MARC GRENIER, ADMINISTRATOR OF THE ESTATE OF

NICHOLAS GRASS v. STEPHEN KORTA, II, et al., SC 18640

Judicial District of Stamford

     Negligence; Duty of Care; Whether a Fraternity has a Duty to Provide Its Members with Safe Transportation from a Fraternity Event; Whether the Plaintiff Should have Been Allowed to Replead his Negligence Claim.  Nicholas Grass was a Yale student and a pledge of the Delta Kappa Epsilon Phi Chapter of the Delta Kappa Epsilon National Fraternity (the fraternity).  In the early morning hours of January 17, 2003, Grass was a passenger in a vehicle driven by Sean Fenton, a fraternity brother, when it collided with a disabled tractor trailer as they were returning to New Haven after attending a fraternity event in Manhattan.  Grass died as a result of the injuries he sustained in the accident.  Subsequently, the plaintiff, the administrator of the estate of Nicholas Grass, brought this action against several defendants, including the fraternity.  The complaint alleged that the fraternity was negligent in that it failed to ensure that Fenton was able to operate a motor vehicle safely and was not excessively fatigued before allowing him to drive.  It also alleged that the fraternity did not properly supervise the transportation to and from the fraternity event.  The fraternity moved for summary judgment on several grounds, one of which was that it owed no legally cognizable duty to Grass.  The trial court granted the motion.  It observed that a duty to control the conduct of a person in order to prevent that person from causing physical harm to himself or to another only arises where a special relationship exists between the actor and the third party.  It ruled that the plaintiff's allegations failed to establish such a special relationship between the fraternity and Grass and, therefore, that the negligence claim was legally insufficient because the plaintiff failed to allege facts that would support a finding of a  cognizable legal duty.  The court added that, based on the circumstances of this case, only the hazing statute - General Statutes § 53-23a - could arguably provide a basis for finding that the fraternity owed a duty of care to Grass, but that statute was not pleaded here.  On appeal, the plaintiff contends that, based on the allegations of the complaint and the evidence submitted in opposition to the fraternity's motion for summary judgment -- such as, that a sleep-deprived Fenton was appointed or approved by the fraternity to drive the event attendees back from New York City -- the fraternity owed a duty of care to Grass because it was foreseeable that Fenton would be involved in a car accident.  The plaintiff further contends that recognition of such a duty of care furthers the public policy embodied in § 53-23a, which makes hazing illegal.  Alternatively, the plaintiff claims that, because the fraternity's summary judgment motion challenged the legal sufficiency of his negligence claim, the trial court erred by failing to afford him an opportunity to replead his negligence claim as required by Larobina v. McDonald, 274 Conn. 394 (2005).