Opinion
No. CV-02-0468497 S
September 28, 2004
MEMORANDUM OF DECISION ON SECOND MOTION TO STRIKE
This case arises out of the tragic disappearance and death of Dr. John Susman. Arnold Susman as executor and individually and the mother and brother initiated suit against the Town of East Haven for the alleged inadequacies of the East Haven police investigation surrounding the disappearance.
The first revised complaint contained four counts (1) a wrongful death claim, (2) negligence, (3) a claim under § 1983 and 1988 of Title 42 of the United States Code, and (4) negligent infliction of emotional distress. A motion to strike was filed against all counts and a prior judge denied the motion as to count three, the § 1983 claim, but granted it as to counts one, two and four. In response to the judge's ruling the plaintiff has filed a second revised complaint to which another motion to strike has been directed. The plaintiffs object to this motion procedurally. They claim the defendant "was essentially unsuccessful in its (first) motion to strike" and a second motion to strike is not permissible. The problem, at least from the court's perspective, is that in its decision on the first motion to strike the court did not address several claims made against the revised complaint and now being made against the second revised complaint. In other words the plaintiff was not so much "unsuccessful" on certain arguments it again raises, it was rather successful as to only one argument.
The court will first discuss in more detail the plaintiff's procedural objection to this second motion to strike.
The court has reviewed the first judge's decision on the earlier motion to strike. In striking counts one, two and four, at which the present motion is also directed, the court said, "the court need not reach the question of whether the actions of the defendant's employees were ministerial or discretionary" and granted the motion on the basis only that "the plaintiffs have failed to provide any statutory authorization for their claims in Counts One, Two and Four . . ." Also the court did not address other arguments raised by the defendant's motion to strike — absence of a duty of care or causal relationship between the town's conduct and the claimed damages. Finally the court did not discuss the defendant's claim that count four did not set forth all the necessary elements of a negligent infliction of emotional distress claim.
In response to the earlier ruling on the first motion to strike the plaintiffs, not surprisingly, filed a revised complaint merely setting forth the statutory basis of the claims in counts one, two and four all in response to the judge's ruling.
However, in light of the narrow basis of the decision on the earlier motion to strike, the defendant should not be precluded from pressing arguments not ruled upon but which are as applicable to this second revised complaint as they were to the revised complaint. To hold otherwise would in effect deprive parties of a right "to contest (1) the legal sufficiency of the allegations" of a complaint (Practice Book § 10-39) by limiting that party to the reason some judge relied on to make a prior ruling which is not based on the prompting of the litigant but on the independent decision of the judge not to base his or her ruling on all the arguments presented. This is a perfectly appropriate course of action for the judge but the very nature of the right to plead over after a motion to strike is granted has to carry with it a right to attack the new pleading on the basis of legal sufficiency arguments not previously addressed.
(A)
The manner in which the motion to strike is structured and the pleadings themselves require the court to analyze the issues before it in perhaps an unusual manner. It will first discuss the legal sufficiency of the counts in terms of the specific problems that may exist which are unique to each of the counts. The court in the interest of completeness will then discuss the general claims directed against all of the counts such as lack of a duty of care and the question of governmental immunity.
Count Four
The court will discuss the last count first. In that count the plaintiff alleges negligent infliction of emotional distress. The motion to strike argues that this count is not legally sufficient because it fails to allege in its pleading a necessary element of this tort. In Morris v. Hartford Courant Co., 200 Conn. 676 (1986), the court explicitly upheld the trial court's granting of a motion to strike a claim of this type because the plaintiff failed to allege that the emotional distress caused by the defendant might result in illness or bodily harm. Id., page 683. In light of that holding this court must grant the motion to strike since no such allegation is made in count four. See also Hearn v. Bridgeport Hospital, 1997 Ct.Sup. 7998 (Thim, J.).
Count One
In count one it is alleged that Dr. Susman disappeared on October 6, 1992 and his body was not found until June 7, 2001. The brother of the deceased brings this count individually and on behalf of the estate as executor of John Susman's estate. The count alleges that the town's agents and employees conducted a basically slipshod investigation of Dr. Susman's disappearance — failing to investigate areas near the deceased's residence, pursue leads, question witnesses, or evaluate the evidence. For the purposes of a motion to strike these allegations must be taken as established.
The count is a wrongful death action. In the wherefore clause the plaintiff brother as executor "claims judgment against the defendant" and paragraph 11 states that the basis of the claim is that "the deceased suffered the loss of his life and the estate suffered economic loss."
The problem, at least as the court sees it, is presented by paragraph 11 which reads as follows:
11. As a result the death of the deceased, if it had not occurred when the said investigation was undertaken, was not prevented although in the exercise of reasonable care it could have been prevented, and as a consequence the deceased suffered the loss of his life and the estate suffered economic loss.
Although parties can plead in the alternative and even set forth inconsistent theories of liability, as to any particular theory of liability and allegations of causation certain factual allegations must be made. Even giving paragraph 11 every favorable inference it does not allege that Dr. Susman died at a point in time after the criticized investigation began. There is thus no causal link between any negligence on the part of the defendant's agents and the death of Dr. Susman due to what is in effect a judicial admission to this effect in paragraph 11. Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199 (1971). The death of the doctor is the very harm the plaintiff claims was caused by the defendant's negligence. Prosser in his work on torts, 5th ed. states the general rule, at § 41, page 263:
An essential element of the plaintiff's cause of action for negligence, or for that matter for any other tort, is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.
Also see Restatement of Torts 2d, vol. 2, §§ 430, 431; Connecticut Law of Torts, Wright Ankerman, Fitzgerald, 532, page 56; Lombardi v. J.A. Bergren Dairy Farms, Inc., 153 Conn. 19, 22 (1965), where court said: "In a negligence action it is incumbent on the plaintiff to allege and prove not only the negligence of the defendant but a causal relation between the negligence alleged and the damages claimed." (emphasis by this court).
If the plaintiff cannot allege that the doctor's death occurred before the commencement of the defendant's negligent acts or failures to act it cannot be said that the doctor's death could have been prevented if the defendant had not been negligent. In effect the complaint is silent as to a necessary allegation as to causation even if the theory of liability were to be found to be legally sufficient.
Count Two
This count suffers from the same defect as count one as to causation. In paragraph 11 the first ten paragraphs of count one are referred to then it says:
11. As a result, the estate was delayed in or prevented from seeking redress from the person or persons responsible for the death of the deceased and as a consequence suffered economic loss.
But in the preceding ten paragraphs it is nowhere alleged that Dr. Susman was the victim of foul play or that his death was a homicide. Therefore, it cannot be said that the alleged negligent and inadequate police investigation caused the type of harm claimed in paragraph 11 of this count. It is not so much the "loss of a speculative chance of recovery." Labieniec v. Baker, 11 Conn.App. 199, 207 (1987), that is involved, as the defendant claims, but the failure to assert a factual basis for recovery appropriately tailored to the harm alleged to have been suffered.
In light of the foregoing the court will dismiss counts one, two and four.
But the court will also discuss other arguments made in the motion to strike against these counts.
(B)
Against counts one, two and four the defendant raises general arguments in the motion to strike applying to all these counts. The basic position taken is that the defendant owed no duty of care to the plaintiffs and in any event is insulated from suit by the doctrine of governmental immunity.
(1.)
The court will discuss count four first with regards to these arguments. The court has stricken this count on rather narrow grounds, assumes the plaintiff will plead over to assert the missing element necessary for this tort and will discuss the foregoing additional arguments that have and will be presented against the claim in count four.
(a)
On the duty of care question the defendant cites the case of Shieman v. Lafayette Bank Trust Co., 4 Conn.App. 39 (1985), which states general principles of law. That court points out that to recover in negligence the court, as a matter of law, must first determine if the defendant owed a duty to the plaintiff. The court goes on to say that "the requisite duty to use care may stem from a contract, a statute, or from circumstances under which a reasonable person would anticipate that harm of the general nature of that suffered was likely to result." Id., pp. 44-45. See also Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375 (1982). The defendant has also cited the case of Fanfarelli v. City of West Haven et al., 2002 WL 31662344 (Ct.Sup., November 7, 2002). In that case the plaintiff parents sued the City of New Haven for negligent infliction of emotional distress. They reported their son was missing; his body was found by the New Haven police but the family was not notified for fourteen days. The court dismissed the case but not pursuant to a motion to strike but as a result of granting a motion for a directed verdict after the plaintiffs had presented their case. Referring basically to the just discussed Shieman test for finding a legal duty, the Fanfarelli court based its decision on the fact that no evidence was presented that the city "required its officers to notify family members of deceased persons in a certain manner or within a prescribed time. There is no contract between the parties, obligating the defendants to act in a certain manner towards the plaintiffs. There is no statutory or legislative law basis for imposing upon the defendants a duty to notify." The court also said there was no "special relationship" between the plaintiffs and the police offered into evidence. The foregoing comments were made in the context of a general observation made by the court that "courts have refused to impose on police departments duties to members of the public unless there is some "statutory charge" or "clear directive." Several opinions by trial courts are cited for this proposition. Interestingly the court does not explicitly discuss the third Shieman test for finding a duty — circumstances from which a reasonable person could anticipate that harm of the general nature as that allegedly suffered was likely to result.
This court would have difficulty in ruling that a properly pled allegation of this tort would not be viable because of the inability to show a legal duty at least through the vehicle of a motion to strike. The court on such a motion must give the complaint every favorable inference and in this regard paragraph 9 must be examined. There it is said:
9. From October 6, 1992 to and including June 7, 2001 in a continuous and uninterrupted course of conduct, the agents, servants and employees of the defendant investigated, or purported to investigate, the disappearance of Dr. Susman and expressly and directly assured the plaintiffs that a full, complete and proper investigation was being and would continue to be conducted by them.
This count of negligent infliction of emotional distress is brought not by the Estate but by the individual plaintiffs — two brothers and the mother. Paragraph 10 alleges what is claimed to be the negligent conduct of the investigation. A reasonable inference from reading paragraphs 9 and 10 together is that the plaintiff is alleging that while gratuitous assurances were being made about the thoroughness of the ongoing investigation, in fact, an incompetent and completely inadequate investigation was being carried out. The direct assurances to the family regarding the thoroughness of the investigation in paragraph 9 can arguably be said to have created that "special relationship" to the individual family plaintiffs that the judge in Fanfarelli found wanting (albeit in deciding a motion for a directed verdict). Here we have a motion to strike and the plaintiffs cannot plead evidence so the court really cannot determine the ambit of any duty the defendant's agents might have assumed through their assurances to the plaintiffs. Or to examine the matter from another perspective there may not be any obligation on law enforcement authorities to inform family members or victims of the progress of an investigation which is imposed by statute or internal police regulations but when they chose to do so and their actions belie their representations at least in a way apparent to family or victims then why should they not be held responsible as would any other gratuitous actor if other elements of this tort are met. See Connecticut Law of Torts, Wright, Fitzgerald, Ankerman, § 31 at page 54, Prosser, Torts, 5th ed, § 56. Also see the interesting case of Trautman v. Stamford, 32 Conn.Sup. 258 (Saden, J.), which holds a duty on the part of a police officer cannot be found when he or she breaches a duty to the public at large but such a duty can be found if there is a breach of duty owed to an individual. The question then becomes whether the representations made to the individual plaintiffs followed by the alleged failure to live up to them creates a special relationship or duty to these people individually. The plaintiff may have a difficult time proving the prerequisites warranting the finding of such duty but the court simply cannot decide the matter based on a motion to strike and the issue should be left to summary judgment or trial.
(b)
If one is wrong there is much to be said for being consistently wrong, so if the above premise is accepted then it follows that the defendant's government immunity argument must fail even if the police's negligent actions or failure to act were discretionary and not ministerial. There is an exception to the doctrine that discretionary actions cannot form the basis of a suit against a municipality. In Shore v. Stonington, 187 Conn. 147, 153 (1982), the court held in such a situation governmental immunity will not bar an action in negligence "where it is apparent to the public officer that his (her) failure to act would be likely to subject an identifiable person to imminent harm." Id., see also Sestito v. Groton, 178 Conn. 520, 528 (1979). Here paragraph 9 specifically alleges the police made representations to the individual plaintiffs who are the parties claiming negligent infliction of emotional distress by the alleged failure to perform on those representations. But in a similar factual situation the Fanfarelli court found that governmental immunity barred the claim and rejected applicability of the Shore v. Stonington exception.
The court reasoned that: "Most of the cases which involve this exception address issues of physical danger or injury for which there is a risk, limited in duration, which can be avoided by conduct of the defendant." But it is difficult to understand why the Shore v. Stonington exception should be limited to situations of physical danger or injury especially with a tort that requires as an element proof that any emotional distress caused by a defendant might result in illness or bodily harm. Also the "limited in duration" observation may reflect the factual situation presented to the Shore v. Stonington court but it is otherwise not analytically required by the reasoning behind the exception especially in a case such as this one where there is an allegation of a continuous course of negligent conduct in an investigation conducted by the police.
In any event the court is reluctant to base a decision on this issue in the context of a motion to strike; as noted Fanfarelli involved a decision by the court on a motion for a directed verdict.
There is also something to be said for the argument that at least the way this complaint is framed whether the acts of the defendant's agents complained of are ministerial or discretionary cannot be decided by means of a motion to strike but rather a question of fact is raised. It is true that in Gordon v. Bridgeport Housing Authority, 208 Conn. 161 (1988), the court upheld the trial court's granting of a motion to strike on the basis that the police actions were held to be discretionary. But what the Gordon court said is instructive. In responding to the plaintiff's argument that several cases have held "whether an act is ministerial or discretionary is a question of fact and is not properly resolved on a motion to strike" the court said Gordon was different from these cases because: "The crucial distinguishing factor is that the duty of the municipality is unquestioned under the facts pleaded in those cases. See, e.g., Gauvin v. New Haven, supra (city had a duty to use due care in operating city park); Tango v. New Haven, supra, 205 (city had a duty to use due care in permitting the public to use city property for sled riding). In contrast, the city of Bridgeport and its employees had no duty, whether characterized as public or private, to provide police protection to the plaintiff's incapable under the facts alleged in the complaint. Had such a duty existed, then the plaintiff would have an opportunity to demonstrate that the defendants' actions in carrying out that duty were either ministerial or fell under an exception for discretionary acts. The well pleaded facts in this case do not reveal the existence of any duty owed to the plaintiff's incapable by the defendants. The cases cited by the plaintiff are inapposite." Here, as just discussed, the police may have assumed such a duty.
(2.) (a)
Counts one and two were stricken by the court for failure to allege a causal connection between the alleged wrongdoing and the harm alleged to have been caused. But the court also concludes these counts fail to properly allege a violation of any duty and this is directly related to the causation problem. First it should be noted as to both these counts that despite references in them to the family members as being individual plaintiffs the clauses demanding relief only present claims on behalf of the estate and in any event the wrongful death action in count one can only be brought by the estate.
But to return to the duty problem and the need to allege a violation of such a duty in a negligence action paragraph 11 of count one as noted, does not explicitly allege that Dr. Susman was alive at the time the investigation began. How then could there be a breach of duty to the deceased or the estate for failure to prevent what could have already occurred — there is no allegation the death took place after the investigation began and there is no burden shifting concept which would shift to the defendant the task of negating Dr. Susman was still alive when the investigation began.
Count two presents an interesting claim that does not necessarily turn on the question of the time of Dr. Susman's death in relation to the commencement of the investigation. On the question of whether there could be a duty owed to the estate because the alleged acts of negligence might have prevented the Estate from proceeding against the party or parties responsible for his death the court cannot even get to the duty issue because the count does not even allege, as noted that the deceased was a victim of foul play or other actions which would have given the estate the right to bring suit.
(b)
The immunity issue as it applies to counts one and two will not be decided by the court at this juncture for the reasons set forth in the footnote discussing the Gordon case. Also even if the acts alleged in paragraph 10 of both counts are considered discretionary difficult issues, not discussed by the parties, are presented as to whether representations to the family members can qualify as representations to the Estate so to present the question of whether or not the Shore v. Stonington exception should apply as previously discussed in relation to count four.
To summarize the court also concludes that counts one and two should be stricken for failure to allege breach of a legal duty and only strikes count four for failure to allege a necessary element of the tort of negligent infliction of emotional distress not on the basis of governmental immunity or lack of a duty owed to the plaintiffs.
In any event counts one and two, and four as pled are stricken.
Corradino, J.