Opinion
No. CV 03 0401234
January 21, 2004
MEMORANDUM OF DECISION RE (#104) DEFENDANTS' MOTION TO STRIKE
The plaintiffs, William and Joanne Bero, have brought this action as both individuals and as fiduciaries of the estate of their son, Benjamin Bero, the decedent, who is alleged to have died as a result of injuries sustained in a motor vehicle collision which occurred on February 8, 2001.
The defendant, Leitrim Enterprises, owned and operated the Black Rock Castle, and the defendant, Anne Smith, was employed there on the above date.
The plaintiffs' complaint is in four counts. Count Two alleges that "as a result of witnessing the immediate aftermath of the motor vehicle collision, they sustained serious emotional distress and they continue to do so."
Count Three alleges that as a result of the collision and death of their son, Benjamin, the plaintiffs, as parents of Benjamin, suffered a loss of companionship, love and consortium with their son, the decedent.
The defendants have moved the court to strike Count Two for the reason that the plaintiffs "cannot allege the required facts necessary for bystander emotional distress . . ."
The defendants have also moved the court to strike Count Three for the reason that under Connecticut law at the present time, there is no recognition of a cause of action for loss of filial consortium.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted . . ." CT Page 35 Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270-71, 709 A.2d 558 (1999).
"A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
"In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner, supra, 580. "Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . [Conversely] a motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).
There is a unique commonality in the causes of action alleged in Counts Two and Three of the plaintiffs' complaint: bystander emotional distress and loss of consortium. They each extend the tortfeasor's liability to someone other than the immediate victim of their tort.
Our Supreme Court has held that "[t]he ability of someone other than the injured party, e.g., the [injured party's] employer, to bring or to intervene in an action against [the tortfeasor] is a clear deviation from the common law"); 2 F. Harper, F. James O. Gray, Torts (2d Ed. 1986) § 6.10, pp. 334-35 ("on the whole there is no liability in negligence for economic loss unless it arises from bodily harm to plaintiff or from physical damage to property in which plaintiff has a proprietary interest"). Mendillo v. Board of Education, 246 Conn. 456, 481 (1998).
AS TO COUNT TWO — BYSTANDER EMOTIONAL DISTRESS
Unlike the issue of loss of filial consortium, the issue of bystander emotional distress has been ruled on by our Supreme Court. Not only has that type of action been recognized, the criteria for bringing such an action has been articulated, most prominently in the case of Clohessey v. Bachelor, 237 Conn. 31 (1996). In that case the court held, "To summarize, we conclude that a bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location; (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response." Clohessy, supra, p. 56.
In their objection to the motion to strike Count Two, the plaintiffs argue that in their complaint they have alleged that, "as a result of witnessing the immediate aftermath of the collision and resulting severe injuries and untimely death of the Decedent . . ." they were caused to sustain "serious emotional distress." (Emphasis added).
The defendants argue that the plaintiffs' "witnessing the immediate aftermath" was actually a viewing by them of a newspaper photograph of what was reported to be the decedent's body covered by a cloth.
The plaintiffs respond by taking exception to the defendants' introduction of facts not contained in the complaint (speaking demurrer) regarding the plaintiffs' "witnessing the immediate aftermath."
Notwithstanding the procedural dispute, the fact remains that the plaintiffs have not alleged that their injury was caused by "the contemporaneous sensory perception of the event or conduct that caused the injury or that they arrived on the scene soon thereafter . . ." as required by the holding in Clohessy.
The criteria in Clohessy is very specific. Each and every one of the four elements must exist or the cause of action cannot be maintained. The plaintiffs did, undoubtedly, come to learn of their son's death in a shocking and distressful way. But they have failed to properly allege that fact in their complaint.
For the foregoing reasons, the defendants' motion to strike the Second Count of the complaint is hereby granted.
AS FOR THE THIRD COUNT — LOSS OF FILIAL CONSORTIUM CT Page 37
"[I]t is fair to say that imposing third party liability of the kind sought in the present case remains the exception rather than the rule." See Berger v. Weber, supra, 411 Mich. 33 (Levin, J., dissenting) ("The concept of allowing a person to recover for consequential loss resulting from physical injury to another is an idiosyncracy in the law. Reasonable limits on liability for the consequences of negligent acts must be imposed."). Mendillo, supra, 481-82.
The instant case involves a claim by parents for damages for loss of consortium for the loss of a child.
There is no Supreme Court decision adjudicating the viability of a claim for filial loss of consortium. The reverse issue, a child's claim for loss of consortium, was decided in Mendillo v. Board of Education Town of East Haddam, 246 Conn. 456 (1998). In that case the court held that there is no such claim as loss of parental consortium.
In a somewhat analogous case, the court has held, ". . . that a minor child has no claim for the loss of a parent's love and affection resulting from the parent's wrongful death"; Foran v. Carangelo, 153 Conn. 356, 359-62, 216 A.2d 638 (1966).
"[While] . . . the parent-child relationship may well be as commanding of legal protection in many respects as the spousal relationship, there are also significant differences between the two. These differences arise out of the fact that the relationship between spouses is different in kind as well as source from the parent-child relationship. Marriage is a `unique human relationship'; Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991); `the closest entity recognized by society'; Albert v. McGrath, 278 F.2d 16, 18 (D.C. Cir. 1960); `a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.' Griswold v. Connecticut 381 U.S. 479, 486, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Most important, the spousal relationship is based on notions of commitment between adults. `[T]he formal marriage relation forms the necessary touchstone to determine the strength of commitment between the two individuals which gives rise to the existence of consortium between them in the first instance.' Gurliacci v. Mayer, supra, 218 Conn. 564; see also Hopson v. St. Mary's Hospital, supra, 176 Conn. 487 (emphasizing that elements that make up `consortium,' including "the constellation of companionship, dependence, reliance, affection, sharing and aid . . . are legally recognizable, protected rights arising out of the civil contract of marriage' [emphasis added]). Mendillo, supra, 493-94.
The plaintiffs offer the case of Collins v. Dunlap, judicial district of Danbury, Docket No. CV97 0328146, 1999 Ct. Sup. 3848, 24 Conn. L. Rptr. 257 (March 16, 1999) (Radcliffe, J.), as precedent for the existence of a loss of filial consortium claim. In that case, while ruling on a motion for summary judgment, the court found that the law of that case was that the loss of consortium claim was not necessarily barred due to its derivative nature in relation to other claim or claims in that suit.
For the reasons set forth above, the court finds that there is no such action as loss of filial consortium in this state and the defendants' motion to dismiss the Third Count of the complaint is hereby granted.
BY THE COURT,
JOSEPH W. DOHERTY, JUDGE.