Opinion
No. HHD CV-09 5028391-S
October 19, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#107)
This action arises out of an agreement dated August 25, 2006, which provided that the plaintiff, Mary Le, would lease commercial space from the defendant, Carmine Saporoso, for purposes of operating a travel agency. After the plaintiff took possession of the premises, the defendant began entering the property, without invitation or permission, approximately two to three times per week, for the purposes of making unwelcome, explicit, and harassing comments of a sexual nature to the plaintiff. Despite the plaintiff's repeated requests, the defendant continued to make such comments. Sometime around October of 2007, the defendant's conduct escalated to unwelcome touching of a sexual nature. The defendant would enter the property for the purported purpose of performing maintenance and touch the plaintiff by, inter alia, putting his hands around her waist, forcing himself against her, and pressing his groin area against her thigh and hip area. As a result of the defendant's conduct, the plaintiff could no longer enjoy the use of the property or conduct her business after September of 2006.
As alleged by the plaintiff, the defendant's comments included the following statements "You are so hot and sexy — come touch me"; "Let me hug you"; "Come to New York with me for the weekend, forget my wife"; "I want to get together with you, you are so hot — my wife is old and saggy"; "Sleep with me, we're both adults." If you [have sex with me], I'll give you free cable"; and "If you [have sex with me] I'll give you free rent."
This action was commenced by service of process on March 16, 2009. On June 25, 2009 the plaintiff filed a revised five-count complaint. In count one, the plaintiff alleges intentional infliction of emotional distress. In count two, the plaintiff alleges negligent infliction of emotional distress. The plaintiff alleges unreasonable intrusion and invasion of privacy in counts three and four respectively. Lastly, the plaintiff alleges breach of an implied covenant of good faith and fair dealing in count five.
The revised complaint is the operative complaint, and any references hereinafter to the complaint are to the revised complaint.
On August 17, 2009, the defendant filed a motion to strike counts one through five and the prayer for relief. A memorandum in support accompanied the motion. The plaintiff filed a memorandum in opposition to the motion. The matter was heard on the short calendar on September 14, 2009.
The defendant mentioned the grounds on which counts one through five of the plaintiff's complaint should be stricken in his memorandum of law, but not in his motion to strike. Absent a waiver by the opposing party, the court should not grant a motion to strike that does not specify the grounds in the motion itself. See Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). Nevertheless, because the plaintiff did not object to the form of the motion, the court may consider it in the form presented. See Bouchard v. People's Bank, 219 Conn. 465, 468 n. 4, 594 A.2d 1 (1991).
DISCUSSION I MOTION TO STRIKE
"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 . . . [P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted). Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
II INTENTIONAL NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS A Intentional Infliction of Emotional Distress
The defendant argues that the plaintiff has failed to allege extreme or outrageous behavior on the part of the defendant, as required to state a claim for intentional infliction of emotional distress. Specifically, the defendant alleges that the defendant's conduct, as alleged by the plaintiff was merely insulting and displayed bad manners.
"In order for the plaintiff to prevail in a case for liability under . . . [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 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.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003). A plaintiff must plead all four elements in order to survive a motion to strike. Muniz v. Kravis, 59 Conn.App. 704, 708-09, 757 A.2d 1207 (2000).
Although there is no bright line title to determine what constitutes extreme and outrageous conduct, Connecticut courts have looked to the Restatement of Torts for guidance. See Carrol v. Allstate Ins. Co., supra, 262 Conn. 443, citing 1 Restatement (Second), Torts § 46, comment (d) (1965). Instructive in the present case is comment (e) of the Restatement, which provides in relevant part: "The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests. Thus an attempt to extort money by a threat of arrest may make the actor liable even where the arrest, or the threat alone, would not do so. In particular, police officers, school authorities, landlords, and collecting creditors have been held liable for extreme abuse of their position." (Emphasis added.) 1 Restatement (Second), supra, comment (e). Thus, even less offensive behavior, when perpetrated by a person in a position of power, like a landlord, may rise to the level of outrageous conduct.
In the present case, the defendant's conduct rises to the level of outrageous when taking into account his position as the plaintiff's landlord. The plaintiff's allegations that the defendant made sexual comments toward, grabbed, and pressed his groin area against the plaintiff at her place of business are sufficiently outrageous to survive the motion to strike.
B Negligent Infliction of Emotional Distress
The defendant next argues that the complaint fails to allege that the plaintiff's distress was foreseeable. Specifically, he argues, the plaintiff's bare assertion that the "defendant was negligent in that he subjected the plaintiff to emotional distress which he knew or should have known was likely to result in illness or other bodily harm" is insufficient to satisfy the foreseeability requirement.
"In general, to prevail on [a claim for negligent infliction of emotional distress], a plaintiff must prove that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress." Olson v. Bristol-Burlington Health District, 8 Conn.App. 1, 5, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005). "In order to recover 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." (Internal quotation marks omitted.) McNamara v. Tournament Players Club of Connecticut, Inc., 270 Conn. 179, 197, 851 A.2d 1154 (2004).
In count two, the plaintiff pleads the exact standard for negligent infliction of emotional distress under McNamara v. Tournament Players Club of Connecticut, supra, 270 Conn. 197. As facts, the plaintiff references the accumulation of facts listed in count one. These facts include allegations that the defendant repeatedly made explicit sexual statements to the plaintiff, grabbed her, forced himself against her, and pressed his groin area against her thigh and hip area. The issue, then, is whether it is foreseeable that the defendant's conduct could possibly lead to the harm alleged here, namely that the plaintiff suffered severe emotional distress from injury to her personal and professional reputation, loss of earning capacity, humiliation and embarrassment. This harm, as alleged by the plaintiff, is a foreseeable consequence of the defendant's conduct. That is, the defendant knew or should have known that his conduct, which consisted of unwanted sexual advances, would cause the plaintiff emotional distress of sufficient severity to lead to illness or bodily harm. As such, count two of the complaint satisfies the element of foreseeability required to survive the motion to strike.
C Severe Emotional Distress
As to both counts one and two, which allege intentional infliction of emotional distress and negligent infliction of emotional distress, the defendant argues that the plaintiff has not pleaded any allegations that the emotional distress sustained by the plaintiff was severe. The defendant argues that the plaintiff's allegations that she "suffered injury"; "could no longer use her property or conduct her business"; "incurred loss and expense, including but not limited to loss of deposit"; and alleged damage to her "reputation, loss of earning capacity, severe mental anguish, physical and emotional distress, humiliation and embarrassment" are insufficient to plead the required element of severe emotional distress.
As articulated above, both intentional infliction of emotional distress and negligent infliction of emotional distress require the plaintiff to plead severe emotional distress. See Carrol v. Allstate Ins. Co., supra, 262 Conn. 442-43; Olson v. Bristol-Burlington Health District, supra, 87 Conn.App. 5. Our appellate courts have clearly stated that "severe emotional distress is "mental distress of a very serious kind." (Internal quotation marks omitted.) See Muniz v. Kravis, supra, 59 Conn.App. 708. They have, however, not articulated a bright-line test for determining what constitutes severe emotional distress. See Torniero v. Allingtown Fire District, Superior Court, judicial district of New Haven, Docket No. CV 06 5006174 (March 17, 2008, Robinson, J.) (45 Conn. L. Rptr. 298). As such, most trial courts apply the standard set forth in the Restatement. The Restatement provides that "[emotional distress] includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that the liability arises . . . The law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity." 1 Restatement (Second), supra, comment (j).
When viewed in the light most favorable to the plaintiff, the plaintiff's complaint pleads the standard of severe emotional distress articulated in the Restatement. The plaintiff alleges that she suffered "injury to her personal and professional reputations," "severe mental anguish, physical and emotional distress, humiliation and embarrassment." The severity is further bolstered by factual allegations that the distress led to the demise of the plaintiff's business at that location despite the financial consequences.
III UNREASONABLE INTRUSION INVASION OF PRIVACY
The defendant argues that count three of the plaintiff's complaint, alleging unreasonable intrusion, should be stricken on the grounds that unreasonable intrusion upon seclusion does not include physical assaults. Specifically, the defendant argues that the plaintiff cannot have a "reasonable expectation of seclusion" at her place of business, which is open to the public. The defendant then makes a bootstrap argument that count four of the plaintiff's complaint, alleging invasion of privacy, should be stricken on the grounds that the plaintiff had failed to plead the elements any of the four categories of invasion of privacy claims, which includes unreasonable intrusion upon seclusion.
The Supreme Court has recognized a cause of action for invasion of privacy and embraced the four categories under which the action may be brought as defined in § 652A of the Restatement (Second) of Torts. See Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 126-28, 448 A.2d 1317 (1982). The four categories under which a plaintiff may bring a cause of action for invasion of privacy are: "(a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public." Id., 128. Thus, a plaintiff who can prove unreasonable intrusion upon the seclusion of another can bring a cause of action for invasion of privacy under the grounds of unreasonable intrusion.
"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." 3 Restatement (Second), supra, § 652B, p. 378 (1977). The authors of the Restatement further explain that "[unreasonable intrusion] consists solely of an intentional interference with [the plaintiff's] interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man." (Emphasis added.) Id., comment (a). "The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself . . ." Id., comment (b). Although liability is conditioned on the intrusion by the defendant in a private place, the Restatement explains that even in a public place, some matters may be intruded upon. See id., comment (c).
Connecticut courts have interpreted the language in the Restatement to support the proposition that allegations of sexual assault constitute an actionable intrusion claim. That is, even though the plaintiff may be in a public place, intentional interference with the plaintiff's right to privacy in her own body and sexual concerns constitutes an unreasonable intrusion. See e.g., Gallagher v. Rapoport, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 96 0149891 (May 6, 1997, D'Andrea, J.) [19 Conn. L. Rptr. 474] (defendant's alleged unwanted sexual advances sufficient to support a claim for invasion of privacy based on unreasonable intrusion on the plaintiff's seclusion even though conduct occurred in the defendant's home).
When viewed in the light most favorable to the plaintiff, the plaintiff's allegations, which include repeated and offensive touching of a sexual nature, constitute an intrusion into the plaintiff's physical and psychological solitude sufficient to state a claim for invasion of privacy based on unreasonable intrusion on the plaintiff's seclusion. It is of no consequence that the defendant's conduct may have occurred in a public location. For it is the intrusion onto the plaintiff's person that supports an actionable claim.
IV BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
The defendant argues that the plaintiff cannot bring an action for implied covenant of good faith where there is no underlying contract action. The defendant next argues that count five of the plaintiff's complaint should be stricken because the complaint is devoid of any allegation that the alleged actions taken by the defendant were taken with a dishonest purpose or a sinister motive, or that the defendant intended to mislead or deceive the plaintiff.
"[I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement." (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007). "The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term . . . To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith." (Internal quotation marks omitted.) Landry v. Spitz, 102 Conn.App. 34, 42, 925 A.2d 334 (2007).
"Subterfuges and evasions violate the obligation of good faith in performance even though the actor believes his conduct to be justified. But the obligation goes further: bad faith may be overt or may consist of inaction, and fair dealing may require more than honesty. A complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party's performance." (Internal quotation marks omitted.) Elm Street Builders, Inc. v. Enterprise Park Condominium Ass'n., Inc., 63 Conn.App. 657, 667, 778 A.2d 237 (2001), citing 2 Restatement (Second), Contracts § 205, comment (d) (1981).
Thus, in order to establish a cause of action for a breach of the covenant of good faith and fair dealing, the plaintiff must plead the following elements: "[1] that the plaintiff and the defendant were parties to a contract under which the plaintiff reasonably expected to receive certain benefits; [2] that the defendant engaged in conduct that injured the plaintiff's right to receive some or all of those benefits; and [3] that when committing the acts by which it injured the plaintiff's right to receive benefits it reasonably expected to receive under the contract, the defendant was acting in bad faith." (Internal quotation marks omitted.) Austrian v. United Health Group, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 054010357 (July 17, 2007, Stevens, J.) (43 Conn. L. Rptr. 852).
In the present case, the plaintiff has pleaded facts that show that: (1) the plaintiff and the defendant were parties to a lease agreement under which the plaintiff reasonably expected to be able to run her business free from unnecessary intrusion and interference by the defendant; (2) the defendant engaged in conduct, including entering the premises without invitation or permission under the guise of performing maintenance for the purpose of sexually harassing the plaintiff, that injured the plaintiff's right to be free to conduct her business; and (3) that the defendant did so in bad faith because he intended to interfere with the plaintiff's rights when he entered the premises without invitation or permission, under the guise of performing maintenance, but for the purpose of sexually harassing the plaintiff.
V PRAYER FOR RELIEF
The defendant also argues that the portion of the prayer for relief requesting punitive damages should be stricken on the ground that the plaintiff "has not alleged any statutory or contractual basis for the awarding of the same."
"In Connecticut, an award of attorneys fees is an element of punitive damages." Hartford v. International Assn. of Firefighters, Local 760, 49 Conn.App. 805, 816-17, 717 A.2d 258, cert. denied. 247 Conn. 920, 722 A.2d 809 (1998). "In the United States, the general rule of law known as the American Rule is that a prevailing litigant ordinarily is not entitled to collect 2 reasonable attorneys fee from the opposing party as part of [its] damages or costs . . . There are certain exceptions to this rule. In the main, exceptions are based upon statutory or contract provisions authorizing the recovery of attorneys fees by a prevailing litigant." (Internal quotation marks omitted.) Id., 818. A plaintiff may also recover punitive damages where the "evidence . . . reveal[s] a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Internal quotation marks omitted.) Berry v. Loiseau, 223 Conn. 786, 811, 614 A.2d 414 (1992). Specifically, the Supreme Court has recognized that punitive damages may be appropriate where the plaintiff alleges intentional infliction of emotional distress. See id., 811-12.
In the present case, the defendant correctly points out that there is no statutory or contract basis for the plaintiff's claim of punitive damages. The plaintiff, however, has alleged intentional and wanton violations of her rights by the defendant in count one of the complaint. As such, the plaintiff has pleaded sufficient conduct for the consideration of punitive damages.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike is denied as to all counts.