Diorio v. Steck, No. Cv01 0165180 (Sep. 17, 2001)

2001 Conn. Super. Ct. 13436

• Court: Connecticut Superior Court
• Decided: September 17, 2001
• Docket: No. CV01 0165180 CT Page 13437
• Status: Unpublished

Opinion

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON MOTION TO DISMISS The plaintiff, proceeding pro se in this negligence action, is Thomas Diorio. The writ and the complaint also name as a plaintiff Delores Diorio who is a minor child of the plaintiff Thomas Diorio. Neither the writ nor the complaint indicates that Thomas Diorio is proceeding as next friend or guardian ad litem for Delores Diorio.

The defendant named in the writ is Gary Steck, whose address is at the Child Guidance Clinic of Waterbury, 70 Pine Street, Waterbury, CT, and who was served with this action by a constable. The defendant Gary Steck is not referred to in any of the allegations in the complaint. Rather the plaintiff Thomas Diorio alleges that the entity Child Guidance of Waterbury and one of its employees Barbara Miller were negligent in the treatment of Delores Diono.

The defendant Gary Steck has filed a Motion to Dismiss. He alleges that the plaintiff Thomas Diorio has no standing to bring this action, having alleged no injury to himself in the complaint. Further the plaintiff Thomas Diorio has not indicated that he is proceeding as next friend or guardian ad litem on behalf of his minor daughter, nor, even if he were, could he do so as a pro se litigant since he cannot appear in court on behalf of another unless he is an attorney, which it is conceded he is not. See, Expressway Assoc. II v. Friendly Ice Cream Corp.,34 Conn. App. 543 (1994).

The plaintiff Delores Diorio, a minor, cannot bring a civil action such as this in her own capacity. Orsi v. Senatore, 230 Conn. 459, 466-67 (1994). She can only proceed by a guardian or next friend, who will normally be that child's de facto or de jure legal guardian, absent exceptional circumstances. There is no such guardian or next friend named in the writ or complaint as the representative of Delores Diorio. Because a court does not have subject matter jurisdiction over claims brought by persons who do not have standing, Tomlinson v. Board of Education,226 Conn. 704, 717-18 (1993), the court must grant the Motion to Dismiss as to the claims brought by Delores Diorio.

With respect to the case as it pertains to the plaintiff Thomas Diorio, the motion must also be granted. The plaintiff Thomas Diorio has alleged no injury to himself in the complaint. He lacks standing to CT Page 13438 assert a claim of injury to another. His lack of standing, as the case is currently pleaded, compels dismissal of his claim. Id.

The court notes that on the last business day before oral argument on this motion, the plaintiff Thomas Diorio filed what appears to be an amended complaint, seeking to add an allegation of injury to himself and seeking to add Barbara Miller as a party defendant. The defendant objected at oral argument to the filing of any amended complaint before a ruling on the Motion to Dismiss. The defendant's objection is well taken. The court declines to allow the filing of the amendment or to consider it, given the current posture of the case.

The Motion to Dismiss is granted.

Patty Jenkins Pittman, Judge