Opinion
No. X05CV05-4003788S
June 19, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE ( #123)
The above action was instituted by the plaintiff, Kelly June Hill ("Hill") seeking damages for the death of her husband Bobby Dean Hill as a result of his longtime use of smokeless tobacco products sold by the defendant U.S. Smokeless Tobacco Company ("USST"). The seventeen-count Amended Complaint dated October 4, 2005, is filed pursuant to General Statutes §§ 52-572m et seq., otherwise known as the Connecticut Products Liability Act ("CPLA"), and also contains a count brought pursuant to General Statutes §§ 42-110a et seq., otherwise known as the Connecticut Unfair Trade Practices Act ("CUTPA"). Hill brings suit individually, in her capacity as executrix of the Estate of Bobby Dean Hill, and as guardian ad litem for her two minor children. She seeks relief under the doctrine of strict liability in tort for the wrongful death of her husband, as well as, inter alia, the failure to warn, breach of express and implied warranties, negligent and intentional infliction of emotional distress, the making of false and misleading statements, and that USST engaged in a civil conspiracy. She also seeks damages for herself and on behalf of the two minor children, based upon the following theories: loss of consortium, negligent and intentional infliction of emotional distress, bystander emotional distress, and civil conspiracy. USST has moved to strike a portion of Count One, as well as Counts Three through Sixteen in their entirety. The court heard the parties on May 1, 2006. Both sides have filed memoranda of law supporting their respective positions.
DISCUSSION
"It 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." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "For the purpose of [a] . . . motion to strike . . . [the moving party] admits all facts well pleaded." (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 33 n. 4, 675 A.2d 852 (1996). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n., Inc., 264 Conn. 474, 476, 822 A.2d 1202 (2003), and, it does not "admit the truth or accuracy of opinions stated in the pleadings." Quimby v. Kimberly Clark Corporation, 28 Conn.App. 660, 664 (1992). "[If] facts provable in the complaint would support a cause of action, the motion to strike must be denied." Bross v. Hillside Acres, Inc., 92 Conn.App. 773, 781 (2006).
General Statutes § 52-572n(a) provides in relevant part that a, "product liability claim . . . may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 471 (1989). The Connecticut Supreme Court in the case of Gerrity v. R.J. Reynolds Tobacco, Co., 263 Conn. 120, 131-32 (2003), has recently reaffirmed this exclusivity provision and at the same time allowed the joinder of a separate CUTPA count in the complaint. In addition, such a claim may be asserted by a party other than the purchaser or one who has a contractual relationship with the product seller. General Statutes § 52-572n(b). The CPLA provides an umbrella under which various claims for "personal injury, death, or property damage" can be brought. The statute defines a product liability claim as one that includes, but is not limited to, "strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent." General Statutes § 52-572m (b).
A statute such as the CPLA is in derogation of the common law, and absent a clear and unequivocal statement by the legislature, the exclusivity provision of the statute does not repeal existing common-law causes of action. The Connecticut Supreme Court recently held that: CT Page 11237
When a statute is in derogation of common law or creates a liability where formerly none existed, it should receive strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction . . . In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope . . . Although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed . . . We recognize only those alterations of the common law that are clearly expressed in the language of the statute because the traditional principles of justice upon which the common law is founded should be perpetuated. The rule that statutes in derogation of the common law are strictly construed can be seen to serve the same policy of continuity and stability in the legal system as the doctrine of stare decisis in relation to case law." Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 289-90 (1993) [Internal citations and quotation marks omitted].
Hill asks the court to adopt her theory that because she has sued under CPLA, she does not have to allege and prove the essential elements of the underlying causes of action, but rather her proof is limited simply to allegations of a defective product. It is not quite that simple. In comparing the CPLA with the Workers' Compensation Act, the Connecticut Supreme Court held that unlike the latter which "compromise an employee's right to a common law tort action;" there is, "no such statutory prohibition," under the former. Lynn v. Haybuster, supra, 297-99.
By merging the various legal theories of recovery in one cause of action, the CPLA has eliminated the necessity of filing multiple-count complaints, which, in fact, would be subject to a motion to strike. Winslow v. Lewis-Shephard, Inc., supra, 471-72. In addition, General Statutes § 52-577a provides for a uniform statute of limitations for all actions initiated pursuant to CPLA. However, courts that have addressed the issue of common law causes of action have held that the CPLA, " retains the plaintiff's right to allege the traditional theories of recovery along with the statutory basis for recovery under one unified count denominated as a `product liability claim.'" LaMontagne v. E.I. Du Pont De Nemours Co., 834 F.Sup. 576, 587 (Conn. 1993). [Emphasis added.] Judge Cabranes was upheld in this position by the United States Court of Appeals for the Second Circuit. LaMontagne v. E.I. DuPont DeNemours Co., 41 F.3d 846 (2nd Cir. 1994).
AS TO LOSS OF CONSORTIUM:
A claim of loss of consortium is a derivative cause of action, and as such, "is dependent on the legal existence of the predicate action . . ." Cavallaro v. Hospital of St Raphael, 92 Conn.App. 59, 62, fn.5 (2005). As of October 1, 1979, the effective date of the CPLA, loss of consortium as between spouses had been recognized as a viable cause of action. Observing that a loss of consortium claim by a husband had been recognized prior to 1818, and that the case of Hopson v. St Mary's Hospital, 176 Conn. 485 (1979) had accorded the same right to the wife, the Connecticut Supreme Court has held that the Legislature is presumed to know the current status of the law at the time it enacts a new statute, and that, "a loss of consortium claim by the spouse of an injured person is not barred in an action brought pursuant to the Product Liability Act, General Statutes § 52-572m et seq." Lynn v. Haybuster, supra, 299.
When faced with the issue of whether or not to recognize a claim for loss of parental consortium, the Connecticut Supreme Court reached a different conclusion:
We have defined "consortium" in the spousal context as encompassing the services of the [injured spouse], the financial support of the [injured spouse], and the variety of intangible relations which exist between spouses living together in marriage . . . These intangible elements are generally described in terms of affection, society, companionship and sexual relations . . . These intangibles have also been defined as the constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage. Mendillo v. Board of Education, 246 Conn. 456, 477-78 (1998) [internal citations and quotation marks omitted].
The Supreme Court went on to explain its decision in terms of public policy:
Although we acknowledge that many of these contentions have considerable appeal, we conclude that on balance, the wiser judicial policy is not to recognize the claim for loss of consortium by a minor child. We note, as a preliminary matter, that the cause of action asserted is a form of third party liability of the defendants. That is, the minor plaintiffs seek to recover from the defendants, not for tortious harms that the defendants inflicted directly on them, but for emotional harms they suffered as a result of the defendants' tortious conduct committed against another with whom they have a close relationship, namely, their parent. Although we have never specifically said so, our cases suggest that the imposition of third party liability on a tortfeasor is an exception to the general rule of the scope of tort liability that requires satisfaction of a special policy inquiry. Mendillo v. Board of Education, supra, 480.
Moreover, public policy is determined, not by the courts, but rather by the legislature. For a court to do so, it would be "exceeding [its] constitutional limitations by infringing on the prerogative of the legislature to set public policy through its statutory enactments" State v. Reynolds, 264 Conn. 1, 79 (2003). This court chooses to follow this clear judicial admonition.
Accordingly, since loss of parental consortium was not recognized as a viable cause of action at common law and it is not now, nor as of October 1, 1979, was it recognized as such by either case law or statute, Counts Three and Foul of the Amended Complaint are barred in an action filed pursuant to General Statutes § 52-572m et seq.
AS TO BYSTANDER EMOTIONAL DISTRESS:
Bystander emotional distress is also a derivative claim, and is based upon an underlying tort committed against a third person. CT Page 11240 Drew v. William W. Backus Hospital, 77 Conn.App. 645, 669 (2003). The claim was not recognized as a viable cause of action until the landmark decision of the Connecticut Supreme Court in Clohessy v. Bachelor, 237 Conn. 31 (1996). There the Court set forth the following four-part test: "[W]e conclude that 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, supra, 56.
Viewing the pleadings in a light most favorable to the plaintiffs, the plaintiffs have arguably plead sufficient facts to support the first, third, and fourth elements of an action for bystander emotional distress. However, the complaint fails to plead sufficient facts to support the third element requiring a "significant observable sudden traumatic event." Clohessy v. Bachelor, supra, 44. As significant and tragic as the lingering death from cancer of a parent or spouse admittedly is, particularly the one described in Hill's complaint, no amount of linguistic gymnastics can qualify it as sudden and traumatic. While a court gives the benefit of the doubt to the pleader, it is not required to torture the English language in order to find facts. The Connecticut Supreme Court rejected a similar claim in a medical malpractice case where the plaintiff had observed first-hand the deterioration and ultimate death of her mother. Maloney v. Conroy, 208 Conn. 392, 402 (1988).
However, even if the court were to assume all facts well pleaded, bystander emotional distress was not recognized as a viable cause of action at common law until 1996, well after the effective date of the CPLA. Accordingly, Counts Seven, Ten, and Thirteen of the Amended Complaint are also barred in an action filed pursuant to General Statutes § 52-572m et seq.
AS TO INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:
Although neither Kelly Hill nor the two minor children have either bought a product from USST or entered into a contractual relationship with it, they are not prohibited from asserting a products liability claim pursuant to the CPLA. General Statutes § 52-572n(b). Each has asserted a claim for both intentional and negligent infliction of emotional distress."In order for the plaintiff to prevail in a claim for 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 a 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 for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind . . . Thus, [i]t is the intent to cause injury that is the gravamen of the tort . . ." Drew v. K-Mart Corp., 37 Conn.App. 239, 251 (1993) (Citations omitted; internal quotation marks omitted.)
Viewing Counts Six, Nine, and Twelve of the Amended Complaint in a light most favorable to the plaintiffs, the court finds that they have plead sufficient facts to state a cause of action for intentional infliction of emotional distress, and that they are, therefore, left to their proof.
However, the court reaches a different result with regard to the counts asserting negligent infliction of emotional distress. The basic elements to be established in order to maintain an action for negligence are as follows: (1) a duty owed to the plaintiff, (2) a breach of that duty, (3) actual damage to the person and/or property of the plaintiff, and (4) the proximate cause for which damage is the breach of that duty. Madsen v. Gates, 85 Conn.App. 383, 392 (2004). In an ordinary negligence case, the plaintiff must show that the risk of harm was reasonably foreseeable by the tortfeasor. However, in an action alleging negligent infliction of emotional distress, the focus is upon the "nature of the harm to be anticipated," and the plaintiff must demonstrate that the tortfeasor, "should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm." Maloney v. Conroy, 208 Conn. 392, 398 (1988).
Viewing Counts Five, Eight, and Eleven of the Amended Complaint in a light most favorable to the plaintiffs, the court finds that they have not plead sufficient facts to state a cause of action for negligent infliction of emotional distress. In particular, the plaintiffs have failed to plead the basic and very essential element of duty. Coburn v. Lennox Homes, Inc., 186 Conn. 370, 372, and 375-76 (1982). Therefore said counts must fail.
AS TO THE ALLEGATIONS OF CIVIL CONSPIRACY:
Count One of the Amended Complaint contains allegations of strict liability in tort for the wrongful death of Bobby Dean Hill, along with inter alia, fraud, failure to warn, breach of express and implied warranties, negligent and intentional infliction of emotional distress, the making of false and misleading statements, and that USST engaged in a civil conspiracy. USST has asked the court to strike from the First Count the allegations of fraud and misrepresentation. That accomplished, USST then asks the court to strike Counts Fourteen, Fifteen, and Sixteen alleging civil conspiracy, since they cannot stand in the absence of allegations of an underlying tort. The question for the court then becomes, is the plaintiffs' pleading of Count One proper, and if so, does it support a claim for damages on the basis of a conspiracy? The court answers both questions in the affirmative.
The United States Supreme Court has held that, "there is no tort of civil conspiracy in and of itself. There must be first pleaded specific wrongful acts which might constitute an independent tort." Beck v. Purpis, 529 U.S. 494, 501-02 (2000). The same conclusion was reached by the Connecticut Appellate Court in a case in which fraud was the underlying cause of action. There the court held that:
Under Connecticut law, technically speaking, there is no such thing as a civil action for conspiracy. The action is for damages caused by acts committed pursuant to a formed conspiracy rather than by the conspiracy itself . . . A claim of civil conspiracy, therefore, is "insufficient unless based on some underlying cause of action . . . Consequently, for a plaintiff to recover on a conspiracy claim, the court must "find the facts necessary to satisfy the elements of an independent underlying cause of action . . . More specifically, where the plaintiff is unable to establish the underlying cause of action for fraud, the cause of action for conspiracy to defraud must also fail. Litchfield Asset Management Corp. v. Howell, 70 Conn.App. 133, 140 (2002) [Citations and internal quotation marks omitted.]
The plaintiffs allege inter alia that USST and others conspired in a fraudulent scheme to deceive the plaintiff and others and to cause them harm. The plaintiffs have properly plead this allegation along with others, such as failure to warn, strict liability, etc. under the umbrella of a statutory products liability action, as is their right. LaMontagne v. E.I. Du Pont De Nemours, supra, 587. The underlying tort is the products liability claim, and this is well plead and sufficient to sustain a claim for damages as a result of a conspiracy. Thus, USST's argument falls short.
ORDER
The foregoing motion having been heard, for the reasons set forth above, as to Counts Three, Four, Five, Eight, Seven, Ten, Eleven, and Thirteen of the Amended Complaint, the Motion to Strike is HEREBY GRANTED, and as to Counts One, Six, Nine, Twelve, Fourteen, Fifteen, and Sixteen of the Amended Complaint, the motion is HEREBY DENIED.