Opinion
No. CV01-0163496S
July 29, 2003
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE
On July 17, 2001, the plaintiffs, Anthony and Rosemarie Augelli, filed a seven-count complaint against the defendants, Elisiario and Lourdes Matos. The plaintiffs seek to recover for damages and personal injuries they allegedly sustained when the defendants' underground oil tank leaked oil that subsequently migrated onto the plaintiffs' property. Count one alleges that the defendants were negligent in the maintenance of the oil tank. Count two alleges negligent infliction of emotional distress resulting from the oil spill and the defendants' conduct after the spill. Counts three and four allege trespass to land and private nuisance respectively. Count five seeks reimbursement of the costs the plaintiffs have incurred or will incur in the future to clean up and remediate their property pursuant to General Statutes § 22a-452. Count six seeks declaratory and/or equitable relief pursuant to General Statutes § 22a-16 and count seven alleges negligence per se in violation of General Statutes § 22a-430.
General Statutes § 22a-452 provides in relevant part: "Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation."
General Statutes § 22a-16 provides in relevant part: "The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction.
General Statues § 22a-430 provides in relevant part: "No person or municipality shall initiate, create, originate or maintain any discharge of water, substance or material into the waters of the state without a permit for such discharge issued by the commissioner."
Presently before the court is the defendants' motion to strike counts two, five, seven and subparagraphs a, c, d and e of paragraph 21 of count one of the plaintiffs' complaint. As grounds for striking counts two and five, the defendants assert that the plaintiffs have failed to allege facts sufficient to support a claim either of negligent infliction of emotional distress or for liability pursuant to § 22a-452. The defendants move to strike count seven on the ground that a negligence per se action premised on a violation of § 22a-430 is not permitted under Connecticut law. The defendants move to strike subparagraphs a, c, d, and e of paragraph 21 of count one on the ground that such paragraphs seek to recover future potential damages, which are not recoverable.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). In reviewing a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1048 (2002).
Count Two (Negligent Infliction of Emotional Distress)
The defendants first argue that the negligent infliction of emotional distress claim should be stricken because the plaintiffs' conduct was neither extreme nor outrageous and because the plaintiffs have failed to allege that their emotional distress was reasonable in light of the defendants' conduct. (Defendants' Memorandum, pp. 5-7.) The plaintiffs counter that the defendants' conduct need only be negligent for the plaintiffs to recover for negligent infliction of emotional distress, not extreme or outrageous. (Plaintiffs' Memorandum, p. 2.) The plaintiffs further argue that, although it is true that the emotional distress experienced by the plaintiffs must be reasonable in light of the defendants' conduct, the plaintiffs were not required to plead, as an element of the cause of action, the reasonableness of their distress. The court agrees with the plaintiffs and denies the defendants' motion to strike count two.
"[A] defendant is not liable for emotional distress unless the defendant, or its agents or servants, should have realized that its conduct involved an unreasonable risk of causing the distress, and from the facts known to it, or its agents, should have realized that the distress, if it were caused, might result in illness or bodily harm." Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978). "[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm . . . This part of the Montinieri test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the fear were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003). "[T]he plaintiff has a more difficult burden when the defendant's state of mind is intentional, rather than negligent. Put another way, where the defendant's state of mind is purposefully to inflict emotional distress on the plaintiff, the plaintiff may not recover unless the defendant's conduct in pursuance of that intent is also extreme and outrageous; but where the defendant did not have such a malevolent state of mind, but merely was negligent, the plaintiff may recover without having to prove that the conduct engaged in by the defendant was extreme and outrageous." Id., 452 ( Borden, J., concurring).
Thus, under Carrol v. Allstate Ins. Co. and Montinieri, a plaintiff need only allege that the defendant knew or should have known that his or her conduct involved an unreasonable risk of causing emotional distress and that such emotional distress in fact occurred. The plaintiffs have met these minimal requirements by alleging that "[t]he defendants knew, or in the exercise of reasonable care should have known, that their activities . . . involved an unreasonable risk of exposing the [plaintiffs] and the [plaintiffs'] property to harmful contaminants" and that the defendants "knew, or in the exercise of reasonable care should have known, that the [plaintiffs'] knowledge of their exposure to harmful contaminants involved an unreasonable risk of causing in [them] emotional and mental distress" and that "the [plaintiffs] have suffered emotional and mental distress" as a result of the defendant's conduct. (Complaint, ¶¶ 22-25.) The court disagrees, moreover, with the defendants' assertion that Carrol v. Allstate Ins. Co. requires that the plaintiffs allege that their emotional distress was reasonable in light of the defendants' conduct. Under Carrol v. Allstate Ins. Co., the reasonableness of the plaintiffs' emotional distress is simply part of the plaintiffs' burden of proof at trial: "[I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the . . . fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants." (Emphasis added.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 446. See also Williams Ford, Inc. v. Hartford Courant Co., 972, 232 Conn. 559, 580, 657 A.2d 212 (1995) (holding that "reasonableness is a question of fact for the trier to determine based on all of the circumstances"). Accordingly, the defendants' motion to strike count two is denied.
Count Five (Reimbursement Under § 22a-452)
The defendants next move to strike count five, a claim for reimbursement pursuant to § 22a-452, on the ground that such claim fails to allege with specificity what costs, if any, the plaintiffs have incurred in remediating their property and because it seeks to recover costs which have yet to be incurred. (Defendants' Memorandum, pp. 7-9.) In their memorandum of law in opposition to the defendants' motion, the plaintiffs assert simply that "the defendants have cited no authority for their proposition that the specific costs sought to be compensated must be specifically alleged." (Defendants' Memorandum, p. 4.)
General Statutes § 22a-452 provides in relevant part:
Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation.
By its express terms, General Statutes § 22a-452 allows reimbursement of remediation costs only if a plaintiff has contained, removed or otherwise mitigated contamination. Courts that have considered the sufficiency of a claim for reimbursement under § 22a-452 have uniformly held that a plaintiff seeking reimbursement under the statute must at least allege that he has taken action to remediate the alleged contamination of the property or that he has expended funds for such remediation. See, e.g., Hartt v. Schwartz, Superior Court, judicial district of New Haven, Docket No. 331912 (December 3, 1997, Blue, J.), 21 Conn.L.Rptr. 52; Albahary v. City Town of Bristol, Conn., 963 F. Sup. 150, 156 (D. Conn. 1997) ("by its terms, § 22a-452 allows reimbursement of remediation costs only if a plaintiff has `contain[ed] or remove[d] or otherwise mitigate[d]' contamination"); Warner v. Kedah Corp., Superior Court, judicial district of Middletown, Docket No. 72964 (September 20, 1995, Stanley, J.); Bristol Shopping Plaza v. Vigilante Cleaners, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 338958 (December 1, 1989, Ripley, J.); Connecticut Light Power Co. v. Knight, Superior Court, judicial district of Windham at Putnam, Docket No. 33646 (July 23, 1993, Potter, J.).
Count five of the plaintiffs' complaint incorporates the allegations contained in count one. Paragraph 21 of count one alleges: "As the direct and proximate result of the Defendants' negligent discharge, release, spillage and uncontrolled loss of the Contaminants into the environment . . . the [plaintiffs] have suffered the following damages: (a) The [plaintiffs] have, and will continue to, incur costs, including attorney fees, in order to investigate, remediate, restore and monitor the nature and extent of the contamination of the [plaintiffs'] property." (Complaint, ¶ 21(a).) Paragraph 24 of count five further alleges: "The costs incurred, or to be incurred, by the Augellis to contain, remove or otherwise mitigate the effects of the oil and petroleum byproducts are or will be reasonable." ( Id., count five, ¶ 24.)
Although the plaintiffs do not specify what actions they have taken to remediate their property nor what costs they have incurred in undertaking such remediation, count five is sufficient to withstand the defendants' motion to strike to the extent that it alleges that the plaintiffs "have . . . incur[ed] costs . . . in order to . . . remediate [and] restore" their property. To the extent, however, that allegations contained in count five seek to recover for costs yet to be incurred, they are improper and are hereby stricken.
Count Seven (Negligence Per Se)
The defendants next move to strike count seven on the ground that § 22a-430 does not support a negligence per se claim. The plaintiffs, on the other hand, "readily acknowledge . . . that there is a split of authority as to the viability of a negligence per se claim based on a violation of § 22a-430 . . . [but] contend that the better reasoned opinions permit a claim such as Count Seven." (Plaintiffs' Memorandum, p. 5.) The court disagrees with the plaintiffs and grants the defendants' motion to strike count seven. In so doing, the court adopts the reasoning of the cases that have held that the Water Pollution Control Act, General Statutes § 22a-416 et seq., which includes § 22a-430, does not support a private cause of action nor establish standards of care the violation of which is negligence per se. For an excellent analysis of the issue, see Connecticut Water Co. v. Thomaston, Superior Court, judicial district of Hartford at Hartford, Docket No. 535590 (March 4, 1995, Corradino, J.) ( 16 Conn.L.Rptr. 213, 213-15) (striking a negligence per se claim under General Statutes §§ 22a-427, 22a-430 and 22a-450 on the ground that no private cause of action based on these statutes can be a basis for negligence per se claims). See also Chromium Process v. Yankee Gas Service, Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 038532 (June 23, 1995, Comerford, J.); Michael v. Kenyon Oil Co., Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 344098 (March 22, 1989, O'Connor, J.) ( 4 C.S.C.R. 337, 338).
Paragraph 21 a, c, d and e of Count One (Negligence)
Finally, the defendants move to strike subparagraphs a, c, d, and e of paragraph 21 of count one on the ground that (1) subparagraph a seeks attorney fees, which are not recoverable in a negligence action, and (2) subparagraphs c, d, and e seek future potential damages, which are also not recoverable. (Defendants' Memorandum, pp. 12-13.) The plaintiffs concede that attorney fees are not recoverable in a negligence action and, accordingly, subparagraph a is ordered stricken. As for the remaining subparagraphs, however, it is well established that an individual paragraph contained in a complaint or special defense is not the proper subject of a motion to strike unless it embodies an entire cause of action or defense. See, e.g., Selander v. Soundview Technology Corp., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV02 0189753 (Feb. 10, 2003, Adams, J.); Geary v. George A. Tomasso Construction Corp., Judicial District of Superior Court, judicial district of Waterbury, Docket No. 122785 (October 13, 1995, Vertefeuille, J.); Rea v. Allstate Insurance Co., Superior Court, judicial district of Hartford/New Britain at New Britain, Docket No. 463702 (October 17, 1995, Arena, J.); Warner v. Kedah Corp., Superior Court, judicial district of Middlesex at Middletown, Docket No. 072964 (September 20, 1995, Stanley, J.); Wordell v. Fairfield Transportation Group, Superior Court, judicial district of New London at New London, Docket No. 533430 (July 7, 1995, Hendel, J.); Enterprises Ltd. Partnership v. Arrow Paper Party Stores, Superior Court, judicial district of New London at New London, Docket No. 529862 (January 18, 1995, Hurley, J.) (noting that a motion to strike may not challenge a subparagraph of a complaint unless it set forth a distinct cause of action). Count one is a negligence count. Because subparagraphs c, d, and e of paragraph 21 of count one do not purport to allege a cause of action distinct from negligence, the defendants' motion to strike subparagraphs c, d and e is denied.
Dubay, J.