Opinion
No. CV 07-5005182
November 7, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#112)
ISSUE
Whether the court should grant the defendant's motion to strike count six of the plaintiff's complaint on the ground that it fails to state a legally cognizable cause of action for negligent infliction of emotional distress because it is based on damage to property. The court holds that the defendant's motion to strike is denied.
FACTS
On July 16, 2007, the plaintiff, Louise Lawson, filed a six-count complaint against the defendant, Randy Petroniro, d.b.a. Musco Fuel Heating Company. The plaintiff alleged the following facts in her complaint. On October 17, 2002, she contracted with the defendant for the sale of a new oil tank, four new oil tank legs, a new oil tank valve, a new oil take gauge and any necessary fittings. The defendant was to install these items at her home located at 11 Alma Avenue, Wolcott, Connecticut. The defendant, however, installed an old, refurbished tank that had been painted to conceal its age. Moreover, at the time of the installation, the defendant failed to obtain a mechanic permit from the town of Wolcott, in order to avoid having the tank inspected, as such inspection would have revealed its true age. The defendant continued to deliver fuel oil to the plaintiff until October 13, 2006. On that date, the oil tank and/or its legs rusted and collapsed, spilling oil on the plaintiff's property and causing the plaintiff to suffer serious damages.
The plaintiff alleges the following causes of action in counts one through six of her complaint: fraud, unfair trade practice, breach of contract, negligence, intentional infliction of emotional distress and negligent infliction of emotional distress, respectively. On September 14, 2007, the defendant filed a motion to strike count six on the ground that it fails to state a legally cognizable cause of action for negligent infliction of emotional distress because it is based solely on damage to property. The defendant filed a memorandum of law in support. On October 3, 2007, the plaintiff filed a memorandum of law in opposition to the defendant's motion. The court heard argument on this matter on October 9, 2007.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading . . ." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 229, 905 A.2d 1165 (2006). "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.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). In ruling on a motion to strike, the trial court examines the complaint "construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
In his memorandum of law in support of his motion to strike, the defendant asserts that the plaintiff has only alleged damage to her oil tank and the contamination of her soil; thus, she cannot claim negligent infliction of emotional distress because in Connecticut, such a claim cannot arise out of mere damage to property. In her memorandum of law in opposition, the plaintiff counters that she has also claimed that she has suffered emotional damage as a result of the defendant's negligence and there exists precedent recognizing a claim for emotional damage as a result of injury to property.
"The Connecticut Supreme Court has set forth the elements of a negligent infliction of emotional distress claim as follows. The plaintiff must establish that: `(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress.' Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). `[R]ecovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact.' (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 749, 792 A.2d 752 (2002). `[I]n 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 . . . This . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable.' (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005). `In order to press a negligent infliction of emotional distress claim, a plaintiff must allege facts showing that the defendant negligently breached a duty owed to the plaintiff . . . Applying the standard of a reasonable and prudent person, the test is whether defendant should have realized his acts were likely to cause plaintiff such distress.' (Citation omitted; internal quotation marks omitted.) Anderson v. Clearview Investment Management, Inc., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 05 4005191 (October 30, 2006, Beach, J.)." Valentino v. Charette, Superior Court, judicial district of Waterbury, Docket No. CV 06 5001394 (June 26, 2007, Gallagher, J.) ( 43 Conn. L. Rptr. 681, 682).
"Although no appellate decision, as yet, deals with a claim for negligent infliction of emotional distress where the damages alleged is injury to property, it is the case that [e]very Superior Court case that has addressed this issue, however, has held that Connecticut courts do not recognize a cause for negligent infliction of emotional distress based solely on damage to property . . . Superior [C]ourts failing to recognize such a cause of action have found as a matter of law that [w]here the injury alleged is solely to property, it is not foreseeable to the defendant that its conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily." (Citations omitted; internal quotation marks omitted.) Jameson v. Newington, Superior Court, judicial district of Hartford, Docket No. CV 04 0832671 (February 27, 2006, Tanzer, J.) ( 40 Conn. L. Rptr. 803, 804-05).
Nonetheless, in Duffy v. Wallingford, 49 Conn.Sup. 109, 123 (2004), the court denied a motion for summary judgment on a negligent infliction of emotional distress claim arising out of an alleged sewage flood on the plaintiffs' property. The court found that "the plaintiffs claim not only that their property was damaged as a result of sewage, but also that they suffered physical discomfort and annoyance as a result of the presence of sewage in their home. Unlike [other] Superior Court cases . . . the plaintiffs' claims for negligent infliction of emotional distress arise out of their personal exposure to sewage and its affect on them . . . Raw sewage entered the plaintiffs' home on two or three occasions and has entered their finished basement to a depth of about twelve inches. [The plaintiff] and her children were required to vacate the premises because of the sewage in their home. [The plaintiff] continues to experience sleeplessness during heavy rains. She remains very upset `about the situation' and testified that `living this way doesn't work well for [her] and doesn't work well for [her] as a mother; that [her] children are exposed to raw sewage in [their] home.'" Id., 122-23. The court, therefore, held that the plaintiffs' claim for emotional distress arose not only from the damage to their property, but also from their response to the exposure to raw sewage. Id., 123.
Moreover, in Valentino v. Charette, supra, 43 Conn. L. Rptr. 683, the court denied a motion to strike a negligent infliction of emotional distress claim arising out of an oil spill from a defective oil tank. The court found that the plaintiff maintained that her distress was not solely based on property damage, but that it was also "based on the fear that she or her child would suffer medically due to their exposure to the oil fumes, that she was `denied the normal use of her home for an extended period of time,' and that her child was required to stay away from the house because of `toxic fumes.'" Id. Comparing these allegations to the facts of Duffy v. Wallingford, supra, 49 Conn.Sup. 109, the court held that "[h]ere, the plaintiff alleges her distress was not only caused by damage to her property, but by the continuing concerns about her child's health due to the exposure of oil fumes, as well was the need to evacuate her house for a period of time. Therefore, the plaintiff has adequately alleged a claim for negligent infliction of emotional distress." Id. Compare Kelly v. Rope Ferry Commons, Superior Court, judicial district of New London, Docket No. CV 5000095 (April 18, 2006, Hurley, J.T.R.) (court granted motion to strike negligent infliction of emotional distress claim on ground that facts of case were distinguishable from Duffy because plaintiff had not alleged any substantive emotional distress suffered); Jameson v. Newington, supra, 40 Conn. L. Rptr. 805 (same).
In the present case, in paragraph twelve of count six, the plaintiff alleges: "As a result of such conduct and the resulting contamination of the [p]laintiff's home, the [p]laintiff was caused to suffer extreme emotional distress in one or more of the following respects: (a) In that the [p]laintiff was without heat or hot water for an extended period of time; and (b) In that the [p]laintiff was unable to pay the costs of remedying the oil spill." Thus, like the plaintiffs in Duffy and CT Page 19216 Valentino, the plaintiff has not only alleged property damage, but has also thoroughly described the substantive emotional distress she has suffered as a result of the defendant's alleged negligence. As such, she has adequately asserted a claim for negligent infliction of emotional distress. The defendant's motion to strike is, therefore, denied.