Opinion
No. CV-09-6001670
May 28, 2010
MEMORANDUM OF DECISION Re MOTIONS TO STRIKE #113 115
FACTS
On January 8, 2010, the plaintiffs, Joseph Turner (Joseph) and Rebecca Turner (Rebecca), filed an amended complaint against the defendants, Howard M. Johnson, Antenna Star Satellites, Inc. (Antenna Star) and DISH Network Service, LLC (DISH). On January 14, 2010, Johnson filed a motion to strike the seventh and eighth counts of the amended complaint, which allege causes of action for negligent infliction of emotional distress. On January 15, 2010, Antenna Star and DISH filed a motion to strike the ninth, tenth, eleventh and twelfth counts of the amended complaint, which also allege causes of action for negligent infliction of emotional distress. The defendants have submitted nearly identical briefs and move to strike the various counts on the same ground, namely, that Connecticut law does not allow recovery for negligent infliction of emotional distress resulting from an injury solely to property.
The plaintiffs allege the following facts in their amended complaint. Joseph contracted with Antenna Star to have DISH provide satellite services to the plaintiffs' home. Johnson arrived at the plaintiffs' home to install the service in furtherance of the contract. Johnson drilled through an existing hole in the plaintiffs' home to enlarge it for the installation. As he was drilling, Johnson drilled through an electrical service cable, which sometime later caused an electrical fire in the plaintiffs' home. During the course of the fire, Joseph was "overcome with smoke, saw the flames, and suffered from shortness of breath as a result thereof." Amended Complaint, Seventh Count ¶ 4. Additionally, Rebecca was "subjected to smoke and flames." Amended Complaint, Eighth Count ¶ 4. As a result of being subjected to the fire, both plaintiffs suffered emotional injuries, which resulted in illness.
LAW OF 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). When considering a motion to strike, the court must "take the facts to be those alleged in the complaint . . . and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court must] assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court must] read the allegations broadly, rather than narrowly." (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).
DISCUSSION
The parties agree that "recovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact." Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978). The defendants argue, however, that the counts must be stricken because Connecticut courts have consistently found that a defendant's duty of care does not extend to emotional distress arising from the perception of property damage. The defendants argue that the plaintiffs fail to allege facts that show that the defendants negligently breached a duty owed to them because a reasonable and prudent person would not have realized that his acts were likely to cause the plaintiffs such distress.
In response, the plaintiffs argue that their claims of emotional distress are predicated upon their being within the range of ordinary physical danger of the fire and the physical impact they experienced. As such, the plaintiffs argue that they are not required to prove that their emotional distress was foreseeable. Additionally, the plaintiffs argue that judges of the Superior Court have recognized a cause of action for negligent infliction of emotional distress when the plaintiff alleges personal exposure to the property damage, which subsequently causes emotional distress.
"[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 . . . [The Connecticut Supreme Court has] repeatedly . . . endorsed this requirement of foreseeability . . . [T]his condition differs from the standard foreseeability of the risk of harm requirement for negligence liability generally in that it focuses more precisely upon the nature of the harm to be anticipated as a prerequisite to recovery even [when] a breach of duty might otherwise be found . . ." (Citations omitted; internal quotation marks omitted.) Scanlon v. Connecticut Light Power Co., 258 Conn. 436, 446-47, 782 A.2d 87 (2001).
In Orlo v. Connecticut Co., 128 Conn. 231, 21 A.2d 402 (1941), the Connecticut Supreme Court considered the issue of recovery for injuries that arise from emotional distress. "It has been held in some cases that there can be no recovery for injuries following upon fright or nervous shock because the production of such emotional disturbance is not the basis upon which negligence can be predicated. The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? . . . There may well be situations where it could be found as matter of fact, or in some cases as matter of law, that harm from fright was not a reasonably foreseeable result of the negligence claimed. But it is equally true that in other situations it would be well within the realm of reasonable foreseeability that such harm would be likely to result from the negligence . . . For example, if one should negligently cause a very loud and unexpected explosion to take place close behind a crowd of people containing many women and children, it could hardly be concluded that it was not within the scope of reasonable foresight that some of them would suffer a nervous shock which would cause them serious injury. It cannot logically be contended that in all cases the risk of such injuries is one against which there is no duty to exercise care." (Citations omitted.) Id., 237.
"Our conclusion is that where it is proven that negligence proximately caused fright or shock in one who is within the range of ordinary physical danger from that negligence, and this in turn produced injuries such as would be elements of damage had a bodily injury been suffered, the injured party is entitled to recover." Id., 239. Further, "[i]n Strazza v. McKittrick, 146 Conn. 714, 156 A.2d 149 (1959), [the Connecticut Supreme Court] held that where a defendant negligently causes a physical impact, a plaintiff within the range of the harm likely to be caused by that impact may recover for emotional distress, even if no consequential injuries are sustained." Montinieri v. Southern New England Telephone Co., supra, 175 Conn. 343. As Justice Berdon noted in his dissent in Barrett v. Danbury Hospital, 232 Conn. 242, 268, 654 A.2d 748 (1995), "[the Supreme Court] always has allowed a plaintiff to recover for emotional distress as an element of damages when that distress is accompanied by a physical impact which resulted from the defendant's negligence, without the necessity of proving that the emotional distress was foreseeable."
In the present case, the plaintiffs allege in the seventh count that Joseph's "emotional distress was foreseeable and . . . Johnson should have realized that his conduct involved an unreasonable risk of causing the plaintiff emotional distress and that distress if it were caused, might result in illness or bodily harm." This allegation is repeated in the eighth count with respect to the emotional distress allegedly suffered by Rebecca. The allegations in the seventh and eighth count are incorporated into the ninth, tenth, eleventh and twelfth counts. Thus, the plaintiffs satisfy the general pleading requirements for their claims of negligent infliction of emotional distress.
With respect to the source of the plaintiffs' alleged emotional distress, the plaintiffs allege that Johnson negligently drilled through an electrical service cable, which caused an electrical fire in their home. Additionally, the plaintiffs allege that they were within the "range of physical harm" of the fire; the plaintiffs allege that they were subjected to the smoke and flames from the fire. Finally, the plaintiffs claim that they suffered emotional distress as a result of being subjected to the fire. The court finds that it is "well within the realm of reasonable foreseeability that such harm would be likely to result from the negligence." Orlo v. Connecticut Co., supra, 128 Conn. 237. Thus, the plaintiffs' allegations are legally sufficient to state a claim for negligent infliction of emotional distress.
CONCLUSION
Based on the foregoing, Johnson's motion to strike (#113) is denied. Pursuant to the same reasoning, Antenna Star and DISH's motion to strike (#115) is also denied.