No.

107376
Connecticut Superior Court New London Judicial District at Norwich

Parker v. Nelson
1997 Ct. Sup. 6975 (Conn. Super. Ct. 1997) •
19 CLR 616
Decided Jun 16, 1997

No. 107376 of the statute, and that, as a result of this violation,

Nelson is liable to the plaintiffs. Counts three and
June 16, 1997
four allege that Nelson's failure to report the
alleged incidents of abuse, as required by § 17a-
Memorandum Filed June 16, 1997
101a, was negligent per se and that this failure to
report was the proximate cause of the plaintiffs'
BOOTH, J. injuries. Counts five through eight attribute the
I. Factual and Procedural History same violations and corresponding liability to the
Voluntown Board of Education.
On September 5, 1995, the plaintiffs, Nadine
1 General Statutes § 17a-101(b) provides
Parker and Kathleen Yerkes, by and through Mary
that: "The following persons shall be
Yerkes her parent and guardian, brought an eight
mandated reporters: . . . school teachers. . .
count complaint against Lynn Nelson and the
."
Voluntown Board of Education. The complaint
General Statutes § 17a-101a provides in
alleges the following facts. Nelson is a teacher
pertinent part: "Any mandated reporter, as
employed by the defendant Voluntown Board of
defined in section 17a-101, who in his
Education. On two separate occasions, Nadine
professional capacity has reasonable cause
Parker sent handwritten letters to Nelson detailing to suspect or believe that any child under
accounts of sexual exploitation allegedly the age of eighteen years is in danger of
committed by one Eric Yerkes on herself and being abused . . . shall report or cause a
Kathleen Yerkes. Nelson, upon receiving the report to be made in accordance with the
letters, informed Eric Yerkes of the nature of the provisions of section 17a-101b to 17a-
accusations and told him that she would not report 101d, inclusive. Any person required to
the incident. As a result of her failure to report the report under the provisions of this section
alleged incidents, Eric Yerkes continued to abuse who fails to make such report shall be

the plaintiffs. The plaintiffs claim that, as a result fined not more than five hundred dollars."

of Nelson's failure to report the incidence of General Statutes § 17a-101b provides in

6976 abuse, they have been injured. *6976 pertinent part that "[a]n oral report shall be
made by a mandated reporter within
Counts one and two allege that General Statutes § twenty-four hours of suspecting or
17a-1011 and § 17a-1022 require that Nelson, as a believing that a child has been abused or
"mandated reporter", report any instances of child neglected by telephone or in person to the
abuse which she has "reasonable cause to suspect Commissioner of Children and Families or

or believe" is or has occurred. Counts one and two a law enforcement agency."

further allege that Nelson's failure to report the 2 Section 17a-102 has been repealed.
above-mentioned instances of abuse is a violation

1
 Parker v. Nelson 1997 Ct. Sup. 6975 (Conn. Super. Ct. 1997)

On October 8, 1996, Nelson filed a motion to The defendant asserts that General Statutes § 17a-
strike counts one through four of the amended 101 et seq. does not create a private right of action
complaint along with an accompanying since the statutory scheme does not explicitly
memorandum of law as required by Practice Book provide for one. The plaintiffs assert that the
§ 155. On October 25, 1996, the plaintiffs filed an absence of explicit statutory language creating a
objection to Nelson's motion to strike. On private right of action is not fatal to their claim but
February 13, 1997, defendant Nelson filed a reply that a private right of action can be reasonably
to the plaintiffs' objection to her motion to strike. inferred from the statutory scheme. Specifically,
The plaintiffs filed a supplemental memorandum the plaintiffs direct this court's attention to § 17a-
of law in opposition on or about February 17, 101e(b).3 However, § 17a-101e(b) deals only with
1997. On February 19, 1997, the court, Booth, J., immunity from civil or criminal actions upon the
heard oral argument on the motion to strike. making of a report; not, as in this case, with the
implications of failure to report.
II. Motion to Strike, Legal Standard
3 General Statutes 17a-101e(b) provides in
In ruling on a motion to strike, the [trial] court is
pertinent part that "[a]ny person . . . which,
limited to the facts alleged in the complaint;" in good faith, makes the report pursuant to
Waters v. Autori, 236 Conn. 820, 825, 676 A.2d sections 17a-101a to 17a-101d, inclusive, .
357 (1996); and "the grounds specified in the . . shall be immune from any liability, civil
motion." Meredith v. Police Commission, 182 or criminal, which might otherwise be
Conn. 138, 140, 438 A.2d 27 (1980). The facts in incurred or imposed. . . ."
the complaint must be considered most favorably
to the pleader. Waters v. Autori supra, 236 Conn. There is a split of authority whether the creation of
825. When "facts provable in the complaint would a private cause of action may be tested by a
support a cause of action, the motion must be motion to strike. See Morgan v. Tolland County
denied." Id. 826. Health Care Inc., Superior Court, judicial district
of Hartford-New Britain at New Britain, Docket
III. Discussion No. 469204 (February 9, 1996, Handy J.),
Kutzman-Violette HTG. v. Konover Construction,
In her motion to strike, the defendant argues that
Superior Court, judicial, district of Hartford-New
counts one through four of the plaintiffs'
Britain at Hartford, Docket No. 054357 (May 26,
complaint should be stricken: (1) counts one and
1995, Sheldon, J.); and Stabell v. Prudential
two on the ground that § 17a-101 et seq. does not
Insurance Co., Superior Court, judicial district of
create a private right of action; and (2) counts
Fairfield at Bridgeport, Docket No. 0319568
three and four on the ground that the defendant
(August 4, 1995, Freedman, J.); but see
6977 has no common law duty to the plaintiffs. *6977
Connecticut National Bank v. Ealahan Electric
The plaintiffs argue that all four counts state Co., Superior Court, judicial district of New
viable causes of action since (1) a private right of London at New London, Docket No. 519422
action can be reasonably inferred from the (November 6, 1992, Hendel J.); Mitchell v. City of
statutes, and (2) the plaintiffs have alleged facts New London, Superior Court, judicial district of
sufficient to give rise to either a cause of action for New London at New London, Docket No. 502403
negligence per se or for common law negligence. (September 3, 1992, Leuba, J.); and Kelvin
Corporation v. Folley, Superior Court, judicial
a. Section 17a-101, Private Right of Action
district of Fairfield at Bridgeport, Docket No.
292233 (July 15, 1992, Lewis, J.). This court is

2
 Parker v. Nelson 1997 Ct. Sup. 6975 (Conn. Super. Ct. 1997)

mindful that the motion to strike replaced the "Negligence per se operates to engraft a particular
common law demurrer and sees no reason that the legislative standard onto the general standard of
motion to strike may not be used in this way. care imposed by traditional tort law principles . . .
." Gore v. People's Savings Bank, 235 Conn. 360,
"When the legislature has authorized
376, 665 A.2d 1341 (1995). "If a plaintiff alleges
supplementary private causes of action, it has
that a statute, ordinance or regulation has been
generally done so expressly." Middletown v.
violated, thereby relying on negligence per se, and
Hartford Electric Light Co., 192 Conn. 591, 596,
also alleges that there is a causal connection
787, CT Page 6978 473 A.2d 787 (1984). In
between such negligence and the injuries
Nowak v. Nowak, 175 Conn. 112, 394 A.2d 716
sustained, a cause of action has been stated."5
(1978), the Connecticut Supreme court observed
Commercial Union Ins. Co. v. Frank Perrotti Sons,
that "[a] statute which creates a liability where
Inc., 20 Conn. App. 253, 258, 566 A.2d 431
formerly none, existed should receive a strict
(1989). However, "[w]hile the violation of an
construction and is not to be extended, modified . .
applicable statute by a person governed by it is
. or enlarged in its scope by the mechanics of
ordinarily negligence per se, to constitute a
construction. . . . Penal statutes should be
common-law cause of action, that negligence must
construed strictly and not extended by implication
have been a proximate cause of the injury for
to create a liability which no language of the act
which damages are sought." Nolan v. Morelli, 154
purports to create." (Citations omitted.) Id. 124-
Conn. 432, 444, 266 A.2d 380 (1967).
25.
5 See Blackburn v. Miller-Stephenson
This court grants the defendant's motion to strike
Chemical Company, Superior Court,
counts one and two of the plaintiffs' complaint on judicial district of Danbury at Danbury,
the ground that § 17a-101 et seq. does not create a Docket No. 314089, 13 CONN. L. RPTR.
private cause of action. 364 (January 12, 1995, Stodolink, J.)
(Motion to Strike denied as to a count
b. Negligence Per Se/Negligence
alleging that the violation of General
The defendant argues that counts three and four Statutes §§ 27a-427, 27a-454 constituted
should also be stricken as legally insufficient on negligence per se.); Mountaindale

the ground that the defendant owes no duty to the Condominium Assn. v. Zappone, Superior

plaintiffs and therefore cannot, as a matter of law, Court, judicial district of Litchfield at
Litchfield, Docket No. 067279 (September
be liable to the plaintiffs for her actions. The
6, 1995, Pickett, J.) (Motion to Strike
plaintiffs counter that the defendant's failure to
denied as to a count alleging that a
report the suspected abuse as required by § 17a-
violation of General Statutes § 47-121
101a constitutes negligence per se.4
(implied warranty) constituted negligence
4 "In theory, at least, application of the per se.); Lafferty v. City of New Haven,

negligence per se doctrine represents a Superior Court, judicial district of New

judicial policy judgment independent of Haven at New Haven, Docket No. 349805

legislative intent with respect to the (November 3, 1994, Martin, J.) (Motion to

imposition of civil liability. Both, however, strike denied as to count alleging that

address the question of whether the policy violation of 7-118a constituted negligence

behind the legislative enactment will be per se on the ground that the determination

appropriately served by using it to impose of a whether the statute created a duty was

and measure civil damage liability." beyond the scope of a motion to strike.),

Frederick L. v. Thomas, 578 F.2d 513, 517 and Trott v. Patterson, Superior Court,

(CA 3, 1978). judicial district of Middlesex, Docket No.

3
 Parker v. Nelson 1997 Ct. Sup. 6975 (Conn. Super. Ct. 1997)

064373, 8 CONN. L. RPTR. 335 (February This court concludes that the plaintiffs' complaint
9, 1993, Walsh, J.) (Motion to strike denied states a viable cause of action for negligence per
as to count alleging that failure to comply se in that the plaintiffs allege the violation of a
with General Statutes § 14-46 gave rise to
statute and plead facts sufficient to allege a causal
a negligence per se cause of action.).
link between the statutory violation and the
The plaintiffs' complaint alleges that Nelson alleged injury.7 Thus, the defendant's motion to
violated § 17a-101a by failing to report the strike counts three and four is denied.
instances of alleged child abuse communicated to 7 Since the court finds counts three and four
her by Nadine Parker. The complaint further legally sufficient based on a negligence per
alleges that the plaintiffs are members of the class se theory, this court need not address the
of individuals specifically protected by § 17a- plaintiffs' claim that count's three and four
6979 101.6 The *6979 plaintiffs' complaint also alleges state valid claims in common law
that as a result of the Nelson's failure to report the negligence.

alleged abuse, the abuse continued and the

IV. Conclusion
plaintiffs were thereby injured.
6 "The legislature has expressed the strong
The court grants defendant Nelson's motion to
strike counts one and two of the plaintiffs'
public policy of encouraging medical
professionals and other persons to report
amended complaint because: it holds that § 17a-
actual and suspected child abuse to the 101 et seq. does not provide for a private right of
appropriate authorities and agencies." action and therefore cannot be the sole basis for a
Zamstein v. Marvasti, 240 Conn. 549, 559- cause of action. The court denies defendant
60, ___ A.2d ___ (1997). In Zamstein, the Nelson's motion to strike counts three and four of
Supreme Court recently held that a the plaintiffs' amended complaint because the
mandated reporter owes no duty of care to plaintiffs have alleged sufficient facts to state a
the accused abuser on the ground that to viable negligence per se cause of action.
hold otherwise would I be contrary to the
public policy articulated in the statutory Kevin E. Booth, J.
scheme.