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Streifel v. Bulkley

Appellate Court of Connecticut

January 14, 2020

KATERI STREIFEL
v.
WILLIAM R. BULKLEY

         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

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         [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

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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

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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 ...


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