Opinion
No. CV 06 500 6991
March 28, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#111) AND MEMORANDUM IN OPPOSITION TO MOTION TO STRIKE
This action arises from the alleged conduct of the defendant Michael Baron, a pediatrician, toward the plaintiffs Danielle Montanaro and Lisa Montanaro, his patient and her mother, respectively. The minor, Danielle Montanaro, through her mother and next friend Lisa Montanaro, and Lisa Montanaro, individually, filed an amended eight-count complaint on December 20, 2006, alleging negligent, intentional, and reckless infliction of emotional distress upon Lisa Montanaro (Counts One through Three, respectively); defamation as to Lisa Montanaro (Count Four); breach of a contract between the defendant and Lisa Montanaro (Count Five); and negligent, intentional, and reckless infliction of emotional distress upon Danielle Montanaro (Counts Six through Eight, respectively).
In the Amended complaint, the plaintiffs claim that on November 1, 2003, they were in the defendant's office for an examination of Danielle Montanaro, when at some point during the visit, the defendant stated to the plaintiffs, in the presence of third parties, that Lisa Montanaro was mentally ill and suffering from Munchausen syndrome by proxy. Also during the visit or shortly afterwards, the defendant allegedly accused Lisa Montanaro of stealing medical records from his office. The plaintiffs deny that Lisa Montanaro stole medical records from the defendant's office and state that the accusations of mental illness were also false. The plaintiffs further allege in their complaint that the defendant wrongfully reported Lisa Montanaro's alleged mental illness to physicians at Yale-New Haven Hospital and Yale Medical School, thus causing the plaintiffs to incur expenses in seeking medical treatment from physicians outside of Connecticut.
On August 14, 2007, the defendant filed a motion to strike (#111) counts two, three, five, six, seven, and eight with an accompanying Memorandum in Support. On December 3, 2007, the plaintiffs filed a Memorandum in Opposition to Motion to Strike, dated November 28, 2007. The court heard arguments on December 3, 2007.
"The proper procedural vehicle to challenge the legal sufficiency of a proposed pleading is a motion to strike." Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256, 905 A.2d 1165 (2006). "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, 914 A.2d 996 (2007). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Id. "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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) ATC Partnership v. Coats North America Consolidated, Inc., 284 Conn. 537, 547, 935 A.2d 115 (2007).
I. Counts Two and Seven: Intentional Infliction of Emotional Distress
The plaintiffs allege that the defendant intentionally inflicted emotional distress upon Lisa Montanaro in Count Two; and that he intentionally inflicted emotional distress upon Danielle Montanaro in Count Seven. The defendant argues that the plaintiffs have not alleged that extreme and outrageous conduct occurred, and therefore lack the critical element of a claim for intentional infliction of emotional distress. The plaintiffs argue that they have pleaded facts that are sufficiently outrageous to sustain the counts sounding in intentional infliction of emotional distress.
"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.' . . . 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." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000); see, also Faraclas v. Botwick, Superior Court, judicial district of New Haven, Docket No. CV 02 0459655 (June 28, 2002, Robinson-Thomas, J.) [32 Conn. L. Rptr. 414].
Construing the allegations in the complaint in the light most favorable to the plaintiffs, the plaintiff Lisa Montanaro has alleged facts sufficiently extreme and outrageous that reasonable minds could disagree as to whether the defendant's conduct amounted to the intentional infliction of emotional distress. If a pediatrician falsely accuses a patient's mother of theft, falsely announces that the mother suffers from a severe mental illness in front of other patients and employees, and then reports this false diagnosis of illness to other doctors in order to prevent further medical treatment, a reasonable person may conclude that the doctor conducted himself in a manner that was extreme and outrageous. Therefore, this court denies the defendant's motion to strike count two alleging intentional infliction of emotional distress by Lisa Montanaro. The court will address defendant's arguments with respect to count seven in part IV of the decision.
II. Counts Three and Eight: Reckless Infliction of Emotional Distress
In Count Three of the Amended Complaint, the plaintiffs allege a reckless infliction of emotional distress on behalf of Lisa Montanaro. In Count Eight they allege a reckless infliction of emotional distress claim on behalf of Danielle Montanaro. The defendant argues that a claim for reckless infliction of emotional distress requires that the plaintiffs plead extreme and outrageous conduct because claims of reckless infliction of emotional distress are treated as allegations of intentional infliction of emotional distress. The plaintiffs argue that they have alleged sufficiently outrageous and reckless conduct on the part of the defendant to meet the requirements for a claim of intentional infliction of emotional distress, and therefore have also met the requirements for a claim of reckless infliction of emotional distress as well.
While the plaintiffs have met the requirements for bringing an intentional infliction of emotional distress claim, Connecticut courts have not conclusively determined if a separate cause of action exists for reckless infliction of emotional distress. The leading case in Connecticut regarding reckless infliction of emotional distress is Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003). In Craig, the Supreme Court implicitly recognized a cause of action for reckless infliction of emotional distress on a bystander when it determined that a plaintiff could use the same language in two counts of a complaint to allege both negligent and reckless conduct in a cause of action for infliction of emotional distress on a bystander. Id., 341-43. See also Lucas v. JNS, LLC, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 02 0187731 (August 9, 2005, Wilson, J.) ("The court in Craig . . . held that the allegations in the plaintiffs' complaint were sufficient to state a cause of action for reckless infliction of emotional distress on a bystander"). The Craig court did not directly address, however, whether reckless infliction of emotional distress was a distinct cause of action from intentional infliction of emotional distress in a non-bystander context.
The decision in Craig was overturned in part by Public Acts 2003, No. 03-91, which amended General Statutes § 30-102 to prohibit a cause of action against a seller of alcohol for negligence in the sale of alcoholic liquor to a person twenty-one years of age or older, but the portion of the court's decision that analyzed reckless infliction of emotional distress was not affected.
Prior to Craig, courts were split as to whether Connecticut recognized a cause of action for reckless infliction of emotional distress. See Drennan v. Geist, Superior Court, judicial district of Middlesex, Docket No. CV 99 0089114 (January 29, 2002, Shapiro, J.) (citing superior court cases alternately striking and permitting causes of action for reckless infliction of emotional distress); and Del Core v. Mohican Historic Housing Associates, Superior Court, judicial district of New London, Docket No. CV 02 0560919 (July 9, 2002, Hurley, J.T.R.) [32 Conn. L. Rptr. 481] (citing cases to support the statement that "[a]n allegation of reckless conduct which inflicts emotional distress is regarded as an allegation of intentional infliction of emotional distress"), aff'd, 81 Conn.App. 120, 837 A.2d 902 (2004).
After Craig, although the appellate courts have not directly addressed whether there is a distinct cause of action for reckless infliction of emotional distress, they have often implied that there is not. See Carrol v. Allstate Ins. Co., 262 Conn. 433, 451-52, 815 A.2d 119 (2003) (Borden, J., concurring) (writing separately to highlight an anomaly in the burden of proof in "the `conduct' element of the twin torts of intentional infliction of emotional distress and negligent infliction of emotional distress"); Petitte v. DSL.net, Inc., 102 Conn.App. 363, 374 n. 2, 925 A.2d 457 (2007) ("Connecticut recognizes two types of emotional distress claims, intentional infliction of emotional distress . . . and negligent infliction of emotional distress." (Citations omitted.)); Olson v. Bristol, 87 Conn.App. 1, 6-8, 863 A.2d 748, cert. granted on other grounds, 273 Conn. 914, 870 A.2d 1083 (2005) (stating "we believe that the court incorrectly applied a behavioral standard for wilful infliction of emotional distress to a complaint founded solely on negligence" before comparing intentional and negligent infliction of emotional distress claims); Benton v. Simpson, 78 Conn.App. 746, 756-57, 829 A.2d 68 (2003) (stating that "[t]he difference between the two torts of inflicting emotional distress is significant" in reference to intentional and negligent infliction of emotional distress).
In Pane v. Danbury, 267 Conn. 669, 685, 841 A.2d 684 (2004), the Supreme Court determined that a claim for intentional infliction of emotional distress was barred by governmental immunity because "wilful" conduct was equivalent to "intentional" conduct. The court cited to a string of cases to expand upon that statement: "[u]nder Connecticut law, the term `wilfulness' is synonymous with `intentional.' Bhinder v. Sun Co., 246 Conn. 223, 242 n. 14, 717 A.2d 202 (1998) (`While [courts] have attempted to draw definitional [distinctions] between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing.'), quoting Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988) [`wilful misconduct has been defined as intentional conduct']; see also Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998) (legal concepts of wanton, reckless, wilful, intentional and malicious conduct indistinguishable); Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 527, 686 A.2d 481 (1996) (`A wilful act is one done intentionally or with reckless disregard of the consequences of one's conduct.')." (Internal quotation marks omitted.) Pane v. Danbury, supra, 267 Conn. 685.
Notably, the court in Craig echoed the Bhinder statement in its comparison of recklessness and negligence: "[w]hile we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing." Craig v. Driscoll, supra, 262 Conn. 342.
Although the Pane court was not directly comparing a claim of reckless conduct to a claim of intentional conduct, the context of the court's analysis supports the conclusions of a Connecticut federal trial court in a recent case that did compare such claims. In Myslow v. New Milford School District, United States District Court, Docket No. 3:03-CV-496, 2006 U.S.Dist.LEXIS 9868 *56, 2006 WL 473735 (D.Conn. February 28, 2006), the court stated that "[t]o the extent that Plaintiffs allege recklessness, reckless conduct has been equated to wanton conduct, . . . hence Plaintiffs' claim sounds in intentional infliction of emotional distress." (Citation omitted; internal quotation marks omitted.). The determination by the court in Myslow aligns with the majority of the courts that have, at least implicitly, addressed the issue since Craig, and is applicable to this case.
This court grants the defendant's motion to strike the plaintiffs' third and eighth counts for reckless infliction of emotional distress because Connecticut, even after Craig, does not recognize a distinct cause of action for reckless infliction of emotional distress and because the plaintiffs have adequately pleaded claims for intentional infliction of emotional distress that encompass the recklessness claims.
III. Count Five: Breach of Contract
In Count Five, the plaintiffs allege a breach of contract claim by Lisa Montanaro. The defendant argues that he did not enter into an express or an implied contract with Lisa Montanaro, that he did not contract with Lisa Montanaro for any particular result, and that the plaintiffs did not plead that he was acting in bad faith when he informed the plaintiffs of his diagnosis of Lisa Montanaro. The plaintiffs allege that the defendant breached the duty of good faith and fair dealing term of a contract existing between Lisa Montanaro and the defendant. The plaintiffs allege that this breach occurred when the defendant revealed his diagnosis of Lisa Montanaro, including confidential information, to third parties. The plaintiffs further argue that the defendant acted in bad faith in his dealings with them.
"The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." (Internal quotation marks omitted.) Pelletier v. Galske, 105 Conn.App. 77, 81 (2007). "An express contract is a contract whose terms are stated by the parties; an implied contract is a contract whose terms are not so stated." (Internal quotation marks omitted.) Schreiber v. Connecticut Surgical Group, P.C., 96 Conn.App. 731, 738, 901 A.2d 1277 (2006). "Although both express contracts and contracts implied in fact depend on actual agreement [i]t is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations." (Citations omitted; internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 805, 826 A.2d 1066 (2003). "[I]t is axiomatic that the . . . duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship . . . In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement . . . The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term." (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007).
The dispositive issue is whether an agreement was formed between the defendant and Lisa Montanaro. The plaintiff claims that the "relationship between the Plaintiff, Lisa Montanaro, and the Defendant constituted a contract." Amended Complaint, dated December 20, 2006, Count Five, ¶ 12. The plaintiffs, however, have not alleged facts that even suggest what the terms of the contract between the parties might have been or what results or promises the parties might have agreed to. Nor have the plaintiffs indicated that the defendant and Lisa Montanaro had any form of contractual relationship other than as medical service provider and patient's parent. This is not the type of relationship that one would expect to give rise to an implied contract without additional evidence.
Furthermore, it is clear that the plaintiff's allegations more appropriately sound in tort than in contract, as evidenced by the other seven counts in the complaint and the facts alleged therein. "Just as [p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender . . . putting a contract tag on a tort claim will not change its essential character." (Citation omitted; internal quotations marks omitted.) Gazo v. Stamford, 255 Conn. 245, 263, 765 A.2d 505 (2001); see Petronio v. Burich, Superior Court, judicial district of New Britain, Docket No. CV 01 0509130 (April 23, 2002, Wiese, J.) (32 Conn. L. Rptr. 156). Reading the complaint in the light most favorable to the plaintiffs, they have not pleaded facts sufficient to indicate that any implied agreement existed between the defendant and Lisa Montanaro. Therefore, the court grants the defendant's motion to strike count five.
In addition to the counts that the defendant has moved to strike, the plaintiffs have alleged, on behalf of Lisa Montanaro, negligent infliction of emotional distress and defamation, neither count of which the defendant is challenging at this juncture.
IV.
Counts Six, Seven and Eight: Bystander Emotional Distress Claims of Danielle Montanaro
This court deferred ruling on the motion to strike count seven in part I; and granted the motion to strike count eight in part II. However, because the defendant moves to strike counts six, seven and eight on different grounds in this section, the court will analyze the arguments as to all counts for purposes of consistency.
In Count Six, the plaintiffs allege that the defendant negligently inflicted emotional distress on Danielle Montanaro. In Count Seven, the plaintiffs allege that the defendant intentionally inflicted emotional distress upon Danielle Montanaro. And, in Count Eight, the plaintiffs allege that the defendant recklessly inflicted emotional distress upon Danielle Montanaro. The defendant moves to strike counts six through eight on the ground that those counts fail to allege facts necessary to support a claim of bystander emotional distress. Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996), set forth the necessary elements for stating a claim for bystander emotional distress. The third and fourth elements require that one plead substantial injury to the victim resulting in death or serious physical injury; and serious emotional distress to the bystander. The defendant contends that allegations of substantial injury or death and serious emotional distress are lacking.
The plaintiffs seemingly argue that counts six through eight allege direct infliction of emotional distress upon Danielle Montanaro, rather than bystander emotional distress: "[The defendant's] argument is factually inapposite, as Baron's conduct . . . was directed to both Lisa and Danielle at the same time and in the same place as they were standing in close proximity to each other . . . [for that reason alone, this claim by the defendants is incorrect." Memorandum in Opposition to Motion to Strike, dated November 28, 2007, p. 10.
Considering the claims in counts six, seven and eight as by-stander emotional distress, as the defendant argues, but the plaintiffs dispute, they are, the court finds that they are insufficient. "First . . . in order to recover for emotional distress, the bystander must be closely related to the injury victim . . . Second, the bystander's emotional injury must be caused by the contemporaneous sensory perception of the event or conduct that causes the injury . . . Third, the injury to the victim must be substantial, resulting in either death or serious physical injury . . . Finally, the plaintiff bystander must have sustained a serious emotional injury — that is, a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstance." (Citations omitted; internal quotation marks omitted.) Clohessy v. Bachelor, supra, 237 Conn. 52-54.
The facts as alleged in the complaint in counts six through eight demonstrate that while the plaintiffs have alleged the first and second elements, they have failed to allege the third and fourth requirements. Clearly, Danielle Montanaro has a close relationship with Lisa Montanaro, who is her mother. The defendant's conduct, which was directed towards Lisa Montanaro and which allegedly caused Lisa Montanaro serious injury, was contemporaneously observed by Danielle Montanaro. However the remaining facts do not allege that Lisa Montanaro suffered serious injury or death; or that Danielle Montanaro's emotional reaction was beyond the normal response.
The court now considers the plaintiffs' argument that the defendant's conduct "was directed to both Lisa and Danielle at the same time and in the same place as they were standing in close proximity to each other." Memorandum in Opposition to Motion to Strike, dated November 28, 2007, p. 9. This argument does not correlate with the facts as pleaded in Counts seven and eight of the complaint; although there would have been sufficient facts to sustain the plaintiffs' objection as to count six if the complaint had also contained allegations that Danielle Montanaro suffered sufficiently severe emotional distress. Therefore, Danielle Montanaro's claims against the defendant, in counts seven and eight, must be considered claims for bystander infliction of emotional distress. Such claims are governed by the standards established in Clohessy.
The facts in the Amended Complaint allege that the defendant's allegedly outrageous and extreme conduct was directed at Lisa Montanaro and not at Danielle Montanaro. However, the complaint also alleges in paragraph 6, that "Dr. Barron made comments to . . . [Lisa Baron's] child in front of others in his office suggesting that [Lisa Baron] was mentally ill and suffering from the mental disease or syndrome called Munchausen by Proxy . . ." While these might not be considered extreme and outrageous conduct towards Danielle Montanaro, they probably could support a direct claim for negligent infliction of emotional distress, which only requires that "`the plaintiff . . . plead that the actor should have foreseen that her behavior would likely cause harm or a specific nature, i.e., emotional distress likely to lead to illness or bodily harm . . .' (Citations omitted; internal quotation marks omitted.) Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005)." Giovanelli v Cantor, Florman, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 07-5010641 (January 30, 2008, Robinson, A., J.) [44 Conn. L. Rptr. 802].
Nonetheless, while the plaintiffs sufficiently plead that the defendant should have foreseen that his conduct would cause Danielle Montanaro harm, they fail to allege that the emotional distress was sufficiently severe. In Count Six, they only allege that "the plaintiff, Danielle Montanaro, claims damages for negligent infliction of emotional distress." Amended Complaint, Count VI, ¶ 11.
Accordingly, Danielle Montanaro's claim in count six must be stricken because it fails to sufficiently allege severe emotional distress. And, as noted earlier, the claims in counts seven and eight, which clearly fall within the purview of the bystander emotional distress cause of action, meet the first two criteria for such a claim, but fail to adequately plead the third and fourth required elements. Therefore, this court grants the defendant's motion to strike counts six and seven, and it would have granted the motion to strike count eight, had they not already been stricken on other grounds.