Opinion
No. FST CV 06 5000700
May 18, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #102
A newspaper moves to strike a complaint against it sounding in negligent infliction of emotional distress.
The plaintiff, Donald Sylvester, filed a complaint dated February 8, 2006 against the defendants the town of Greenwich (the town), Southern Connecticut Newspapers, Inc. a/k/a Greenwich Time (Greenwich Time) and James Maloney, in both his personal capacity and as the zoning enforcement officer of the town. Sylvester owns real property known as 12 Salem Street. Sylvester alleges the following: Sylvester complained verbally and through written communication to the town about various environmental problems and violations of environmental and zoning laws occurring on certain property in the town. As a result of Sylvester's complaints to the town, Maloney and other town employees intended to "maliciously cause, initiate or act as a catalyst for retribution against [Sylvester] through zoning investigations, zoning scrutiny, intimidation and other acts as part of a designed effort of retribution."
The alleged acts of retribution by the Greenwich defendants occurred on or about February 11 and 12, 2003. "The [defendants] obtained an administrative search warrant and entered [Sylvester's] property predicated upon alleged false zoning violations. Said administrative warrants were sworn to upon false factual information; the [defendants] did notify and [brought] with them to [Sylvester's] property a newspaper reporter form the Greenwich Time when they executed the administrative warrant and entered [Sylvester's] property; . . . the [defendants] by design acted to publicly embarrass, humiliate and intimidate [Sylvester] by involving the newspaper and bringing the reporter from the Greenwich Time . . . to [Sylvester's] property with police despite the fact that . . . the warrant expired." Furthermore, Greenwich Time "could and should have known at all times, that its conduct described above, would cause Sylvester emotional distress." Greenwich Time published "false and injurious statements and innuendo" about Sylvester. Finally, as a result of Greenwich Time's negligence and carelessness, Sylvester was caused to suffer severe emotional distress including "anxiety, embarrassment, humiliation, loss of sleep, shame and sadness."
On April 5, 2006, pursuant to Practice Book § 10-39, Greenwich Time moved to strike count three (intentional infliction of emotional distress), count five (negligent infliction of emotional distress) and count seven (trespass) of the complaint. On February 13, 2007, this court, Nadeau, J., at oral argument, granted the motion as to count three and denied the motion as to count seven.
"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). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). "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.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
Greenwich Time asserts three arguments in its motion to strike count five. First, the negligent infliction of emotional distress claim was filed beyond the two-year statute of limitations. Second, Sylvester has failed to plead elements of negligent infliction of emotional distress because the publication of a newsworthy article does not create an unreasonable risk of causing emotional distress; the allegation of "anxiety, embarrassment, humiliation, loss of sleep, shame and sadness" without a claim of physical bodily harm renders the claim insufficient; and no facts were alleged to show causation. Finally, the claim is an impermissible end-run around the First Amendment.
In the objection, Sylvester responded to the statute of limitations claim only, arguing that a motion to strike is the improper vehicle to raise the issue of statute of limitations and although there are exceptions to this rule, those exceptions do not apply here. Greenwich Time responds that an exception does apply because there are no disputed facts.
First, in regard to Greenwich Time's statute of limitations argument in support of the motion to strike, "a claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 344 n. 12, 890 A.2d 1269 (2006). The exception alluded to above would have it that, "[The court] will allow the use of a motion to strike to raise the defense of the statute of limitations . . . [if] [t]he parties agree that the complaint sets forth all the facts pertinent to the question whether the action is barred by the [s]tatute of [l]imitations and that, therefore, it is proper to raise that question by [a motion to strike] instead of by answer." (Citations omitted internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239-40, 624 A.2d 389 (1993).
General Statutes § 52-584 states in relevant part that "[n]o action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of." Sylvester alleged in the complaint that the pertinent events took place on February 11 and 12, 2003, nearly three years prior to the date the complaint was filed. In this instance, however, the injury of severe emotional distress would have likely occurred after the date that the information was published. Sylvester's complaint does not allege the exact date upon which the emotional distress was suffered. Therefore, the exception allowing a motion to strike based on the statute of limitations does not apply because one cannot say the parties agree to all pertinent facts when not all are pleaded.
Next, Greenwich Time contends that the motion to strike should be granted based on the insufficiency of facts alleged to maintain a cause of action in negligent infliction of emotional distress. A negligent infliction of emotional distress claim requires that Sylvester establish the following: "(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).
In viewing the facts in the light most favorable to Sylvester, he would appear to have alleged facts sufficient for the cause of action. First, Sylvester satisfies the first element by alleging that "[t]he defendant with total disregard and reckless abandonment of prudence published false and injurious statements and innuendo about the plaintiff." Second, Sylvester sufficiently pleads that the distress was foreseeable alleging that the "defendant could and should have known at all times that its conduct described above would cause [Sylvester] emotional distress." Next, Sylvester sufficiently pleads that illness or injury resulted from the emotional distress by alleging that he suffered "anxiety, embarrassment, humiliation, loss of sleep, shame and sadness" as a result of the distress See Carrol v. Allstate Ins. Co., supra, 262 Conn. at 448 (holding that allegations of mental, social and physical ailments as a result of defendants unreasonable conduct that "might" result in physical or bodily harm is sufficient); Moore v. Continental Casualty Co., 252 Conn. 405, 415, 746 A.2d 1252 (2000) (holding that Connecticut recognizes that allegations of sleeplessness may result in bodily injury sufficient for cause of action in negligent infliction of emotional distress). Lastly, Sylvester addresses the causation element by alleging that Greenwich Time's publishing of the article was the direct and proximate cause of the illness and injury sustained by Sylvester. Therefore, the allegations set forth sufficiently constitute a cause of action in negligent infliction of emotional distress.
Finally, Greenwich Time's argument that Sylvester's claim for negligent infliction of emotional distress is barred by the First Amendment cannot be honored in this strike context. Usually, when one states that no cause of action has been pleaded, one must so plead his special defense without invoking information beyond the complaint. See, Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795, 802 (1994); See, also Practice Book, § 10-50. Here, the newspaper raises additional facts. Such facts include that Greenwich Time was reporting a newsworthy piece of public concern about Sylvester, and that Sylvester was a public official. Neither were alleged in the complaint. Therefore, the First Amendment defense is more appropriately plead as a special defense rather than a motion to strike, and more properly raised, if pre-trial, via summary judgment.
Greenwich Time's motion to strike count five is denied. One should not confuse today's successful resistance with portent of victory ahead. When time details are extracted (for limitation arguments) and constitutional arguments are set in their proper pleadings place, it is hard to see both failing.