Summary
finding that claim for intentional infliction of emotional distress failed where retail security guard detained, directed racial slurs at, and spit on customer
Summary of this case from Chalco v. BelairOpinion
No. CV06-5001276S
July 24, 2007
MEMORANDUM OF DECISION RE MOTION FOR WRITTEN DECISION #118
The plaintiff filed a three-count complaint, dated March 29, 2006, against the defendants, Robert Mulcahy and Burlington Coat Factory Warehouse of Waterbury, Inc. (Burlington), for injuries she suffered while shopping at Burlington. Count one alleges assault and battery, count two is a claim for intentional infliction of emotional distress and count three is for negligent infliction of emotional distress. The plaintiff alleges the following facts. On June 14, 2005, the plaintiff was shopping at Burlington when she was detained, harassed and assaulted by Mulcahy, who was working as a security guard for Burlington. During the incident, Mulcahy directed racial slurs at the plaintiff and spit on her. As a result the plaintiff has suffered personal embarrassment and humiliation, emotional upset and anxiety, nausea, feelings of intimidation, invasion of her privacy and extreme emotional distress.
On March 6, 2007, the defendants filed a motion to strike. Burlington moves to strike all three counts as they relate to the prayer for punitive damages and the corresponding paragraphs (a), (b) and (c) of the prayer for relief on the ground that punitive damages are not cognizable as a matter of law as against an employer when predicated on vicarious liability. Burlington also moves to strike count two on the ground that the plaintiff has failed to plead facts sufficient to establish a cause of action for intentional infliction of emotional distress. Mulcahy also moves to strike count two on the ground that the plaintiff has failed to plead facts sufficient to establish a cause of action for intentional infliction of emotional distress. In addition, Mulcahy moves to strike the third count as it relates to the prayer for punitive damages on the ground that the plaintiff is not entitled to punitive damages for an action predicated on negligence.
On March 19, 2007, the plaintiff filed an objection to the defendants' motion to strike. Oral argument was heard on the short calendar on April 2, 2007. On April 5, 2007, the court, Upson, J., denied the defendants' motion to strike. On April 16, 2007, the defendants filed a motion for written decision pursuant to Practice Book § 10-43. The defendants' motion is granted.
Practice Book § 10-43 provides: "Whenever a motion to strike is filed and more than one ground of decision is set up therein, the judicial authority, in rendering the decision thereon, shall specify in writing the grounds upon which that decision is based."
"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 may be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "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). "The court must construe the facts in the complaint most favorable to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
In the plaintiff's objection to the defendants' motion to strike, the plaintiff does not contest Burlington's argument that the prayer for punitive damages cannot apply to an employer when predicated on vicarious liability. Additionally, the plaintiff does not contest Mulcahy's argument that punitive damages do not apply to an action predicated on negligence. Accordingly, Burlington's motion to strike the prayer for relief for punitive damages as to all three counts is granted and Mulcahy's motion to strike the punitive damages as to count three is granted. The court will now address the defendants' motion to strike count two.
In their memorandum of law in support of the motion to strike count two, the defendants argue that the alleged conduct of Mulcahy is legally insufficient to maintain a cause of action for intentional infliction of emotional distress. The plaintiff counters that Mulcahy's actions, which allegedly consisted of detaining the plaintiff, directing a racial slur at her and spitting on her, were outrageous enough to maintain such a claim.
"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 . . .
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . 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." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). "All four elements must be established to prevail on a claim for intentional infliction of emotional distress." Muniz v. Kravis, 59 Conn.App. 704, 708-09, 757 A.2d 1207 (2000). "Whether the defendant's conduct and the plaintiff's resulting distress are sufficient to satisfy . . . these elements is a question, in the first instance, for [the] court." (Internal quotation marks omitted.) Ancona v. Manafort Bros., Inc., 56 Conn.App. 701, 712, 746 A.2d 184, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000).
"[L]iability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities . . . A review of recent Connecticut decisions on the issue of extreme and outrageous conduct within the context of a claim for intentional infliction of emotional distress reveals that there is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain this action. The court looks to the specific facts and circumstances of each case in making its decisions . . . The motion to strike must be denied if reasonable people could differ as to whether the [defendant's] conduct was extreme and outrageous." (Citations omitted; internal quotation marks omitted.) Knight v. Southeastern Council on Alcoholism, Superior Court, judicial district of New London, Docket No. 557182 (September 21, 2001, Hurley, J.T.R.). In Knight, the court noted cases in which the defendant's conduct was not sufficient to find extreme and outrageous conduct. See Appleton v. Board of Education, 254 Conn. 205, 757 A.2d 1059 (2000) (condescending comments about teacher's ability to read made in front of colleagues were insufficient); Baricko v. Cheesebrough-Pond's USA Co., Superior Court, judicial district of New Haven, Docket No. CV 97 0395642 (December 26, 2000, Zoarski, J.T.R.) (finding the actions of the defendant insufficient even when the defendant knew his actions had a psychological effect on the plaintiff); Valencia v. St. Francis Hospital Medical Center, Superior Court, judicial district of Hartford, Docket No. CV 94 0538867 (April 3, 1996, Hennessey, J.) (claim that the plaintiff was assaulted physically and verbally by her supervisor in front of co-workers was not legally sufficient).
Extreme and outrageous behavior has been identified by the court where plaintiffs have alleged that "they were forced to suffer public ridicule, subjected to a hostile work environment involving repeated racially motivated statements, repeatedly taunted about a mental disability or terminated for exercising a statutorily protected right." Russack-Baker v. Billings P. Learned Mission, Superior Court, judicial district of New London, Docket No. 566008 (February 2004, Hurley, J.T.R.).
In Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. CV 01 0509752 (April 10, 2002, Quinn, J.) (32 Conn. L. Rptr. 72), the court found the use of racial slurs extreme and outrageous when the owners of the corporation referred to the plaintiff as "dago, wop, Father Sarducci or Gimabroni," while also placing "sexually offensive comments and pictures on his computer" and making sexual comments. However, in Burr v. Howell, Superior Court, judicial district of New Haven, Docket No. CV 02 0464225 (June 25, 2003, Arnold, J.) (35 Conn. L. Rptr. 95), the court granted the plaintiff's motion to strike the defendant's counterclaim for intentional infliction of emotional distress as the alleged conduct was not deemed to be extreme and outrageous. The court in Burr stated: "The facts alleged in the defendant's counterclaim are that the plaintiff `referred' to the defendant as a `nigger.' . . . What is unclear when reading the entire counterclaim is whether the plaintiff ever used this slur in the defendant's presence, and whether this was a single act or was repeated on several occasions over a period of time. On any occasion, an alleged racial slur of `nigger' is harmful and hurtful. If, in fact, the plaintiff did utter the slur, it appears to have been isolated in the context of a heated breakdown of a business relationship between the parties, which is not claimed to have been racially motivated. The defendant has not alleged any pattern of racially motivated conduct by the plaintiff. The conduct . . . while distressing and hurtful, is less than `extreme' and `outrageous' in nature." Id.
In the present case, the alleged incident between Mulcahy and the plaintiff consisted of a single event which was not of extended duration. Although the court may find Mulcahy's behavior to be reprehensible, his actions do not rise to the standard of "extreme" and "outrageous" behavior to meet the standard for the tort of intentional infliction of emotional distress. "[T]his tort must be strictly policed to avoid turning ordinary life and its insults and ignorant behavior into an endless and uncontrollable pool for litigation . . ." Denault v. Connecticut General Life Ins. Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 95 0050418 (June 29, 1999, Corradino, J.).
Accordingly, the defendants' motion to strike count two is granted.