Opinion
No. CV 03 0481896 S
July 15, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE # 104
Before the court is the defendant Wal-Mart Stores, Inc.'s Motion to Strike the first count of plaintiff Lucian Fresa's complaint.
On September 11, 2003, the plaintiff, Lucian Fresa, filed a four-count complaint against the defendants, Wal-Mart Stores, Inc. and Patricia Fresa. In count one, a claim for invasion of privacy against Wal-Mart, Lucian Fresa alleges the following facts. Lucian Fresa regularly filled prescriptions for medications at a Wal-Mart pharmacy. Patricia Fresa "sought and obtained [Lucian Fresa's] confidential medical records from . . . Wal-Mart and disseminated them to one or more third persons." Wal-Mart did not have the right to disclose and Patricia Fresa did not have the right to obtain Lucian Fresa's medical records. Wal-Mart's actions "unreasonably intruded upon Lucian Fresa's solitude and gave unreasonable publicity to [his] private life," which caused him to suffer humiliation and emotional distress.
Counts two through four of the complaint involve allegations that are not the subject of the present motion to strike.
On October 23, 2003, Wal-Mart moved to strike count one of the complaint on the ground that Lucian Fresa has failed to allege a legally sufficient claim for invasion of privacy. In compliance with Practice Book § 10-42, Wal-Mart filed a memorandum of law in support of its motion to strike. On October 21, 2003, Lucian Fresa filed a memorandum of law in opposition. Wal-Mart filed a reply memorandum on January 27, 2004. The present motion was heard on the short calendar on March 1, 2004.
The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "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." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Bhinder v. Sun Co., 263 Conn. 358, 366, 819 A.2d 822 (2003).
Wal-Mart moves to strike count one on the ground that Lucian Fresa has failed to allege sufficient facts demonstrating a claim for invasion of privacy because the allegations do not establish that Lucian Fresa's personal information was disseminated to the public at large. Lucian Fresa argues in opposition that count one sufficiently states a cause of action for invasion of privacy because the allegations support a claim for unreasonable intrusion upon the seclusion of another and for unreasonable publicity given to the other's private life.
"Connecticut has recognized the tort of invasion of privacy." Perkins v. Freedom of Information Commission, 228 Conn. 158, 171-72 n. 16, 635 A.2d 783 (1993). "[T]he law of privacy developed not as a single tort, but as a complex of four distinct kinds of invasion of four different interests of the plaintiff which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff to be let alone." (Internal quotation marks omitted.) Venturi v. Savitt, Inc., 191 Conn. 588, 591, 468 A.2d 933 (1983). "The four categories of invasion of privacy are set forth in 3 Restatement (Second) of Torts, § 652A as follows: § 652B — unreasonable intrusion upon the seclusion of another; § 652C — appropriation of the other's name or likeness; § 652D — unreasonable publicity given to the other's private life; and § 652E — publicity that unreasonably places the other in a false light before the public." Id.
The courts have consistently held that: "[i]f a count in a complaint purports to set out more than one cause of action, a [motion to strike] addressed to the entire count fails if it does not reach all of the causes of action pleaded." Wachtel v. Rosol, 159 Conn. 496, 499, 271 A.2d 84 (1970). In the present action, Lucian Fresa alleges, in count one, two invasion of privacy causes of action, in that "the defendants unreasonably intruded upon [his] solitude and [the defendants] gave unreasonable publicity to [his] private life)." In moving to strike count one, Wal-Mart only challenges the legal insufficiency of the unreasonable publicity to Lucian Fresa's private life claim. In its motion to strike, Wal-Mart fails to address the unreasonable intrusion upon the seclusion of another claim that is also alleged in the first count. "Where . . . two causes of action are combined in the same count, both will survive even though one might not otherwise state a cause of action if it had been pleaded in a separate count." (Internal quotation marks omitted.) McPhail v. Milford, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 054506 (February 25, 1999, Thompson, J.).
Wal-Mart addresses the legal insufficiency of the unreasonable intrusion upon the seclusion of another claim for the first time in its reply memorandum. This ground does not appear on the face of its motion to strike and, consequently, should not be considered by the court. In ruling on a motion to strike, "the court is required to look only to the grounds stated on the face of the motion" even when other arguments are presented in the party's memorandum of law. Masopust v. Citizens National Bank, Superior Court, judicial district of Windham at Putnam, Docket No. CV 062846 (March 8, 2001, Foley, J.), citing Practice Book § 10-41; see also Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987) (noting that the trial court, in ruling on a motion to strike, considers only the grounds specified in the motion).
Accordingly, because Wal-Mart's motion to strike fails to address both of Lucian Fresa's invasion of privacy causes of action in count one, its motion to strike count one is denied.
Skolnick, J.