Opinion
No. CV09 6001209S
July 14, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE #136
I. Background
The plaintiffs, Peter DeBassio (Peter, Jr.), by and through his parents, Peter DeBassio and Bessie DeBassio, and Peter DeBassio (Peter, Sr.) and Bessie DeBassio (collectively, "the plaintiff parents") individually, commenced this action against the defendants, Adam Moscato and his parents, Lisa and Pasquale Moscato, on August 31, 2009. The plaintiffs subsequently filed a second revised complaint (the complaint) on April 5, 2010. The central allegations made in the complaint are as follows. On or about April 5, 2008, Adam Moscato, who was a minor at the time, intentionally, willfully, wantonly and/or maliciously struck Peter, Jr. in the head with a golf club. At the time of this assault, Peter, Jr. was seven years old and was lawfully on a property in Orange, Connecticut owned by Lisa Moscato. As a result of the assault, Peter, Jr. suffered severe injuries to his head and brain that have resulted in long-term health and emotional problems. From these general allegations, the complaint sets forth twenty-three counts that are asserted against one or more of the defendants.
The complaint also includes a twenty-fourth count that is directed at Michael and Michelle Butler, but that count and those parties are not relevant to the motion to strike currently before the court.
On April 20, 2010, the defendants filed a motion to strike counts nine, ten, twelve, thirteen, fourteen, fifteen, seventeen and eighteen of the complaint. The motion to strike was accompanied by a memorandum of law. On June 17, 2010, the plaintiffs filed a memorandum of law in opposition to the motion to strike, and the parties presented argument before the court on July 6, 2010. At that time, counsel for the plaintiffs agreed that count fourteen should be stricken, and counsel for the defendants agreed that count fifteen is in fact legally sufficient and should not be stricken. Thus, only the legal sufficiency of counts nine, ten, twelve, thirteen, seventeen and eighteen remains in dispute.
CT Page 14566
II. Discussion
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). On the other hand, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . ." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
A. Counts Nine Ten: Bystander Emotional Distress Against Adam Moscato
In counts nine and ten of the complaint, the plaintiff parents set forth causes of action against Adam Moscato for negligent and reckless infliction of bystander emotional distress, respectively. These counts incorporate the allegations outlined above, and make the following additional allegations. At all relevant times, the plaintiffs lived directly across the street from the defendants. On the day of the incident, Peter, Sr. was alerted of the assault and went across the street where he found his injured son, at which point he "recogniz[ed] the severity of the incident [and] carried his son across the street . . . [where] he met Bessie DeBassio in the driveway . . ." The plaintiff parents then transported their son, Peter, Jr., to the hospital, where they witnessed the treatment he received as his condition rapidly deteriorated. The plaintiff parents claim that, as a result of having witnessed Peter, Jr. both shortly after he was assaulted and in the hospital after the incident, they have suffered severe emotional distress due to the negligence, carelessness, and recklessness of Adam Moscato.
The defendants move to strike these counts only as they pertain to Bessie DeBassio. They do so on the ground that the allegations do not plead facts satisfying all elements of a cause of action for infliction of bystander emotional distress. Specifically, they contend that the allegations indicate that Bessie DeBassio did not arrive at the scene where Peter, Jr. was injured before a substantial change occurred in his condition or location. The plaintiffs argue that there are allegations from which one could determine that Bessie DeBassio arrived on the scene before a substantial change in Peter, Jr.'s condition or location occurred, and that, as a result, this determination is ultimately a question of fact to be resolved at a later time. The court agrees with the plaintiffs.
In Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996), our Supreme Court recognized a valid cause of action for the infliction of emotional distress on third-party bystanders for the first time. In so doing, the Court rejected the so-called "zone of danger theory" as a means of limiting the scope of the duty owed to third-party bystanders by tortfeasors, and instead adopted a version of the "reasonable foreseeability rule." Id., 49-51. Accordingly, in Connecticut "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." Id., 56.
Again, the defendants take issue with the second element enumerated in Clohessy, and argue that nothing in counts nine and ten indicates that Bessie DeBassio experienced a contemporaneous sensory perception of the assault, or that she arrived on the scene of the assault soon after it transpired and before a substantial change in Peter, Jr.'s condition or location occurred. In essence, their argument is that, because counts nine and ten allege that Peter, Sr. carried Peter, Jr. across the street to Bessie DeBassio shortly after the assault, Bessie DeBassio never arrived at the "scene" of Peter, Jr.'s injury, and there was a substantial change in Peter, Jr.'s location prior to the moment she perceived him.
The court does not read the second element of the test articulated in Clohessy so narrowly. Thomas v. Trudeau, Superior Court, judicial district of Windham, Docket No. CV 07 5001330 (December 11, 2007, Martin, J.), provides an informative and persuasive interpretation of the Supreme Court's holding in Clohessy that is helpful in the present matter. In that case, the complaint at issue asserted a cause of action for negligent infliction of bystander emotional distress on behalf of a mother who witnessed her son, who was a minor at the time, running down the street as he was "smoldering, blistering and smoking . . ." Id. The allegations of the complaint indicated that the child caught on fire after one of the defendants, who was also a minor, started a fire that quickly spread to flammable debris, igniting the child's clothing and body. Id. The allegations further indicated that the mother witnessed her child screaming and running from the site of the fire shortly after he was put out, his skin still "bubbling, blistering, and smoking." Id. The defendants moved to strike the bystander emotional distress count "because the plaintiff . . . failed to allege that [the mother] 'contemporaneously observed the event or conduct that caused the claimed injury, or viewed the subject victim immediately after the injury causing event, in circumstances where no material change had occurred to the victim's location or condition.'" Id.
In considering this argument, Judge Martin noted that "[t]he Supreme Court in Clohessy did not elaborate on what constitutes a material change in the victim's condition or location. The Court did, however, state in a footnote that '[t]he critical factors are the circumstances under which the observation is made, and not any rigid adherence to the length of time that has passed since the accident. It is commonsensical that the greater the lapse of time, the less likely it is that the plaintiff will suffer the initial shocking experience of contemporaneous observation of serious injury or the grisly effects thereof.' (Emphasis added.) [ Clohessy v. Bachelor, supra, 237 Conn.] 53 n. 14. In recognizing this tort, our Supreme Court examined the law of other jurisdictions, citing to a number of cases regarding the requirement of contemporaneous observation; one such case from the Wyoming Supreme Court summed up the rationale of allowing a plaintiff to recover for witnessing the immediate aftermath of the injury. 'The essence of the tort is the shock caused by the perception of an especially horrendous event . . . It is more than the shock one suffers when he learns of the death or injury of a child, sibling or parent over the phone, from a witness, or at the hospital. It is more than bad news. The kind of shock the tort requires is the result of the immediate aftermath of an accident. It may be the crushed body, the bleeding, the cries of pain, and, in some cases, the dying words which are really a continuation of the event. The immediate aftermath may be more shocking than the actual impact.' Gates v. Richardson, 719 P.2d 193, 199 (Wyo. 1986). In contrast, our Supreme Court expressly refused to adopt the reasoning of Massachusetts in extending liability where the plaintiff first observed the victim 'at the hospital rather than at the scene of the accident.' Clohessy v. Bachelor, supra, 237 Conn. 53 n. 14.
"Decisions of the Connecticut Superior Court reflect this reasoning; typically, where relief is denied, the victim has been taken to the hospital before the plaintiff knows of the injury or sees the victim in an injured state. See, e.g., Gregory v. Plainville, Superior Court, judicial district of New Britain, Docket No. CV 03 0523568 (August 29, 2006, Shaban, J.) (denying relief when mother first saw her injured son in hospital intensive care unit); McGinnis v. Gallagher Electric, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 01 171020 (December 2, 2002, McWeeny, J.) (denying relief because complaint 'does not allege that [the plaintiff] was a bystander at the scene, or that she arrived on the scene soon after the accident, or that she observed the victim before substantial change had occurred in the victim's condition or location'). The Supreme Court established these temporal and spatial restrictions as a means of limiting recovery to specific plaintiffs and preventing a defendant from being 'compelled to pay for the lacerated feelings of every other person disturbed by reason of [the incident], including every bystander shocked at an accident, and every distant relative of the person injured, as well as all his friends.' Clohessy v. Bachelor, supra, 237 Conn. 50." Id.
Judge Martin then explained that, in the case before him, "the amended complaint allege[d] . . . that [the child] received severe burns from the explosion. His mother witnessed [the child] running down [the street] towards her immediately after the flames were extinguished, 'screaming in pain . . . while his body was still in the process of bubbling, blistering, and smoking.' This was not an instance of [the mother] seeing her badly burned son in the burn ward at the local hospital. The only reason . . . this was not [witnessed] at the scene of the explosion was that [the child] ran from the scene in a panic. Though [the child] may not have been at the actual site of the explosion and may not still have been on fire when [the mother] saw him, his mother encountering him running down the street, smoldering, blistering and smoking 'is the result of the immediate aftermath of an accident' and is analogous to 'the crushed body, the bleeding, the cries of pain, and, in some cases, the dying words which are really a continuation of the event.' Gates v. Richardson, supra, 719 P.2d at 199. This immediate aftermath, which [the mother] witnessed on [the street], is not a substantial change in the condition or location of the victim for the purposes of bystander emotional distress." Id.
Returning now to the allegations of counts nine and ten that are presently at issue, the plaintiff parents have alleged that the assault in question occurred directly across the street from where the defendants lived; that shortly after the assault Peter, Sr. arrived at the site of the incident and carried Peter, Jr. across the street to the driveway leading to the plaintiffs' home; that Bessie DeBassio was there in the driveway at that time and witnessed her son's injuries; that these injuries were severe; and that, all the while, Peter, Jr.'s physical condition continued to deteriorate. These allegations are sufficient to demonstrate that Bessie DeBassio witnessed her son shortly after he was assaulted, in the vicinity of the actual site where the assault took place, and that there was not a substantial change in Peter, Jr.'s physical condition prior to that time. Viewing these allegations in the light most favorable to the plaintiff parents, the court finds that they sufficiently assert causes of action for negligent and reckless infliction of bystander emotional distress. Ultimately, then, the trier of fact will be required to determine whether the lapse of time and the change of location established by the evidence was sufficiently substantial to bar recovery, or was instead merely a continuation of the immediate aftermath of the assault.
B. Count Twelve: Negligent Parental Supervision Against Pasquale Moscato
The parties are in disagreement with regard to what cause of action count twelve, which is directed only at Pasquale Moscato by Peter, Jr., attempts to assert. The defendants focus on paragraph eleven of count twelve. That paragraph makes reference to General Statutes § 52-572, which makes parents of unemancipated minors vicariously liable, up to an amount of $5,000, for property damage and personal injury caused by the willful and malicious acts of those minors. The defendants argue that this count is legally insufficient because it only alleges Peter, Jr.'s injuries were caused by Pasquale Moscato's negligent supervision of his son, Adam Moscato. The plaintiffs, on the other hand, contend that, taken as a whole, the allegations of count twelve are designed to set forth a direct cause of action against Pasquale Moscato for negligent parental supervision, regardless of paragraph eleven's reference to § 52-572. They argue there are sufficient allegations in count twelve to support this cause of action. The court agrees with the plaintiffs.
General Statutes § 52-572 provides:
(a) The parent or parents or guardian, other than a temporary guardian appointed pursuant to [§ ]45a-622, of any unemancipated minor or minors, which minor or minors wilfully or maliciously cause damage to any property or injury to any person, or, having taken a motor vehicle without the permission of the owner thereof, cause damage to the motor vehicle, shall be jointly and severally liable with the minor or minors for the damage or injury to an amount not exceeding five thousand dollars, if the minor or minors would have been liable for the damage or injury if they had been adults.
(b) This section shall not be construed to relieve the minor or minors from personal liability for the damage or injury.
(c) The liability provided for in this section shall be in addition to and not in lieu of any other liability which may exist at law.
(d) As used in this section, "damage" shall include depriving the owner of his property or motor vehicle or of the use, possession or enjoyment thereof.
The "[c]onstruction of pleadings is a question of law." Kovacs Construction Corp. v. Water Pollution Control Authority, 120 Conn.App. 646, 659, 992 A.2d 1157, cert. denied, 297 Conn. 912 (2010). Count twelve is clearly designed to set forth a cause of action for common-law negligence against Pasquale Moscato for his failure to properly supervise his son. Such a cause of action is recognized in Connecticut. See, e.g., Bebry v. Zanauskas, 81 Conn.App. 586, 591, 841 A.2d 282 (2004) ("[a]t common law . . . parental liability may be created . . . by independently negligent behavior on the part of parents"). While it is true that the reference made to § 52-572 in count twelve is immaterial, the proper way to obtain the deletion of any unnecessary or immaterial allegation in an adverse party's pleading is by use of a request to revise, not a motion to strike. See Practice Book § 10-35.
Count twelve alleges that Pasquale Moscato was negligent in a variety of ways, including his failure to exercise control over, monitor, supervise and restrain his minor child even though he knew or should have known about the child's anger management problems and propensity for violence.
In their memorandum of law, the defendants do recognize the validity of this cause of action. They state that "[n]egligent supervision of a minor child is recognized under Connecticut law as a viable common law claim against a parent."
The court finds that count twelve is legally sufficient to support a common-law cause of action for negligent parental supervision.
C. Count Thirteen: Vicarious Liability as to Pasquale Moscato
The parties are also in disagreement with regard to the nature of the cause of action stated in count thirteen, which is directed solely at Pasquale Moscato by the plaintiff parents. In count thirteen, the plaintiff parents assert that the acts of Adam Moscato that caused Peter, Jr.'s injuries were "willful, wanton and/or malicious," and that, as a result of these acts, they "were forced to expend monies on medical care on behalf [of their] minor son and will be forced to spend further sums for the same in the future." The defendants argue that because no statute is mentioned in count thirteen, it is brought pursuant to the common law. They further contend that, because "[a]t common law, the torts of children [did] not impose vicarious liability upon parents [as] parents" (internal quotation marks omitted); Bebry v. Zanauskas, supra, 81 Conn.App. 591; count thirteen does not state a legally cognizable cause of action. The plaintiffs argue that count thirteen is actually designed to set forth a claim for statutory vicarious liability pursuant to § 52-572, and that, although the Connecticut rules of practice direct that statutes be specifically pleaded, that requirement is merely directive. See, e.g., Rocco v. Garrison, 268 Conn. 541, 557, 848 A.2d 352 (2004) ("As long as the defendant is sufficiently apprised of the nature of the action . . . the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery").
Again, the "[c]onstruction of pleadings is a question of law." Kovacs Construction Corp. v. Water Pollution Control Authority, supra, 120 Conn.App. 659. The court finds that count thirteen is brought pursuant to the common law. This interpretation logically follows from a complete reading of the complaint. Specifically, the court notes that count fifteen, which is also brought by the plaintiff parents against Pasquale Moscato, is identical to count thirteen in all material respects, except that count fifteen expressly cites § 52-572 as a means of holding Pasquale Moscato vicariously liable for medical costs incurred by the plaintiff parents as a result of Adam Moscato's assault on Peter, Jr. Thus, in order to avoid interpreting the complaint as setting forth duplicative counts, the court construes count thirteen as a common-law claim for vicarious liability. Because, at common law, a parent was not vicariously liable for torts committed by his child; see Bebry v. Zanauskas, supra, 81 Conn.App. 591; count thirteen is legally insufficient and must be stricken.
D. Count Seventeen: Bystander Emotional Distress Against Pasquale Moscato CT Page 14573
In count seventeen, the plaintiff parents allege that Peter, Jr. was assaulted by Adam Moscato as a result of the negligent manner in which Pasquale Moscato supervised his son. The plaintiff parents assert that they witnessed Peter, Jr. in a severely injured state shortly after the assault, that they have suffered extreme emotional distress as a result, and that this emotional distress was caused by Pasquale Moscato's negligence. The defendants move to strike this count only as it pertains to Bessie DeBassio. They make the same argument here as they made in support of their motion to strike the negligent and reckless infliction of bystander emotional distress claims made against Adam Moscato in counts nine and ten. In other words, they argue that these allegations do not satisfy the second requirement of the test articulated in Clohessy v. Bachelor, supra, 237 Conn. 56. At short calendar, the parties agreed that if the court were to find that counts nine and ten are legally sufficient, it would necessarily follow that count seventeen is legally sufficient as well. Thus, because the court has determined counts nine and ten to be legally sufficient, it makes the same finding as to count seventeen.E. Count Eighteen
Count eighteen is directed solely against Pasquale Moscato by the plaintiff parents. The parties seem to be in agreement that count eighteen is designed to hold Pasquale Moscato vicariously liable for emotional distress suffered by the plaintiff parents as the result of witnessing the aftermath of Adam Moscato's assault on their son, Peter, Jr. However, the court notes that paragraph fifteen of count eighteen alleges that "[t]he infliction of emotional distress suffered by the [plaintiff parents] is as a direct result of the intentional, wilful, wanton, reckless and/or malicious acts of . . . Pasquale Moscato as outlined in paragraph [ten] of the [e]leventh [c]ount." (Emphasis added.) Thus, this count appears to be an attempt to hold Pasquale Moscato directly liable for the emotional distress suffered by the plaintiff parents as the result of his own "intentional, wilful, wanton, reckless and/or malicious acts." Despite the parties' characterizations of this count made outside the pleadings, the court does not, therefore, interpret it as setting forth a claim for vicarious liability.
The court further notes that the vicarious liability statute at issue elsewhere in the complaint, § 52-572, is not cited in count eighteen.
To this end, the court finds that this count is legally insufficient to support a cause of action against Pasquale Moscato for reckless infliction of bystander emotional distress because no allegations of reckless conduct are made against him. Paragraph fifteen of this count alleges that the intentional, wilful, wanton, reckless and/or malicious acts in question are outlined in paragraph ten of count eleven. That paragraph alleges as follows: "At all times herein mentioned, the defendant parent, Pasquale Moscato, was the parent and natural guardian of the minor defendant sharing joint custody with the other defendant/parent, Lisa Moscato, and the minor defendant was a member of each parent's household when the minor defendant willfully, wantonly and/or maliciously caused the severe personal injuries to the minor plaintiff as hereinbefore set forth." Nothing in this paragraph makes any assertion of fact that would indicate Pasquale Moscato acted intentionally, willfully, wantonly, recklessly and/or maliciously. The court therefore finds it legally insufficient to support a cause of action against him.
III. Conclusion
For the foregoing reasons, the defendants' motion to strike is granted as to counts thirteen, fourteen and eighteen. It is denied as to counts nine, ten, twelve, fifteen and seventeen.