Opinion
HHDCV106016042
04-12-2016
Estate of Marcial Torres et al. v. Berline Line Apartments, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE
Constance L. Epstein, J.
In this action, plaintiff's estate seeks compensation for the death of Marcial Torres, claiming that the defendants' landscaping and mulching work at an apartment complex in which decedent resided caused severe asthmatic reactions that resulted in his death.
Decedent's spouse has asserted claims for loss of consortium. In addition, Ms. Torres asserts claims for bystander emotional distress and the defendants have moved to strike these latter claims.
A motion to strike tests the legal sufficiency of a complaint, and, in considering such a motion the court is to regard as admitted all facts plead and any implications appropriately therefrom. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003); Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). However, the court is not obligated to consider admitted the legal conclusions or the truth or accuracy of opinions set forth in the pleadings. Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). While a motion to strike must be denied if the facts alleged would support a cause of action, a motion to strike is properly granted if the complaint alleges conclusions of law that are unsupported of the facts alleged. Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006); Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
In the Third, Sixth, Ninth and Twelfth counts of her complaint, Ms. Torres alleges that her husband suffered moderate to severe asthmatic reactions on multiple occasions when landscaping and mulching was being conducted on the premises at which he resided. Ms. Torres further alleges that in the spring or summer of 2007, she advised the defendants of these circumstances and requested that she be notified prior to any future landscaping or mulching so that the decedent could stay elsewhere during such work. According to the complaint, the defendants did not provide such warning. The complaint further alleges that, on April 17, 2008, Mr. Torres suffered a severe asthma attack, allegedly as a result of the repeated landscaping and mulching that had been done. Mr. Torres passed away eighteen months later.
In its decision in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), the Connecticut Supreme Court recognized, for the first time in this state, a cause of action for bystander emotional distress. The court Imposed, however, significant limitations on the application of the doctrine, requiring (1) a close relationship between the claimant and the injury victim; (2) claimant's " contemporaneous sensory perception of the event or conduct" that caused the injury; (3) a substantial physical injury to the victim; and (4) a serious emotional injury sustained by the person asserting the bystander emotional distress claim. Clohessy v. Bachelor, supra, 51 to 56. In Clohessy, having applied these limitations, the Supreme Court recognized the viability of the bystander emotional distress claims of a mother and brother of a seven-year-old child who was struck and killed by an automobile as the three of them attempted to cross a street.
In the present case, plaintiff alleges defendants' failure to alert her of upcoming work. Plaintiff also alleges that her husband suffered his devastating ailment onset as a result of defendants' " repeated landscaping and mulching."
Plaintiff does not specify the time or date of the landscaping or mulching of which she complains. In addition, she does not allege that she witnessed any particular landscaping and mulching activities of which she complains. Furthermore, and most importantly for our purposes here, plaintiff does not allege witnessing any landscaping or mulching simultaneously with the onset of her husband's asthma attack.
Plaintiff fails to viably assert a cause of action for bystander emotional distress and, consequently, the defendants' motion to strike counts three, six, nine and twelve is granted.