Opinion
LLICV156012299S
02-17-2016
Kathleen Gemmell v. Gaslight Place Condominiums Association, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE THE DEFENDANTS' MOTIONS TO STRIKE (##111 AND 119) THE PLAINTIFF'S COMPLAINT
HON. JOHN W. PICKARD, J.
In two separate motions, the defendants have moved to strike the plaintiff's complaint, alleging negligence, on the ground that the plaintiff has failed to plead facts that support the element of foreseeability that is part of a claim of negligent infliction of emotional distress. The plaintiff opposes the motions to strike arguing that she has sufficiently pleaded a claim of negligence. For the reasons that follow, the court grants the defendants' motions to strike.
FACTS AND PROCEDURAL HISTORY
On June 11, 2015, the plaintiff, Kathleen Gemmell, filed the present cause of action, alleging negligence, against the defendants, Gaslight Place Condominiums Association, Inc. (Gaslight), Otis Elevator Company (Otis), and Scalzo Property Management, Inc. (Scalzo). In her complaint, the plaintiff alleges the following facts.
Count one is against Gaslight. Count two is against Otis. Count four is against Scalzo.
At all relevant times the plaintiff resided in an apartment located at 65 West Street, New Milford, Connecticut. Each of the defendants managed, maintained, and/or controlled all or some of the premises, including an elevator. On July 28, 2014, the plaintiff entered the elevator on the third floor and attempted to take the elevator to the first floor. The elevator stopped between the second and first floors. The plaintiff was confined in the elevator for approximately two hours. As a result of being confined in the elevator, the plaintiff suffered severe anxiety, panic attacks, difficulty sleeping, inability to eat, aggravation of her irritable bowel syndrome, and aggravation of her agoraphobia.
The plaintiff alleges in each count that the defendant named in each count caused her injuries by failing to properly inspect the elevator; failing to latch, lock, or otherwise secure the elevator control room, allowing water to accumulate and short out the elevator system; failing to properly maintain the elevator control room; failing to provide a system to properly drain water from the elevator control room. She further alleges in each count that the defendant named in that count was in control of the elevator, had sole and exclusive control over the maintenance of the elevator, had a duty to inspect and maintain the elevator, created a dangerous condition by not latching or locking the door to the elevator control room which caused the elevator to short out, and such condition caused the plaintiff's emotional distress, which she would not have suffered but for the defendant's actions.
On August 25, 2015, Otis moved to strike count two (#111-motion; #112-memo) on the ground that while Connecticut recognizes a cause of action for negligent infliction of emotional distress, it does not recognize a cause of action for pure negligence where the only injuries claimed are emotional in nature and the plaintiff has failed to plead facts to support a claim of negligent infliction of emotional distress. On August 31, 2015, the plaintiff filed an objection to Otis' motion to strike (#119) arguing that Connecticut does recognize a claim for pure negligence where the only injuries claimed are emotional in nature and the plaintiff has sufficiently pleaded facts to support such a claim. On October 29, 2015, Otis filed a supplemental memorandum of law in support of its motion to strike (#128).
On September 18, 2015, Gaslight and Scalzo moved to strike counts one and four (#119-motion; #120-memo) on the ground that the plaintiff failed to allege that the defendants should have realized their negligent conduct involved an unreasonable risk of causing emotional distress and that emotional distress, if caused, might result in illness or bodily harm, which is a necessary element for a claim of negligent infliction of emotional distress. On September 22, 2015, the plaintiff objected to Gaslight and Scalzo's motion to strike (#121) arguing that she pleaded sufficient facts to support a claim for pure negligence resulting in only injuries that were emotional in nature. On September 25, 2015, Gaslight and Scalzo filed a reply to the plaintiff's objection (#123). On October 22, 2015, the plaintiff filed a reply to the defendants' reply (#126).
The matters were heard at short calendar on November 2, 2015.
DISCUSSION
" The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993).
" [I]t 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 . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012).
A motion to strike " admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
In the present case, Otis argues in its motion to strike count two that Connecticut does not recognize a cause of action for pure negligence where the only injuries alleged are emotional in nature. Specifically, as articulated in its reply memorandum, Otis argues that while Connecticut recognizes a cause of action for negligent infliction of emotional distress, as found in Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 398 A.2d 1180 (1978), such a cause of action is distinct from a claim for pure negligence and requires a plaintiff to plead an additional element beyond that required for a claim of pure negligence, namely that the defendant should have realized that its conduct created an unreasonable risk of causing emotional distress and that such distress, if it were caused, might result in illness or bodily harm. The plaintiff argues that the Supreme Court in Montinieri recognized a cause of action for pure negligence where the only injuries are emotional in nature, and not a separate cause of action for negligent infliction of emotional distress.
In their motion to strike counts one and four, Gaslight and Scalzo argue that the plaintiff has failed to allege a claim for negligent infliction of emotional distress because the conduct alleged by the plaintiff does not involve conduct that the defendants should have realized involved an unreasonable risk of causing emotional distress of such a nature that it might result in illness or bodily harm. In response, the plaintiff again argues that Connecticut recognizes a cause of action for pure negligence where the only injuries alleged are emotional in nature. Gaslight and Scalzo counter that even where courts have allowed a plaintiff to claim negligence, as opposed to negligent infliction of emotional distress, the plaintiff must still allege that the defendant should have realized that its conduct created an unreasonable risk of causing emotional distress and that such distress, if it were caused, might result in illness or bodily harm.
In order to determine whether or not to grant the defendants' motions to strike, the court must resolve whether the plaintiff's or the defendants' interpretation of Montinieri is correct. Specifically, the court must determine whether the Supreme Court in Montinieri recognized a cause of action for negligent infliction of emotional distress or a more general cause of action for pure negligence when the only damages are emotional in nature.
In Montinieri, our Supreme Court stated that " there is no logical reason for making a distinction, for purposes of determining liability, between those cases where the emotional distress results in bodily injury and those cases where there is emotional distress only." Montinieri v. Southern New England Telephone Co., supra, 175 Conn. 344. The court went on to hold that " recovery from unintentionally caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact." Id., 345. The court, however, placed a limit on when a plaintiff may recover for purely emotional harm, namely that " the defendant would not be liable unless the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it was caused, might result in illness or bodily harm." Id.
The Supreme Court never used the phrase " negligent infliction of emotional distress" in Montinieri . Our Supreme Court, however, has stated that " [i]n Montinieri v. Southern New England Telephone Co., [ supra, 175 Conn. 345], this court for the first time recognized a cause of action for negligent infliction of emotional distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 446, 815 A.2d 119 (2003). Thus, in the view of our Supreme Court, the cause of action discussed in Montinieri is negligent infliction of emotional distress. And our Supreme Court has continually 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.' . . . Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 446, 782 A.2d 87 (2001)." Id., 446-47.
While the plaintiff's interpretation of what cause of action was created in Montinieri is not supported by subsequent Supreme Court decisions, failure to specifically identify her cause of action as one for negligent infliction of emotional distress is not fatal to her claim. " In order to determine whether the plaintiffs have pleaded a [legally sufficient] cause of action . . . the court must look only to the facts pleaded. Under Practice Book § 10-1, '[e]ach pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved, such statements to be divided into paragraphs numbered consecutively, each containing as nearly as may be a separate allegation. If any such pleading does not fully disclose the ground of claim or defense, the judicial authority may order a fuller and more particular statement . . .' Implicit in § 10-1 is that the legal theory on which a pleader relies is to be drawn from the facts alleged rather than any label attached to the allegations. See Lattanzio v. WVIT NBC-30, Superior Court, judicial district of New London, Docket No. CV 05 5000082, (May 15, 2007, Martin, J.)." Catalani v. D'Occhio, Superior Court, judicial district of Waterbury, Docket No. CV-06-5003199-S, (March 4, 2010, Gallagher, J.). Therefore, despite the fact that the plaintiff categorizes her cause of action as one for pure negligence, the court must look to the facts pleaded to determine whether they sufficiently allege a claim for negligent infliction of emotional distress.
In the present case, the plaintiff has alleged that the defendants had a duty to secure the door to the elevator control room, they failed to secure it, resulting in water entering the control room and shorting out the elevator. As a result of the defendants' actions, the plaintiff was trapped in the elevator for two hours and suffered emotional distress. The facts alleged by the plaintiff, taken in the light most favorable to her, allege that the defendants owed a duty of care that required them to maintain the elevator and secure the control room; that they breached that duty by failing to secure the control room; their failure led to water entering the control room, shorting out the elevator and causing the elevator to stop between floors; and the plaintiff suffered emotional harm when she was trapped in the elevator. The plaintiff, however, has not pleaded facts that support a conclusion that any of the defendants should have known that their failure to maintain the elevator or secure the elevator control room involved an unreasonable risk of causing a person emotional distress and that such emotional distress would be severe enough to lead to illness or bodily harm. Therefore, the plaintiff has not pleaded a legally sufficient claim for negligent infliction of emotional distress in counts one, two, or four.
CONCLUSION
The plaintiff has failed to state a legally sufficient cause of action for negligent infliction of emotional distress in counts one, two, or four. Therefore, the court grants the defendants' motions to strike.
So ordered.
Count one is against Gaslight. Count two is against Otis. Count four is against Scalzo. The plaintiff's complaint also alleged a claim against Otis Elevator International, Inc., count three, which she withdrew on October 29, 2015.