Salamone v. Wesleyan University

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CRAIG SALAMONE ET AL. v. WESLEYAN
UNIVERSITY ET AL.
(AC 43819)
Elgo, Cradle and Flynn, Js.

Syllabus

The plaintiffs sought to recover damages from the defendant university for
personal injuries they sustained as a result of allegedly being sexually
assaulted by B while he was a student at the university and a resident
advisor or head resident in a dormitory on the university’s campus. The
plaintiffs alleged that, when they were between thirteen and fifteen
years old, B had sexually assaulted them in his dormitory room after
he had arranged to meet them there to teach them exercise and stretching
routines. The plaintiffs alleged that their injuries were caused by the
university’s negligent supervision of B in his capacity as a resident
advisor or head resident. The trial court granted the university’s motion
for summary judgment on the ground that the plaintiffs failed to demon-
strate that there was a genuine issue of material fact that the alleged
sexual assaults were reasonably foreseeable. From the judgment ren-
dered thereon, the plaintiffs appealed to this court. Held that the trial
court properly rendered summary judgment in favor of the university,
that court having correctly determined that the plaintiffs failed to demon-
strate the existence of a genuine issue of material fact as to whether
the alleged sexual assaults were reasonably foreseeable, as the university
presented undisputed evidence that B had no criminal history, com-
plaints or accusations either before or during his tenure as a student
and resident advisor or head resident at the university, and the plaintiffs
failed to present any evidence from which it reasonably could be inferred
that the university knew or should have known that B would sexually
assault them in his dormitory room.
Argued November 9, 2021—officially released February 1, 2022

Procedural History

Action to recover damages for, inter alia, the named
defendant’s alleged negligence, brought to the Superior
Court in the judicial district of Middlesex, where the
court, Hon. Edward S. Domnarski, judge trial referee,
granted the named defendant’s motion for summary
judgment and rendered judgment thereon, from which
the plaintiffs appealed to this court. Affirmed.
Eamon T. Donovan, for the appellants (plaintiffs).
Richard E. Fennelly III, with whom were Jonathan
P. Ciottone and Eric S. Larson, for the appellee (named
defendant).
Opinion

CRADLE, J. The plaintiffs, Craig Salamone and Doug
Cartelli, commenced this action, claiming that they
were sexually assaulted by a resident advisor or head
resident on the campus of the defendant Wesleyan Uni-
versity.1 In this appeal, the plaintiffs challenge the sum-
mary judgment rendered in favor of the defendant on
the ground that a genuine issue of material fact existed
as to whether the harm alleged was reasonably foresee-
able. We affirm the judgment of the trial court.
The record before the court, viewed in the light most
favorable to the plaintiffs as the nonmoving parties,
reveals the following relevant facts and procedural his-
tory. In September, 2017, the plaintiffs commenced this
action, claiming that they were sexually assaulted on
the defendant’s campus between 1982 and 1984. By way
of a revised complaint dated September 26, 2018, they
alleged that they were sexually assaulted by Andrew
Barer, while he was a student and a resident advisor
or head resident in a dormitory on the defendant’s cam-
pus. At the time of the alleged incidents, Barer also
‘‘was a member of the official basketball team for the
defendant’’ and ‘‘used the basketball facilities located
on the property owned by the defendant . . . to engage
with minor children, including the plaintiff[s],’’ who
were between the ages of thirteen and fifteen at the
time. The plaintiffs alleged that ‘‘Barer’s . . . engage-
ment with minor children was in the guise of instructing
them in plyometrics, stretching, and other physical
activity in order to enhance their athletic ability, but,
in reality, it was a means to allow him to commit sexual
abuse, sexual assault, and sexual exploitation of said
minor children.’’ They further alleged that, in the winter
of 1983, as to Salamone, and between 1982 and 1984,
as to Cartelli, ‘‘Barer made arrangements for [each of
them] to meet with Barer alone in Barer’s dormitory
room located in the housing facilities on the [defen-
dant’s] campus.’’ They alleged that ‘‘Barer’s arranging
the meeting with [them] in [his] dormitory room was
in the guise of teaching [them] exercise and stretching
routines when the actual purpose was for Barer to sexu-
ally abuse, sexually assault, and sexually exploit
[them].’’ The plaintiffs alleged that Barer allowed them
into the dormitory in his capacity as a resident advisor
or head resident, and that, at the meetings in Barer’s
dormitory room, ‘‘under the guise of teaching [them]
exercise and stretching routines, Barer sexually abused,
sexually assaulted, and sexually exploited [them].’’ The
plaintiffs alleged that, prior to the incidents involving
them, Barer ‘‘engaged in a pattern of behavior wherein
he lured other minor children into his dormitory room
and sexually abused, sexually assaulted, and sexually
exploited them’’ and that the ‘‘general risk of harm or
injury of the type suffered by the plaintiff[s] . . . was
foreseeable by the defendant . . . .’’ The plaintiffs
alleged that the defendant ‘‘failed to properly monitor
and supervise [Barer] in order to prevent injuries to
minors such as [them]’’ and ‘‘allowed [Barer] to be alone
with [them] inside housing facilities owned by the
defendant . . . without monitoring or supervising him
in any way.’’2 The plaintiffs alleged that, as a result
of the defendant’s negligence and carelessness, they
suffered bodily injury and severe emotional distress.
On April 15, 2019, the defendant filed a motion for
summary judgment, claiming that it was entitled to judg-
ment as a matter of law on the grounds that Barer was
not an employee of the defendant when the alleged
sexual assaults involving the plaintiffs occurred and
that those incidents were not reasonably foreseeable.
On September 6, 2019, the plaintiffs filed an objection to
the defendant’s motion for summary judgment, arguing
that there existed genuine issues of material fact as to
whether Barer was ‘‘an agent, servant, and/or employee
of the defendant’’ and whether the defendant had a duty
to supervise Barer and to alleviate danger posed to the
plaintiffs due to the fact that the defendant knew or
should have known of prior instances of Barer engaging
in similar conduct. In support of their objection, the
plaintiffs submitted affidavits from three individuals,
who averred that, prior to the incidents involving the
plaintiffs, Barer brought those individuals, who were
teenage boys at the time, to his dormitory room on the
defendant’s campus, ‘‘without concealing [their] pres-
ence and in plain sight,’’ and sexually assaulted them.
On September 20, 2019, the defendant filed a reply
to the plaintiffs’ objection to the motion for summary
judgment, arguing that the plaintiffs had failed to show
that a genuine issue of material fact existed that the
alleged sexual assaults were foreseeable because,
‘‘[e]ven if Barer brought the affiants into [his]
dorm[itory] ‘without concealing them’ and ‘in plain
sight,’ these facts are insufficient to show that [the
defendant] should have known that Barer would likely
commit sexual assault.’’ The defendant argued that,
because there was no record that Barer had committed
any crimes, had never been accused of a crime, had
never been accused of unlawful sexual conduct, and
had never been the subject of any complaints, there
was no evidence demonstrating that the defendant had
any reason to know that Barer would engage in the
alleged conduct.
On October 3, 2019,3 the plaintiffs filed a surreply to
the defendant’s reply to their objection to the motion
for summary judgment, reiterating their argument that
the affidavits that they previously filed with the court
were evidence of prior instances of Barer bringing teen-
age boys into his dormitory room for the purpose of
sexually assaulting them. They contended that such
evidence gave rise to a genuine issue of material fact as
to whether the defendant knew or should have known
of the danger Barer posed to teenage boys in general
and to the plaintiffs specifically.
By way of a memorandum of decision filed on January
8, 2020, the court granted the defendant’s motion for
summary judgment on the ground that there was no
genuine issue of material fact that the alleged sexual
assaults of the plaintiffs were not reasonably foresee-
able.4 The court concluded that the defendant did not
know or have reason to know that Barer would allegedly
sexually assault the plaintiffs in his dormitory room.
The court reasoned that the defendant met its burden
of demonstrating the absence of any genuine issue of
material fact as to the foreseeability of the alleged sex-
ual assaults of the plaintiffs when it submitted evidence
indicating that Barer had no criminal history before or
during his enrollment as a student at the defendant or
before or during his period of allegedly serving as a
resident advisor or head resident at the defendant, that
it never received any complaints about Barer during
his attendance at the defendant, and that it did not
locate any records indicating that disciplinary action
has ever been taken against him. The court therefore
reasoned that the burden shifted to the plaintiffs to
present evidence to demonstrate the existence of a
factual dispute as to the issue of foreseeability. The
court noted the affidavits submitted by the plaintiffs in
opposition to summary judgment and reasoned: ‘‘With
regard to the alleged negligent monitoring or supervi-
sion of Barer, the plaintiffs do not submit any additional
evidence to suggest that anyone personally witnessed
or would have witnessed Barer leading the boys to his
dormitory room, that any particular campus security
protocols were breached . . . or that anyone reported
any suspicious behavior to [the defendant] that would
have provided [the defendant] with the requisite knowl-
edge to prompt an investigation.
‘‘Therefore, it appears that the plaintiffs merely rely
on (1) the affidavits stating that Barer brought teenage
boys . . . to his dormitory room ‘without concealing
[their] presence and in plain sight’ . . . and (2) the
broad-brush allegation in their complaint that ‘adminis-
trators, professional staff, coaching staff, security offi-
cers and other employees knew, should have known
or could have known upon investigation, that . . .
Barer . . . took the plaintiff[s] . . . into his dorm[i-
tory] room . . . on . . . [the defendant’s] campus.’
. . . Without more evidentiary support to suggest that
someone in particular witnessed the incidents or
reported Barer’s improper conduct to [the defendant],
however, this is insufficient to dispute the defendant’s
evidence demonstrating that [the defendant] had no
knowledge that Barer allegedly had or would sexually
assault the plaintiffs or anyone else.’’ (Citations omitted;
footnote omitted.) On that basis, the court concluded
that the plaintiffs failed to demonstrate the existence
of a genuine issue of material fact as to whether the
alleged incidents were reasonably foreseeable and,
accordingly, rendered summary judgment in favor of
the defendant. This appeal followed.
‘‘The fundamental purpose of summary judgment is
preventing unnecessary trials. . . . If a plaintiff is
unable to present sufficient evidence in support of an
essential element of his cause of action at trial, he
cannot prevail as a matter of law. . . . To avert these
types of ill-fated cases from advancing to trial, following
adequate time for discovery, a plaintiff may properly
be called upon at the summary judgment stage to dem-
onstrate that he possesses sufficient counterevidence
to raise a genuine issue of material fact as to any, or
even all, of the essential elements of his cause of
action. . . .
‘‘Practice Book § [17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . .
‘‘It is not enough . . . 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 . . . . [T]ypi-
cally [d]emonstrating a genuine issue requires a show-
ing of evidentiary facts or substantial evidence outside
the pleadings from which material facts alleged in the
pleadings can be warrantably inferred. . . . Only if the
defendant as the moving party has submitted no eviden-
tiary proof to rebut the allegations in the complaint, or
the proof submitted fails to call those allegations into
question, may the plaintiff rest upon factual allegations
alone. . . .
‘‘[I]ssue-finding, rather than issue-determination, is
the key to the procedure. . . . [T]he trial court does
not sit as the trier of fact when ruling on a motion for
summary judgment. . . . [Its] function is not to decide
issues of material fact, but rather to determine whether
any such issues exist. . . . Our review of the decision
to grant a motion for summary judgment is plenary.
. . . We therefore must decide whether the court’s con-
clusions were legally and logically correct and find sup-
port in the record.’’ (Internal quotation marks omitted.)
Carolina Casualty Ins. Co. v. Connecticut Solid Sur-
face, LLC, 207 Conn. App. 525, 532–33, 262 A.3d 885
(2021).
The following additional legal principles guide our
consideration of the plaintiffs’ claim that a genuine issue
of material fact existed as to whether the harm they
allegedly sustained was reasonably foreseeable. ‘‘[A]n
act or an omission may be negligent if the actor realizes
or should realize that it involves an unreasonable risk
of harm to another through the conduct of the other
or a third person which is intended to cause harm, even
though such conduct is criminal. . . . [A]s a general
matter, a defendant is not responsible for anticipating
the intentional misconduct of a third party . . . unless
the defendant knows or has reason to know of the third
party’s criminal propensity. . . .
‘‘[T]here are [however] exceptions to this general
rule. More specifically . . . [t]here are . . . situations
in which the actor, as a reasonable man, is required to
anticipate and guard against the intentional, or even
criminal, misconduct of others. In general, these situa-
tions arise where . . . the actor’s own affirmative act
has created or exposed the other to a recognizable high
degree of risk of harm through such misconduct, which
a reasonable man would take into account. . . . One
situation in which the actor will be required to guard
against the intentional misconduct of another is [w]here
the actor acts with knowledge of peculiar conditions
which create a high degree of risk of [such] intentional
misconduct. . . . For purposes of this exception, [t]he
actor’s conduct may be negligent solely because he
should have recognized that it would expose [another]
person . . . to an unreasonable risk of criminal aggres-
sion. If so, it necessarily follows that the fact that the
harm is done by such criminal aggression cannot relieve
the actor from liability . . . . [Moreover], it is not nec-
essary that the conduct should be negligent solely
because of its tendency to afford an opportunity for a
third person to commit the crime. It is enough that
the actor should have realized the likelihood that his
conduct would create a temptation which would be
likely to lead to its commission. . . .
‘‘[I]t is not possible to state definite rules as to when
the actor is required to take precautions against inten-
tional or criminal misconduct. As in other cases of negli-
gence . . . it is a matter of balancing the magnitude
of the risk against the utility of the actor’s conduct.
Factors to be considered are the known character, past
conduct, and tendencies of the person whose inten-
tional conduct causes the harm, the temptation or
opportunity which the situation may afford him for such
misconduct, the gravity of the harm which may result,
and the possibility that some other person will assume
the responsibility for preventing the conduct or the
harm, together with the burden of the precautions
which the actor would be required to take. Where the
risk is relatively slight in comparison with the utility of
the actor’s conduct, he may be under no obligation to
protect the other against it. . . .
‘‘Thus, for purposes of this exception, the issue is
twofold: (1) whether the defendant’s conduct gave rise
to a foreseeable risk that the injured party would be
harmed by the intentional misconduct of a third party;
and (2) if so, whether, in light of that risk, the defendant
failed to take appropriate precautions for the injured
party’s protection.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) Doe v. Boy
Scouts of America Corp., 323 Conn. 303, 316–18, 147
A.3d 104 (2016).
In the present case, the plaintiffs claim that the defen-
dant’s supervision of Barer was inadequate and, conse-
quently, gave rise to the foreseeable risk that Barer
would sexually assault them. In support of its motion
for summary judgment, the defendant presented undis-
puted evidence that Barer had no criminal record, com-
plaints, or accusations either before or during his tenure
as a student at the defendant. As the trial court aptly
noted, this undisputed evidence rebutted the plaintiff’s
allegations that the defendant knew or should have
known that Barer would sexually assault the plaintiffs,
and the burden then shifted to the plaintiff to demon-
strate the existence of a genuine issue of material fact
as to foreseeability. In support of their position, the
only evidence submitted by the plaintiffs were the affi-
davits of three individuals who averred that they, like
the plaintiffs, had been sexually assaulted by Barer in
his dormitory room. Although the affiants averred that
they were brought to the defendant’s campus prior to
the alleged incidents involving the plaintiffs, the affida-
vits do not contain the circumstances under which they
were there or any specifics as to how or when they were
brought to the campus, or whether anybody, including
a member of the defendant’s administration or staff,
saw them on campus. Moreover, even if the affiants
had been observed by an agent or representative of the
defendant on campus or in a dormitory, they did not
allege that anybody observed any improper conduct by
Barer or was aware that they allegedly were sexually
assaulted by Barer at those times. Accordingly, the
plaintiffs failed to present any evidence from which it
reasonably could be inferred that the defendant knew
or should have known that Barer would sexually assault
them in his dormitory room.
This case is readily distinguishable from cases in
which our Supreme Court has held that the issue of
foreseeability involves a fact intensive inquiry that is
not amenable to determination on summary judgment
but, rather, should be resolved by a jury. For instance,
in Doe v. Boy Scouts of America Corp., supra, 323 Conn.
303, the court determined that the issue of foreseeability
was a question of fact because a jury reasonably could
infer that promoting opportunities for groups of minors,
who are either unsupervised or can easily evade super-
vision, to spend extended periods of time together in
remote and secluded places increased the risk of sexual
misconduct to an unreasonable degree and that the
defendant knew or should have known of the increased
risk. Id., 328. In that case, the plaintiff also presented
evidence that the defendant was aware of numerous
instances of sexual abuse of participants in the Boy
Scouts during scouting activities in the years preceding
the patrol leader’s sexual abuse of the plaintiff. Id., 331.
Similarly, in Doe v. Saint Francis Hospital & Medical
Center, 309 Conn. 146, 72 A.3d 929 (2013), in which our
Supreme Court held that the issue of whether it was
reasonably foreseeable that the defendant hospital’s
failure to supervise a physician who was conducting a
growth study within its facility ‘‘would result in the
sexual abuse of the plaintiff, even though the hospital
did not know or have reason to know of [that physi-
cian’s] pedophilia, presented a question of fact for the
jury.’’ Id., 188. The court based its determination on
the plaintiff’s evidence that, ‘‘for years, parents were
persuaded to have their children participate in the
growth study based in large part on the good name and
reputation that the hospital enjoyed in the community,’’
and the hospital ‘‘exercised no supervision whatsoever
over the study, even though it knew or should have
known that [the physician] was touching, photo-
graphing and filming the genitalia of naked children in
his office, sometimes for hours, without a chaperone
present and without any legitimate medical or scientific
reason for conducting such a study in the first place.’’
Id., 188–89. The court noted that the plaintiff sought
to, and did, persuade the jury that ‘‘there was a foresee-
able risk that the children who had been volunteered
to participate in the study—children who, unbeknownst
to their parents, were required to strip naked so that
[the physician] could physically examine, photograph
and film their genitalia—would be sexually exploited
or abused in some manner, such that the hospital was
required to take at least some precautions to protect
this highly vulnerable group of subjects.’’ (Emphasis in
original.) Id., 189.
In both cases, the defendants played some role in
creating or fostering the circumstances or relationship
that gave rise to the harm sustained by the plaintiffs.
See also Gutierrez v. Thorne, 13 Conn. App. 493, 501,
537 A.2d 527 (1988) (‘‘question of foreseeability [was]
not such as would lead to only one conclusion; rather,
under the circumstances of [the] case, the foreseeability
of whether the defendant’s conduct in permitting [its
employee] to have a key to the plaintiff’s apartment
would result in a sexual assault . . . [was] a question
to be resolved by the trier of fact’’). That is not the case
here. In the present case, the plaintiffs have alleged
that the defendant should have supervised Barer in his
role as a resident advisor or head resident and that its
failure to do so created a reasonably foreseeable risk
that the plaintiffs would be sexually assaulted by him.
They have provided no evidence, nor have they alleged
any facts, that the defendant even knew that Barer was
in contact with younger teenage boys, particularly in
his capacity as a resident advisor or head resident. The
plaintiffs have also failed to allege how Barer’s position
as a resident advisor or head resident distinguished
him from any other student residing in the defendant’s
dormitories in terms of creating a reasonable risk that
he would sexually assault younger teenage boys whom
he brought to his dormitory room. Indeed, during argu-
ment on the motion for summary judgment, the plain-
tiffs argued that, ‘‘because a college student brings three
individuals . . . who are younger than college age onto
campus . . . [t]hat should give rise to the notice and
foreseeability that unacceptable conduct would occur.’’
In the absence of evidentiary support, this bald asser-
tion was insufficient to create a material issue of fact
as to whether the defendant’s conduct created an unrea-
sonable risk that Barer would bring young teenage boys
to his dormitory room and sexually assault them.
Because the plaintiffs made no showing of evidentiary
facts or presented any evidence outside the pleadings
from which material facts alleged in the pleadings can
be warrantably inferred as to whether the defendant
knew or should have known of the risk to the plaintiffs
in this case, the court properly rendered summary judg-
ment in favor of the defendant.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The Young Men’s Christian Association of Northern Middlesex County
and Andrew Barer also were named as defendants in this action but are
not parties to this appeal. Accordingly, any reference herein to the defendant
is to Wesleyan University only.
2
The plaintiffs also alleged in their revised complaint that the defendant
‘‘failed to investigate, warn, or inform parents and guardians of children,
including those of the plaintiff[s] . . . of the danger that [Barer] posed to
children’’ and ‘‘negligently hired [Barer] when a reasonable investigation or
background check would have uncovered the danger that [he] posed to
children, including the [plaintiffs].’’ The undisputed evidence submitted by
the defendant in support of its motion for summary judgment disclosed that
Barer had never been accused of any crime or misconduct during or prior
to his tenure as a student of the defendant, so a background check would
not have revealed any basis for not hiring him. At oral argument before this
court, the plaintiffs conceded that they had no evidence that the defendant
had actual knowledge of the danger Barer allegedly posed to the plaintiffs.
Thus, the defendant could not have warned the plaintiffs’ parents or guard-
ians of such alleged danger, and, therefore, the plaintiffs acknowledged that
they were proceeding only on their claims of negligent supervision of Barer
in his capacity as a resident advisor or head resident.
3
On October 2, 2019, the plaintiffs filed a motion for a continuance of
the hearing on the defendant’s motion for summary judgment to conduct
further discovery. In support of that motion, the plaintiffs’ attorney attached
an affidavit, in which he averred: ‘‘[I]n order to adequately respond to the
[defendant’s] response to the plaintiff’s objection to [the defendant’s] motion
for summary judgment it is necessary to take the deposition of the member
of [the defendant] who is best situated to testify as to [the] following: the
hiring, training and supervising of . . . resident advisors [at the defendant]
for the years 1980 through 1984; the policies and procedures for documenting
non-students accessing the buildings on [the defendant’s campus] for the
years 1980 through 1984; and reporting procedures for . . . resident advi-
sors [at the defendant who] fail[ed] to comply with regulations and/or guide-
lines. . . . [S]uch discovery is necessary to establish that there is a genuine
issue of material fact as to whether [the defendant] knew or should have
known of the risk posed to the plaintiffs and that such risk was foreseeable
to the defendant . . . .’’ On October 3, 2019, the court summarily denied
the plaintiff’s motion for a continuance.
The plaintiffs claim on appeal that the court erred in denying their motion
for a continuance. We note that, on January 17, 2018, the parties signed a
scheduling order providing, inter alia, that the depositions of all fact wit-
nesses would be completed by June 15, 2018. On July 2, 2018, that date was
extended to August 31, 2018. On January 4, 2019, the parties entered into
a new scheduling order that required the depositions of all fact witnesses
to be completed by June 1, 2019. The scheduling order also required all
dispositive motions to be filed by April 15, 2019. Despite the foregoing
scheduling orders, and the fact that the plaintiffs had filed this action in
September, 2017, and thus had more than two years to conduct discovery,
they sought additional time to take the deposition of at least one fact witness
to support their argument opposing the defendant’s motion for summary
judgment, and they challenge on appeal the denial of their motion for a
continuance to do so. The plaintiffs have failed, however, to argue that the
trial court abused its discretion in denying their motion for a continuance,
which is the only basis on which such a ruling may be reversed. See, e.g.,
Bevilacqua v. Bevilacqua, 201 Conn. App. 261, 268, 242 A.3d 542 (2020)
(‘‘Appellate review of a trial court’s denial of a motion for a continuance is
governed by an abuse of discretion standard that, although not unreviewable,
affords the trial court broad discretion in matters of continuances. . . . An
abuse of discretion must be proven by the appellant by showing that the
denial of the continuance was unreasonable or arbitrary.’’ (Internal quotation
marks omitted.)). Although the plaintiffs set forth the abuse of discretion
standard in their appellate brief and alleged that the trial court abused its
discretion in denying their motion for a continuance, they did not brief that
claim. Rather, they simply asserted that they needed the discovery they
sought because it was ‘‘necessary to establish that there is a genuine issue
of material fact as to whether the defendant . . . knew or should have
known of the risk posed to the plaintiffs and that such [risk] was foreseeable
to the defendant . . . .’’ Indeed, at oral argument before this court, when
asked if he was claiming that the trial court abused its discretion when
it denied the plaintiffs’ motion for a continuance, the plaintiffs’ attorney
responded: ‘‘My argument on that, Your Honor, is that I would have had
more information to present to the trial court on the argument for summary
judgment had I been allowed to proceed with the depositions. That’s as far
as an argument as I am going to make today.’’ The plaintiffs were on notice
from the date of their revised complaint as to what they would have to
prove to prevail on their claim of negligent supervision and the need to
conduct discovery for that proof. Moreover, the plaintiffs’ attorney conceded
that there had been previous opportunities to conduct the discovery for
which he sought the continuance. The plaintiffs, therefore, cannot prevail
on this claim.
4
Because the court concluded that the alleged incidents were not reason-
ably foreseeable, it declined to address the defendant’s argument that Barer
was not its agent, servant, and/or employee at the time they occurred.