Opinion
No. CV99-0151679 S
August 12, 2004
MEMORANDUM OF DECISION
This matter is before the court on a motion to strike brought by the defendants, Steven and Robeta Wexler. The underlying action involves an allegedly defamatory email sent by one of the defendants, Lisa Oliver, with the possible aid of her sister, Shannon Oliver. Lisa Oliver allegedly sent this email from the home of her mother and step-father, Roberta and Steven Wexler, who are also co-defendants in this action. Jane Doe One is the subject of the defamatory email and is a plaintiff along with her mother, Jane Doe Two. The plaintiffs, via their amended complaint filed on February 26, 2004, allege a number of claims against the Wexlers under a variety of legal theories.
On March 11, 2004, the Wexlers filed a motion to strike multiple counts of the amended complaint, accompanied by a memorandum of support. On March 24, 2004, the plaintiffs filed a memorandum in opposition followed by a supplemental memorandum on May 28, 2004. At oral argument, the Wexlers withdrew their motion for counts three, five, ten and twelve and it was established that counts seven and fourteen had been stricken previously. The counts that remain to be adjudicated are one, two, four, six, eight, nine, eleven and thirteen. Counts one and eight, two and nine, four and eleven and six and thirteen are identical pairs of claims addressed to the Wexlers individually, and this court will analyze them in pairs.
I
"A motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Id., 498. "An individual paragraph of a complaint may be the proper subject of a motion to strike where it alleges a separate cause of action . . ." Selander v. Soundview Technology Corp., judicial district of Stamford-Norwalk at Stamford, Docket No. CV 020189753 (February 10, 2003, Adams, J.).
II. Counts One and Eight
Counts one and eight sound in negligence and essentially allege that Stephen and Roberta Wexler failed to warn, supervise and instruct Lisa Oliver with regard to her computer use, thereby causing emotional distress to Jane Doe One and Jane Doe Two. The Wexlers move to strike these counts as to Jane Doe Two only on the ground that the plaintiffs have failed to sufficiently allege a cause of action for bystander emotional distress.
"[A] tortfeasor's liability to the emotional distress suffered by a bystander [is established] where (1) the bystander was closely related to the injured victim, (2) the bystander's distress was caused by contemporaneous sensory perception of the event, (3) the victim was seriously injured, and (4) the bystander suffered serious emotional injury." Mendillo v. Board of Education, 246 Conn. 456, 481, 717 A.2d 1177 (1998).
In order to state a valid claim for bystander emotional distress, the plaintiffs needed to allege that Jane Doe Two's emotional distress resulted from seeing the email contemporaneously with the victim, Jane Doe One. Neither count alleges such facts, and therefore the Wexler's motion to strike counts one and eight as to Jane Doe Two is granted. Counts one and eight remain valid as to Jane Doe One.
Counts Two and Nine
Counts two and nine allege that the Wexlers are negligent per se based on General Statutes § 53a-183, which is a criminal statute for second-degree harassment. The Wexlers move to strike these counts on the grounds that 1) the plaintiffs have failed to allege sufficient facts to support a cause of action for negligence per se and 2) a criminal statute which requires intentional or reckless behavior cannot be a basis for a negligence per se claim.
"Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the [trier of fact] in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. [The trier of fact] merely decide[s] whether the relevant statute or regulation has been violated." (Internal quotation marks omitted.) Gore v. People's Savings Bank, 235 Conn. 360, 376, 665 A.2d 1341 (1995). "[I]n order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute . . . Second, the injury must be of the type which the statute was intended to prevent." (Citations omitted; internal quotation marks omitted.) Id., 375-76.
General Statutes § 53a-183(a)(2) states in relevant part: "A person is guilty of harassment in the second degree when: (2) with intent to . . . by computer network, as defined in section 53a-250 . . . in a manner . . . by computer network, as defined in section 53a-250 . . . in a manner likely to cause annoyance or alarm . . ." In order to allege a valid claim under § 53a-183, the plaintiffs need to allege facts that demonstrate that they are within the class of persons and have the type of injury anticipated by the statute. Counts two and nine, however, allege no such facts and therefore the Wexlers' motion to strike is granted. The court need not reach the second ground.
Counts Four and Eleven
Counts four and eleven sound in negligent nuisance. The Wexlers move to strike these counts on the grounds that 1) the plaintiffs have merely reasserted their negligence claim under the guise of nuisance and 2) that the use of a computer for email is not an inherently dangerous condition that has a natural tendency to inflict injury as required for a nuisance claim.
"A nuisance, whether public or private, describes an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property . . . If the condition claimed to be a nuisance arises out of the creator's unintentional but negligent act i.e., a failure to exercise due care, the resulting condition is characterized as a negligent nuisance." (Citations omitted.) Quinnett v. Newman, CT Page 12175 213 Conn. 343, 348-49, 568 A.2d 786 (1990). In the case of a public nuisance, "a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." Id., 355. "There must be some dangerous or noxious characteristic to the condition before it can be termed a nuisance." Heritage Village Master Assoc., Inc. v. Heritage Village Water Co., 30 Conn.App. 693, 708-09, 622 A.2d 578 (1993). A condition is not a nuisance as a matter of law where the "danger would only exist as a result of an unusual combination of circumstances contributing to the result." Hassett v. Palmer, 126 Conn. 468, 476, 12 A.2d 646 (1940); Heritage Village Master Assn., Inc. v. Heritage Village Water Co., supra, 30 Conn.App. 709.
For these counts, the plaintiffs for these counts rely on the same facts as their negligence counts. They also allege the four-part test stated above for a public nuisance. They do not explicitly state, though, what "condition" among those facts constitutes the nuisance. Read in a light most favorable to the plaintiffs, the conditions to which they could be referring is the computer itself or the alleged unsupervised, uninstructed use of the computer and on-line service. Nevertheless, a computer, or even the unsupervised use of a computer or on-line service is not by itself an inherently dangerous or noxious condition sufficient to warrant a claim of nuisance. The alleged use of this computer and service to defame the plaintiffs would qualify as a "unusual combination of circumstances contributing to the result." Hassett v. Palmer, supra, 126 Conn. 476. Therefore, the Wexlers' motion to strike is granted.
This court also doubts whether such conditions are sufficiently connected to the land to constitute a nuisance, but it is limited to the grounds specified in the motion to strike. Gazo v. Stamford, supra, 255 Conn. 259.
Counts Six and Thirteen
Counts six and thirteen assert claims for negligent infliction of emotional distress. The Wexlers move to strike on the ground that the plaintiffs do not allege sufficient facts to sustain the claim. Specifically, they argue, the plaintiffs' bare assertion that the Wexlers should have realized that their conduct would lead to emotional harm is not enough to satisfy the foreseeability element. "In order to recover 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." (Internal quotation marks omitted.) McNamara v. Tournament Players Club of Connecticut Inc., 270 Conn. 179, 197 (2004). "In negligent infliction of emotional distress claims, unlike general negligence claims, the foreseeability of the precise nature of the harm to be anticipated [is] a prerequisite to recovery even where a breach of duty might otherwise be found . . ." (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002).
In both counts, the plaintiffs plead the exact standard for negligent infliction of emotional distress as quoted in McNamara above. As facts, they simply reference the accumulation of facts listed in their other counts. These facts include their allegations that the Wexlers did not instruct, warn or supervise their children's use of the computer and on-line service. The issue, then, is whether it is foreseeable that such failures could possibly lead to the precise harm alleged here, namely that the plaintiffs suffered severe emotional damage from an allegedly defamatory email sent by the defendant's adult children. This court is unwilling to hold, as a matter of law, that emotional distress from an email is an unforseeable consequence of the Wexlers' failure to instruct, warn or supervise the computer use. Accordingly, the Wexlers' motion to strike these counts is denied.
III.
For the foregoing reasons, the Wexlers' motion to strike counts one (in part), two, four, eight (in part), nine and eleven is granted. Their motion to strike counts six and thirteen is denied.
Matasavage, J.