Opinion
CV126011937.
11-06-2012
Tracy R. SWAIN v. Edward R. HABEREK, Jr.
UNPUBLISHED OPINION
MARTIN, J.
FACTS
On April 23, 2012, the plaintiff, Tracy R. Swain, filed a three-count revised complaint against the defendants, Edward R. Haberek, Jr., and the town of Stonington (the town). Count one asserts a claim against Haberek for negligent infliction of emotional distress. Count two asserts a claim against the town pursuant to General Statutes § 7-465 and/or respondeat superior, and count three asserts a claim against the town sounding in negligence.
The plaintiff filed the original complaint on January 17, 2012. On April 4, 2012, the defendant town of Stonington filed a request to revise the complaint, requesting that count three be separated into two counts. On April 23, 2012, the plaintiff filed the revised complaint which is the subject of the present motion to strike.
In count two of the revised complaint, the plaintiff alleges the following facts. On various dates prior to January 12, 2010, Haberek sent the plaintiff numerous electronic communications from his computer, telephone or Blackberry. On January 12, 2010, despite the plaintiff's request that Haberek stop communicating with her, Haberek sent her a sexually graphic photo of himself via Facebook message, telephone or Blackberry. Haberek knew or should have known that his conduct involved an unreasonable risk of causing emotional distress, which might result in illness or bodily injury to the plaintiff. Haberek's conduct caused and continues to cause emotional distress to the plaintiff. As a result of the defendant's negligent infliction of emotional distress, the plaintiff suffered " extreme emotional distress and physical sickness, " was and may be required to undergo and incur costs for medical care and suffered an impairment in her ability to enjoy and participate in life's activities. Some or all of these injuries are permanent or will last for an indefinite period of time.
The plaintiff further alleges that Haberek is the first selectman of the town and that Haberek's acts were done using town owned equipment. When the alleged actions took place, Haberek was acting as an agent of the town and/or acting within the course and scope of his agency and/or employment. The town assumed liability for Haberek's actions when it appeared in the matter of Swain v. Ceilco Partnership (Docket No. CV 11 6011210) and averred or implied that Haberek was an agent of the town at the time of the occurrences. As a result of Haberek's agency or assumption of liability by the town for Haberek's actions, any damages found against Haberek in the first count are also found against the town " pursuant to ... § 7-465 and/or under the doctrine of respondeat superior." On December 23, 2011, written notice was provided to the town of the plaintiff's intent to commence this action, a copy of which is attached to the complaint as an exhibit.
On May 7, 2012, the town filed a motion to strike count two on the ground that the plaintiff failed to provide notice in a timely manner as required under § 7-465. The motion is supported by a memorandum of law. The plaintiff filed a memorandum of law in opposition to the motion to strike on May 11, 2012. The town replied to the plaintiff's memorandum of law in opposition on July 24, 2012. The matter was heard at short calendar on July 30, 2012.
DISCUSSION
" 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). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
The town argues that count two fails to state a claim upon which relief can be granted because the plaintiff failed to provide written notice to the clerk of the municipality within six months after the cause of action accrued as required by § 7-465. The plaintiff argues in opposition that prior to the suit the town assumed liability when it averred or implied that Haberek was an agent of the town at the time of the alleged conduct. The town argues in response that it has not waived its defenses and the plaintiff must strictly comply with § 7-465.
" Insofar as [a] motion to strike is directed [to] the entire complaint, it must ... fail if any of the plaintiff's claims are legally sufficient." (Internal quotation marks omitted.) Lewis v. Royal Bank of Scotland, PLC, Superior Court, judicial district of Hartford, Docket No. CV 10 6013983 (October 5, 2011, Pellegrino, J.T.R.); see also Whelan v. Whelan, 41 Conn.Supp. 519, 520, 588 A.2d 251 (1991) (court denied motion to strike directed at entire complaint where one of plaintiff's claims was legally sufficient). " If a count in a complaint purports to set out more than one cause of action, a demurrer addressed to the entire count fails if it does not reach all of the causes of action pleaded." Wachtel v. Rosol, 159 Conn. 496, 499, 271 A.2d 84 (1970). " [T]he motion to strike is really controlled by the ambit of the common law demurrer. Like the demurrer if it is directed at the entire pleading, or a count of the pleading, it fails if any one claim contained therein is legally sufficient." Edible Arrangements, Inc. v. Keh/L.H. Brenner, Inc., Superior Court, judicial district of New Haven, Docket No. CV 08 5019963 (December 29, 2008, Corradino, J.).
Although the town moves to strike count two of the plaintiff's amended complaint in its entirety, the ground specified in its motion to strike relates only to the statutory claim pursuant to § 7-465 contained within count two. In count two of her revised complaint, in addition to her statutory claim, the plaintiff raises a common-law claim for liability against the town under the doctrine of respondeat superior. The town's motion to strike fails to address the plaintiff's claim of respondeat superior also contained within this same count. Analogous to the ruling in Lewis v. Royal Bank of Scotland, supra, Superior Court, Docket No. CV 10 6013983, and as set out in Wachtel v. Rosol, supra, 159 Conn. at 499, as well as in Edible Arrangements, Inc. v. Keh/L.H. Brenner, Inc., supra, Superior Court, Docket No. CV 08 5019963, the town's motion to strike count two must fail if it fails to reach all of the claims set forth in that count. The town did not reach all of the causes of action pleaded in count two and as a result its motion to strike count two of the revised complaint in its entirety must be denied.
CONCLUSION
For the foregoing reasons, the town's motion to strike count two of the amended complaint is denied.