Opinion
No. 565313
December 1, 2003
MEMORANDUM OF DECISION
BACKGROUND
In June 2003, the plaintiffs, Celeste Shackles and her husband, James Shackles, filed a twelve-count amended complaint against Pfizer, Inc., Cynthia Morris, and Steve Levis, alleging negligence, negligence per se, wrongful discharge, intentional and negligent infliction of emotional distress, recklessness, and loss of consortium.
While both Celeste and James Shackles are plaintiffs in this case, the latter limits his claims to count twelve, loss of consortium. For the sake of convenience, this opinion uses the designation "plaintiff" in reference to Celeste alone.
The plaintiff, Morris and Levis are employees of Pfizer. This action stems from an email that Morris and Levis sent to the plaintiff on March 7, 2002. The plaintiff alleges that Morris, the plaintiff and Levis' immediate supervisor, directed Levis to send, from his workstation, a harassing email to the plaintiff from his workstation. The plaintiff received this email on her work computer. The plaintiff, who had a known history of angina attacks, alleges that the receipt of this email caused her to suffer severe shock to her nervous system, emotional distress, embarrassment and nervousness. The plaintiff alleges that these injuries forced her to seek medical and psychological treatment, and prevented her from performing her occupational duties as a records management specialist. The plaintiff further alleges that Pfizer refused to accommodate these injuries and subsequently terminated her employment on February 7, 2003.
The defendants filed two timely motions to strike all twelve counts of the complaint when considered together. First, the defendants move to strike the entire complaint on the grounds that the Workers' Compensation Act provides an exclusive remedy for the alleged harm. Second, the defendants move to strike counts one, six, and ten, negligence claims against all three defendants, on the grounds that the complaint fails to allege that the defendants owed the plaintiff a duty of care. Third, the defendants move to strike count two, seven and eleven, the negligence per se claims against all three defendants, on the grounds that the statute neither creates a legal duty for the defendants nor applies to Pfizer as a corporation. Fourth the defendants move to strike count three, a wrongful discharge claim against Pfizer only, on the grounds that plaintiff has an adequate statutory remedy that bars her from bringing the common law cause of action. Fifth, the defendants move to strike count four and nine, intentional infliction of emotional distress claims against Pfizer and Morris, on the grounds that the complaint fails to present extreme and outrageous conduct, a necessary element of the cause of action. Sixth, the defendants move to strike count eight, a recklessness claim against Morris only, on the grounds that Morris does not owe the plaintiff a duty of care to avoid reckless misconduct, and that the complaint fails to sufficiently allege conduct that supports a recklessness claim. Seventh, the defendants move to strike count five, a claim of negligent infliction of emotional distress against Pfizer, on the grounds that the complaint does not allege conduct capable of supporting an action for negligent infliction of emotional distress in the employment context. Last, the defendants move to strike count twelve, the loss of consortium claim, a derivative cause of action brought by the plaintiff's husband, as legally insufficient because the underlying claims are barred by the Workers' Compensation Act.
On June 30, 2003, the defendants filed a motion to strike counts one through four and counts six through twelve of the plaintiff's amended complaint. On July 11, 2003, the defendants filed a motion to strike count five of the plaintiff's amended complaint.
This court grants the motion to strike with respect to count three only. The motions to strike are denied with respect to all other counts of the complaint.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A]ll well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
A. Workers' Compensation Act
The defendants move to strike all the claims in complaint because the Workers' Compensation Act provides the exclusive remedy for the plaintiff's alleged injuries. The proper procedural vehicle by which to present the court with the defense of exclusivity of the Workers' Compensation Act is the pleading of a special defense, not a motion to strike. Schuster v. Amity School District #5, Superior Court, judicial district of New Haven, Docket No. CV 02 0470849 (May 28, 2003, Gilardi, J.); Bourne v. Mori Seiki USA, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 0382138 (July 12, 2002, Gallagher, J.). The court will not grant the defendants' motion to strike on the grounds that all the claims are barred by the Workers' Compensation Act because the defendants should raise this argument as a special defense, not a motion to strike.
The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999). "[A] claim that an injured plaintiff has made an exclusive election of workers' compensation is properly raised by special defense. Grant v. Bassman, 221 Conn. 465, 472, 604 A.2d 814 (1992).
B. Counts One. Six, and Ten: Negligence
Counts one, six, and ten assert negligence claims against Pfizer, Morris, and Levis, respectively. The defendants move to strike these counts on the grounds that they are legally insufficient because "there exists no legal duty to avoid startling a coworker." The court disagrees and finds that the complaint sufficiently alleges facts supporting the conclusion that the defendants owed the plaintiff a duty of care.
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (2002). "There can be no actionable negligence, however, unless there exists a cognizable duty of care." Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996). "[T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered as likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Zamstein v. Marvasti, 240 Conn. 549, 558, 692 A.2d 781 (1997).
The defendants argue that no reasonable person could have foreseen that the plaintiff's alleged injuries would have resulted from the transmission of the email. However, the inquiry into whether an injury was foreseeable hinges, not on what a reasonable person could have foreseen, but rather on what a person in the defendant's position, knowing what the defendant knew or should have known, could have foreseen.
The complaint alleges the following facts in counts one, six and ten that, if proven, support the conclusion that the defendants could have foreseen the injury. Pfizer not only employed the plaintiff Morris, and Levis, but also controlled, possessed, managed and/or maintained the computers and premises on which the email was sent and received. Morris had immediate supervisory authority over both the plaintiff and Levis, and had a familiarity with Pfizer's written policies on the use of electronic systems. Morris knew both the plaintiff's medical history of suffering from angina attacks and the manner by which plaintiff operated her computer in close proximity to herself Levis knew the manner by which the plaintiff operated her computer in close proximity to herself, and knew Pfizer's written policies on business conduct.
"The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Ass'n, Inc., 264 Conn. 474, 480, 823 A.2d 1202 (2003). The defendants argue that finding a legal duty in this case is "nonsensical as a matter of public policy." The court may rely on the following four factors to determine the extent of a legal duty as a matter of public policy: "(1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Id.
Review of these factors reveals that public policy could support a determination that the defendants had a legal duty to the plaintiff based on the facts alleged in the complaint. The complaint alleges that Pfizer had office polices prohibiting the conduct ascribed to the defendants. If true, those policies would have shaped the normal expectations of the parties in this case and support the finding that a legal duty existed. Accordingly, establishing a legal duty would neither discourage the public policy of proper electronic systems usage nor result in increased litigation. Because neither party alerts the court's attention to decisions from other jurisdictions and the other factors of our public policy analysis do not counsel against establishing a legal duty, the court finds that one could exist based on the circumstances alleged in the complaint.
The defendants' motion to strike is denied with respect to counts one, six, and ten.
C. Counts Two. Seven, and Eleven: Negligence Per Se
Counts two, seven, and eleven assert negligence per se claims against Pfizer, Morris and Levis, respectively, based on a violation of General Statutes § 53a-183. The defendants move to strike these counts on grounds that they are legally insufficient for two reasons. First, defendants assert that General Statutes § 53a-183, a penal provision, does not establish a legal duty on which to base a negligence per se claim. Second, the motion asserts that a negligence per se claim against Pfizer, a corporation, cannot exist because only persons, not corporations, can violate General Statutes § 53a-183. These arguments ignore the requisite showing for a negligence per se claim. The complaint alleges facts that satisfy this showing.
General Statutes § 53a-183(a) provides: "A person is guilty of harassment in the second degree when: (1) By telephone, he addresses another in or uses indecent or obscene language; or (2) with intent to harass, annoy or alarm another person, he communicates with a person by telegraph or mail, by electronically transmitting a facsimile through connection with a telephone network, by computer network, as defined in section 53a-250, or by any other form of written communication, in a manner likely to cause annoyance or alarm; or (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm."
The memorandum of law supporting the motion to strike quotes language from General Statutes § 53a-3, the definitions provision of the penal code, that states "person means a human being, and where appropriate, a public or private corporation . . . " The memorandum then states that § 53a-183, on its face, cannot appropriately apply to corporations because a corporation cannot engage in harassment with intent to annoy. The memorandum neither describes why a corporation cannot engage in such harassment, nor cites any case law supporting this assertion.
"Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the [trier of fact] in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. [The trier of fact] merely decide[s] whether the relevant statute or regulation has been violated." (Internal quotation marks omitted.) Gore v. People's Savings Bank, 235 Conn. 360, 376, 665 A.2d 1341 (1995). "In order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First the plaintiff must be within the class of persons protected by the statute . . . Second, the injury must be of the type which the statute was intended to prevent." (Citations omitted; internal quotation marks omitted.) Id., 375.
The complaint sufficiently alleges facts that, if proven true, could establish liability under a negligence per se theory. The complaint alleges that the plaintiff was at all relevant times in the class of persons intended to be protected by § 53a-183. On its face this provision protects against harassment, annoyance, and alarm. The complaint alleges injuries that, if proven, could fall within the purview of harm that the statute intends to prevent.
The defendants' motion to strike is denied with respect to counts one, six, and ten.
D. Count Three: Wrongful Discharge
Count three of the complaint alleges that Pfizer wrongfully discharged the plaintiff in violation of Connecticut public policy embodied in General Statutes §§ 31-49 and 53a-183. The defendant correctly asserts that the availability of statutory remedies precludes this wrongful discharge claim.
"[The Supreme Court has] recognized that it is a general proposition that contracts of permanent employment, or for an indefinite term, are terminable at will . . . [H]owever [the Supreme Court] recognized a common law cause of action in tort for the discharge of an at-will employee if the former employee can prove a demonstrably improper reason for dismissal, a reason whose impropriety is derived from some important violation of public policy." (Citations omitted; emphasis in original; internal quotation marks omitted.) Burnham v. Karl Gelb, P.C., 252 Conn. 153, 158-59, 745 A.2d 178 (2000). "[T]he public policy exception to the general rule allowing unfettered termination of an at-will employment relationship is a narrow one . . . Consequently, [the courts] have rejected claims of wrongful discharge that have not been predicated upon an employer's violation of an important and clearly articulated public policy." (Citations omitted; internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 701, 802 A.2d 731 (2002).
"[T]he mandate of public policy that [General Statutes § 31-49 embodies] gives a Connecticut employee a cause of action for wrongful discharge against an employer transacting business in Connecticut if the employee is discharged for refusing to work under conditions that pose a substantial risk of death, disease or serious physical harm and that are not contemplated within the scope of the employee's duties." Parsons v. United Technologies Corp., 243 Conn. 66, 80, 700 A.2d 655 (1997). However, "[t]he existence of[a] statutory remedy precludes the plaintiff from bringing a common-law wrongful discharge action." Burnham v. Karl Geib, P.C., supra, 252 Conn. 162.
"[Section] 31-49 is expressly included among those employment regulation statutes that the labor conmissioner has a statutory duty to enforce." Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 545, 494 A.2d 555 (1985) (Shea, J., concurring). General Statutes § 31-50 provides: "The commissioner shall enforce the provisions of part I of this chapter and Sections 31-23 to 31-49, inclusive, by giving proper orders or notices to the persons or corporations owning, operating or managing the factories or buildings inspected by him and shall make complaint to the state's attorneys of any violation of said provisions.
This court grants the defendants' motion to strike count three of the complaint because the plaintiff has a statutory remedy, described in § 31-50, by which to address her claim of wrongful discharge based on the public policy embodied in General Statutes § 31-49.
The wrongful termination claim cannot survive simply because the complaint also alleges a violation of the public policy embodied in § 53a-183. The plaintiff cannot prove that Pfizer dismissed her in violation of the public policy that undergirds this penal provision. This court will not expand the narrowly available wrongful termination claim to include the public policy embodied in General Statutes § 53a-183, a provision of Connecticut's penal code.
The defendants motion to strike is granted with respect to count three only.
B. Counts Four and Nine: Intentional Infliction of Emotional Distress
Counts four and nine assert intentional infliction of emotional distress claims against Pfizer and Morris, respectively. The defendants move to strike these counts on the grounds that they "are legally insufficient because the alleged conduct is neither extreme nor outrageous."
"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." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003).
"Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." (Internal quotation marks omitted.) Muniz v. Kravis, 59 Conn. App. 704, 708, 757 A.2d 1207 (2000). "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." (Citation omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). "A review of recent Connecticut decisions on the issue of extreme and outrageous conduct within the context of a claim for intentional infliction of emotional distress reveals that there is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain this action. The court looks to the specific facts and circumstances of each case in making its decisions . . . The motion to strike must be denied if reasonable people could differ as to whether the defendants' conduct was extreme and outrageous." Knight v. Southeastern Council on Alcoholism Drug Dependency, judicial district of New London, Docket No. CV 01 0557182 (September 21, 2001, Hurley, J.).
Because reasonable people could differ as to whether the defendants' conduct was extreme and outrageous, this court denies the defendants' motion to strike with respect to counts four and nine.
F. Count Five: Negligent Infliction of Emotional Distress
Count five asserts a negligent infliction of emotional distress claim against Pfizer. The defendant moves to strike this count on the grounds that it is legally insufficient because it fails to allege facts about the termination process that would support a negligent infliction of emotional distress claim in the employment context.
"[N]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process." (Internal quotation marks omitted.) Parsons v. United Technologies Corp., supra, 243 Conn. 88 (1997). In Perodeau v. Hartford, 259 Conn. 729, 762-63, 792 A.2d 752 (2002), the Supreme Court distinguished between negligent infliction of emotional distress claims based on "conduct occurring within a continuing employment context" and such claims based on "conduct occurring in the termination of employment." The Supreme Court determined that "the societal costs of allowing claims for negligent infliction of emotional distress in the context of ongoing employment are unacceptably high." Id., 762.
Count five of the plaintiff's complaint sufficiently alleges the following "conduct occurring in the termination of employment" and accordingly survives the defendants' motion to strike. The complaint alleges that Pfizer terminated the plaintiff because she did not return to her former position after allowing her to take disability leave to recover from the post traumatic stress syndrome. Moreover, Pfizer terminated her for not returning to that position after it represented to her that it would accommodate her injuries. The complaint further alleges that Pfizer knew that the plaintiff was incapable of performing her former position. These factual allegations describe conduct that occurred during the process of Pfizer terminating the plaintiff.
The defendants' motion to strike count five is denied because the complaint sufficiently alleges conduct occurring during the termination process that is capable of supporting the negligent infliction of emotional distress claim.
G. Count Eight: Recklessness
Count eight of the complaint alleges that Morris engaged in intentional and malicious conduct with reckless disregard of the effect that such conduct would have on the plaintiff. The defendants move to strike count eight on the grounds that it is legally insufficient because of "the absence of legal duty" and the complaint fails to sufficiently allege conduct that would support a claim of recklessness.
In order to establish Morris' duty on the recklessness claim, the complaint alleges essentially the same facts that it alleged to establish Morris' duty on the negligence claim. For the same reasons discussed above, this court finds that the complaint sufficiently pleads facts to support the allegation that Morris owed the plaintiff a duty of care.
"To determine whether the plaintiff's amended complaint states a cause of action sounding in recklessness, [the courts] look first to the definitions of wilful, wanton and reckless behavior. Recklessness is a state of consciousness with reference to the consequences of one's acts . . . The state of mind amounting to recklessness may be inferred from conduct. But in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342, 813 A.2d 1003 (2003). "Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted." Id., 343. "[This court recognizes] that the allegations in the counts alleging the negligent and reckless infliction of bystander emotional distress essentially mirror one another. Rather than adopting the defendants' conclusion that the allegations are not sufficient to state a cause of action for recklessness, however, we suggest that the plaintiff['s] allegations of negligence were overinclusive." Id., 343 n. 22.
In this case, the complaint alleges facts that, if proven, could establish Morris' liability under both negligence and reckless standards of misconduct. Moreover, the complaint sufficiently notifies the defendant and the court that the plaintiff makes claims under both theories.
The defendants' motion to strike is denied with respect to count eight.
H. Count Twelve: Loss of Consortium
In count twelve of the complaint, the plaintiff's husband asserts a loss of consortium claim against all three defendants. The defendants move to strike this count on the grounds that it is legally insufficient because it asserts a derivative claim that must fail once the underlying claims fail.
Because the motion to strike is denied with respect to all the counts except count three, the wrongful termination claim, the motion to strike count twelve is also denied.
CONCLUSION
For the reasons articulated, above the motion to strike is denied with respect to counts one, two, four, five, six, seven, eight, nine, ten, eleven and twelve. The motion to strike is granted with respect to count three, the wrongful termination claim.
D. MICHAEL HURLEY, JUDGE TRIAL REFEREE.