Opinion
No. FST CV 08 5006167 S
July 14, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #107
Procedural History
This action originates from a single-car accident whereby the defendant struck a tree while operating a motor vehicle transporting his wife and grandchildren resulting in allegations of physical and emotional injuries. On January 12, 2008, the minor plaintiffs, Sevie Browne and William Browne, a.k.a. BK. Browne, (through their father David Browne), David Browne individually, and Sevilla Kommel (the defendant's wife), commenced this action by service of process upon the defendant, Aaron Kommel.
On June 17, 2008, Lynda Kommel-Browne filed an application to intervene as a party plaintiff. The application was granted by the court, Downey, J., on September 2, 2008.
In their amended eight-count complaint, dated November 4, 2008, the plaintiffs allege the following. On October 20, 2007, the defendant was driving on Lyons Plain Road, in Weston, Connecticut. Sevie Browne, William Browne and Sevilla Kommel were passengers in the defendant's car. The defendant drove across a double yellow line into the southbound lane of the road, striking a mailbox and a tree. The passengers sustained serious injuries as a result of the accident. Specifically, the plaintiffs allege that the defendant's actions were negligent and careless as to Sevie Browne (count one); William Browne (count two); and Sevilla Kommel (count three). Furthermore, the plaintiffs have included a claim for "reimbursement of medical expenses incurred and payment of future medical expenses" as to David Browne (count four); and as to Lynda Kommel-Browne; (count seven); a claim for loss of filial consortium by David Browne (count five); and by Lynda Kommel-Browne (count eight); and, finally, a claim for negligent infliction of emotional distress by David Browne (count six).
The injured minors, Sevie and William Browne, are the defendant's grandchildren. Sevilla Kommel is the defendant's wife. David Browne is the father of the minor children. Lynda Kommel-Browne is the mother of the minor children and the daughter of the defendant.
On January 20, 2009, the defendant filed a motion to strike counts five, six and eight on the grounds that these three counts are legally insufficient because they fail to state causes of action recognized in Connecticut.
CT Page 11970
Legal 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). In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Conversely, a motion to strike "does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 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.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004).Filial Consortium
The defendant argues, in his memorandum of law, that counts five and eight of the plaintiffs' amended complaint are legally insufficient because they attempt to state a cause of action for loss of filial consortium, which is not recognized in Connecticut. The plaintiffs counter that whether a claim for loss of filial consortium is legally cognizable is presently unsettled in Connecticut and that the Superior Court has, historically, decided that such a claim is available.
"The Supreme Court first recognized a . . . claim for loss of spousal consortium in Hobson v. St. Mary's Hospital, 176 Conn. 485, 408 A.2d 260 (1979). Therein, [the court] defined consortium as encompassing the services of the [injured spouse], the financial support of the [injured spouse], and the variety of intangible relations which exist between spouses living together in marriage . . . These intangible elements are generally described in terms of affection, society, companionship and sexual relations . . . These intangibles have also been defined as the constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage." (Internal quotation marks omitted.) Fischer v. Dunn, Superior Court, judicial district of Waterbury, Docket No. CV 000160378 (August 14, 2001, Rogers, J.)
While it may be true that our appellate courts have not yet directly addressed the legal sufficiency of a claim for filial consortium, the courts are not without guidance. In Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998), our Supreme Court determined that a child cannot recover for loss of parental consortium because "the balance of policy considerations fails to establish the additional justification necessary to support recognition of a legal duty on the part of a tortfeasor to compensate the children of the person whom the tortfeasor has harmed directly for their loss of consortium with their parent. We reach this conclusion primarily on the basis of: the fact that recognition of the cause of action would require arbitrary limitations; the additional economic burden that recognition would impose on the general public; the uncertainty that recognition would yield significant social benefits; the substantial risk of double recovery; and the weight of judicial authority." Id., 484-85. Additionally, the court noted that "there is nothing in reason to differentiate, as a categorical matter . . . the parent's loss of the joy and comfort of his child from that suffered by the child." Id., 485 n. 20. Based on this rationale, the trend among the judges of the Superior Court is that "[l]oss of consortium claims are limited to spouses and do not extend to claims for loss of parental or filial consortium." Diteresi v. Stamford Health Systems, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5001340 (March 6, 2007, Tobin, J.). See, e.g., Ferrara v. Side Street Grille, Superior Court, judicial district of New Haven, Docket No. CV 075013480 (July 18, 2008, Zoarski, J.T.R.) ( 45 Conn. L. Rptr. 873); Reardon v. Brown, Superior Court, judicial district of New Haven, Docket No. CV 07 6000950 (April 18, 2008, Robinson, J.); Bernabe v. North Shore Animal League America, Inc., Superior Court, judicial district of New Haven, Docket No. CV 03 0285521 (June 9, 2004, Wiese, J.) ( 37 Conn. L. Rptr. 229). Accordingly, the defendant's motion to strike counts five and eight of the plaintiffs' amended complaint is granted.
Negligent Infliction of Emotional Distress
The defendant moves to strike count six of the plaintiffs' amended complaint on the ground that Connecticut does not recognize a cause of action for "negligent infliction of emotional distress to [David Browne] as a result of physical injuries sustained by his minor children . . ." The plaintiffs counter that the defendant has misinterpreted the amended complaint as pleading a claim for "negligent infliction of bystander emotional distress," when, in fact, the amended complaint sets forth a claim for negligent infliction of emotional distress which, they claim, is adequately pleaded.
In the seminal case of Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), our Supreme Court first recognized that "recovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact." Rather, the court reasoned, in order to prevail on a claim of negligent infliction of emotional distress, a "defendant would not be liable unless the defendant should have realized that [his] conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." Id. Thus, a claim of negligent infliction of emotional distress requires a plaintiff to allege facts supporting the following elements: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
Accordingly, the foreseeability test synopsized in the Montinieri opinion makes it abundantly clear that the fear or distress experienced by the plaintiffs must be reasonable viewed in light of the defendant's conduct. Id., 446. "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). Furthermore, "[t]he foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement . . ." Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005).
In 1996, the Connecticut Supreme Court expanded the Montinieri decision and recognized negligent infliction of bystander emotional distress as a viable cause of action. Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996). In Clohessy, a mother and her two children were crossing a street, when the defendant's automobile struck and killed one of the children. Clohessy sets forth a standard for recovery where a party alleges damages as a result of a third party injury which requires a plaintiff to prove that: "(1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location; (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response," Id., 56.
"[A] pivotal difference between claims for emotional distress based on intentional conduct and those based on negligent conduct is that an essential component of an intentional infliction claim is that the defendant's alleged behavior must be extreme and outrageous. A claim based on the negligent infliction of distress requires only that the actor's conduct be unreasonable and create an unreasonable risk of foreseeable emotional harm. Thus, to survive a motion to strike, a complaint alleging negligent infliction of emotional distress need not include allegations of extreme and outrageous behavior." Olson v. Bristol-Burlington Health District, supra, 87 Conn.App. 7.
Another significant area of inquiry in claims of negligent infliction of emotion distress originating from third-party injury is whether the defendant has sufficiently pleaded a direct duty of care owed by the defendant to the plaintiff. A claim of negligent infliction of emotional distress requires that the "duty between the parties must be direct in order for it to be viable" as opposed to allegations of bystander emotional distress where a direct duty between the parties is unnecessary. Gregory v. Town of Plainville, Superior Court, judicial district of New Britain, Docket No. CV 03 0523568 (August 29, 2006, Shaban, J.). "In order to press a negligent infliction of emotional distress claim, a plaintiff must allege facts showing that the defendant negligently breached a duty owed to the plaintiff . . . Applying the standard of a reasonable and prudent person, the test is whether defendant should have realized his acts were likely to cause plaintiff such distress." (Citation omitted; internal quotation marks omitted.) Anderson v. Clearview Investment Mgt., Inc., Superior Court, complex litigation docket at Middlesex, Docket No. X04 CV 05 4005191 (October 30, 2006, Beach, J.). "The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand . . . We have stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy . . . We also have noted, however, that we are not required to address the first prong as to foreseeability if we determine, based on the public policy prong, that no duty of care existed." (Citation omitted; internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 217-18, 905 A.2d 1135 (2006).
In the case at bar the defendant argues that, under the facts alleged in count six of the complaint, the parent plaintiff can not sustain liability under Clohessy, as he has failed to allege contemporaneous perception of the accident. The plaintiff, however, seems to concede that under a bystander theory the cause of action would not stand. He contends nonetheless that the defendant has misinterpreted his claim for non-intentional infliction of emotional distress with that of a claim for bystander distress. The plaintiff, therefore, asserts that any legal analysis must be premised on Montinieri, as a claim for negligent infliction of emotional distress and not based upon Clohessy, as a claim for bystander emotional distress. While specific elements exist as to claims of bystander emotional distress under Clohessy and negligent infliction of emotional distress under Montinieri, the plaintiff has failed to allege facts capable of supporting either claim in this instance. Moreover, under Montinieri, upon which the plaintiffs rely, the plaintiffs have failed to allege facts sufficient to support a finding of a direct duty of care owed to them by the defendant. See Torniero v. Allingtown Fire District, Superior Court, judicial district of New Haven, Docket No. CV 06 5006174 (March 17, 2008, Robinson, J.) ( 45 Conn. L. Rptr. 298) (no duty of care existed where defendant employer paid pension proceeds to plaintiff's ex-husband in violation of court order directing pension award to go to plaintiff); Zurzola v. Danbury Hospital, Superior Court, judicial district of Danbury. Docket No. CV 02 0347228 (December 17, 2003, Upson, J.) [ 36 Conn. L. Rptr. 207] (negligent act directed towards child as opposed to parents failed to support claim for negligent infliction of emotional distress). Accordingly, the defendant's motion to strike count six is granted.
Conclusion
For the foregoing reasons, the defendant's motion to strike is granted as to counts five, six and eight.