Plaintiff relies heavily on Gutierrez to support her position her
negligence claim should be decided by the trier of fact and not the
court. In Gutierrez, where, as discussed earlier, the Appellate Court of
Connecticut affirmed the dismissal of plaintiff's vicarious liability
claims, it reversed the trial court's decision holding that, under the
facts of that case, the question of foreseeability was to be resolved by
a jury, not on summary judgment. 13 Conn App. 493. There, plaintiff, a
client of the Department of Mental Retardation, brought action against
its Commissioner to recover damages resulting from the sexual assault by
one of its employees. The employee, whose job it was to visit plaintiff
and to assist her with various tasks, was given keys to her apartment to
enable him to enter in the case of an emergency. Id. 13 Conn. App. 497. On
three occasions, the employee used his keys to enter plaintiff's
apartment where he sexually assaulted her. Id.
She later reported the incidents to the police, and the employee was
arrested and pleaded guilty to sexual assault charges. Id.
Although the Department of Mental Retardation had conducted a
background check on the employee, including following up his denial of
any criminal convictions with a state fingerprint check, and the employee
underwent a one-week orientation program and was supervised on a daily
basis, the court held that given the access the employee was given to
plaintiff's apartment, her mental impairment, and his ability to threaten
a termination of services, the conclusion to be drawn from these facts as
to whether it was reasonably foreseeable that the plaintiff would be
sexually assaulted by the defendant's employee was to be left to the
trier of fact. Id. at 497, 501-02; see also Lukowsky v. Woodmere Health
Care (Conn.Super. June 24, 1994) 1994 WL 320219 No. 091141 (WJS) at *3
(denying defendant employer's motion for summary judgement on plaintiffs'
negligence claim where offending employee was hired to provide nurse's
aid services to subject plaintiff since, among other things, she was
"helpless while in the care and custody of the defendant;" and "one of
the defendant's employees suspected the [offending employee] of
assaulting female patients prior to the assault on the plaintiff, but 
the defendant failed to take any action to prevent the assault[,]"since a
genuine issue of material fact existed concerning whether defendant's
employment and supervision practices created or increased the risk of
However, not only did Gutierrez involve exceptional circumstances
different than those here present, but in Gutierrez plaintiff produced
evidence in support of the contention that that employee's conduct was
foreseeable by his employer. Here, plaintiff has not produced any
evidence that Titus' conduct was foreseeable. While defendants have only
produced a couple of affidavits, some letters and a questionnaire Titus
himself completed pre-employment in support of their motion, plaintiff
has not produced any admissible evidence contradicting defendants'
assertions that Titus' conduct was not foreseeable. On a motion for
summary judgment, in addition to the burden of the moving party, the
opposing party must substantiate its adverse claim by showing that there
is a genuine issue of material fact together with the evidence, that
which would be admissible at trial, disclosing the existence of such an
issue. Doe v. X Corp. (Conn.Super. Jan. 30, 1997) 1997 WL 66486 No.
93031397 at *4-5 (citing Home Ins. Co. v. Aetna Life & Casualty Co.
(1995) 235 Conn. 185, 202-203.).
This case appears to us to be more analogous to Doe v. X Corp., In
court examined Guiterrez and declined to extend its holding,
finding in favor of the defendant employer on its motion for summary
judgment on plaintiff's negligence claim where plaintiff presented no
facts tending to show the trier of fact could conclude defendant was
negligent in its hiring process and that the activity the employee
allegedly engaged in was or should have been foreseeable prior to its
having hired him. Id. at *6, *9 (also stating the critical and undisputed
facts of Guiterrez, including the "particular vulnerability" of the
plaintiff, well known to the defendant-employers, and "the giving of the
key to her apartment to the employee . . . left open the ultimate
question of whether it was foreseeable that the employee would use the
unlimited access thus given to him in a way that could cause harm.").
There, plaintiff, a minor, through his father, brought suit against the
employer of a teacher who sexually assaulted him claiming negligent
hiring and supervision. Id. at *1. While the defendant there produced
more documents in support of its motion for summary judgment than we have
before us, what defendants here produced is sufficient since plaintiff
has presented nothing in the way of admissible evidence to contradict
defendants' assertions that in hiring or supervising Titus they knew or
should have known that he had a propensity toward sexual misconduct.
For the foregoing reasons we grant defendants' motion for summary
judgment and dismiss, in its entirety, the complaint with prejudice.
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