Opinion
No. CV 10 5033088 S
November 10, 2010
MEMORANDUM OF DECISION
The plaintiff, Jane Doe, commenced this action on January 25, 2010, by service of process on the defendant, Jack Guido. The plaintiff's amended complaint alleges the following facts. Starting in 2003, when the plaintiff was thirteen years old, the defendant surreptitiously installed two video cameras in the plaintiff's bedroom and an additional video camera in the plaintiff's bathroom. The defendant then videotaped the plaintiff dressing, undressing, and using the bathroom. A third party later discovered a videotape containing a compilation of the footage of the plaintiff recorded by the defendant. The third party reported the tape's content to the police. The police then viewed the tape in its entirety. The police then contacted the plaintiff's mother.
Jane Doe is a pseudonym. The parties agreed by stipulation filed February 22, 2010, that the plaintiff could continue litigating this case under a fictitious name until further order by the court.
The defendant contacted the plaintiff's mother and confessed to her that the police were in possession of the tape, that the defendant had secretly taped the plaintiff for years, and that the defendant had become "obsessed" with the plaintiff. He further revealed to the plaintiff's mother that he had created several videotapes of the plaintiff, but that he believed that he had destroyed all of those tapes. The plaintiff and her mother viewed the tape with the police and identified the plaintiff as the individual on the tape.
The plaintiff's amended complaint consists of four counts. The first count alleges invasion of privacy. The second count alleges negligent infliction of emotional distress. The third count alleges intentional infliction of emotional distress. The fourth count alleges negligence.
On October 4, 2010, the defendant moved to strike count three of the plaintiff's amended complaint on the ground that count three fails to state a cognizable common-law cause of action. Specifically, the defendant moved to strike count three on the ground that the plaintiff failed to allege that the defendant intended to cause emotional distress to the plaintiff. The defendant filed an accompanying memorandum of law in support of the motion to strike. On October 20, 2010, the plaintiff objected the defendant's motion to strike count three of the amended complaint and submitted a memorandum of law in opposition to the motion. The court heard the matter at short calendar on October 25, 2010.
"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). "We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
In support of his motion to strike count three of the plaintiff's amended complaint, the defendant argues that the plaintiff failed to allege that the defendant intended to cause the plaintiff's emotional distress. In response, the plaintiff counters that in order to state a claim for intentional infliction of emotional distress, the plaintiff need only allege that the defendant acted recklessly, not that the defendant acted with the specific intent to cause the plaintiff's emotional distress. The plaintiff therefore argues that the amended complaint's allegation of secret videotaping is sufficient to imply that the "defendant knew or should have known that her emotional distress was likely."
"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.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000). In recognizing the tort, our Supreme Court incorporated the Restatement (Second) of Torts. Peytan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986); see also Hiers v. Cohen, 31 Conn.Sup. 305, 308, 329 A.2d 609 (1973) (recognizing the tort of intentional infliction of emotional distress and citing the Restatement (Second) of Torts).
While the tort is termed "intentional" infliction of emotional distress, the plaintiff need not allege that the defendant acted with the specific intent to cause the plaintiff's emotional distress in order to overcome a motion to strike. Rather, the plaintiff may allege either that the defendant's conduct was intentional or that the defendant acted recklessly. 1 Restatement (Second) Torts § 46, pp. 71-72 (1965) ("[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress . . ." Comment (i) to § 46 of the Restatement clarifies that "[t]he rule stated in this [s]ection applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain to result from his conduct. It applies also where he acts recklessly . . . in deliberate disregard of a high degree of probability that the emotional distress will follow." Id., comment (i); see also Giovanelli v. Cantor, Floman, Gross, Kelly Sacramone, Superior Court, judicial district of New Haven, Docket No. 07 5010641 (January 30, 2008, Robinson, J.) ( 44 Conn. L. Rptr. 802) (denying the defendant's motion to strike the plaintiff's claim of intentional infliction of emotional distress because the plaintiff's complaint alleged that "the defendants knew or should have known that emotional distress was likely to result"); Chmelecki v. Decorative Screen Printers, Inc., Superior Court, Judicial District of New London, Docket No. 95 532041 (June 19, 1995, Hurley, J.) ("[a]n allegation of reckless conduct which inflicts emotional distress is regarded as an allegation of intentional infliction of emotional distress").
In cases factually similar to this one, appellate courts of other jurisdictions have held that allegations of a defendant's secret viewing of the plaintiff in an intimate situation sufficiently stated a claim with respect to the intent element of the tort. For example, in Dana v. Oak Park Marina, Inc., 230 App.Div.2d 204, 209, 660 N.Y.S.2d 906 (1997), the plaintiff's complaint alleged that the defendant installed surveillance cameras in rest rooms, videotaped over 150 female employees and customers in various states of undress, and then displayed the tapes to others "for purposes of trade." Id., 204. The Appellate Division reversed the trial court's dismissal, ruling that "reckless conduct is encompassed within the tort denominated intentional infliction of emotional distress." There, the allegations in the complaint were sufficient to allege that "the defendants disregarded a substantial probability of causing severe emotional distress." (Internal quotation marks omitted.) Id., 209.
Similarly, in Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 429 (S.D. 1994), the plaintiffs presented evidence at trial that they were employed by the defendant; that they discovered a hole in the wall between a vacant work area and the ladies' restroom; and that "[one plaintiff] observed [the defendant] apparently looking into the restroom through the hole in the wall from the vacant work area" while another plaintiff was using the restroom. Id., 422. The Supreme Court of South Dakota ruled that the evidence presented was sufficient to overcome a motion for a directed verdict: "Although the trial court decided that there was no intent on the part of [the defendant] to cause [the] plaintiffs severe emotional distress, we are of the opinion that there was sufficient evidence to create a jury question as to whether or not [the defendant's] conduct intentionally or recklessly caused the plaintiffs an extreme disabling emotional response." Id., 429.
Construing the facts alleged in the plaintiff's amended complaint in the light most favorable to sustaining its legal sufficiency, the plaintiff has alleged sufficient facts to survive a motion to strike with respect to the defendant's intent. In her amended complaint, the plaintiff alleges that the defendant installed two cameras in her bedroom and a camera in her bathroom. She further alleges that the defendant videotaped her while she was undressing and while she was using the bathroom when she was thirteen years old. Taking the allegations in the complaint as admitted, those allegations are sufficient to infer that the defendant deliberately disregarded a high probability that emotional distress would follow. If true, the defendant's actions created a high probability of emotional harm to the plaintiff. The defendant must have been aware of that risk but acted in the face of it.
For the foregoing reasons, the defendant's motion to strike the third count of the plaintiff's amended complaint is denied.