Opinion
No. CV 09-6000986
November 23, 2010
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (#134)
The defendant, Old Navy, LLC, moves for summary judgment on count three of the plaintiff's complaint. In the third count, the mother, Nichole Conger, witnessed her child's injury and puts forward a claim for the bystander emotional distress. For the reasons stated below, the defendant's motion for summary judgment is granted.
FACTS
The plaintiffs, Ashley Conger and Nichole Conger, filed a two-count complaint sounding in negligence against the defendant, Old Navy, LLC, on May 1, 2009. On June 15, 2009, the plaintiffs filed a request to amend the complaint, and attached a three-count complaint, to which there was no objection. The plaintiffs allege the following facts. On October 27, 2007, the plaintiff entered the defendant's store located in the Crystal Mall in Waterford, Connecticut with her one-year-old daughter, the minor plaintiff. The plaintiff placed the minor plaintiff in a stroller provided by the defendant and proceeded to an area of the store in which clothing was displayed for sale. When the plaintiff stopped to look at a product, the minor plaintiff stuck her left index finger in an opening on a table that was being used to display goods for sale. The plaintiff witnessed the minor plaintiff immediately after she pulled her finger out of the opening. The plaintiff saw blood running down the minor plaintiff's finger as well as the interior of her finger and heard the minor plaintiff screaming in pain. As a result of the incident, the minor plaintiff experienced substantial and serious injuries and the plaintiff experienced, and continues to experience, emotional distress and anguish.
When referenced separately, Ashley Conger will be referred to as the minor plaintiff and Nichole Conger will be referred to as the plaintiff.
On June 22, 2010, the defendant filed a motion for summary judgment as to count three of the plaintiffs' amended complaint on the ground that there was no genuine issue of material fact that the plaintiff could not sustain a bystander emotional distress claim. In support of its motion, the defendant submitted a memorandum of law and attached as exhibits: (1) the complaint, (2) the amended complaint, (3) the minor plaintiff's answers to interrogatories and requests for production, (4) a medical report from Dr. Cherry dated November 20, 2007, and (5) the plaintiff's answers to interrogatories and requests for production.
On July 12, 2010, the plaintiffs filed an objection to the motion for summary judgment. In support of their motion, they submitted a memorandum of law and attached as evidence: (1) a complete copy of the transcript from the plaintiff's June 9, 2010 deposition and (2) an affidavit of the plaintiff. The defendant filed a reply memorandum on July 27, 2010, and attached as evidence: (1) a copy of selected pages of the transcript from the plaintiff's June 9, 2010 deposition, (2) photographs of the minor plaintiff's left index finger and (3) the plaintiff's response to the defendant's request for admissions dated June 22, 2010. The matter was heard at short calendar on August 16, 2010.
DISCUSSION
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45.
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008). "To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant's affidavits and documents . . . The opposing party to a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 123 Conn.App. 583, 599, 2 A.3d 963 (2010). Additionally, the court may consider whether the evidence the nonmoving party submits supports the moving party's claim. See Allstate Ins. Co. v. Barron, 269 Conn. 394, 409, 848 A.2d 1165 (2004).
The defendant argues that the plaintiffs cannot sustain a bystander emotional distress claim because there is no evidence that the plaintiffs have satisfied two of the four elements required to sustain the claim, namely, that the injury to the minor plaintiff was not substantial, resulting in death or serious physical injury and that the plaintiff did not experience severe and debilitating emotional injury. The plaintiffs argue, first, that the motion should be denied because the defendant has not provided an affidavit or deposition transcript in support of its motion. Second, the plaintiffs argue that it is the perception of the severity of the injury at the time it occurred which is the basis for the bystander emotional distress claim, not how well the victim recovers from the injury. They further argue that the plaintiffs have provided evidence of emotional injury that satisfies that prong of the claim. In its reply, the defendant refutes the plaintiffs' assertions that an affidavit or deposition transcript is required for a motion for summary judgment and that evidence exists to support the bystander emotional distress claim.
"[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 result of an abnormal response." Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996).
The Connecticut Supreme Court in Clohessy limited recovery for bystander emotional distress to substantial injuries that result in serious physical injury because "[a]ny injury to one who is closely related to the bystander has an emotional impact. To a sensitive parent, witnessing a minor injury to his or her child could produce an emotional response and result in serious injury. Nevertheless, under those circumstances, a cause of action for bystander emotional distress will not lie . . . Although the tortfeasor takes his victim as he finds him or her . . . it is essential that the liability for bystander emotional distress is circumscribed." (Citations omitted.) Id. 54.
In the context of a summary judgment, the court must look to the evidence submitted by the parties to determine "how substantial the injuries suffered by [the victim] were at the time of the accident." Hibner v. Bruening, Superior Court, judicial district of New Haven, Docket No. CV 01 0456730 (July 30, 2009, Zoarski, J.). If the evidence submitted does not allow the court to make the conclusion that the victim sustained serious injuries, the motion must be granted. See Thomas v. Trudeau, Superior Court, judicial district of Windham, Docket No. CV 07 5001330 (May 15, 2009, Riley, J.) [ 47 Conn. L. Rptr. 797] (motion for summary judgment denied where there was evidence that son sustained serious and substantial injuries after a fire and aerosol spray paint can caused an explosion that engulfed him in flames); Fitch v. Milford Power Co., Superior Court, judicial district of Tolland, Docket No. CV 01 0077449 (March 8, 2004, Sferrazza, J.) [ 36 Conn. L. Rptr. 601] (evidence that father was seriously injured after a generator collapsed and trapped him inside cab of his crane for several hours was sufficient to deny motion for summary judgment); Carendi v. Silver Horseshoe Stables, Superior Court, judicial district of New Haven, Docket No. CV 94 366855 (August 14, 1998, Hartmere, J.) [ 22 Conn. L. Rptr. 697] (motion for summary judgment denied when evidence was presented that father received serious injuries after a horse kicked him in the face); Ortiz v. Ford, Superior Court, judicial district of Fairfield, Docket No. CV 96 334511 (April 3, 1998, Melville, J.) (evidence that daughter suffered severe and permanent injuries, including inability to walk, after being ejected from a car due to an automobile collision was sufficient to defeat a motion for summary judgment). But see Nelson v. Winkel, Superior Court, judicial district of Litchfield, Docket No. CV 03 0090872 (October 4, 2004, Brunetti, J.) [ 38 Conn. L. Rptr. 62] (motion for summary judgment granted where evidence of bruises and contusions following an automobile accident were not substantial injuries that satisfied the third prong of Clohessy).
In the present case, the defendants submitted the plaintiffs' answers to interrogatories which indicate that the minor plaintiff received a laceration to her left index finger. The plaintiff states in her deposition that after the minor plaintiff stuck her finger in the opening, the plaintiff saw blood. The plaintiff had to use force to remove the minor plaintiff's finger from the hole and when she did so, the plaintiff saw blood, a laceration and something white on the minor plaintiff's finger. At the hospital, the plaintiff explains, the doctors examined the minor plaintiff, gave her stitches to close the laceration and sent her home that evening. Further examination by a specialist a few months after the incident revealed that the minor plaintiff's injury had healed and that there was no permanent damage other than a scar. Even viewing the evidence in the light most favorable to the plaintiffs, the evidence submitted fails to show that the minor plaintiff's injuries rise to level of substantial and serious physical injuries. Though the minor plaintiff received medical attention, the court cannot find that the third prong of Clohessy is satisfied. Nelson v. Winkel, supra, Superior Court, Docket No. CV 03 0090872. Accordingly, the defendant has satisfied its burden of establishing that there is no genuine issue of material fact that the plaintiffs cannot substantiate a bystander emotional distress claim and that they are entitled to judgment as a matter of law. As the evidence fails to establish the third prong of Clohessy, the court need not reach whether there is evidence to support the fourth prong.
CONCLUSION
For the foregoing reasons, the court grants the defendants' motion for summary judgment.