Opinion
CV1560267637S
02-24-2016
Latonya Barnes et al. v. Domingo Castro
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#106)
Andrew W. Roraback, J.
I
Background
The plaintiffs, LaTonya Barnes as next friend of a minor child Tyler Pittman (hereinafter " Pittman"), and LaTonya Barnes individually (hereinafter " Barnes"), have brought a revised complaint dated August 18, 2015 against the defendant, Domingo Castro. The complaint alleges that Castro was the owner of residential real estate, located at 43 Elmwood Avenue in Waterbury, that was leased in November of 2012 by Barnes for her and Pittman to use as a residence.
The complaint further alleges that in June of 2013, Pittman, then three years of age, tested positive for lead exposure and exhibited blood levels for lead at or exceeding 44 mcg/dL. The leased premises were then tested for lead by the Waterbury Department of Public Health, and those tests revealed that toxic levels of lead were present. Consequently, the Department of Public Health determined that the premises was uninhabitable and displaced the plaintiffs from that residence. Pittman is alleged to have suffered multiple injuries as a result of his exposure to the toxic levels of lead.
These alleged facts form the basis for the plaintiffs' ten-count revised complaint. The defendant has moved to strike counts one, six, seven, nine, and ten of the revised complaint. At oral argument, counsel for the plaintiffs conceded that counts one and seven should be stricken. These counts were brought on behalf of Pittman and Barnes, respectively, and allege violations of General Statutes § 47a-7. Therefore, the motion to strike counts one and seven is granted, because there is no private right of action for violations under this statute.
General Statutes § 47a-7 provides in relevant part: " A landlord shall: (1) Comply with the requirements of . . . all applicable building and housing codes materially affecting health and safety of both the state or any political subdivision thereof; (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition . . ."
II
Discussion
" 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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
Counts six and ten arise from alleged violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statues § 42-110a et seq., on behalf of Pittman and Barnes respectively. The defendant argues that the plaintiffs' allegations in these counts are insufficient to support a CUTPA claim. The defendant also claims that count ten fails to state a claim for which relief can be granted because any harm suffered by Barnes that was caused by the defendant's alleged misconduct is remote, indirect, or derivative.
The plaintiffs argue that because of the presence of lead, which caused injury to Pitman, the leased premises were rendered uninhabitable. As a result, the plaintiffs were displaced from their residence. The plaintiffs allege these circumstances constituted a violation by the defendant of his statutory obligations under General Statutes § 47a-7 and 47a-54f.
General Statutes § 47a-54f provides in relevant part: " (b) Paint on the exposed surfaces of the interior of a tenement house shall not be cracked, chipped, blistered, flaking, loose, or peeling so as to constitute a health hazard. Testing, remediation, abatement and management of lead-based paint at a tenement house or its premises shall be as defined in, and in accordance with, the regulations, if any, adopted pursuant to section 19a-111c."
" Although ordinary negligence in a slip and fall accident should not give rise to a CUTPA claim, an alleged violation of the Landlord and Tenant Act has been held sufficient as a basis for a CUTPA claim, in a number of Superior Court decisions." Mitchell v. Francis, Superior Court, Docket No. CV-00-0803216-S, (February 20, 2001, Wagner, J.). " The most notable example of this trend [of permitting some personal injury claims to fall within the ambit of CUTPA] is a series of landlord-tenant cases involving lead paint poisoning." Simms v. Candela, 45 Conn.Supp. 267, 274, 711 A.2d 778 (1998). " [T]he touchstone for a legally sufficient CUTPA claim is the implication that the acts complained of have an entrepreneurial or business aspect." (Internal quotation marks omitted.) Id., 273 (citing Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 38, 699 A.2d 964 (1997)).
In this case, the leasing of an apartment rendered uninhabitable by the presence of toxic levels of lead was the alleged cause of serious injury to Pittman. There is clearly a business aspect to the defendant's collection of rent accompanied by his alleged failure to maintain the premises in a habitable condition. As such, the defendant's motion to strike counts six and ten is denied.
The defendant's reliance on Ganim v. Smith & Wesson Corp., 258 Conn. 313, 780 A.2d 98 (2001), for the proposition that any injuries suffered by Barnes are too remote, indirect, or derivative to confer standing on her to pursue a CUTPA claim is unavailing. In Ganim, the Supreme Court affirmed the trial court's ruling that in order to bring a CUTPA claim, a plaintiff had to " be either a consumer, competitor or in some business or commercial relationship with the defendant and, in that capacity, be affected by the defendants' unfair or deceptive conduct . . " Id., 372. As a tenant of the defendant, Barnes has alleged a business relationship sufficient to permit her to bring her claim.
Finally, count nine of the complaint purports to set forth a claim for negligent infliction of emotional distress suffered by Barnes individually. Count nine is characterized by the defendant as a claim for bystander emotional distress and characterized by the plaintiff as negligent infliction of emotional distress. The defendant argues that the substance of this count is an effort to assert a claim for bystander emotional distress and should be stricken because the complaint does not allege a close family relationship between Pittman and Barnes, which is a prerequisite for bystander emotional distress.
" The recovery of damages for emotional injuries caused by negligent conduct generally falls under the rubric of negligent infliction of emotional distress. Traditionally, the method by which courts have addressed negligent infliction of emotional distress claims has depended on whether the injury was produced by the plaintiff's apprehension of harm to himself . . . or from apprehension of harm to another . . . Emotional injuries resulting from apprehension of harm to another are typically identified by the catch phrases of 'bystander emotional distress' or 'bystander liability' . . . The latter phrase has been more specifically defined as the recovery of damages for witnessing the death or injury to another without significant injury or fear [of injury] to the witness . . . The legal theory by which people seek damages for emotional injuries . . . to themselves is generally identified by one of two terms, either the generic term 'negligent infliction of emotional distress' or, in some cases, the more descriptive term 'the direct victim theory' . . ." Hylton v. Stamford Board of Education, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-10-6002746-S (October 20, 2011, Adams, J.T.R.) (52 Conn. L. Rptr. 790, 791).
Reviewing count nine in the light most favorable to the plaintiffs, there is no allegation that the defendant's conduct resulted in physical harm, or the fear of physical harm, to Barnes. Rather, this count specifically alleges that Pittman has been harmed by his exposure to lead and that the defendant knew, or should have known, that the presence of and exposure to lead is toxic to children. In light of the foregoing, this count is properly viewed as a bystander emotional distress claim. As such, it must be stricken on the grounds that it does not allege that Barnes is closely related to Pittman. See Clohessy v. Bachelor, 237 Conn. 31, 52, 675 A.2d 852 (1996). In addition, the complaint fails to include the necessary allegation that her " emotional injury [was] . . . caused by the contemporaneous sensory perception of the event or conduct that [caused] the injury . . . or by viewing the victim immediately after the injury causing event if no material change has occurred with respect to the victim's location and condition." (Citations omitted.) Id., 52.
Finally, this count is devoid of the essential allegation that Barnes' emotional distress " is severe enough either to warrant a psychiatric diagnosis or to otherwise substantially impair . . . her ability to cope with life's daily routines and demands." Squeo v. Norwalk Hospital Ass'n, 316 Conn. 558, 591-92, 113 A.3d 932 (2015).
III
Conclusion
In light of the foregoing, the defendant's motion to strike counts one, seven, and nine of the plaintiffs' revised complaint is granted, and the defendant's motion to strike counts six and ten is denied.