Opinion
HHDCV166067146 HHDCV166067147
01-05-2017
Mason Bush PPA Russell Bush et al. v. Natural Learning Community
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Nina F. Elgo, J.
Before this court in this consolidated action ( Mason Bush, PPA Russell Bush et al. v. Natural Learning Community Children's School, LLC --Docket No. CV 166067146) (" Bush I") and ( Mason Bush, PPA Russell Bush et al. v. Natural Learning Community Children's School, LLC --Docket No. CV 166067147) (" Bush II") are the defendant's motions to strike the allegations of bystander emotional distress filed by Russell and Jenna Bush, the plaintiffs who are the parents of the minor plaintiff, Mason Bush (Mason). The court notes that there are some minor differences between the two complaints but for purposes of the theories and claims of the parties in support of and opposing the motions to strike, those differences are not sufficiently material to this court's decision.
In Bush I, the plaintiffs allege bystander emotional distress as to the father, Russell Bush, in count three and bystander emotional distress as to the mother, Jenna Bush, in count four with the date of the fall and injury to Mason occurring on March 28, 2014 and March 31, 2014. In Bush II, the plaintiffs allege only one count of bystander emotional distress in count three as to the mother, Jenna Bush, with the date of the fall and injury occurring only on March 28, 2014.
In this case, both complaints allege that Mason fell, hitting his head on March 28, 2014, and as to Bush I, a second time on March 31, 2014. In support of the claims of bystander emotional distress as to Jenna Bush, Bush II alleges that Jenna Bush witnessed the child injured and screaming when she arrived to pick up her child on or about 3:50 p.m. on March 28, 2014; and in Bush I, on or about 3:45 p.m. on March 31, 2014, she noticed a contusion and swelling on her son's head and was informed of his fall earlier in the day. In support of the claim of bystander emotional distress as to Russell Bush, Bush I also alleges that Russell Bush witnessed the child injured on the floor and screaming at 11:55 a.m. on March 31, 2014. Both complaints allege that on April 1, 2014, the child saw a pediatrician who recommended that the child receive x-rays, which were performed on the same day. The x-rays revealed two linear fractures.
" A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted; or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint; or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person; or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts; or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein." Practice Book § 10-39(a).
In moving to strike the bystander emotional distress claims as to Russell and Jenna Bush in Bush I and Jenna Bush in Bush II, the defendant asserts the same claim, namely that the emotional distress claimed by the plaintiffs were not caused by the contemporaneous sensory perception of the event which caused the injury. The plaintiffs claim that the emotional distress they experienced was " caused by arriving on the scene at the daycare soon after Mason's head injury and before substantial change had occurred in Mason's condition or location." Moreover, the plaintiffs allege relative to this count that that they were forced to witness their child undergo tests and themselves endured questioning from the Department of Children and Families. The court agrees with the defendant that the plaintiffs have failed to plead a sufficient claim of bystander emotional distress.
" [A] bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (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." Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996).
In parsing out the meaning and significance of the requirement that the plaintiff's emotional injury be caused either by the contemporaneous sensory perception of the event or by what the plaintiffs experience " soon thereafter and before substantial change has occurred, " this court necessarily considers the entire context of the circumstances of the plaintiff's emotional injury. As Clohessy observed, " [t]he critical factors are the circumstances under which the observation is made, and not any rigid adherence to the length of time that has passed since the accident. It is commonsensical that the greater the lapse of time, the less likely it is that the plaintiff will suffer the initial shocking experience of contemporaneous observation of serious injury or the grisly effects thereof." (Emphasis added.) Id. 53, n.14. " In recognizing this tort, our Supreme Court examined the law of other jurisdictions, citing to a number of cases regarding the requirement of contemporaneous observation; one such case from the Wyoming Supreme Court summed up the rationale of allowing a plaintiff to recover for witnessing the immediate aftermath of the injury. The essence of the tort is the shock caused by the perception of an especially horrendous event . . . It is more than the shock one suffers when he learns of the death or injury of a child, sibling or parent over the phone, from a witness, or at the hospital. It is more than bad news. The kind of shock the tort requires is the result of the immediate aftermath of an accident. It may be the crushed body, the bleeding, the cries of pain, and, in some cases, the dying words which are really a continuation of the event. The immediate aftermath may be more shocking than the actual impact." (Internal quotation marks omitted.) DeBassio. v. Moscato, Superior Court, judicial district of Milford, Docket No. CV-09-6001209-S (July 14, 2010, Hiller, J.) (50 Conn.L.Rptr. 298, 300,, *10).
The plaintiffs assert that " the only issue for the Court in this ease is whether the plaintiffs have met the pleading requirement that the emotional injury of the bystander 'is caused by . . . arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location.'" To the extent that the plaintiffs attempt to reduce this factor to a temporal analysis without the context of the other factors, the court rejects this proposition. On one hand, it is true that the plaintiffs' claim of emotional injury is circumscribed by the contemporaneous or " soon thereafter" requirement. Thus the plaintiffs' experiences at the hospital a day or more after the incidents, including their discovery that their child sustained fractures, strike this court as being irrelevant to this claim. As the Clohessy decision makes clear in its rationale for the contemporaneous requirement, it is the real and perceived severity of the injury which the plaintiffs must experience contemporaneously or close in time to the injuring event. Therefore, this court concludes that the plaintiffs' experience of the other Clohessy factors must also be factored in within the permissible time frame for the cause of action to lie. See, e.g., Marsala v. Yale-New Haven Hospital, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV-12-6010861-S, (October 30, 2013, Lee, J.) (" the plaintiffs nowhere allege that they witnessed the actual removal of the respirator or the resulting demise of [the victim] or arrived shortly thereafter, and so cannot satisfy the requirement of 'the contemporaneous sensory perception of the event or conduct that causes the injury, or by [arrival] on the scene soon thereafter and before substantial change has occurred in the victim's condition or location, ' as required by Clohessy "), aff'd, 166 Conn.App. 432, 457, 142 A.3d 316 (2016) (" [i]n sum, the plaintiffs do not allege in their complaint that any of them witnessed the Hospital's alleged misconduct"); see also Sinapi v. Thomas, Superior Court, judicial district of New Haven, Docket No. CV-12-6025922-S, (June 5, 2013, Mullins, J.) (court granted motion to strike bystander emotional distress count because " the plaintiff still remains too remote from the injury causing event and/or wrongful conduct . . . to recover under Clohessy ").
Even in the light most favorable to the plaintiffs, the complaint inadequately supports the bystander emotional distress claim because there is no allegation that at the time they arrived at defendant's facility and saw their child, the plaintiffs perceived their son's injury to be as serious as they later discovered it to be. For example, the only physical injury that was perceived, and apparently alleged only by Jenna Bush in Bush I, was bruising. There is no allegation that the bruising, at the time Jenna Bush first perceived it, triggered the need, for example, for immediate medical or emergency room care and/or resulted in the kind of shock and extreme emotional upset that this claim requires. See, e.g., Nelson v. Winkel, Superior Court, judicial district of Litchfield, Docket No. CV-03-0090872-S (October 4, 2004, Brunetti, J.) [38 Conn.L.Rptr. 62, ] (" Though [the victim] sustained some bruises, contusions which required medical treatment and physical therapy, the court cannot find from the evidence presented the third prong of Clohessy has been satisfied. The fact she was not transported by ambulance to a hospital but by [the plaintiff] confirms in the court's mind the injuries were not serious.").
Moreover, Jenna Bush saw her son four hours after Russell Bush saw his son, who evidently remained at the day care notwithstanding Mr. Bush's visit. These circumstances strain the plaintiffs' argument not only with respect to the contemporaneous requirement as to Ms. Bush, but also with respect to the requirement that that they perceived their child's injury as sufficiently severe at the time. There is no allegation from the facts or from what can be reasonably or fairly inferred, that the plaintiffs experienced the kind of serious emotional injury which one might endure upon witnessing a horrendous event of the kind contemplated by Clohessy .
For example, in DeBassio v. Moscato, which is the one case cited by the plaintiffs in support of their claim, the injury which the victim's parents witnessed was severe and was immediately perceived as such. Specifically, in DeBassio v. Moscato, supra, 50 Conn.L.Rptr. 298,, the plaintiff/father found his seven year old injured as a result of being assaulted in the head with a golf club, " at which point he recogniz[ed] the severity of the incident [and] carried his son across the street . . . [where] he met [the mother] in the driveway . . . The plaintiff parents then transported their son . . . to the hospital . . ." (Internal quotation marks omitted.) Id., 299, . In Clohessy, the plaintiffs witnessed their child being struck by a speeding car and held him as he died from his injuries. In Thomas v. Trudeau, the plaintiff witnessed her son " immediately after the flames on [his] body were extinguished, as he was running down Orchard Hill Lane towards her screaming in pain, " and because she viewed her son " while his body was still in the process of undergoing the injury, " the court concluded that these allegations satisfied the requirement that the plaintiff had a contemporaneous sensory perception of the event. Thomas v. Trudeau, Superior Court, judicial district of Windham, Docket No. CV-07-5001330-S, (December 11, 2007, Martin, J.). As these cases make clear, the plaintiffs' experience of severe emotional injury must be contemporaneous with their experience of the traumatic event injuring their child. Because the plaintiffs' allegations do not fulfill this requirement, this court cannot find that they have stated a claim for a bystander emotional distress claim.
Based on the foregoing, this court grants the motion to strike the bystander emotional distress claims, specifically counts three and four in Bush I and count three in Bush II .