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DOCKET NO. UWY-CV20-6052844-S SUPERIOR COURT
JANE DOE PPA JOHN DOE, ET AL J.D. OF WATERBURY
VS. AT WATERBURY
RESA WEARABLES, INC., ET AL APRIL 16, 2020
MOTION TO STRIKE
Pursuant to Practice Book § 10-39, the defendants, Costco Wholesale
Corporation (hereinafter “Costco”) and Dan Dickson (Costco Manager)
oe (hereinafter “Dickson”), hereby move to strike Counts 17 (Jane Doe v. Costco —
gs Negligent Supervision/Training), 18 (John Doe v. Costco — Negligent
"
plaintiff, Katelyn Ritacco, individually and as the administrator of the estate of a
decedent who was killed in a tractor-trailer accident, brought suit alleging, inter
alia, negligent hiring, training and supervision against the employer of the truck
driver. Although Ritacco alleged that the defendant knew or should have known
of the driver's propensities to engage in the alleged harmful conduct, the court
found that this allegation fell far short of what is required in order to plead a claim
alleging negligent hiring, training or supervision. The court stated that “the
plaintiff has merely alleged conclusions of law, unsupported by the facts, stating
that [the] defendant ... knew or should have known of [its employees’]
14
propensities to engage in the alleged harmful conduct. Accordingly, the court
finds that the plaintiffs claims of negligent hiring, training and supervision are
insufficient as a matter of law, and the motion to strike is granted ...” Id.
To maintain a cause of action sounding in negligent hiring and retention,
the plaintiffs must plead facts to establish that Costco and/or Dickson hired
Daley, that Costco and/or Dickson knew, or had reason to know, of Daley's
propensity for engaging in acts of sexual misconduct, and that Costco and/or
2 Dickson knew or had reason to know that Daley was reasonably likely to engage
38s
gsi in such conduct. No such facts are alleged here. Instead, the plaintiffs makes
gs
aga
EE generalized allegations and sets forth conclusions, without setting forth any
es
28 supporting facts or information.
As set forth above, the plaintiffs allege five ways in which Costco and/or
Dickson caused their injuries under a claim for Negligent Hiring/Retention, none
of which suffice to survive a motion to strike. They first allege that Costco and/or
Dickson “failed to investigate the background of Brian Daley even though it knew
or should have known that failing to do so risked the health and safety of the
public, customers, and/or potential customers including Jane Doe.” This
allegation contains no facts, and is merely a conclusory statement. Further, this
allegation does not provide any basis upon which it could be found that Daley
had a propensity for engaging in inappropriate sexual conduct, nor does it
15
provide a basis upon which it could be found that Costco or Dickson knew of any
such propensity on the part of Daley, or any facts to show that Costco or Dickson
knew or had reason to know that Daley was likely to engage in this conduct.
The remaining specifications of negligence alleged against Costco and
Dickson are also mere conclusions, unsupported by any factual allegations. The
plaintiffs claim that Costco and/or Dickson “failed to adequately investigate the
background of Bryan Daley even though it knew or should have known that
2 + failing to do so risked the health and safety of the public, customers, and/or
py 82
Eo potential customers including Jane Doe”, that Costco and/or Dickson “knew or
os
aed
should have known that Bryan Daley behaved in a negligent manner around the
23 public, customers, and/or potential customers yet failed to take actions to
address this behavior”, that Costco and/or Dickson “knew or should have known
that Bryan Daley was unfit to work as a salesman yet failed to address this”,
and/or Costco and/or Dickson knew or should have known of the background of
Bryan Daley and yet hired him when they knew or should have known that hiring
him risked the health and safety of the public, customers, and/or potential
customers including Jane Doe”. Again, no facts are plead to support these
conclusory allegations.
16
The plaintiffs must allege more than mere conclusions to sustain this
cause of action. They must plead facts. They have not done so and, therefore,
Counts 21, 22, 23, 24, 37, 38, 39, and 40 should be stricken.
B The plaintiffs’ Negligent Supervision/Training claims are legally
insufficient because they fail to plead facts which satisfy the required
element of foreseeability.
In Counts 17, 18, 19, 20, 33, 34, 35, and 36, the plaintiffs assert negligent
supervision/training claims against Costco and Dickson.
2 “In order to plead a cause of action sounding in negligent supervision, a
py
38 plaintiff must plead injury by an employee whom the defendant had a duty to
<8 cs
supervise, failed to supervise and whom the defendant knew or should have
29
28 Ea known would cause the injury.” (Internal quotation marks omitted, emphasis
ze added.) Andreoni v. Forest Enterprises, Inc., Superior Court, Judicial District of
Stamford, Docket No, CV07-6000743 (2010 WL 2196525) (April 21, 2010,
Brazzel-Massaro, J.) (Emphasis added); Vasudevan v. Pragosa, Superior Court,
Judicial District of Hartford, Docket No. CV05-4012416 (2006 WL 328367)
(January 23,2006, Keller, J.); See also Meade v. Yale University, Superior Court,
Judicial District of New Haven, Docket No. CV05-4016155 (40 Conn. L. Rptr.
617, 619) (2006 WL 2730320) (September 7, 2006, Skoinick, J.T.R.);
Companions & Homemakers, Inc. v. Pogasnik, Superior Court, Judicial District of
Hartford, Docket No. CV04-0834592 (2005 WL 1634366) (June 7, 2005, Wagner,
17
J.T.R.). Federal courts applying Connecticut law likewise have held that “[a]
defendant does not owe a duty of care to protect a plaintiff from another
employee's tortious acts unless the defendant knew or reasonably should
have known of the employee's propensity to engage in that type of tortious
conduct.” (Emphasis added). Roberts v. Circuit-Wise, Inc., 142 F Sup. 2d 211,
214 (D. Conn, 2001).
“Ultimately, the elements for negligent supervision are nearly the same as
oH those for negligent hiring, the only difference being at what point the
defendants became aware of the actor's propensity for tortious conduct.”
gs
bg ld. “Whether the claim is for negligent hiring, negligent supervision or negligent
23 retention, a plaintiff must allege facts that support the element of
ze foreseeability.” E Ibert v. Connecticut Yankee Council, Inc., Superior Court,
Judicial District of New Haven, Docket No. CV01-0456879 (2004 WL 1832935)
(July 16, 2004, Arnold, J.).
In Meade v. Orthopedic Associates of Windham County, Superior Court,
judicial district of Windham, Docket No. CV06-4005043 (2006 WL 4755001)
(December 27, 2007, Booth, J.), the court held that the plaintiff failed to
sufficiently allege a cause of action of negligent supervision. The court's
reasoning in Meade, Supra, is particularly helpful in illustrating just how strictly
18
and universally applied the foreseeability test has become in negligent
supervision cases.' The court stated:
“Nearly all the Superior Court decisions...have required the plaintiff
in a negligent supervision action to plead and prove injury by the
defendant's negligence in failing to properly supervise an employee
who the defendant had a duty to supervise and who the defendant
knew or should have known would cause theinjury... The plaintiff has
not alleged that [the defendant] knew or should have known of any
employee's propensity for tortious conduct...[UJudges of the Superior
Court have granted motions to strike in cases where the pleadings in
question fail to allege facts that the employer knew or should have
known of the employee's propensity for tortious conduct. [See] Doe
oe v. Nelson, Superior Court, Judicial District of Waterbury, Docket No.
F382
CV05-5000575 (August 1, 2006, Matasavage, J.)(41 Conn. L. Rptr.
Es 745, 747); See also Ahern v. Kappalumakkel, Judicial District of
Be
Ansonia-Milford at Milford, Docket No. CV 01 0075617 (December
1, 2004, Carroll, J.) (38 Conn. L. Rptr. 315), affd, 97 Conn. App. 189,
903 A.2d 266 (2006); Zides v. Quinnipiac University, Superior Court,
23 Ea Judicial District of New Haven, Docket No. CV-02-0470131
oo: (December 15, 2003, Arnold, J.); Perry v. SBC/SNET, Superior
Court, Judicial District of Ansonia-Milford at Milford, Docket No.
CV04-085367 (September 12, 2005, Moran, J.T.R.).” (Citation
omitted; internal quotation marks omitted.) Id.
Counts 17, 18, 19, 20, 33, 34, 35, and 36 fail to satisfy the foreseeability
pleading requirements in that they fail to plead facts to establish that Daley had
the propensity to engage in the conduct which allegedly caused harm to plaintiff.
See Carmichael v. West Haven Medical Group, LLC, Superior Court, Judicial
District of New Haven, Docket No. CV01- 5033775 (2011 WL 7064251)(Dec. 28,
' This same foreseeability test applies to claims alleging negligent hiring and negligent
supervision.
19
2011, Young, J.)(Striking claim of negligent supervision due to lack of a factual
basis for foreseeability of tortious behavior).
Further, while the plaintiffs allege that the defendants knew or should have
known of Daley’s propensity to engage in improper conduct, they plead no facts
establishing same. The Negligent Supervision/Training counts suffer from the
same deficiencies as the Negligent Hiring/Retention counts. They do not allege
facts to satisfy the foreseeability test. Therefore, Counts 17, 18, 19, 20, 33, 34,
2 35, and 36 should be stricken.
383
Boe c The vicarious liability claims in Counts 27, 28, 31, and 32 are legally
gs
ge insufficient because they fail to plead the requisite facts to establish
BE respondeat superior.
£0
Bes In Counts 27, 28, 31, and 32, the plaintiffs make a claim for negligence
ms
against Costco and Dickson on the basis of respondeat superior. The plaintiffs
allege that Bryan Daley made sexual and/or physical contact with Jane Doe on
September 16, 2018. They allege that Daley's conduct constituted negligence,
and that they suffered various injuries as a result of his conduct. They allege that
at all relevant times, Daley was performing within his scope of employment as a
salesman on behalf of Costco and/or Dickson.
"A servant acts within the scope of employment while engaged in the
service of the master, and it is not synonymous with the phase during the period
covered by his employment...while a servant may be acting within the scope of
20
his employment when his conduct is negligent, disobedient and unfaithful...that
does not end the inquiry. Rather, the vital inquiry... is whether the servant on the
occasion in question was engaged in a disobedient or unfaithful conducting of the
master's business, or was engaged in an abandonment of the master's
business. ..Unless [the servant] was actuated at least in part by a purpose to
serve a principal, the principal is not liable." (Citations omitted; internal quotation
marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 209-
2 e 10, 579 A.2d 69 (1990). "[I]t must be the affairs of the principal, and not solely the
2a affairs of the agent, which are being furthered in order for the doctrine [of
es
beee respondeat superior] to apply." Matthiesen v. Vanech, 266 Conn. 822, 839 n. 15
28 38
Ea (2003).
aa
“When an employee engages in sexual misconduct toward a minor or a
ward, courts generally reject efforts to hold the employer liable under the doctrine
of respondeat superior on the basis that the ‘sexual assaults ... were repugnant
to his employer's business and in utter contravention of the employer’s aims and
rules. Unlike a situation in which a servant performs the master’s work poorly or
misunderstands what the master wants done, the molestation of children is a
total abdication of the master’s work so that the [employee] can satisfy personal
lust.” Doe v. Harford Roman Catholic Diocesan Corp., 2014 WL 2581049 (May 9,
2014) citing Doe v. Norwich Roman Catholic Diocesan Corp., 49 Conn.Sup. 661,
21
671 (2006). See also Martin v. Plude, Superior Court, judicial district of Fairfield
at Bridgeport, Docket No. 278393 (March 18, 1994)(Maiocco, J.)(court held that
plaintiff's respondeat superior claim against board of education when teacher
engaged in unconsented sexual relations with a student was insufficient since the
plaintiffs failed to allege that the defendant’s acts were performed in furtherance
of his employer's business); Maule v. Sullivan, Superior Court, judicial district of
Hartford/New Britain, Docket No. 517623 (August 9, 1993)(Wagner, J.)(court
oH
held that were patient was sexually assaulted by a nurse at a hospital, the
Bs
$82
alleged actions of the nurse were so clearly outside the scope of his employment
gs
5 wo and not in furtherance of any interest of the hospital, the allegations seeking to
og
oe
2 hold the hospital liable were insufficient as a matter of law).
Notwithstanding our courts’ reluctance to hold an employer liable under
the doctrine of respondeat superior for an employee’s sexual misconduct, in
order to maintain a cause of action against an employer for the tortious acts of an
employee under the doctrine of respondeat superior, plaintiff must allege facts to
show that the employee was both acting within the scope of his employment and
in furtherance of his employer's business. No such allegations appear in the
Complaint. The sole allegations pled to establish liability on the part of Costco
and/or Dickson are the plaintiffs’ bald assertions that Daley was an agent,
servant, and/or employee of Costco and/or Dickson and at all times mentioned
22
herein, Daley was performing within his scope of employment as a salesman on
behalf of Costco and/or Dickson. The plaintiffs allege that Costco and/or Dickson
is liable to the plaintiffs pursuant to the common law doctrine of respondeat
superior. Such allegations are insufficient to set forth a cause of action which
could impose liability on Costco and/or Dickson as Daley’s employer. Plaintiff has
failed to plead any facts which would establish that Daley committed the sexual
misconduct within the scope of his employment or in furtherance of his
&
employer's business.
ry 3
Simply alleging that Daley committed the tortious acts while “in the scope
58go
be of his employment” without more is insufficient to state a legally cognizant claim
28 grounded on respondeat superior, as allegations of tortious conduct while on
23
duty are not susceptible of an inference that he was acting to further his
employer's interest. See Gutierrez v. Thorne, 13 Conn. App. 493 (1988)
(Affirming decision of trial court holding that defendant was not liable on theory of
respondeat superior, as it was clear that the employee was not furthering the
business interests of his employer when he sexually assaulted the plaintiff. A
statement in plaintiff's affidavit that employee was "on duty" at the time of the
tortious conduct is not susceptible of an inference that he was acting to further
his employer's interest); Levitz v. Jewish Home for the Aged, Inc., 156 Conn.
193,198, 239 A.2d 490 (1968). (“In the course of employment’ means while
23
engaged in the service of the master, and it is not synonymous with the phrase
“during the period covered by his employment." Id., 198, quoting Pacific
Telephone & Telegraph Co. v. White, 104 F.2d 923, 926 (9th Cir. 1939)).
There are no facts alleged to establish that Daley was performing work for
his employer at the time of the alleged assault, and there is no allegation that
Daley was acting in furtherance of the defendant Costco and/or Dickson’s
business interests when he committed the alleged assault of the plaintiff. The
oe Complaint is devoid of even a conclusory allegation as to this required element to
establish liability on the basis of respondeat superior or vicarious liability.
gs
Accordingly, these counts should be stricken for failure to state a claim for which
eB
28 BS
sa
relief may be granted.
mS
V. CONCLUSION
For the foregoing reasons, Counts 17,18, 19, 20, 21, 22, 23, 24, 27, 28,
31, 32, 33, 34, 35, 36, 37, 38, 39, and 40 of the plaintiffs’ Complaint should be
stricken.
24
THE DEFENDANTS,
COSTCO WHOLESALE CORPORATION &
DAN DICKSON (COSTCO MANAGER)
/s/400462
Miles N. Esty, Esq.
Esty & Buckmir, LLC
2340 Whitney Avenue
Hamden, CT 06518
(203) 248-5678
Juris No.: 415435
oe
B82 CERTIFICATE OF SERVICE
24
g's
ge | certify that a copy of the above was or will immediately be mailed or
Bz delivered electronically or non-electronically on this date to all counsel and self-
Sk
represented parties of record and that written consent for electronic delivery was
3g received from all counsel and self-represented parties of record who were or will
immediately be electronically served:
rs
Moore O'Brien & Foti
891 Straits Turnpike
Middlebury, CT 06762
GMOORE@MOJYLAW.COM
Law Offices of Meehan Roberts Turret & Rosenbaum
108 Leigus Road, 1* Floor
Wallingford, CT 06492
LMLAWCT@LibertyMutual.com
/s/400462
Miles N. Esty, Esq.
Commissioner of the Superior Court
25
Preview
DOCKET NO. UWY-CV20-6052844-S SUPERIOR COURT JANE DOE PPA JOHN DOE, ET AL J.D. OF WATERBURY VS. AT WATERBURY RESA WEARABLES, INC., ET AL APRIL 16, 2020 MOTION TO STRIKE Pursuant to Practice Book § 10-39, the defendants, Costco Wholesale Corporation (hereinafter “Costco”) and Dan Dickson (Costco Manager) oe (hereinafter “Dickson”), hereby move to strike Counts 17 (Jane Doe v. Costco — gs Negligent Supervision/Training), 18 (John Doe v. Costco — Negligent " plaintiff, Katelyn Ritacco, individually and as the administrator of the estate of a decedent who was killed in a tractor-trailer accident, brought suit alleging, inter alia, negligent hiring, training and supervision against the employer of the truck driver. Although Ritacco alleged that the defendant knew or should have known of the driver's propensities to engage in the alleged harmful conduct, the court found that this allegation fell far short of what is required in order to plead a claim alleging negligent hiring, training or supervision. The court stated that “the plaintiff has merely alleged conclusions of law, unsupported by the facts, stating that [the] defendant ... knew or should have known of [its employees’] 14 propensities to engage in the alleged harmful conduct. Accordingly, the court finds that the plaintiffs claims of negligent hiring, training and supervision are insufficient as a matter of law, and the motion to strike is granted ...” Id. To maintain a cause of action sounding in negligent hiring and retention, the plaintiffs must plead facts to establish that Costco and/or Dickson hired Daley, that Costco and/or Dickson knew, or had reason to know, of Daley's propensity for engaging in acts of sexual misconduct, and that Costco and/or 2 Dickson knew or had reason to know that Daley was reasonably likely to engage 38s gsi in such conduct. No such facts are alleged here. Instead, the plaintiffs makes gs aga EE generalized allegations and sets forth conclusions, without setting forth any es 28 supporting facts or information. As set forth above, the plaintiffs allege five ways in which Costco and/or Dickson caused their injuries under a claim for Negligent Hiring/Retention, none of which suffice to survive a motion to strike. They first allege that Costco and/or Dickson “failed to investigate the background of Brian Daley even though it knew or should have known that failing to do so risked the health and safety of the public, customers, and/or potential customers including Jane Doe.” This allegation contains no facts, and is merely a conclusory statement. Further, this allegation does not provide any basis upon which it could be found that Daley had a propensity for engaging in inappropriate sexual conduct, nor does it 15 provide a basis upon which it could be found that Costco or Dickson knew of any such propensity on the part of Daley, or any facts to show that Costco or Dickson knew or had reason to know that Daley was likely to engage in this conduct. The remaining specifications of negligence alleged against Costco and Dickson are also mere conclusions, unsupported by any factual allegations. The plaintiffs claim that Costco and/or Dickson “failed to adequately investigate the background of Bryan Daley even though it knew or should have known that 2 + failing to do so risked the health and safety of the public, customers, and/or py 82 Eo potential customers including Jane Doe”, that Costco and/or Dickson “knew or os aed should have known that Bryan Daley behaved in a negligent manner around the 23 public, customers, and/or potential customers yet failed to take actions to address this behavior”, that Costco and/or Dickson “knew or should have known that Bryan Daley was unfit to work as a salesman yet failed to address this”, and/or Costco and/or Dickson knew or should have known of the background of Bryan Daley and yet hired him when they knew or should have known that hiring him risked the health and safety of the public, customers, and/or potential customers including Jane Doe”. Again, no facts are plead to support these conclusory allegations. 16 The plaintiffs must allege more than mere conclusions to sustain this cause of action. They must plead facts. They have not done so and, therefore, Counts 21, 22, 23, 24, 37, 38, 39, and 40 should be stricken. B The plaintiffs’ Negligent Supervision/Training claims are legally insufficient because they fail to plead facts which satisfy the required element of foreseeability. In Counts 17, 18, 19, 20, 33, 34, 35, and 36, the plaintiffs assert negligent supervision/training claims against Costco and Dickson. 2 “In order to plead a cause of action sounding in negligent supervision, a py 38 plaintiff must plead injury by an employee whom the defendant had a duty to <8 cs supervise, failed to supervise and whom the defendant knew or should have 29 28 Ea known would cause the injury.” (Internal quotation marks omitted, emphasis ze added.) Andreoni v. Forest Enterprises, Inc., Superior Court, Judicial District of Stamford, Docket No, CV07-6000743 (2010 WL 2196525) (April 21, 2010, Brazzel-Massaro, J.) (Emphasis added); Vasudevan v. Pragosa, Superior Court, Judicial District of Hartford, Docket No. CV05-4012416 (2006 WL 328367) (January 23,2006, Keller, J.); See also Meade v. Yale University, Superior Court, Judicial District of New Haven, Docket No. CV05-4016155 (40 Conn. L. Rptr. 617, 619) (2006 WL 2730320) (September 7, 2006, Skoinick, J.T.R.); Companions & Homemakers, Inc. v. Pogasnik, Superior Court, Judicial District of Hartford, Docket No. CV04-0834592 (2005 WL 1634366) (June 7, 2005, Wagner, 17 J.T.R.). Federal courts applying Connecticut law likewise have held that “[a] defendant does not owe a duty of care to protect a plaintiff from another employee's tortious acts unless the defendant knew or reasonably should have known of the employee's propensity to engage in that type of tortious conduct.” (Emphasis added). Roberts v. Circuit-Wise, Inc., 142 F Sup. 2d 211, 214 (D. Conn, 2001). “Ultimately, the elements for negligent supervision are nearly the same as oH those for negligent hiring, the only difference being at what point the defendants became aware of the actor's propensity for tortious conduct.” gs bg ld. “Whether the claim is for negligent hiring, negligent supervision or negligent 23 retention, a plaintiff must allege facts that support the element of ze foreseeability.” E Ibert v. Connecticut Yankee Council, Inc., Superior Court, Judicial District of New Haven, Docket No. CV01-0456879 (2004 WL 1832935) (July 16, 2004, Arnold, J.). In Meade v. Orthopedic Associates of Windham County, Superior Court, judicial district of Windham, Docket No. CV06-4005043 (2006 WL 4755001) (December 27, 2007, Booth, J.), the court held that the plaintiff failed to sufficiently allege a cause of action of negligent supervision. The court's reasoning in Meade, Supra, is particularly helpful in illustrating just how strictly 18 and universally applied the foreseeability test has become in negligent supervision cases.' The court stated: “Nearly all the Superior Court decisions...have required the plaintiff in a negligent supervision action to plead and prove injury by the defendant's negligence in failing to properly supervise an employee who the defendant had a duty to supervise and who the defendant knew or should have known would cause theinjury... The plaintiff has not alleged that [the defendant] knew or should have known of any employee's propensity for tortious conduct...[UJudges of the Superior Court have granted motions to strike in cases where the pleadings in question fail to allege facts that the employer knew or should have known of the employee's propensity for tortious conduct. [See] Doe oe v. Nelson, Superior Court, Judicial District of Waterbury, Docket No. F382 CV05-5000575 (August 1, 2006, Matasavage, J.)(41 Conn. L. Rptr. Es 745, 747); See also Ahern v. Kappalumakkel, Judicial District of Be Ansonia-Milford at Milford, Docket No. CV 01 0075617 (December 1, 2004, Carroll, J.) (38 Conn. L. Rptr. 315), affd, 97 Conn. App. 189, 903 A.2d 266 (2006); Zides v. Quinnipiac University, Superior Court, 23 Ea Judicial District of New Haven, Docket No. CV-02-0470131 oo: (December 15, 2003, Arnold, J.); Perry v. SBC/SNET, Superior Court, Judicial District of Ansonia-Milford at Milford, Docket No. CV04-085367 (September 12, 2005, Moran, J.T.R.).” (Citation omitted; internal quotation marks omitted.) Id. Counts 17, 18, 19, 20, 33, 34, 35, and 36 fail to satisfy the foreseeability pleading requirements in that they fail to plead facts to establish that Daley had the propensity to engage in the conduct which allegedly caused harm to plaintiff. See Carmichael v. West Haven Medical Group, LLC, Superior Court, Judicial District of New Haven, Docket No. CV01- 5033775 (2011 WL 7064251)(Dec. 28, ' This same foreseeability test applies to claims alleging negligent hiring and negligent supervision. 19 2011, Young, J.)(Striking claim of negligent supervision due to lack of a factual basis for foreseeability of tortious behavior). Further, while the plaintiffs allege that the defendants knew or should have known of Daley’s propensity to engage in improper conduct, they plead no facts establishing same. The Negligent Supervision/Training counts suffer from the same deficiencies as the Negligent Hiring/Retention counts. They do not allege facts to satisfy the foreseeability test. Therefore, Counts 17, 18, 19, 20, 33, 34, 2 35, and 36 should be stricken. 383 Boe c The vicarious liability claims in Counts 27, 28, 31, and 32 are legally gs ge insufficient because they fail to plead the requisite facts to establish BE respondeat superior. £0 Bes In Counts 27, 28, 31, and 32, the plaintiffs make a claim for negligence ms against Costco and Dickson on the basis of respondeat superior. The plaintiffs allege that Bryan Daley made sexual and/or physical contact with Jane Doe on September 16, 2018. They allege that Daley's conduct constituted negligence, and that they suffered various injuries as a result of his conduct. They allege that at all relevant times, Daley was performing within his scope of employment as a salesman on behalf of Costco and/or Dickson. "A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phase during the period covered by his employment...while a servant may be acting within the scope of 20 his employment when his conduct is negligent, disobedient and unfaithful...that does not end the inquiry. Rather, the vital inquiry... is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business. ..Unless [the servant] was actuated at least in part by a purpose to serve a principal, the principal is not liable." (Citations omitted; internal quotation marks omitted.) A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 209- 2 e 10, 579 A.2d 69 (1990). "[I]t must be the affairs of the principal, and not solely the 2a affairs of the agent, which are being furthered in order for the doctrine [of es beee respondeat superior] to apply." Matthiesen v. Vanech, 266 Conn. 822, 839 n. 15 28 38 Ea (2003). aa “When an employee engages in sexual misconduct toward a minor or a ward, courts generally reject efforts to hold the employer liable under the doctrine of respondeat superior on the basis that the ‘sexual assaults ... were repugnant to his employer's business and in utter contravention of the employer’s aims and rules. Unlike a situation in which a servant performs the master’s work poorly or misunderstands what the master wants done, the molestation of children is a total abdication of the master’s work so that the [employee] can satisfy personal lust.” Doe v. Harford Roman Catholic Diocesan Corp., 2014 WL 2581049 (May 9, 2014) citing Doe v. Norwich Roman Catholic Diocesan Corp., 49 Conn.Sup. 661, 21 671 (2006). See also Martin v. Plude, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 278393 (March 18, 1994)(Maiocco, J.)(court held that plaintiff's respondeat superior claim against board of education when teacher engaged in unconsented sexual relations with a student was insufficient since the plaintiffs failed to allege that the defendant’s acts were performed in furtherance of his employer's business); Maule v. Sullivan, Superior Court, judicial district of Hartford/New Britain, Docket No. 517623 (August 9, 1993)(Wagner, J.)(court oH held that were patient was sexually assaulted by a nurse at a hospital, the Bs $82 alleged actions of the nurse were so clearly outside the scope of his employment gs 5 wo and not in furtherance of any interest of the hospital, the allegations seeking to og oe 2 hold the hospital liable were insufficient as a matter of law). Notwithstanding our courts’ reluctance to hold an employer liable under the doctrine of respondeat superior for an employee’s sexual misconduct, in order to maintain a cause of action against an employer for the tortious acts of an employee under the doctrine of respondeat superior, plaintiff must allege facts to show that the employee was both acting within the scope of his employment and in furtherance of his employer's business. No such allegations appear in the Complaint. The sole allegations pled to establish liability on the part of Costco and/or Dickson are the plaintiffs’ bald assertions that Daley was an agent, servant, and/or employee of Costco and/or Dickson and at all times mentioned 22 herein, Daley was performing within his scope of employment as a salesman on behalf of Costco and/or Dickson. The plaintiffs allege that Costco and/or Dickson is liable to the plaintiffs pursuant to the common law doctrine of respondeat superior. Such allegations are insufficient to set forth a cause of action which could impose liability on Costco and/or Dickson as Daley’s employer. Plaintiff has failed to plead any facts which would establish that Daley committed the sexual misconduct within the scope of his employment or in furtherance of his & employer's business. ry 3 Simply alleging that Daley committed the tortious acts while “in the scope 58go be of his employment” without more is insufficient to state a legally cognizant claim 28 grounded on respondeat superior, as allegations of tortious conduct while on 23 duty are not susceptible of an inference that he was acting to further his employer's interest. See Gutierrez v. Thorne, 13 Conn. App. 493 (1988) (Affirming decision of trial court holding that defendant was not liable on theory of respondeat superior, as it was clear that the employee was not furthering the business interests of his employer when he sexually assaulted the plaintiff. A statement in plaintiff's affidavit that employee was "on duty" at the time of the tortious conduct is not susceptible of an inference that he was acting to further his employer's interest); Levitz v. Jewish Home for the Aged, Inc., 156 Conn. 193,198, 239 A.2d 490 (1968). (“In the course of employment’ means while 23 engaged in the service of the master, and it is not synonymous with the phrase “during the period covered by his employment." Id., 198, quoting Pacific Telephone & Telegraph Co. v. White, 104 F.2d 923, 926 (9th Cir. 1939)). There are no facts alleged to establish that Daley was performing work for his employer at the time of the alleged assault, and there is no allegation that Daley was acting in furtherance of the defendant Costco and/or Dickson’s business interests when he committed the alleged assault of the plaintiff. The oe Complaint is devoid of even a conclusory allegation as to this required element to establish liability on the basis of respondeat superior or vicarious liability. gs Accordingly, these counts should be stricken for failure to state a claim for which eB 28 BS sa relief may be granted. mS V. CONCLUSION For the foregoing reasons, Counts 17,18, 19, 20, 21, 22, 23, 24, 27, 28, 31, 32, 33, 34, 35, 36, 37, 38, 39, and 40 of the plaintiffs’ Complaint should be stricken. 24 THE DEFENDANTS, COSTCO WHOLESALE CORPORATION & DAN DICKSON (COSTCO MANAGER) /s/400462 Miles N. Esty, Esq. Esty & Buckmir, LLC 2340 Whitney Avenue Hamden, CT 06518 (203) 248-5678 Juris No.: 415435 oe B82 CERTIFICATE OF SERVICE 24 g's ge | certify that a copy of the above was or will immediately be mailed or Bz delivered electronically or non-electronically on this date to all counsel and self- Sk represented parties of record and that written consent for electronic delivery was 3g received from all counsel and self-represented parties of record who were or will immediately be electronically served: rs Moore O'Brien & Foti 891 Straits Turnpike Middlebury, CT 06762 GMOORE@MOJYLAW.COM Law Offices of Meehan Roberts Turret & Rosenbaum 108 Leigus Road, 1* Floor Wallingford, CT 06492 LMLAWCT@LibertyMutual.com /s/400462 Miles N. Esty, Esq. Commissioner of the Superior Court 25