Opinion
No. MMX CV06 500 0409 S
February 2, 2010
MEMORANDUM OF DECISION
As set forth below, the defendant Cynthia Prue has filed a motion to strike the second count of the plaintiff's second amended complaint containing allegations of intentional infliction of emotional distress.
On October 19, 2009, the plaintiff Christopher Burke filed his second amended complaint including a second count alleging intentional infliction of emotional distress by defendant co-worker Cynthia Prue. Over a period of approximately nineteen months the plaintiff alleged that the following had occurred:
6. On the following dates/occasion, Burke has been subjected to the verbal and/or physical abuse of the Defendant, Cindy Prue (hereinafter referred to as "Prue"), who is a Caucasian, female likewise employed by DCF as CSW:
a. On March 11, 2003 Burke attempted to address a work related issue with Prue. In response, Prue responded to Burke's inquiry in a loud, hostile manner, using foul language and then she intentionally and purposefully shoved him by pushing forcefully against his shoulder, thereby causing him to be forcefully slammed into a building wall.
This incident was witnessed by a co-worker, Mr. Justin Cartelli.
b. On March 28, 2003, while Burke was engaged in a conversation with another co worker, Prue walked towards him and in a vile manner and harsh and loud tone of voice made insulting remarks concerning Burke's mother. At the time of this incident, it was known throughout the unit that Burke's mother had suffered a massive stroke. As a result, He had to take time from work to travel to the South to attend to his Mother.
c. On April 7, 2003, Burke and several co-workers were engaged in conversation regarding a basketball game. In an attempt to be friendly to Prue, Burke asked her what she thought about the game. Prue responded in a manner using insulting language. This incident was witnessed by several Co-workers, namely, Adam Brown, Maureen McKenna and Debbie King.
d. On April 11, 2003, Prue addressed a patient in an abusive manner after the patient had urinated on herself in her bed. Prue's abusive behavior was witnessed by Burke and their supervisor, John Kinsler.
e. After Burke filed two written reports regarding the two incidents that occurred in April, Prue subsequently retaliated against him by filing a false charge that Burke had physically assaulted her. DCF's management ignored Burke's complaint and immediately commenced an investigation of Prue's complaint.
f. In September of 2003 Burke was notified by his union steward that DCF's management had promised that he and Prue were to be assigned to different work units to avoid interaction between them. However, management consistently failed to honor its promise to Burke. Several months later Burke was notified by Mark Root, Director of Nursing, that DCF was no longer obligated to separate Prue from him in the workplace.
g. On May 4, 2004, Prue violated DCF's procedure by assisting a patient alone who had urinated on herself while in bed. In such a situation, operating procedure requires the presence of two CSWs in the patient's room. Burke happened upon Prue while she was alone in the patient's room to assist. Prue responded by addressing Burke in an abusive manner.
h. On June 20, 2004 Prue intentionally lunged at Burke with the intent of doing bodily harm while he was completing paperwork for the unit. She then snatched the papers from his hands. At the time of said incident, Prue was using foul language and began yelling at Burke in a hostile manner. Two co-workers, Terri Hines and Deborah Young, either heard and/or witnessed Prue's conduct toward Burke. Later that evening, Prue yelled at Burke because he could not figure out how to change a television channel with a remote that he was operating. She also subsequently engaged in standing in Burke's pathway as he attempted to leave.
i. On October 3, 2004, Burke reported to work as Prue was completing her shift. In order to avoid her, he waited to enter the patients' ward after she had left the building. After it appeared that Prue left, Burke commenced to work his shift. Prue suddenly reappeared and approached Burke while he was seated in the doorway of a patient's room. Prue entered the patient's room and in an effort to step over him, she intentionally kicked Burke's legs. As Prue exited the room, once again she stepped over him, kicking his leg in the same manner that she entered.
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10. Prue's conduct as described above was malicious and outrageous causing Burke emotional harm in that he feared she would continue to engage in conduct that would result in him being assaulted.
11. Prue knew or should have known that her consistent verbal and physical assaults upon Burke would cause him to suffer physical and emotional pain and trauma.
12. Burke has suffered severe and extreme emotional distress as a direct result of Prue's assaults and abusive conduct directed against him.
13. Burke has been compelled to seek medical attention and/or professional counseling as a result of the emotional distress caused by Prue's conduct.
On November 18, 2009, the defendant Cynthia Prue moved to strike such second count and set forth her reasons as follows:
Pursuant to the provisions of Conn. Practice Bk. § 10-39, Defendant Cynthia Prue hereby moves to strike the second count of the plaintiffs' second amended complaint for failure to allege facts sufficient to state a cause of action for intentional infliction of emotional distress. For this reason, and those set forth more fully in the accompanying memorandum of law, the defendant asks the Court to grant this motion.
Although there are four elements that must be established for a plaintiff to prevail on a claim for intentional infliction of emotional distress (see infra), in her memorandum the defendant Cynthia Prue focuses on the second element, "that the conduct was extreme and outrageous . . ." Defendant Prue asserts that the plaintiff has not sufficiently alleged facts that would if proved sustain a claim for intentional infliction of emotional distress by a co-worker:
The courts have allowed such claims only under circumstances far more egregious than those alleged by the plaintiff. See McKelvie v. Cooper, 190 F.3d 58, 60-61 (2d Cir. 1999) (kicking plaintiff and probing his penis, testicles, and anus); Berry v. Loiseau, 223 Conn. 786, 789 (1992) (subjecting the plaintiff to false imprisonment and repeated physical abuse, including punching and choking); Mellaly v. Eastman Kodak, CT Page 4261 42 Conn.Sup. 17, 21 (1991) (indiscriminately yelling and screaming at, and repeatedly taunting and harassing a plaintiff about his alcoholism and recovery in the workplace, at home and on days off and vacation days).
Indeed, in cases like the plaintiff's, involving coworkers, the court has found that derogatory comments made by one worker to another are not enough to support a claim of intentional infliction of emotional distress. See, e.g., Parker v. Price Chopper, 2008 Conn.Super. LEXIS 2192 (2008) (attached) (coworker's threats, cursing and racial slurs at her did not rise to the level of outrageousness); Morrissey v. Yale Univ., 48 Conn.Sup. 394 (2003), affirmed, 268 Conn. 426, 428 (2004) (coworker's boyfriend calling the plaintiff fat and stating that her husband "must have been shooting blanks;" as well as coworker's finger pointing and threatening, "Sooner or later I'm going to kick your fucking ass," did not approach the level of outrageousness required by our Supreme Court); see also Engle v. Bosco, 2006 Conn.Super. LEXIS 2792 (2006) (granting motion to strike where plaintiff alleged that he and other employees were verbally abused by the defendant president of the company, who referred to them as "dumb mother fr**ers" and "brain dead," told them he wouldn't let them "lick [his] dead cats' balls" and that his "dead cat could do a better job" than them, stated that he would not let the plaintiff "lick the sweat off [his] balls," threatened to put the plaintiff under surveillance and/or terminate him, and spit at the plaintiff).
Here, none of the actions purportedly taken by Mrs. Prue meet the criteria for extreme and outrageous conduct. Even if true, yelling at a worker and using foul, harsh and insulting language, while it may not be preferable workplace conduct, is not the sort of extreme and outrageous behavior that would lead an average member of the community to exclaim, "Outrageous!" Similarly, the plaintiff's allegations of physical misconduct do not meet the standard. Shoving, standing in another's pathway, and even kicking someone's legs while passing, are not acts sufficiently egregious to state a claim for intentional infliction of emotional distress.
The cases cited by the plaintiff in her memorandum were decided before the decision of the Supreme Court in Appleton v. Board of Education, 254 Conn. 205, 757 A.2d 1059 (2000). The plaintiff thus ignores a substantial number of decisions after Appleton that evaluate intentional infliction claims based on the standards set forth in that decision. The Appleton decision contains the following:
"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.) Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). 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. Bell v. Board of Education, 55 Conn.App. 400, 410, 739 A.2d 321 (1999). Only where reasonable minds disagree does it become an issue for the jury. Id.
Liability for intentional infliction of emotional distress requires conduct that exceeds" `all bounds usually tolerated by decent society . . .'" Petyan v. Ellis, supra, 200 Conn. 254 n. 5, quoting W. Prosser W. Keeton, Torts (5th Ed. 1984) § 12, p. 60. "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!' "1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965). "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." Mellaly v. Eastman Kodak Co., 42 Conn.Sup. 17, 19, 597 A.2d 846 (1991).
Id., 210-11. See also Carroll v. Allstate Ins. Co., 262 Conn. 433, 442-43 (2003).
In the Appleton case, the defendants sought and were granted summary judgment, but there were no allegations by the plaintiff of physical violence, threats or claims of racial bias by the defendants:
The conduct of the defendants in the present case is described in the plaintiff's affidavit in opposition to the defendant's motion for summary judgment. Rifenburg's opposing affidavit does not raise any genuine issue of material fact concerning the defendants' conduct. The plaintiff complains that Rifenburg: "made condescending comments to [her] in front of [her] fellow colleagues questioning [her] vision and ability to read;" telephoned the plaintiff's daughter, representing that the plaintiff "had been acting differently" and should take a few days off from work; and telephoned the police, who came to the school and escorted the plaintiff out of the building to her car. The plaintiff also asserted in her affidavit that she was subjected to two psychiatric examinations at the request of the board, and that she was forced to take a suspension and a leave of absence and, ultimately, forced to resign.
These occurrences may very well have been distressing and hurtful to the plaintiff. They do not, however, constitute extreme and outrageous conduct within the meaning of the precedents to which we referred previously. In fact, 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." 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); 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). As the defendants' actions in the present case were not so atrocious as to exceed all bounds usually tolerated by decent society, their conduct is insufficient to form the basis of an action for intentional infliction of emotional distress. The Appellate Court's conclusion to the contrary cannot be sustained.
Id., 211-12 (footnote omitted).
There are a number of decisions where trial court judges have summarized decisions granting or denying motions to strike intentional infliction counts. For example, in Pinckney v. Miss Porter's School, Inc., 2009 Ct.Sup. 9112, 9115-16, No. CV 08 5009273 S, Superior Court, Judicial District of New Britain at New Britain (Tanzer, J., March 30, 2009), Judge Tanzer set forth decisions where motions to strike had been granted, as she did in the Pinckney case:
An examination of cases deciding a motion to strike a count alleging intentional infliction of emotional distress reveals that the plaintiffs' allegations do not pass muster. In Dollard v. Board of Education, 63 Conn.App. 550, 551 n. 2 (2001), the plaintiff, a school psychologist, was supervised by three individual defendants. The complaint alleged that the individual defendants jointly engaged in a concerted plan to force the plaintiff to resign her employment or become so distraught that they would have a basis for discharging her. The plaintiff alleged that defendants hypercritically examined every detail of her professional and personal conduct; transferred her to a school where she did not want to be assigned and secretly hired someone to replace her; publicly admonished plaintiff for chewing gum, being late, and being disorganized and not using her time well; and placed her under intensive supervision. The complaint alleged that defendants forced plaintiff to resign. The Appellate Court affirmed the trial court's granting of defendant's motion to strike, finding that these allegations were not sufficiently extreme and outrageous.
In Bator v. Yale-New Haven Hospital, 73 Conn.App. 576 (2002), the Appellate Court affirmed the granting of a motion to strike. There the plaintiff alleged that he was required to report for duty when he was under a physician's care, and was recommended for discipline when he failed to report; that a person in authority falsely accused the plaintiff of serious misconduct and of endangering a patient's life. The court found such allegations insufficiently outrageous.
In Carnemolia v. Walsh, 75 Conn.App. 319 (2003), the court summarized the essential facts:
[t]he plaintiff was a devoted mother and employee, she was an honest person who had never been accused of a crime, she was confronted by the defendants, who accused her of embezzling company funds and request[ed] that she sign documents that purportedly were resignation and release forms, a coworker resigned after observing the way in which the plaintiff was treated, and the plaintiff received medical treatment and counseling for emotion[al] upset.
Id., 332-33. Nevertheless, the court found such allegations insufficient to satisfy the requirements of pleading a case of intentional infliction of emotional distress. The court noted that while the conduct may have been "distressful or hurtful," it was not outrageous. Id., 333. See also Schmidt v. Housing Authority of the City of Bristol, Superior Court, judicial district of New Britain, Docket No. 06 5001979 (October 4, 2007, Shapiro, J.) (motion to strike granted where defendants made false and misleading statements that the plaintiff violated a drug-free workplace policy; intentionally hired a known drug user; engaged in a conspiracy to hide drug usage by using a masking agent to foil drug testing; repeatedly republished the same untrue and misleading representations; spread rumors and innuendos about her; and caused the plaintiff to be terminated from her employment; withheld and hid information from her, created pretexts for investigation and terminating her, and demanded that she report to work while she was disabled and on approved leave). See also Crane v. Northwestern CT Young Mens Christian Assoc., No. CV 04 4001019 Superior Court, judicial district of Litchfield at Litchfield (Bozzuto, J., 2005) (defendants spoke and/or published defamatory statements about plaintiff's capabilities as a swim coach, and maliciously contacted plaintiff's other employer); Langer v. Mail Delivery Courier Services, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05 4008535 (Hiller, J., 2006) (defendants made statements in front of plaintiff's daughter that plaintiff was a thief and a liar, and that customers smelled alcohol on his breath, that customers hated him, and that he was a useless cheat, loafer and common drunkard, these statements were insufficient to support a claim of intentional infliction of emotional distress).
In Pinckney, Judge Tanzer also set forth decisions where motions to strike an intentional infliction of emotional distress claim had been denied:
To the contrary, those cases which have found a cause of action to exist have included physical abuse by a co-worker, such as punching and choking, Berry v. Loiseau, 223 Conn. 786, 793 (1992), or racial, ethnic, religious or sexual attacks. Leone v. New England Communications Corp., Superior Court, judicial district of New Britain at New Britain, Docket No. CV01 0509752, 2002 (April 10, 2002, Quinn, J.) [ 32 Conn. L. Rptr. 72].
Id.
In Berry v. Loiseau, 223 Conn. 786, 793 (1992), during the course of Berry's employment, he was subjected to repeated physical abuse by Loiseau, Jr., a co-worker, including being punched and choked. The contact was not "voluntary `horseplay.'" Id., 807. In this case the plaintiff has not alleged "repeated" physical abuse but he has alleged more than one incident of physical contact by the defendant Prue.
In Perodeau v. Hartford, 259 Conn. 729, 757, 792 A.2d 552 (2002), the Supreme Court explained that at work an employee must expect to be subject to work-related vicissitudes:
It is clear that such individuals reasonably should expect to be subject to routine employment-related conduct, including performance evaluations, both formal and informal; decisions related to such evaluations, such as those involving transfer, demotion, promotion and compensation; similar decisions based on the employer's business needs and desires, independent of the employee's performance; and disciplinary or investigatory action arising from actual or alleged employee misconduct. In addition, such individuals reasonably should expect to be subject to other vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like. Thus, it is clear that individuals in the workplace reasonably should expect to experience some level of emotional distress, even significant emotional distress, as a result of conduct in the workplace.
See also Schmidt v. Housing Authority of the City of Bristol, CT Page 4268 2007 Ct.Sup. 16622, 16624-25, No. HHB CV 06 5001979 S, Superior Court, Judicial District of New Britain at New Britain (Shapiro, J., October 4, 2007). In the complaint in Schmidt, there were no allegations concerning violence or threatened violence. Also absent from the intentional infliction count were allegations involving racial, ethnic, religious and sexual slurs. Id., 16625. In Schmidt, the court granted the motion to strike. In doing so the court distinguished the decision in Ferraro v. Stop Shop Supermarket Co., Superior Court, J.D. of New Haven, 2000 Ct.Sup. 6272, 6273, Docket No. CV-96-0388031 (May 24, 2000, Silbert, J.), wherein the court set forth plaintiff's allegations of physical violence, inter alia, as a basis for his intentional infliction of emotional distress claim. In Ferraro, over a period of five or six years, there was an incident of possible physical violence involving the swinging of meat at the plaintiff by the defendant supervisor while the plaintiff was holding a knife. Id. See also Johnson v. Teamsters Local 599, 102 F.3d 21 (1st Cir. 1996) (various union members threatened the plaintiff's life and subjected him to racist epithets, guards escorted him to and from work, watched over his home; after plaintiff's termination of his employment, a union officer drove by his home several times a day for a period of three weeks, and the court concluded that such officer's conduct was extreme and outrageous). Schmidt, supra, 16627-28.
In Arnold v. Thermospas, Inc., 49 Conn.Sup. 103, 106-07, 863 A.2d 250 (2004), a case involving an owner/supervisor and three employees instead of similarly situated co-workers, the defendant owner/supervisor and the company filed a motion to strike each plaintiff's claim of intentional infliction of emotional distress and alleged that each such count failed to state a claim upon which relief could be granted because each plaintiff did not allege conduct that was extreme and outrageous. With respect to plaintiff employee Zolnick, although he alleged, inter alia, that he was physically threatened, Judge Murray determined that he did not allege any facts to show that the defendants' conduct toward him was extreme and outrageous. Id., 107. Plaintiff employees Arnold and Tuttle pled the same general allegations of abuse and physical threats that Zolnick alleged, but they additionally alleged specific instances when the defendant owner/supervisor "physically restrained them and attempted to intimidate them physically." Id. Judge Murray explained that
Arnold alleges that Tournas leaned over him in a threatening manner and prevented him from getting up from his chair. Tuttle alleges that Tournas trapped him in his chair by standing over him. "A review of the cases addressing the definition and parameters of extreme and outrageous conduct in intentional infliction of emotional distress cases reveals that courts do not typically strike claims or grant judgments where physical contact has occurred." Cole v. Moorehouse, Superior Court, judicial district of New Haven, Docket No. CV-99 0427337S (September 18, 2002) (Robinson-Thomas, J.). Although the plaintiff's in the present case have not alleged physical contact, Arnold and Tuttle have alleged that Tournas physically restrained them by leaning over their chairs and preventing them from standing. The court concludes that the alleged physical restraint is tantamount to physical contact. The defendants' motion to strike counts one through four, therefore, is denied.
Id., 107-08. See also Lamothe v. Russell, 2009 Ct.Sup. 5606, 5611-12, 47 Conn. L. Rptr. 450, Docket No. CV 07 4022729, Superior Court, Judicial District of Fairfield (March 25, 2009, Bellis, J.). In this case the plaintiff has alleged specific instances of physical contact.
A motion to strike one or more counts of a complaint challenges the legal sufficiency of each such cause of action. As set forth in Doe v. Yale University, 252 Conn. 641, 667, 668, 748 A.2d 834 (2000), and in Gazo v. Stamford, 255 Conn. 245, 256-57, 765 A.2d 505 (2001), the trial court must take the facts to be those alleged in the complaint, must construe the complaint in the manner most favorable to sustaining its legal sufficiency, and what is necessarily implied by an allegation need not be expressly alleged for it to be recognized by the court:
"We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on the [plaintiff's motion] is plenary. See Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, 680 A.2d 127 (1996) [cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997)] . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996); see also Mingachos v. CBS, Inc., 196 Conn. 91, 108-09, 491 A.2d 368 (1985). Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Waters v. Autuori, 236 Comm. 820, 826, 676 A.2d 357 (1996). Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged. Clohessy v. Bachelor, 237 Conn. 31, 33 n. 4, 675 A.2d 852 (1996) . . . It 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 . . . Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980). Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically . . . Edwards v. Tardif, 240 Conn. 610, 620, 692 A.2d 1266 (1997)." (Citation omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000).
Gazo v. Stamford, supra, 255 Conn. at 260-61.
Also, as the Supreme Court set forth in Gazo, after acknowledging the foregoing, while the general rule is that the trial court must take the plaintiff's allegations at face value, that rule is not absolute:
Although ordinarily indeed, in most cases — in reviewing a motion to strike, the court must take the plaintiff's allegations at face value, that rule is not absolute. We have, on occasion, looked beyond the specific language of a pleading to discern its real underlying basis. See, e.g., Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800, 756 A.2d 237 (2000) ("[the defendant] cannot . . . convert its apportionment claim against [the third party defendant] into something other than a product liability claim simply by alleging only negligent misconduct"). In our view, this is an appropriate case in which to pierce the pleading veil. Thus, in the present case, we look beyond the language used in the complaint to determine what the plaintiff really seeks. Just as "[p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender;" State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982); putting a contract tag on a tort claim will not change its essential character . . .
Gazo v. Stamford, supra, 255 Conn. at 262-63.
Also in Gazo, the Supreme Court pointed out that a judge's common sense is to be applied in evaluating a pleading:
Common sense also informs us that the plaintiff's contract claim is in reality his negligence claim cloaked in contract garb. "It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom." State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985) . . .
Gazo v. Stamford, supra, 255 Conn. at 266; see also Liberty Mut. Ins. v. Lone Star Indus., Inc., 290 Conn. 767, 803 fn 37, 967 A.2d 1 (2009). See also Schmidt v. Housing Authority of the City of Bristol, supra, 2007 Ct.Sup. at 16624-25:
"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." (Citation omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). Thus, the legal sufficiency of a count which alleges the intentional infliction of emotional distress may be tested by a motion to strike. See Dollard v. Board of Education, 63 Conn.App. 550, 551 n. 2, 777 A.2d 714 (2001).
Applying the foregoing principles this court determines that the defendant Cynthia Prue did not establish that the plaintiff's second count alleging a claim of intentional infliction of emotional distress is legally insufficient. The defendant's motion to strike such second count is denied.