulting agency located in New Hartford, Connecticut, and Warren Sparrow is the CEO of Options. At all times relevant to this motion, McCann was an employee of RSS and not an employee of Options. In 2006, RSS and Options entered into a three-year consulting agreement, which provided that McCann would act as CEO/President of Options and manage its day-to-day operations. In July 2009, a second, three-year consulting agreement was entered into between RSS and Options which was, in essence, a renewal of the prior consulting agreement. On June 30, 2010, McCann terminated the 2009 consulting agreement and stepped down from his position as acting CEO of Options. On July 1, 2010, RSS and Options entered into a new consulting agreement which provided that McCann would no longer be acting as CEO and his new role would be as a financial consultant and mentor to the new CEO, Warren Sparrow.

On or about January 1, 2009, Jane Doe began residing at King Street CLA which is when the abuse allegedly began. The plaintiff alleges that Jane Doe was subjected to a continual pattern of physical and psychological abuse for an extended, unknown period of time until March 2013. Options was aware that Jane Doe suffered from developmental disabilities, psychiatric disorders and behavioral issues and incapable of reporting any abuse that she suffered. Options' employees reported this suspected abuse to executives of the company, but no action was taken. Other employees of Options employees engaged in a pattern of concealing this alleged abuse from Sara Doe by, inter alia, preventing her from visiting, and not notifying hospital physicians of the suspected abuse. As a result of the aforementioned abuse, Jane Doe has suffered from and continues to suffer from physical and emotional injuries. In May 2012, Sara Doe became aware of this treatment when she was notified that Jane Doe had been subjected to abuse.

McCann argues that there is no genuine issue of material fact as to his liability. Specifically, McCann argues that he is entitled to summary judgment on count nine based on the following grounds: (1) the claim is time barred pursuant to General Statutes § 52-584; and (2) that under the Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001), theory McCann cannot be held personally liable.[1] The plaintiff counters that genuine issues of material fact remain as to McCann's personal liability, the claim is not barred under the statute of limitations, and the continuing course of conduct tolling provision applies.

Section 52-584 provides in relevant part: " No action to recover damages for injury to the person . . . caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ." " [The Appellate Court has] concluded that this statute imposes two specific time requirements on plaintiffs. The first requirement, referred to as the discovery portion . . . requires a plaintiff to bring an action within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . . The second provides that in no event shall a plaintiff bring an action more than three years from the date of the act or omission complained of . . . The three year period specifies the time beyond which an action under § 52-584 is absolutely barred, and the three year period is, therefore, a statute of repose." (Emphasis in original, internal quotation marks omitted.) Mollica v. Toohey, 134 Conn.App. 607, 612, 39 A.3d 1202 (2012). " [T]he relevant date of the act or omission complained of, as that phrase is used in § 52-584, is the date when the negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage . . . Therefore, an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations contained in § 52-584, regardless of whether the plaintiff had not, or in the exercise of [reasonable] care, could not reasonably have discovered the nature of the injuries within that time period." (Internal quotation marks omitted.) Martinelli v. Fusi, 290 Conn. 347, 355, 963 A.2d 640 (2009).

" Our Supreme Court has recognized . . . that the statute of limitations and [repose section] contained in § 52-584 may be tolled, in the proper circumstances, under . . . the continuing course of conduct doctrine . . . thereby allowing a plaintiff to bring an action more than three years after the commission of the negligent act or omission complained of." (Internal quotation marks omitted.) Cefaratti v. Aranow, 154 Conn.App. 1, 9, 105 A.3d 265 (2014), cert. granted, 315 Conn. 919, 107 A.3d 960 (2015). " [I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related ...


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