Opinion
No. CV 05-400 85 35 S
February 9, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#107)
The defendants, Mail Delivery and Courier Services, Inc. (Mail Delivery), Scott C. Hugo, Amy H. Hugo, Gary R. Hugo and Kimberly Francoeur, move to strike count one of the plaintiff's September 6, 2005 second amended complaint. Count one of the complaint sounds in intentional infliction of emotional distress. The plaintiff, Alexander Langer, alleges that he was employed by the defendant Mail Delivery, a Connecticut corporation, as a full-time courier/driver and that his employment was abruptly terminated. The plaintiff further alleges that approximately one week after his termination an argument took place at the defendant Mail Delivery's office at which time the defendants Scott C. Hugo and Kimberly Francoeur made defamatory statements about him in front of his daughter.
It is alleged that Scott C. Hugo was the acting president and treasurer, Amy H. Hugo was the acting vice president, Gary R. Hugo was the agent, and Kimberly Francoeur was the acting office and driver supervisor of Mail Delivery.
The following statements were allegedly made by Francocur and Scott C. Hugo: "Alex was a thief, a liar . . . O yeah, yeah, Alex is a bastard, many customers smelled strong alcohol odor on his breath in the daytime . . . He was a useless cheat, a loafer, a common drunkard . . . I am glad Alex is gone for good, customers hated him, because he was a no good bastard . . . True, Langer was a thief, who always complained too much, and took my money." The allegations also state that the defendants through their employees, servants and agents intended to inflict emotional distress on the plaintiff or they knew or should have known that emotional distress was likely to occur as a result of these statements, that the conduct was extreme and outrageous, that the conduct was the cause of the plaintiff's distress, and that Kimberly Francoeur and Scott C. Hugo knew that the emotional distress sustained by the plaintiff was severe.
The defendants filed this motion to strike on October 31, 2005, on the ground that the plaintiff has not alleged conduct that constitutes extreme or outrageous behavior such that a claim for intentional infliction of emotional distress could be sustained, and, as such, he fails to state a claim upon which relief can be granted. The defendants have filed a memorandum of law in support of the motion. On November 21, 2005 the plaintiff submitted a memorandum of law in opposition to the motion. The matter was heard on the short calendar on November 21, 2005.
The plaintiff submitted the memorandum to the court on the day of the hearing but did not formerly file the memorandum with the court clerk.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "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),
The defendants argue that the conduct plaintiff alleges does not rise to the level of extreme and outrageous behavior required to sustain a claim for intentional infliction of emotional distress. They argue that the alleged conduct amounts to insults and name calling, and, as such, falls short of extreme and outrageous behavior. The plaintiff counters that the statements made about him were extreme and outrageous and the alleged conduct does satisfy the requirements for a valid intentional infliction of emotional distress claim.
To state a claim for intentional infliction of emotional distress, a plaintiff must establish four elements: "(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." (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). "All four elements must be pleaded in order to survive a motion to strike." (Internal quotation marks omitted.) Crane v. Northwestern Connecticut Young Men's Christian Ass'n., Superior Court, judicial district of Litchfield, Docket No. CV 04 4001019 (May 25, 2005, Bozzuto, J.). With respect to this motion to strike the only element in question is whether the plaintiffs have effectively pleaded extreme and outrageous conduct.
"Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury." (Citation omitted.) Appleton v. Board of Education, supra, 254 Conn. 210. "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." (Citation omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003). See Carnemolla v. Walsh, 75 Conn.App. 319, 815 A.2d 1251, cert. denied, 263 Conn. 913, 821 A.2d 768 (2003) (extreme and outrageous conduct not found where plaintiff alleges she was accused of embezzling company funds, directed to sign resignation and release forms and received medical treatment and counseling for emotional upset); see also Dollard v. Board of Education, 63 Conn.App. 550, 777 A.2d 714 (2001) (extreme and outrageous conduct not found where the defendants allegedly engaged in a concerted effort to force the plaintiff to resign which included publicly admonishing the plaintiff, hypercritically scrutinizing her work and personal life and subjecting her to intensive supervision ultimately forcing her to resign).
"As Prosser and Keeton explain, [w]hen a citizen who has been called a son of a bitch testifies that the epithet has destroyed his slumber, ruined his digestion, wrecked his nervous system, and permanently impaired his health, other citizens who on occasion have been called the same thing without catastrophic harm may have legitimate doubts that he was really so upset, or that if he were his sufferings could possibly be so reasonable and justified under the circumstances as to be entitled to compensation . . . [A] line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional actions wholly lacking in social utility." (Citations omitted, internal quotation marks omitted.) Whelan v. Whelan, 41 Conn.Sup. 519, 522, 588 A.2d 251 (1991) ( 3 Conn. L. Rptr. 135).
"Courts have placed a very high burden on those claiming extreme and outrageous conduct. In DeLeon v. Little, 981 F.Sup. 728, 738 (D.Conn. 1997), the court stated that [w]hile [d]efendant's alleged conduct may have been rude, inappropriate, or even criminal it does not rise to the level of extreme and outrageous as required by Connecticut common law." (Internal quotation marks omitted.) Crane v. Northwestern Connecticut Young Mens Christian Ass'n., supra, Superior Court, Docket No. CV 04 4001019 (extreme and outrageous behavior not found where defendants allegedly spoke/and or published statements, by way of letter and e-mail to parents of the swim team, calling into question the plaintiff's effectiveness as the swim coach and where defendants allegedly contacted the plaintiff's other employer in an effort to cast the plaintiff in a poor light thereby harming her professional reputation and causing her to be humiliated publicly and professionally).
The alleged behavior of the defendants in the present case, like the behavior of the defendants in the cases cited above, while inappropriate, rude, poor mannered and possibly distressful to the plaintiff and his daughter, does not amount to extreme and outrageous conduct. The alleged conduct was the product of an isolated heated discussion in which the defendants made statements about the plaintiff to the plaintiff's daughter. In making these statements the defendants insulted the plaintiff, called him names and made vague, unsubstantiated claims against him. Nevertheless the conduct cannot be described as "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." Carrol v. Allstate Ins. Co., supra, 262 Conn. 443. Accordingly, the motion to strike count one of the plaintiff's second amended complaint is granted.