Opinion
No. 05 4004943.
December 6, 2006.
MEMORANDUM OF DECISION MOTION TO STRIKE NO. 114
BACKGROUND
On February 7, 2006, the plaintiffs, Sandra Young and Lawrence McDermott, (plaintiffs) filed a revised eight-count complaint against Smalley Construction, Inc., Frederick Smalley, Jr., the owner of Smalley Construction (defendants), and the town of North Branford. On July 10, 2006, the defendants filed a motion to strike count seven of the revised complaint, accompanied by a supporting memorandum of law. On August 3, 2006, the plaintiff filed a memorandum of law in opposition to the motion to strike. The matter was heard at short calendar on August 28, 2006. The motion to strike is granted.
FACTS
In their revised complaint, the plaintiffs make the following allegations. In July of 2004, the plaintiffs entered into a $190,000 contract with the defendants to repair damage done to their home by a fire. The plaintiffs allege that there were problems with the work done by the defendants, and that they refused to correct these problems, including an incorrectly repaired roof that caused water damage throughout the house, various repairs that were never completed, and gaps that were left between the house and the foundation, leaving the house in an unstable condition. In the seventh count of their revised complaint, the plaintiffs allege that these actions amount to intentional infliction of emotional distress.
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 [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 quotations marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "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." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).
The defendants move to strike count seven on the ground that the count does not sufficiently plead an action for intentional infliction of emotional distress arguing that the conduct alleged is neither extreme nor outrageous as a matter of law. The plaintiffs counter that the allegations are sufficient as a matter of law.
"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 . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society." (Internal quotation marks omitted.) Valentine v. LaBow, 95 Conn.App. 436, 448, 897 A.2d 624 (2006).
In the seventh count of their revised complaint, the plaintiffs incorporate paragraphs one through ten of the first count, and then allege intentional infliction of emotional distress. In the incorporated paragraphs, the plaintiffs claim that they contracted with the defendants to repair damage that was done to their home as a result of a fire, and that the defendants' defective workmanship and subsequent refusal to fix the alleged defective workmanship, caused water damage, structural damage and insect infestation. This in turn resulted in the premises being uninhabitable. In the seventh count itself, the plaintiffs allege that these actions constituted intentional infliction of emotional distress. Specifically, they allege that: (1) the defendants intended to cause, or should have known that their actions would cause, the plaintiffs' emotional distress; (2) the defendants' conduct of poor workmanship and not repairing the defects was extreme and outrageous; and (3) this caused the plaintiffs to suffer severe emotional, physical and psychological distress. Therefore, the plaintiffs have adequately pleaded the first, third and fourth elements of intentional infliction of emotional distress. It is only the second element, that the conduct is extreme and outrageous, which is at issue.
"Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Citation omitted.) Hartmann v. Gulf View Estates Homeowners Ass'n., Inc., 88 Conn.App. 290, 295, 869 A.2d 275 (2005).
"Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Internal quotation marks omitted.) Valentine v. LaBow, supra, 95 Conn.App. 448-49.
Taking the plaintiffs' allegations as true, the allegations are legally insufficient to satisfy the requirement that the defendants' conduct was extreme and outrageous. The Appellate Court has affirmed the dismissal of claims involving more egregious conduct. In Dollard v. Board of Education, 63 Conn.App. 550, 552-53, 777 A.2d 714 (2001), the Appellate Court upheld the granting of a motion to strike a complaint in which the plaintiff alleged that the defendants hypercritically scrutinized every aspect of her work and personal life, publicly admonished her and organized a plan to force her to resign. The court held that these allegations did not constitute outrageous or extreme conduct as a matter of law. Id., 554. In Campbell v. Plymouth, 74 Conn.App. 67, 811 A.2d 243 (2002), the court affirmed the trial court's granting of a motion to strike a complaint in which the plaintiff alleged he was forced to commit an illegal act. Specifically the plaintiff alleged "that the defendant, through its agents, made repeated demands and inquiries into [his] personal beliefs and attitudes, and harassed him to change his mind, presumably regarding the signing of the alleged false grant documents. The plaintiff claims that due to that conduct, he became upset, distressed and aggravated." (Internal quotation marks omitted.) Campbell v. Plymouth, supra, 74 Conn.App. 78. The court concluded that the allegations "[did] not amount to conduct that is beyond the bounds of socially tolerable behavior." Id. In Bator v. Yale-New Haven Hospital, 73 Conn.App. 576, 577-79, 808 A.2d 1149, (2002), cert. denied, 279 Conn. 903, 901 A.2d 1225 (2006), the Appellate Court affirmed the trial court's granting of a motion to strike a complaint in which the plaintiff alleged "a supervisor falsely accused the plaintiff of endangering a patient's life" and another supervisor "suggested that the plaintiff seek psychiatric help." In Smulewicz-Zucker v. Zucker, 98 Conn.App. 419 A.2d (2006), the Appellate Court affirmed the trial court's granting of a summary judgment in which the defendant in a dissolution action allegedly used custody to negotiate a favorable economic settlement.
"In cases in which [the] plaintiffs have pleaded emotional distress and avoided a motion to strike, there often has been some element of public ridicule." Campbell v. Plymouth, supra, 74 Conn.App. 79; see Knight v. Southeastern Council On Alcoholism Drug Dependency, Superior Court, judicial district of New London, Docket No. CV 557182 (September 21, 2001, Hurley, J.T.R.) (reviewing Connecticut decisions construing extreme and outrageous conduct). In the present case, the plaintiffs have not alleged they suffered public ridicule as a result of the defendants' actions.
CONCLUSION
The plaintiffs argue that this case differs from cases where a person who was fired from a job filed an intentional infliction of emotional distress claim because that plaintiff could always get another job, whereas they "are unable to replace the residence they call home." If the present plaintiffs are successful on the other counts of their complaint, however, they will be able to replace their house. On the contrary, a person who is fired may find it harder to recover their reputation, or to recover appropriate damages because such damages are often less quantifiable than the damages suffered by the present plaintiffs. As a review of the above cases illustrates, courts have consistently found that more vicious and permanently damaging conduct than that alleged here is not extreme and outrageous. The plaintiffs allege facts in count seven of their revised complaint that primarily describe the defendants' failure to correct a serious condition in their home, resulting from their defective workmanship, which rendered it uninhabitable. Although the alleged acts "may have been distressful and hurtful" to the plaintiffs, they do not include acts which are extreme and outrageous as a matter of law. These allegations of fact are most certainly sufficient to allege a breach of contract. No additional acts of the defendants are alleged, however, other than the facts giving rise to the alleged breach of contract. From this alleged breach of contract, the plaintiff goes on to allege that the defendants "intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of their conduct." The facts, as alleged therefore, are legally insufficient to bridge a breach of a legal duty under a contract to the tort of intentional infliction of emotional distress without additional allegations showing extreme and outrageous conduct toward the plaintiffs by the defendants.
The motion to strike count seven of the revised complaint is granted.