Opinion
No. CV09-5010520
December 29, 2009
Memorandum of Decision on Motion to Strike (No. 102.00)
Procedural and Factual Background
On February 25, 2009, the plaintiffs, Bradford W. Bernadt and Andrea Bernadt filed a five-count complaint against the defendants, William Leopold and WFL Real Estate Services, LLC (WFL). The plaintiffs allege negligence as to Leopold and WFL, in Counts I and II, respectively, negligent infliction of emotional distress as to Leopold and WFL, in Counts III and IV, respectively, and a violation of the Connecticut Unfair Practices Act (CUTPA), General Statutes §§ 42-110a, et seq., as to WFL, in Count V. The underlying facts are as follows. Leopold was a member of WFL, which was responsible for the management and operation of the Victorian Manor Condominium in Stamford where the plaintiffs resided in their unit. The water pipes of the plaintiffs' condominium unit allegedly froze three times in January, February and March of 2007, until they finally burst in the ceiling of the master bedroom on a fourth occasion, causing water damage to several rooms and an accumulation of water in the lower level. The plaintiffs allege in Count III that Leopold's conduct created an unreasonable risk of causing the plaintiffs emotional distress, that Leopold knew or should have known this, and that as a result, the plaintiffs have suffered, and will continue to suffer, serious painful and permanent injuries of mental distress and anxiety, embarrassment, and humiliation. The allegations in Count IV are identical to those in Count III except addressing the conduct of WFL. Finally, in Count V, the plaintiffs allege that WFL violated CUTPA, in that its actions were immoral, oppressive, unscrupulous and caused substantial injury to the plaintiffs.
On May 1, 2009, the defendants filed a motion to strike Counts III, IV, and V of the plaintiffs' complaint and corresponding claims for relief along with a memorandum in support. No memorandum in opposition was filed, nor did counsel for the plaintiffs appear at short calendar to oppose the motion to strike.
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 (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.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294 (2007). 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 (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. (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 294. "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310 (2006).
The defendants argue that, as to the negligent infliction of emotional distress claims in counts three and four, the plaintiffs have failed to allege that the defendants' conduct caused emotional distress that might result in illness or bodily harm or that the plaintiffs sustained any illness or bodily harm. Further, as to the CUTPA claim, the defendants argue that the plaintiffs base their CUTPA claim solely on the allegations of negligence, and that allegations of negligence alone are insufficient to support a claimed CUTPA violation. Moreover, the defendants argue that the plaintiffs fail to satisfy the second and third prong of the "cigarette rule," as the conclusive statements lack factual support, and that the plaintiffs entirely fail to make any allegations based on the first prong. Alternatively, the defendants argue that even if the court finds prongs one and two to be satisfied, WFL's actions in managing and operating the condominium do not constitute trade, practice or commerce, as required under CUTPA.
I. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The plaintiffs allege negligent infliction of emotional distress in Counts III and IV, as to Leopold and WFL, respectively. "[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 . . . This . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410 (2005).
"[R]ecovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact. Nevertheless, [our Supreme Court] recognize[s] that the protection the law accords to the interest in one's peace of mind . . . must be limited so as not to open up a wide vista of litigation in the field of bad manners, where relatively minor annoyances had better be dealt with by instruments of social control other than the law." (Citation omitted; internal quotation marks omitted.) Montinieri v. Southern New England Telephone Co., 175 Conn. 337 (1978).
"Superior Courts have found that [a] negligent infliction of emotional distress claim based on property damage is not a legally cognizable claim in Connecticut . . . reasoning that [w]here the injury alleged is solely to property, it is not foreseeable to the defendant that its conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Citation omitted; internal quotation marks omitted.) Duffy v. Wallingford, 49 Conn.Sup. 109, 122 (2004). Cases so holding include Kurzyna v. New Britain, Superior Court, Judicial District of New Britain, Docket No. CV00-0504388S (April 11, 2002, Weise, J.) ( 2002 Ct.Sup. 4936; 32 Conn. L. Rptr 118, 125); Early v. Derby Neck Library, Superior Court, Judicial District of Ansonia-Milford at Derby, Docket No. CV00-00724055 (September 27, 2001, Nadeau, J.) ( 2002 Ct.Sup. 13007; 30 Conn. L. Rptr. 450, 453); and Burke v. Boatworks, Inc., Superior Court, Judicial District of Stamford-Norwalk at Stamford, Docket No. CV 04 4001838 (July 26, 2005, Jennings, J.), In Duffy v. Wallingford, supra, 49 Conn.Sup. 122, the plaintiffs alleged negligent infliction of emotional distress due to raw sewage flooding through their house on several occasions. The court distinguished the foregoing cases by reasoning that although property damage was involved, the root of the emotional distress claim was the revolting nature and physical discomfort of the sewage in the house. Id.
"Viewing the allegations of the complaint and the evidence in a light most favorable to the plaintiffs, their claims of emotional distress arise from their responses to the offensive exposure and continuing risk of exposure to raw sewage, not solely from the damage their property allegedly sustained as a result of the invasion of their home. Whether they actually sustained physical injury is of no moment under Montinieri. See Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345 (1978)." Duffy v. Wallingford, 49 Conn.Sup. 109, 122 (2004).
In Burke v. Boatworks, Inc., supra, this court granted a motion to strike the negligent infliction of emotional distress count. In that case, the plaintiff purchased a yacht from the defendant, who issued a report that there was no problem with the vessel's exhaust risers. The exhaust risers however proceeded to fail, as a result of which the vessel was out of commission for four months while repairs were being made. The plaintiff alleged that "he suffered severe emotional distress both as a consequence of the failure of the exhaust risers and as a consequence of his lost faith in the defendants' services." Id. This court reasoned that, no matter how crafted, the emotional distress claim was based solely on the property damage. Id.
In the present case, the plaintiffs allege that the emotional distress arose from the property damage. Though the bursting of pipes and a flooded room may be cause of annoyance and irritation, the complaint lacks an actual distress claim, alleging any "illness or bodily harm," as was present in Duffy v. Wallingford, supra, where sewage flowed through the house. The plaintiffs allege that Leopold "instructed the plaintiffs to turn up the heat in their home as high as it would go, place a space heater in their utility closet and keep their faucets operating," every time the pipes froze. The pipes froze on January 23, 2007, again in February 2007, a third time later in February 2007, and finally burst on March 8, 2007. Water flowed through several rooms and accumulated in the bottom level, about four inches deep. There is no allegation that the accumulated water was anything other than fresh water emanating from the burst pipe in the ceiling. The plaintiffs allege that they suffered money damage and "loss of use and quiet enjoyment of their home." Although this allegation is an attempt to take the claim out of mere property damage, no matter how crafted, the emotional distress claim in the present case is based solely on the property damage. Accordingly, the court grants the motion to strike Counts III and IV of the plaintiffs' complaint.
The plaintiffs do make a claim for damage for, among other things, "The cost of mold remediation" (Count I, ¶ 12f incorporated by reference into Counts III and IV), but there is no factual allegation of any causation of mold in the unit as a result of the burst pipe and the flooding.
II. CUTPA
In Count V, the plaintiffs allege a violation of CUTPA as to WFL. They incorporate by reference all twelve paragraphs of Count II alleging negligence against WFL and add a single additional paragraph alleging that "All of the above constitutes a violation of the Connecticut Unfair Trade Practices Act, C.G.S. §§ 42-110a, et seq., on the part of the defendant WFL Real Estate, in that said actions by the defendant were immoral, oppressive, unscrupulous and caused substantial injury to the plaintiffs."
The defendants raise a threshold issue whether or not CUTPA applies at all to them as the managers of a condominium. The court concludes that it does. There is Superior Court authority that unit owner directors or managers of a common interest community such as a condominium are not engaged in trade or commerce with the unit owners but are rather engaged in a relationship of internal governance more ". . . akin to the relationship between shareholders of a corporation and the corporation's officers and directors" Sargis v. Grove Hill Condominium Association, Inc., Superior Court, Judicial District of Hartford-New Britain at New Britain, Docket No. CV88-0430590S (July 19, 1990, Aronson, J.) ( 1990 Ct.Sup. 249; 2 Conn. L. Rptr. 152). See also, to the same effect, Rafalowski v. Old Country Road, Inc., 45 Conn.Sup. 341 (1997). But that reasoning does not apply to an outside professional manager of a condominium which is not itself a unit owner or composed of unit owners, who are engaged in trade or commerce with the unit owners in carrying out their management functions. Ferraro v. Tamarac Ridge Condominium Ass'n, Inc., Superior Court, Judicial District of Fairfield, Docket No. CV08-5015500S (June 3, 2009, Bellis, J.) ( 2009 Ct.Sup. 9296; 47 Conn. L. Rptr. 670). There being no allegation in this case that defendants WFL or its members, including defendant Leopold, were unit owners at Victorian Manor Condominium, they are not precluded from being engaged in trade or commerce with the unit owners such as the plaintiffs.
Conn. Gen. Stat. § 42-110b(a) provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
The remaining and primary issue is whether or not the allegations of Count V, being based entirely on the negligence allegations of Count II against WFL, states a legally sufficient CUTPA claim against WFL.
It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other business persons] . . . All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . .
(Citations omitted; internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 18-19 (2008).
The plaintiffs have made no allegation under the first prong of the cigarette rule (offense to public policy), but have alleged in general conclusive terms that the negligence allegations against WFL in Count II violate the second prong in that "said actions" were "immoral oppressive and unscrupulous" and the third prong in that they "caused substantial injury to the plaintiffs." The "actions" alleged as negligence of WFL in Count II are that on three occasions when the plaintiffs' pipes froze without bursting, WFL (through its member William Leopold) told them to turn up the heat, place a space heater in the utility closet, and keep their faucets open. The pipe in the ceiling of the master bedroom thereafter froze and burst. Plaintiffs allege that WFL "knew or should have known that the repeated freezing of the plaintiffs' pipes would result if not remedied . . ." (Count II, ¶ 11.) Clearly, then the CUTPA claim is totally based on a claim of negligence.
In Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 34-39 (1997) the Supreme Court held that medical malpractice claims — as contrasted to claims against medical professionals based on the entrepreneurial aspects of the medical profession — do not fall under CUTPA, but "left . . . open for another day" the question "whether negligence alone is sufficient to support a CUTPA violation." Id. 34. Both before and after Haynes was decided however, Superior Court decisions have answered that question in the negative — that allegations of negligence alone are insufficient to support a cause of action for violation of CUTPA. See, e.g.: Wang v. Grjffin, Superior Court, Judicial District of Stamford/Norwalk at Stamford, Docket No. CV04-01990685 (August 18, 2004, Tyma, J.) ( 2004 WL 2095110 (Conn. Super.)); 37 Conn. Law Rptr. 727 ("Mere allegations of . . . negligence are inadequate to allege a CUTPA claim"); LaRoche v. New Haven Savings Bank, Superior Court, Judicial District of New Haven, Docket No. CV98-0375771 (October 30, 1995, Hadden, J.) (same); Oquendo v. GVL, Inc., Superior Court, Judicial District of New Haven, Docket No. CV07-5011963S (April 14, 2008, Thompson, J.) ( 2008 WL 1869101 (Conn.Super.)) (Allegations of negligence against car repair center stricken as insufficient to support a CUTPA claim in the absence of any allegation how the alleged activities were immoral, unethical, oppressive, or unscrupulous or violated public policy); ("As stated above, the majority of Connecticut decisions addressing negligence and CUTPA has not recognized those claims"); Marino v. Bank of America, N.A., Superior Court, Judicial District of Litchfield, Docket No. CV07-5001571S (July 11, 2007, Pickard, J.) ( 2007 WL 2241755 (Conn.Super.)) [ 43 Conn. L. Rptr. 751] (Alleged negligence does not rise to the level of a CUTPA violation because it does not involve the deliberate deception in some entrepreneurial aspect of defendant's business); and Wilkinson v. Alco Investments VII, LLC, Superior Court, Judicial District of Middlesex, Docket No. CV03-0102226(May 26, 2005, Aurigemma, J.) ( 2005 WL 1433883 (Conn.Super.) ("Negligent acts in general are not inherently immoral, unethical, oppressive or unscrupulous. CUTPA deals with actions that cause unjustified consumer injury rather than a personal injury based on negligence). Other cases have held claims of negligence are insufficient to state a CUTPA violation when all three prongs of the cigarette test are not satisfied. See, e.g. Valley v. Sanitrol Septic Services, Superior Court, Docket No CV010453868S (November 15, 2001, Arnold, J.) ( 2001 WL 1516976 Conn.Super.) In this case the plaintiff has not even alleged a violation of the first prong of the cigarette test. Furthermore, his allegations of violation of the second and third prongs are mere conclusory repetitions of the statement of the rule itself without any allegation of facts to support those conclusions. "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrics Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 120, 215 (1992).
The motion to strike Count V is granted because it is based entirely on allegations of simple negligence of the defendant WFL without any allegation of facts to show violation of the prongs of the cigarette rule claimed to have been violated, and therefore fails to state a cause of action for violation of CUTPA.
Order
The defendants' motion to strike Counts III, IV and V of the complaint along with corresponding claims for relief is granted.