Opinion
No. LLI CV 07 5002223S
June 17, 2008
MEMORANDUM OF DECISION
The issue presented is whether the court should grant the defendant's motion to strike counts seven and eight of the plaintiff's second revised complaint, on the grounds that the facts alleged therein do not rise to the level of a claim for intentional infliction of emotional distress or negligent infliction of emotional distress, respectively.
FACTS
On June 6, 2007, the plaintiff, David E. Battistoni, filed a ten-count complaint against the defendants Lakeridge Tax District (Lakeridge), Edward Potter, Reva Potter, and Jeanne Cassidy. This action arises out of a breach of contract by the Lakeridge. Battistoni filed amended complaints on July 27, 2007, and September 19, 2007. On November 30, 2007, Battistoni filed a second revised complaint. Lakeridge filed a motion to strike counts seven and eight, alleging negligent and intentional infliction of emotional distress, respectively, against Lakeridge. In response, Battistoni filed an objection to the motion on January 2, 2008. The matter was heard on the short calendar on April 7, 2008.
Battistoni alleges in his complaint that he was an employee of Lakeridge. The parties entered into an employment agreement (Agreement) on August 1, 2002. The initial term of the Agreement was for three years from August 1, 2002 through July 31, 2005. Subsequent contract years ran from August first through July thirty-first of each year. The Agreement contains an extension term, providing for automatic extensions until July thirty-first of the following calendar year, unless the Agreement is terminated with written notice on or before September first of the contract year which would become the final contract year. Battistoni alleges that Lakeridge was required to provide notice to Battistoni prior to September 1, 2004, and because no notice was provided, the contract was automatically renewed. On or about June 22, 2005, representatives of Lakeridge required Battistoni to leave the Lakeridge premises, thereby prohibiting him from continuing to perform his duties.
In count seven, alleging negligent infliction of emotional distress against Lakeridge, Battistoni argues that representatives of Lakeridge asked Battistoni to leave the premises on June 22, 2005, with the backup of security. Battistoni, further, alleges that Lakeridge has since that date hired another younger individual at a higher rate of salary. Moreover, Battistoni alleges that Lakeridge has publicly renounced Battistoni in a manner to harass, disparage and humiliate Battistoni in its words and action.
In count eight, alleging intentional infliction of emotional distress against Lakeridge, Battistoni alleges that on June 22, 2005, Lakeridge, through its agents, by waiting for Battistoni's arrival at work and calling security, intended to cause Battistoni extreme embarrassment and emotional distress. Further, Battistoni alleges that Lakeridge knew or should have known that by treating Battistoni in the manner that it did, the emotional distress was a likely result of its conduct.
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). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). 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." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "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). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 294. "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
Although the court may find a motion for summary judgment to be the correct vehicle in the present case, "[a] court may not grant summary judgment sua sponte . . . The issue first must be raised by the motion of a party and supported by affidavits, documents or other forms of proof." (Internal quotation marks omitted.) Miller v. Bourgoin, 28 Conn.App. 491, 500, 613 A.2d 292, cert. denied. 223 Conn. 927, 614 A.2d 825 (1992).
Practice Book § 10-29(a) states in relevant part: "Any plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length . . ."
Lakeridge argues that count seven, asserting a claim for negligent infliction of emotional distress, is legally insufficient because Battistoni has not alleged facts to support a conclusion that the fear or distress experienced by Battistoni was reasonable based upon the alleged conduct of Lakeridge. Further, Lakeridge argues, that count eight, asserting a claim for intentional infliction of emotional distress, should be stricken because the allegations do not meet the "extreme and outrageous" standard governing such claims.
Battistoni responds that he sufficiently alleges negligent infliction of emotional distress, because Lakeridge was clearly aware that Battistoni's position and stature in the small community of Litchfield County would be horribly affected by its actions. Battistoni, further, argues that an average person would anticipate that the actions of Lakeridge could foreseeably lead to feelings of inadequacy, humiliation, anger and embarrassment, which are all alleged by Battistoni.
As to the intentional infliction of emotional distress count, Battistoni responds that the conduct of Lakeridge was extreme and outrageous because Battistoni was a longtime resident of Litchfield County with strong ties to the community, when he was publicly humiliated by the Lakeridge Board. Battistoni, further, alleges that he was severely embarrassed and humiliated by the actions of Lakeridge and that he was unable to find any employment for a period of eight months and then the position he was able to acquire was at a substantially lower salary and out of state.
Negligent Infliction of Emotional Distress
"[I]n order to prevail on a claim of negligent infliction of emotional distress, Battistoni 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 [distress] 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 [distress] 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." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005). "In the case of negligent infliction of emotional distress, the conduct must transcend merely insulting behavior and, only where the court determines reasonable minds can disagree, does it become a question of fact for the jury." Madero v. People's Bank, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 03 0185488 (February 22, 2005, Sheedy, J.).
"In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), this court for the first time recognized a cause of action for negligent infliction of emotional distress. We continually have held that in 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." (Internal quotation marks omitted.) Carroll v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003).
"[The] plaintiff must prove that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress . . . The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement . . . In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm . . . Such a claim in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process rather than in an ongoing employment relationship. Finally, to prevail on a claim of negligent infliction of emotional distress arising in the employment setting, a plaintiff need not plead or prove that the discharge, itself, was wrongful, but only that the defendant's conduct in the termination process created an unreasonable risk of emotional distress." (Citations omitted; internal quotation marks omitted.) Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d. 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (appeal withdrawn May 25, 2005).
"The mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., 243 Conn. 66, 88-89, 700 A.2d 655 (1997). Moreover, "[i]n cases where the employee has been terminated, a finding of a wrongful termination is neither a necessary nor a sufficient predicate for a claim of negligent infliction of emotional distress. The dispositive issue in each case [is] whether the defendant's conduct during the termination process was sufficiently wrongful 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." (Emphasis in original; internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 571, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
Specifically, the Connecticut Supreme Court "has noted that it is not patently unreasonable for an employer to remove a discharged employee from its premises under a security escort. Parsons v. United Technologies Corp., 243 Conn. 66, 89, 700 A.2d 655 (1997) (upholding trial court's granting of motion to strike claim for negligent infliction of emotional distress based on circumstances of employee's termination where employee escorted out of building by security after termination)." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 211-12, 757 A.2d 1059 (2000).
Further, addressing the reasonableness of statements made about a plaintiff in the employment context, the court denied a motion to strike a claim for negligent infliction of emotional distress in Lord v. Lowes Home Centers, Superior Court, judicial district of Waterbury, Docket No. CV 065002569 (July 12, 2007, Upson, J.). In Lord, the plaintiff had alleged that the defendant "falsely accused the plaintiff of making inappropriate statements while at work" and that the defendant's agent "had told a group of employees that the plaintiff had been terminated for harassment." Id. The court held that "[c]onstrued liberally, these allegations support a colorable claim for negligent infliction of emotional distress." Id.
"Unreasonable conduct [for the purposes of pleading negligent infliction of emotional distress] has been interpreted by the [S]uperior [C]ourts as conduct performed in an inconsiderate, humiliating or embarrassing manner . . . Courts have found that unreasonable conduct in the employment termination context could be based on knowingly making false claims about the plaintiff's intentional conduct in connection with the firing . . . interrogating a plaintiff for several hours on three separate occasions, escorting him off the premises by armed security guards in view of his coworkers and publicly announcing that he was terminated for a `breach of business ethics' . . . and falsely accusing the plaintiff of using the defendant's property to have a liaison with a female friend during working hours . . . Thus, falsely accusing a plaintiff of misconduct or publicizing false reasons for a plaintiff's termination to other employees may be sufficiently unreasonable conduct to support a claim for negligent infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Id.
In the present case, Battistoni alleges that Lakeridge's actions were unreasonable and that Lakeridge should have known that it would cause distress to Battistoni. To begin, Lakeridge's alleged failure to provide notice of termination to Battistoni addresses the issue of wrongful termination, which, absent other allegations, is insufficient for a claim of negligent infliction of emotional distress. See Parsons v. United Technologies Corp., supra, 243 Conn. 88-89.
Further, Battistoni alleges that the defendants harassed, disparaged and humiliated him in their words and actions, by for example making public statements about Battistoni's competence, or circulating a petition. Unlike in Lord v. Lowes Home Centers, supra, Superior Court, Docket No. CV 065002569, however, Battistoni was not accused of ethical misconduct, but merely of being incompetent, inept, inexperienced, and inattentive. Although these accusations may be insulting, to be unreasonable for the purpose of negligent infliction of emotional distress, Lakeridge's behavior must "transcend mere insulting behavior." Madero v. People's Bank, supra, Superior Court, Docket No. X01 CV 03 0185488.
Finally, in Lord v. Lowes Home Centers, supra, Superior Court, Docket No. CV 06 5002569. the plaintiff was escorted off the premises by armed security guards in view of his coworkers, and the reason for his termination was publicized. Battistoni, on the other hand, alleges that Lakeridge insisted, with the backup of security, that he leave the premises. Being escorted off the premises by security is insufficient for a claim of negligent infliction of emotional distress. See Appleton v. Board of Education, supra, 254 Conn. 211-12.
Accordingly, Lakeridge's motion to strike count seven of Battistoni's second revised complaint is granted.
Intentional Infliction of Emotional Distress
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). `Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 706, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).
"[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gate keeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) O'Donnell v. Corte, Superior Court, judicial district of New Haven, Docket No. CV 075012829 (November 15, 2007, Licari, J.).
"Only the most egregious conduct has been held to meet the extreme and outrageous element." (Internal quotation marks omitted). Wilk v. Abbot Terrace Health Center, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 06 5001328 (August 15, 2007, Upson, J.). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!' . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Internal quotation marks omitted.) Angiolillo v. Buckmiller, supra, 102 Conn.App. 706.
As previously mentioned, "this court has noted that it is not patently unreasonable for an employer to remove a discharged employee from its premises under a security escort . . . see also Toth v. Square D Co., 712 F.Sup. 1231, 1238 (D.S.C. 1989) (holding that it was not unreasonable for employer to escort former employee off of premises after termination and that such action did not provide basis for claim of intentional infliction of emotional distress)." (Citation omitted: internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. 211-12.
In the present case, Battistoni does not allege that any of the slanderous statements were made in his presence. Further, Battistoni's mere arrival at work and the calling of security in the course of the termination process, are insufficient to show an the intent to cause harm by Lakeridge. To be extreme and outrageous, the alleged conduct must exceed all bounds of decency tolerated by civilized society, and this conduct in the present case fails to rise to that level. See Angiolillo v. Buckmiller, supra, 102 Conn.App. 706. Accordingly, Lakeridge's motion to strike count eight of Battistoni's second revised complaint is granted.
CONCLUSION
Battistoni fails to allege the necessary conduct showing that Lakeridges' actions presented an unreasonable risk of harm. Battistoni, further, does not allege conduct that is extreme and outrageous. Accordingly, Lakeridge's motion to strike counts seven and eight of Battistoni's second revised complaint is granted.
So Ordered.