Argued
September 17, 2019
Procedural
History
Action
to recover damages for the defendant's alleged
negligence, and for other relief, brought to the Superior
Court in the judicial district of Waterbury, where the court,
Brazzel-Massaro, J., granted the
defendant's motion for summary judgment and rendered
judgment thereon, from which the plaintiff appealed to this
court. Affirmed.
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.
OPINION
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 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.
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 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 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 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. . .
.
‘‘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 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 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 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 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. 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 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. 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 that the trial court was obligated
to address, but failed to do so, the question of whether the
harm allegedly suffered by the plaintiff was foreseeable
before concluding whether a duty existed in this case. In
other words, the plaintiff argues that the trial court
improperly decided whether the defendant owed the plaintiff a
duty of care as a matter of law because the analysis in which
the court should have engaged involves a question of
fact reserved for the jury. We disagree.
We
first set forth the well settled legal principles concerning
whether a court is required to address the foreseeability
prong if, as a matter of law, the court determines that
recognizing a duty of care on the defendant is inconsistent
with public policy, and whether determining if a duty of care
is owed is a question of law that the court may decide at the
summary judgment stage. ‘‘Issues of negligence
are ordinarily not susceptible of summary adjudication but
should be resolved by trial in the ordinary manner.''
(Internal quotation marks omitted.) Fogarty v.
Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).
Nevertheless, ‘‘[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 Conn. 904, 823 A.2d 1221 (2003).
‘‘The
existence of a duty is a question of law and only if such a
duty is found to exist does the trier of fact then determine
whether the defendant violated that duty in the particular
situation at hand. . . . [Our Supreme Court has] stated that
the test for the existence of a legal duty of care entails
(1) a determination of whether an ordinary person in the
defendant's position, knowing what the defendant knew or
should have known, would anticipate that harm of the general
nature of that suffered was likely to result, and (2) a
determination, on the basis of a public policy analysis, of
whether the defendant's responsibility for [his]
negligent conduct should extend to the particular
consequences or particular plaintiff in the case. .
. . The first part of the test invokes the question of
foreseeability, and the second part invokes the question of
policy.'' (Emphasis added; internal quotation marks
omitted.) Neuhaus v. DeCholnoky, 280 Conn. 190,
217-18, 905 A.2d 1135 (2006). A court, however, is
‘‘not required to address the first prong as to
foreseeability if [it] determine[s], based on the public
policy prong, that no duty of care existed.''
Id., 218. ‘‘Foreseeability
notwithstanding, it is well established that Connecticut
courts will not impose a duty of care on [a defendant] if
doing so would be inconsistent with public
policy.''Monk v. Temple George Associates,
LLC, 273 Conn. 108, 116, 869 A.2d 179 (2005).
‘‘If a court determines, as a matter of law, that
a defendant owes no duty to a plaintiff, the plaintiff cannot
recover in negligence from the defendant.'' (Internal
quotation marks omitted.) Grenier v. Commissioner of
Transportation, 306 Conn. 523, 539, 51 A.3d 367 (2012).
In the
present case, the trial court granted the defendant's
motion for summary judgment because it determined that, as a
matter of law, the defendant, as a patient, did not owe a
duty ‘‘to protect the [plaintiff] medical
provider from falling forward when the [defendant] sought her
assistance'' when transitioning from a supine
position on the examining table. In arriving at this
conclusion, the trial court refrained from determining
whether the harm the plaintiff suffered was foreseeable and
proceeded to determine that, as a matter of public policy,
the defendant did not owe the plaintiff a duty of care while
receiving medical care from her. Because the determination of
whether a duty of care exists under the circumstances is a
question of law that the court is permitted to make at the
summary judgment stage and, in making this determination, the
court may decide that no duty exists solely on public policy
grounds, we conclude that the trial court did not improperly
decide a factual question reserved for the jury. Accordingly,
we reject this claim.
III
The
plaintiff next claims that, even if determining whether a
duty exists is a question of law that may be decided at the
summary judgment stage, the court improperly granted the
defendant's motion for summary judgment because
recognizing that a patient owes a duty of care to a medical
care provider (medical provider) while that provider is
furnishing medical care to that patient is in fact consistent
with public policy. We disagree with the plaintiff and,
therefore, decline to recognize that a patient owes a duty of
care to a medical provider while receiving medical care from
that provider.[5]
Our
Supreme Court has set forth the inquiry to determine if
recognizing a duty of care contradicts public policy.
‘‘A simple conclusion that the harm to the
plaintiff was foreseeable . . . cannot by itself mandate a
determination that a legal duty exists. Many harms are quite
literally foreseeable, yet for pragmatic reasons, no recovery
is allowed. . . . A further inquiry must be made, for we
recognize that duty is not sacrosanct in itself, but is only
an expression of the sum total of those considerations of
policy which lead the law to say that the plaintiff is
entitled to protection. . . . [Although] it may seem that
there should be a remedy for every wrong, this is an ideal
limited perforce by the realities of this world. Every injury
has ramifying consequences, like the ripplings of the waters,
without end. The problem for the law is to limit the legal
consequences of wrongs to a controllable degree. . . . The
final step in the duty inquiry, then, is to make a
determination of the fundamental policy of the law, as to
whether the defendant's responsibility should extend to
such results.'' (Internal quotation marks omitted.)
Murillo v. Seymour Ambulance Assn., Inc., 264
Conn.474, 479-80, 823 A.2d 1202 (2003).
‘‘Duty
is a legal conclusion about relationships between
individuals, made after the fact, and imperative to a
negligence cause of action. The nature of the duty, and the
specific persons to whom it is owed, are determined by the
circumstances surrounding the conduct of the
individual.'' (Internal quotation marks omitted.)
Lodge v. Arett Sales Corp., 246 Conn. 563, 571, 717
A.2d 215 (1998). ‘‘[I]t is well established that
Connecticut courts will not impose a duty of care on [a
defendant] if doing so would be inconsistent with public
policy.'' Monk v. Temple George Associates,
LLC, supra, 273 Conn. 116. As previously noted, our
Supreme Court recognizes ‘‘four factors to be
considered in determining the extent of a legal duty as a
matter of public policy: (1) the normal expectations of the
participants in the activity under review; (2) the public
policy of encouraging participation in the activity, while
weighing the safety of the participants; (3) the avoidance of
increased litigation; and (4) the decisions of other
jurisdictions.'' Murillo v. Seymour Ambulance
Assn., Inc., supra, 264 ...