Opinion
No. 5017209
September 4, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE (No. 141)
The motion to strike now before the court arises from the debris of a homeowner's nightmare. Briefly stated, the Revised Complaint alleges that the plaintiffs, Elvira and Mark Chernovetz, owned a home in North Haven. They contracted with one of the defendants, R.L. Construction, LLC ("R.L.") to make improvements on the roof and walls of the home. R.L. subcontracted the job to the named defendant, Paul Tuper. Tuper allegedly did a poor job, leaving several open areas in the roof. On January 18, 2007, a storm resulted in significant water damage, causing several ceilings to collapse. The Chernovetzes had to move out of their home and, we are told, Elvira Chernovetz suffered an "exacerbation of a preexisting medical condition" which "resulted in hospitalization."
The Chernovetzes commenced this action against Tuper and R.L. by service of process in January 2008. On June 18, 2008, they filed their Revised Complaint. Count Five of the complaint — the only count in question here — alleges negligent infliction of emotional distress against Tuper. It specifically alleges that Tuper's "conduct was unreasonable, in that [he] knew, or in the exercise of reasonable cause [sic] should have known, that [his] conduct involved an unreasonable risk of causing psychological and/or emotional injury to the plaintiffs of such a nature as might result in illness or bodily harm."
On July 11, 2008, Tuper filed the motion to strike now before the court. The motion claims that the Chernovetzes have failed "to allege facts showing that the Defendant breached a duty owed to the Plaintiff." The motion was argued on September 2, 2008.
Tuper's primary argument is that the tort of negligent infliction of emotional distress cannot be grounded on injury to property alone. This policy argument is supported by respectable out-of-state authority; see Clank v. Farmers Cooperative Supply Shipping, 549 N.W.2d 714 (Wis. 1996); and a handful of nonbinding Superior Court decisions, but it is not congruent with the way our own Supreme Court has defined the tort.
Our Supreme Court has "continually . . . held that `in 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.' (Internal quotation marks omitted.) Scanlon v. Connecticut Light Power Co., 258 Conn. 436, 446, 782 A.2d 87 (2001)." Carrol v. Allstate Insurance Co., 262 Conn. 433, 446-47, 815 A.2d 119 (2003). This rule is consistent with that of Restatement (Second) of Torts § 313(1) (1965); applied in Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978); imposing liability for unintentionally caused emotional distress "if the actor (a) should have realized that his conduct involved an unreasonable risk of causing the distress . . . and (b) from facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm."
The conduct articulated in Carrol will not ordinarily arise out of property damage alone, but one can imagine circumstances under which it could. Suppose, for example, that I am a guest in your home. You inform me that (a) a particular vase, an inheritance from your grandmother, is your most precious possession, (b) the vase is extremely fragile, and (c) you have an extremely weak heart. Suppose further that, knowing all this, I drunkenly knock the vase over, and you become so upset that you have a heart attack on the spot. Under these circumstances, the Carrol elements would be satisfied. The fact that your injuries resulted from property damage alone is not a categorical disqualification. For these reasons, the primary argument asserted by Tuper fails.
As Tuper pointed out at argument, however, there is second, albeit narrower, problem with Count Five. One of the elements of the tort, as articulated by Carrol, is that "the defendant should have realized that . . . [the] distress, if it were caused, might result in illness or bodily harm." 262 Conn., at 446. Our Supreme Court has interpreted this element restrictively. "In negligent infliction of emotional distress claims, unlike general negligence claims, the foreseeability of the precise `nature of the harm to be anticipated [is] a prerequisite to recovery even where a breach of duty might otherwise be found . . .' Maloney v. Conroy, 208 Conn. 392, 398, 545 A.2d 1059 (1988)." Perodeau v. City of Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002). The facts alleged in Count Five do not rise to this restrictive level.
A variation of two illustrations appended to Restatement § 313(1) clarifies the problem. Suppose that I take you out for a drive in my car. I drive at a rapid rate of speed, cutting in and out of traffic. Doing so, I put you in such fear of a collision that you suffer a serious increase in an existing illness. If I had previously been informed that you were desperately ill, the elements of the tort are satisfied. If I had no reason to know of your illness, I have no such liability. See Restatement (Second) of Torts § 313(1), supra, comment c, illus. (1) (2).
Given this state of the law, it is clear that Count Five fails to state a cause of action. Count Five alleges that Elvira Chernovetz suffered an "exacerbation of a preexisting medical condition" as a result of Tuper's conduct. It does not allege that Tuper had any reason to know of the preexisting condition. Under these circumstances, the count must be stricken.
The motion to strike is granted.