Opinion
CV156058515S
11-12-2015
Monica Carmona v. Dennis J. Sullivan, III et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#108)
Jane S. Scholl, J.
The Motion to Strike is granted as to the Second Count, negligence. Although the court finds, based on the decision in Berry v. Walter, Superior Court, Judicial District of Ansonia-Milford at Derby, Docket No. CV 05 5000170 S (Stevens, J., Dec. 5, 2006) , that General Statutes § 22-357 is not an exclusive remedy, the plaintiff has failed to state a common-law action in negligence. As the court in Berry noted: " A person injured by a dog has for election one of two causes of action to pursue. One such action is in negligence at common law, and the other is under the [dog bite] statute . . . [General Statutes] § 22-357 . . . At common law, a defendant who is an owner or keeper of a dog may be held liable for negligence when the dog has vicious or mischievous propensities, the defendant has knowledge of these propensities, and the defendant fails to exercise reasonable care in response to this knowledge. Under the common law of this state, it has been held that liability for injuries committed by a vicious animal is grounded in negligence. It is the duty of the owner of such an animal, having knowledge of its vicious propensities, to give notice of the propensities or to restrain the animal, and that failure to do so is negligence that makes the owner liable for its consequences . . . Liability may be premised on any propensity on the part of the dog which is likely to cause injury under the circumstances . . . Mischievous, within the common-law rule of liability for injuries inflicted by a mischievous animal, does not connote a mere playful canine trickster, but connotes conduct producing or tending to produce mischief or harm, or that is injurious, deleterious, or hurtful." (Internal quotation marks omitted; citations omitted.) It is not sufficient to state a common-law cause of action for the plaintiff to allege, as she has done here, that the defendants " knew or should have known that the dog was threatening or menacing." Second Count, paragraph 6 . The plaintiff must allege that the defendants in fact knew of the dog's vicious or mischievous tendencies.
The motion to strike is granted as to the Third Count, negligent infliction of emotional distress. In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), the Court 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. " In general, to prevail on such a claim, a 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 that an actor should have foreseen that his tortious conduct was likely to cause . . . 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 . . ." (Internal quotation marks omitted; citations omitted.) Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted on other grounds, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005). The plaintiff alleges in her complaint, that over a year after their dog allegedly attacked the plaintiff, the defendants' dog ran out of the house and chased, growled, barked at and acted in a menacing manner toward the plaintiff. The plaintiff alleges that the defendants should have known she was extremely fearful of their dog, and suffered anxiety and emotional distress whenever she saw the dog, and that despite actual or constructive knowledge of her condition, continued to allow their dog to remain unrestrained and un-muzzled outside their home. The plaintiff also alleges that the defendants knew, or should have known, that their failure to keep the dog out of the plaintiff's sight, or to properly restrain the dog after it previously attacked her, created an unreasonable risk of causing further emotional distress to the plaintiff. The conduct alleged here does not meet the standard set forth in Montinieri and Olson . The defendants could not have foreseen that more than year after the plaintiff's initial encounter with the dog, that on that particular day the failure to keep their dog out of the plaintiff's sight or restrain the dog would cause the plaintiff emotional distress.
The motion to strike is granted as to the Fourth Count, 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 . . . 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; citations omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 706, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007). The plaintiff alleges that " [i]n allowing their dog to roam their front yard in plain view of the Plaintiff and in further allowing their dog to chase, growl, bark at and menace the Plaintiff, the Defendants intended to inflict emotional distress upon the Plaintiff, or they knew or should have known that emotional distress was a likely result of their conduct." Fourth Count, paragraph 10 . This conduct does not equate to the extreme and outrageous conduct found necessary by our appellate courts in order to state a cause of action for intentional infliction of emotional distress.
The motion to strike is granted as to the Fifth Count, recklessness. " Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted; citation omitted.) Craig v. Driscoll, 262 Conn. 312, 342-3, 813 A.2d 1003 (2003). The allegations in the Fifth Count that the defendants failed to properly restrain their dog, failed to take reasonable actions to insure that the dog was muzzled and not free to roam outside the house, and failed to keep the animal out of the plaintiff's sight, do not allege reckless conduct.
Lastly, the defendants claim that the Third, Fourth, and Fifth Counts arise from separate transactions and are not properly joined. The Motion to Strike on this ground is denied. Practice Book § 10-21 provides: " In any civil action the plaintiff may include in the complaint both legal and equitable rights and causes of action, and demand both legal and equitable remedies; but, if several causes of action are united in the same complaint, they shall all be brought to recover . . . (7) upon claims, whether in contract or tort or both, arising out of the same transaction or transactions connected with the same subject of action. The several causes of action so united shall all belong to one of these classes and . . . shall affect all the parties to the action . . ." Here the allegations regarding both instances flow from the defendants' alleged failure to restrain their dog. The joinder statute is to be liberally construed, and while the complaint alleges two separate torts, they are acts having some connection with each other, in which all parties are concerned, and which are connected to the same subject of action: the defendants' activities as the keepers of the dog. Therefore joinder is proper. See, Goggins v. Fawcett, 145 Conn. 709, 147 A.2d 187 (1958).
In conclusion, the Motion to Strike is granted for the reasons stated above.