Argued
September 17, 2019.
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Appeal
from the Superior Court in the judicial district of
Waterbury, Brazzel-Massaro, J.
COUNSEL:
David
V. DeRosa, with whom was Peter Rotatori III, for the
appellant (plaintiff).
Janis
K. Malec, with whom was Mary B. Ryan, for the appellee
(defendant).
Lavine, Prescott and Harper, Js. PRESCOTT, J. In this opinion
the other judges concurred.
OPINION
Page 543
[195
Conn.App. 296] PRESCOTT, J.
This
appeal raises an issue of first impression in Connecticut:
whether a patient may be liable under a theory of negligence
for causing physical injuries to a medical care provider
while that provider was furnishing medical care to the
patient. We conclude, as a matter of law, that the law does
not impose a duty of care on a patient to avoid negligent
conduct that causes harm to a medical care provider while the
patient is receiving medical care from that
provider.[1]
The
plaintiff, Kateri Streifel, appeals from the trial
court's summary judgment in favor of the defendant,
William R. Bulkley. She claims that the trial court
improperly rendered summary judgment because (1) the court
should have decided the defendant's motion for summary
judgment as a motion to strike so as to afford her the
opportunity to replead a legally sufficient cause of action,
(2) determining whether a duty existed involves a question of
fact for
Page 544
the jury to decide, and (3) assuming that determining whether
a duty exists is a question of law for the court to decide,
the court incorrectly determined that imposing a duty of care
on the defendant while the plaintiff was furnishing medical
care to him was inconsistent with public policy. We disagree
with all three of the plaintiff's claims and, therefore,
affirm the judgment of the trial court.
[195
Conn.App. 297] The record before the court, viewed in the
light most favorable to the plaintiff as the nonmoving party,
reveals the following facts and procedural
history.[2] On March 18, 2014, the defendant was a
patient in the radiation oncology department of Griffin
Hospital undergoing an examination. At the time of the
examination, " [t]he [d]efendant had a large body
habitus." During the diagnostic procedure or medical
treatment he was undergoing, the defendant was lying in a
supine position.
The
defendant then attempted to transition from a supine to a
seated position on the examining table. In attempting to
change positions, he grabbed hold of the plaintiff, who was
the registered nurse assisting him. As a result of the
defendant's physical contact with her, the plaintiff
suffered several physical injuries.
The
plaintiff commenced this action on February 25, 2016. In her
one count complaint sounding in negligence, the plaintiff
alleged that the injuries she suffered were proximately
caused by the defendant's negligence. Specifically, the
plaintiff alleged that the defendant caused harm to her in
one or more of the following ways: " [1] [the defendant]
applied pull force and/or [195 Conn.App. 298] torsion on the
plaintiff while attempting to go from a supine position to a
seated position; [2] [h]e applied an excessive amount of pull
force and/or torsion on the plaintiff while attempting to go
from a supine position to a seated position; [3] [h]e failed
to immediately let go of the plaintiff when falling back on
the examining table; [4] [h]e failed to ask for medical and
health care staffing for additional support to allow him to
sit up; [5] [h]e failed to maintain proper balance while
going from the supine position to the sitting position; [6]
[h]e failed to give verbal notice to the plaintiff that he
was not able to maintain his balance, position or posture on
the examining table; [7] [h]e failed to provide adequate
effort to transition himself from a supine position to a
seated position when he was physically and intellectually
able to do so; and [8] [h]e engaged in horseplay while on the
examining table."
On
November 9, 2016, the defendant filed a motion for summary
judgment in accordance with Practice Book § 17-49. He
asserted that " [t]he [p]laintiff does not have a viable
cause of action because allowing a health care provider to
recover against her patient is contrary to public policy . .
. ." The trial court granted the
Page 545
motion for summary judgment on December 28, 2017, and issued
a memorandum of decision setting forth its reasoning.
In its
memorandum of decision, the trial court concluded that the
plaintiff failed to demonstrate that there was a genuine
issue of material fact that the defendant, as a patient at
the hospital, owed a duty of care to the plaintiff, who was
the nurse providing him medical care. In arriving at this
conclusion, the trial court analyzed whether imposing a duty
of care on the defendant was inconsistent with public policy.
To support this determination, the trial court stated that
recognizing a duty " would be more than opening the
floodgates [to litigation; it] would be creating a tsunami
with regard to [195 Conn.App. 299] actions against
patient[s]." Furthermore, the trial court observed that
the duty of care that the plaintiff sought to be recognized
had not been acknowledged in other jurisdictions. In fact,
the court stated that the only authorities the plaintiff
cited to support the existence of a similar duty in other
jurisdictions " involved not a claim of negligence but
[instead] claims for assault and intentional acts by the
patient." On the record, the trial court concluded that,
as a matter of law, the defendant did not owe the plaintiff a
duty of care under these circumstances, and, thus, the
defendant was entitled to summary judgment.[3] This appeal
followed.
We
begin our analysis with the appropriate standard of review
for a trial court's granting of a motion for summary
judgment. " On appeal, [w]e must decide whether the
trial court erred in determining that there was no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. . . . [O]ur review
is plenary and we must decide whether the [trial court's]
conclusions are legally and logically correct and find
support in the facts that appear on the record. . . .
[195
Conn.App. 300] " 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. . . .
"
A material fact is a fact that will make a difference in the
outcome of the case. . . . Once the moving party has
presented evidence in support of the motion for summary
judgment, the opposing party must present evidence that
demonstrates
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the existence of some disputed factual issue . . . . 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]. . . .
The movant has the burden of showing the nonexistence of such
issues but the evidence thus presented, if otherwise
sufficient, is not rebutted by the bald statement that an
issue of fact does exist. . . . To oppose a motion for
summary judgment successfully, the nonmovant must recite
specific facts . . . which contradict those stated in the
movant's affidavits and documents." (Internal
quotation marks omitted.) Bank of America, N.A. v.
Aubut, 167 Conn.App. 347, 357-58, 143 A.3d 638 (2016).
I
The
plaintiff first claims that, because the motion for summary
judgment effectively challenged the legal sufficiency of the
pleadings, the court should have treated the motion for
summary judgment as a motion to strike to provide her with
the opportunity to replead. Specifically, the plaintiff
asserts that " [t]he pleadings [195 Conn.App. 301] in
this case . . . could be cured by the plaintiff being allowed
to replead the complaint to allege [a] specific allegation to
establish the duty the defendant had to refrain from engaging
in [conduct that put the plaintiff at risk of injury]."
Furthermore, the plaintiff argues that, if she had been
allowed to replead, then she could have pleaded assault and
battery causes of action, which, she asserts, would amount to
a legally sufficient complaint. We conclude that, by failing
to raise this issue before the trial court, the plaintiff
waived any claim that the trial court improperly failed to
treat the motion for summary judgement as a motion to strike.
Our
Supreme Court has set forth the appropriate circumstances in
which a motion for summary judgment may be used instead of a
motion to strike to challenge the legal sufficiency of a
complaint. " [T]he use of a motion for summary judgment
to challenge the legal sufficiency of a complaint is
appropriate [if] the complaint fails to set forth a cause of
action and the defendant can establish that the defect could
not be cured by repleading. . . . If it is clear on the face
of the complaint that it is legally insufficient and that an
opportunity to amend it would not help the plaintiff, we can
perceive no reason why the defendant should be prohibited
from claiming that he is entitled to judgment as a matter of
law and from invoking the only available procedure for
raising such a claim after the pleadings are closed. . . . It
is incumbent on a plaintiff to allege some recognizable cause
of action in his complaint. . . . Thus, failure by the
defendants to demur to any portion of the . . . complaint
does not prevent them from claiming that the [plaintiff] had
no cause of action and that a judgment [in favor of the
defendants was] warranted. . . . Moreover, [our Supreme
Court] repeatedly has recognized that the desire for judicial
efficiency inherent in the summary judgment procedure would
be frustrated if parties were forced to try a case [195
Conn.App. 302] where there was no real issue to be
tried." (Citations omitted; internal quotation marks
omitted.) Larobina v. McDonald, 274 Conn. 394,
401-402, 876 A.2d 522 (2005).
To
avoid waiving a right to replead, a nonmoving party must,
before the trial court decides the summary judgment motion,
either object to the trial court's deciding the case
through summary judgment and argue that it should instead
decide the motion as a motion to strike to afford it the
opportunity to replead a legally
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sufficient cause of action or, in the alternative, the
nonmoving party may maintain that its pleading is legally
sufficient, but it must offer to amend the pleading if the
court concludes otherwise. See American Progressive Life
& Health Ins. Co. of New York v. Better Benefits, LLC,
292 Conn. 111, 124, 971 A.2d 17 (2009) (" a party does
not waive its right to replead by arguing that the pleading
is legally sufficient, but offering, if the court were to
conclude otherwise, to amend the pleading" ).
In
Larobina v. McDonald, supra, 274 Conn. at 402, our
Supreme Court stated that it " will not reverse the
trial court's ruling on a motion for summary judgment
that was used to challenge the legal sufficiency of the
complaint when it is clear that the motion was being used for
that purpose and the nonmoving party, by failing to object to
the procedure before the trial court, cannot demonstrate
prejudice. A plaintiff should not be allowed to argue to the
trial court that his complaint is legally sufficient and then
argue on appeal that the trial court should have allowed him
to amend his pleading to render it legally sufficient. Our
rules of procedure do not allow a [party] to pursue one
course of action at trial and later, on appeal, argue that a
path he rejected should now be open to him." (Internal
quotation marks omitted.)
Turning to the present case, the defendant moved for summary
judgment after the plaintiff served a complaint [195
Conn.App. 303] sounding in negligence and the defendant filed
his answer and special defenses. In his motion for summary
judgement, the defendant stated that " [t]he [p]laintiff
does not have a viable cause of action because allowing a
health care provider to recover against her patient is
contrary to public policy . . . ." In her objection to
the motion for summary judgment and at oral argument before
the trial court on the motion, the plaintiff failed to object
to the court's deciding the motion as a motion for
summary judgment and did not argue that the court should
instead decide it as a motion to strike to allow her the
opportunity to replead and set out a cause of action that is
legally sufficient. Furthermore, the plaintiff failed to
offer to amend her complaint if the trial court determined
that the cause of action alleged was legally insufficient.
Because the plaintiff failed to object to the court's
deciding the case through summary judgment instead of
deciding the defendant's motion as a motion to strike or,
in the alternative, to offer to amend the complaint if the
court determined the allegations to be legally insufficient,
she " has waived any objection to the use of the motion
for that purpose and any claim that [she] should be permitted
to replead." See Larobina v. McDonald, supra, 274
Conn. at 403 . Therefore, we conclude that the trial
court properly decided the defendant's motion as a motion
for summary judgment instead of as a motion to strike.
II
The
plaintiff also claims that the trial court improperly granted
the defendant's motion for summary judgment because the
question of whether the defendant owed the plaintiff a duty
of care involves a question of fact.[4] Central to this
claim is the plaintiff's assertion [195 Conn.App. 304]
that the trial court was obligated to address, but ...