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Tonucci v. Gaylord Hospital, Inc.

Superior Court of Connecticut, Judicial District of New Britain, New Britain

September 22, 2015

Nancy Tonucci as Administratrix of the Estate of Asilin Dorsey
v.
Gaylord Hospital, Inc

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (117.00)

James W. Abrams, Judge.

On July 12, 2013, the plaintiff, Nancy Tonucci, as Administratrix of the Estate of Asilin Dorsey (the decedent), filed two-count wrongful death complaint against the defendant, Gaylord Hospital, Inc. based on negligence and medical malpractice claims. On June 5, 2014, the court (Young, J.) dismissed the medical malpractice claim. On October 20, 2014, the defendant filed a Motion for Summary Judgment directed at the negligence claim. The plaintiff filed an Objection dated February 27, 2015 to which the defendant filed a Reply dated April 23, 2015. The parties presented oral argument before the court on June 16, 2015.

I

FACTS

The plaintiff alleges the following relevant facts: From July 13th to July 16th, 2011, the decedent was a resident of The Traurig House (hereinafter " Traurig") at the Gaylord Farms Rehabilitation Center in Wallingford, Connecticut, which is owned and operated by the defendant. The decedent was admitted to Traurig for treatment and rehabilitation after suffering a traumatic brain injury as a result of a motor vehicle accident that occurred on June 25, 2011. During the time that the decedent was a resident at Traurig, she exhibited anxiety, frustration, anger, and sadness about not being able to see her five-month old child. During this period, the decedent repeatedly asked to staff to allow her to leave Traurig and, in presumed furtherance of this goal, once unsuccessfully attempted gain access to a staff member's car. Subsequently, on July 16, 2011, the decedent entered an unlocked office at Traurig and removed the keys to a motor vehicle owned by the defendant from an unlocked drawer. The decedent took the vehicle and was subsequently involved in a high speed chase with police that resulted in two accidents, the second of which caused the decedent's death.

The plaintiff alleges that the defendant was negligent because: (1) it failed to properly establish or follow policies and guidelines to prevent residents from leaving the facility; (2) it failed to properly establish or follow policies and guidelines to prevent residents from accessing keys to the defendant's vehicles; (3) it failed to properly perform its duties in regard to possible elopement and/or securing the keys to the vehicles; and (4) it failed to properly staff the facility so as to properly monitor the decedent, whom it knew or should have known posed a risk of elopement that could have endangered herself or others.

II

DISCUSSION

The issue before the court is whether it should grant the defendant's motion for summary judgment on one or more of the following grounds: (A) As a matter of public policy, the defendant did not owe the decedent a duty of care because her alleged injuries and death were sustained as a direct result of her participation in criminal acts pursuant to the wrongful conduct rule; (B) the defendant did not owe the decedent an ordinary duty of care to prevent the decedent from taking the motor vehicle and engaging in a high speed chase with the police; (C) the decedent's decision to take the motor vehicle and engage in a high speed chase was too attenuated to fall within the proximate cause of the duty breached; and (D) the defendant cannot be liable for the plaintiff's injuries because the decedent bears greater responsibility for the fatal accident than the defendant.

" Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014).

" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . 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." Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 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]." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

A) Does the " Wrongful Conduct Rule" Abrogate Any Duty the Defendant Might Have Owed to the Decedent?

The defendant argues that it did not owe the decedent a duty of care because her alleged injuries and death were sustained as a direct result of her participation in criminal acts as a matter of law. The defendant claims that Connecticut adopted the " wrongful conduct rule, " which holds that it is a violation of public policy to allow a plaintiff to profit from his or her own criminal acts. Greenwald v. Van Handel, 311 Conn. 370, 376, 88 A.3d 467 (2014). The plaintiff counters that the Greenwald court did not adopt the wrongful conduct rule, citing the following passage in the court's majority opinion: " The plaintiff claims on appeal that this state has not adopted a wrongful conduct rule that per se bars tort recovery, and even if such a rule generally applies, we should follow case law from another jurisdiction recognizing exceptions to that rule that are applicable in the present case. We conclude that it is unnecessary to adopt any broad rule or exceptions thereto because it clearly would violate public policy to impose a duty on the defendant in the present case to protect the plaintiff from injuries arising from his potential criminal prosecution for the illegal downloading, viewing and/or possession of child pornography." (Emphasis added.) Id., 372.

In Greenwald, the sole issue before the court was " whether it would violate the public policy of this state to allow the plaintiff . . . to maintain a professional negligence action against the defendant . . . a licensed clinical social worker, on the basis of allegations that the defendant negligently failed to treat the plaintiff after he disclosed to the defendant that he had viewed child pornography." Id., 371-72. The court observed that " the plaintiff cannot prevail here unless we conclude that it is the public policy of this state to impose a duty on the defendant to protect the plaintiff from ...


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