Opinion
No. NNH CV 06 5005107 S
July 20, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (#115)
STATEMENT OF CASE
On November 15, 2007, the plaintiffs, Madeleine Gleason and B and B Transportation, Inc., filed a revised complaint with the court. In an eighteen-count complaint, the plaintiffs allege multiple causes of action against each of the defendants, Janice Smolinski, Paula Bell and John Murray. Specifically, counts thirteen through eighteen allege unreasonable intrusion upon seclusion and privacy, appropriation of name and likeness, unreasonable publicity to the private life, false light, intentional infliction of emotional distress and negligent infliction of emotional distress, respectively, against Murray.
This action was originally commenced against John Murray by service of process on July 12, 2006.
The facts, as alleged by the revised complaint, are as follows. Gleason is a private citizen who resides in Woodbridge, Connecticut and Murray is the owner, publisher and editor of The Waterbury Observer, a monthly newspaper with wide circulation in the New Haven county area. In March 2006, Murray authored an article and published it in his newspaper. The article reported the events surrounding the disappearance of a local man named Billy Smolinski, a former romantic interest of Gleason's. In the story, Murray chronicled many of the events of Gleason's life, including her relationship with Billy, her multiple marriages and divorces, the suicide of one of her children, the drug overdose of another and the incarceration of a third. In addition, Murray seemingly interviewed Billy's mother, Janice Smolinski, and published her version of the multiple altercations that she had with Gleason after the disappearance of her son, including her witnessing Gleason's destruction of the missing person posters that she had placed throughout the community. Finally, Murray also published several photographs that depicted Gleason in public, albeit without her permission, and printed Janice Smolinski's opinion that Gleason "knew something about Billy's disappearance."
On February 6, 2009, the defendant Murray filed a motion to strike counts thirteen through eighteen of the revised complaint, on the ground that each is legally insufficient. In addition, Murray also filed a memorandum of law in support of the motion to strike at that time. On February 17, 2009, the plaintiffs filed a brief in opposition to the motion to strike counts thirteen through eighteen, in which, they argue that each count states a claim upon which relief can be granted.
DISCUSSION LEGAL
"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). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996 (2007). "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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). 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). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a course of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). Nevertheless, "[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, supra, 262 Conn. 498.
1. Count Thirteen: Unreasonable Intrusion Upon the Seclusion of Another
In count thirteen, the plaintiffs allege that the article published by Murray's newspaper constituted an unreasonable intrusion upon her seclusion and therefore, Murray is liable for an invasion of privacy. Murray moves to strike count thirteen on the ground that "the complaint fails to allege facts necessary to complete the tort of invasion of privacy." In their brief in opposition to the motion to strike, the plaintiffs respond that Murray is obligated to expand his argument by specifying why count thirteen does not satisfy the required elements of this tort, and until he has done so, they are not required to respond. Although it is true that the Connecticut Supreme Court "will not uphold the granting of [a] motion to strike on a ground not alleged in the motion;" Blancato v Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987); in this case Murray has alleged sufficient grounds upon which a motion to strike can be granted. He claims that the complaint does not allege the required elements of the unreasonable intrusion upon the seclusion of another. Therefore, the court will examine the required elements of this claim to determine whether the facts alleged by the plaintiffs can support this cause of action.
"[T]he law of privacy has not developed 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 . . . The four categories of invasion of privacy are set forth . . . as follows: (a) unreasonable intrusion upon the seclusion of another; (b) appropriation of the other's name or likeness; (c) unreasonable publicity given to the other's private life; or (d) publicity that unreasonably places the other in a false light before the public. Indeed, these four categories have been adopted by a number of courts that have recognized the privacy right of action." (Citations omitted; internal quotation marks omitted.) Foncello v. Amorossi, 284 Conn. 225, 234, 931 A.2d 924 (2007). "The Connecticut Appellate Courts have yet to interpret what constitutes an invasion of privacy under the first category: an unreasonable intrusion upon the seclusion of another." (Internal quotation marks omitted.) Birge v. Medical Electronic Distributors, Inc., Superior Court, judicial district of New London, Docket No. CV 07 6000054S (December 1, 2008, Abrams, J.). The Supreme Court, however, has often adopted the Restatement when adjudicating an invasion of privacy claim; see Foncello v. Amorossi, supra, 284 Conn. 234; Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 127, 448 A.2d 1317 (1982); and the Superior Court has consistently followed this practice when considering the tort of unreasonable intrusion upon the seclusion of another. See Birge v. Medical Electronic Distributors, Inc., supra, Superior Court, Docket No. CV 07 6000054S; Bonanno v. Dan Perkins Chevrolet, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99 066602 (February 4, 2000, Nadeau, J.) [ 26 Conn. L. Rptr. 368]; Hellanbrand v. National Waste Associates, LLC, Superior Court, judicial district of Hartford, Docket No. CV 07 5010727 (January 31, 2008, Hale, J.T.R.) ( 44 Conn. L. Rptr. 849). This court, therefore, will do the same.
"One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person." 3 Restatement (Second), Torts § 652B, p. 378 (1977). "This is said to consist of intentional interference with another's interest in solitude or seclusion, either as to his person or to his private affairs or concerns." W. Prosser W. Keeton, Torts (5th Ed. 1984) § 117, p. 854.
The plaintiffs' complaint quotes several excerpts from Murray's newspaper article, but it fails to allege an actual intrusion, physical or otherwise. It has been said that, "[t]he invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff's room in a hotel or insists over the plaintiff's objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff's private affairs, as by looking into his upstairs windows with binoculars or taping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined." See 3 Restatement (Second), supra, § 652B, comment (b). The plaintiffs do not allege facts concerning how Murray obtained any of this information and therefore, there is no allegation of any form of offensive investigation or other intrusion into Gleason's life by invading her privacy. Publication of private information alone is not legally sufficient to sustain this particular cause of action, which is concerned with the methods used when obtaining private information, rather than its subsequent dissemination. Id. Accordingly, the defendant's motion to strike count thirteen is granted.
2. Count Fourteen: Appropriation of the Other's Name or Likeness
In count fourteen of the plaintiffs' revised complaint, the plaintiffs incorporate the above summarized facts and further allege that "the defendant Murray tortiously appropriated the name and likeness of the plaintiff Gleason." In his motion to strike, Murray argues that this count "fails to allege facts necessary to complete the tort of appropriation of likeness, and thus fails to state a claim upon which relief can be granted." Specifically, in his memorandum of law in support, Murray contends that "there can be no invasion of privacy claim where the photograph is made in a public space." In their brief in opposition, the plaintiffs claim that Murray, "has indeed attempted to market his newspaper through the use of the plaintiff's private information, her name, and her secretly photographed likeness."
Although the Supreme Court has never provided the courts with the elements required to state a claim sounding in appropriation of name or likeness, it has acknowledged the tort's existence under the law of Connecticut. Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 127; Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983) (seeming to accept the plaintiff's contention that the elements required for this tort under the law of Connecticut are provided by the Restatement). The Restatement provides that: "One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy." 3 Restatement (Second), supra, § 652C. The restatement also provides, however, that "[t]he value of the plaintiff's name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness. Thus a newspaper, although it is not a philanthropic institution, does not become liable under the rule stated in this Section to every person whose name or likeness it publishes." (Emphasis added.) Id., § 652C, comment (d).
Upon considering count fourteen of the revised complaint, the court notes that the plaintiffs do little more than allege that Murray wrote an article about the circumstances surrounding the disappearance of Billy Smolinski, which included a discussion of Gleason's past activities. "The common form of invasion of privacy under the rule here stated is the appropriation and use of the plaintiff's name or likeness to advertise the defendant's business or product, or for some similar commercial purpose." 3 Restatement (Second), supra, § 652C, comment (b). For example, it has been said that a plaintiff's privacy is invaded if "A is an actress, noted for her beautiful figure. B, seeking to advertise his bread, publishes in a newspaper a photograph of A, under the caption, `Keep That Sylph-Like Figure by Eating More of B's Rye and Whole Wheat Bread.'" Id., § 652B, comment (b) illustration (1). The plaintiffs, in this case, have alleged a publication, but failed to allege any invasion similar to this example. Rather, their claim seemingly relies on the mere fact that Murray published Gleason's name and photograph in his newspaper article. As the restatement makes clear, without facts evidencing an actual appropriation, this claim is legally insufficient.
The court, therefore, finds that count fourteen of the plaintiffs' revised complaint fails to state a cause of action upon which relief can be granted. Accordingly, Murray's motion to strike count fourteen of the revised complaint is granted.
3. Count Fifteen: Unreasonable Publicity Given to the Other's Private Life
In count fifteen, the plaintiffs allege that the article published by Murray's newspaper was an unreasonable publicity given to Gleason's private life. Murray moves to strike this count on the ground that it is legally insufficient because "the Observer addresses an actual missing man, and the perceived lack of law enforcement in the solution of the case. The complaint does not allege there is no legitimate public concern to the issue, nor do the facts presented demonstrate the absence of a legitimate public concern." In response, the plaintiffs argue that, "[t]he defendant does not even attempt to support his argument with any sort of analysis. In what possible way can his long and lurid newspaper articles discussing the alleged details of the plaintiff's intimate personal life be `of legitimate public concern.'"
The Supreme Court has made clear that the claim of unreasonable publicity given to the other's private life is "governed by first amendment principles." Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 132. "Such a private facts claim is actionable only if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public . . . A media defendant is constitutionally permitted to publicize facts concerning an individual's private life so long as those facts are newsworthy . . . and in conducting this inquiry we consider [1] the social value of the facts published, [2] the depth of the article's intrusion into ostensibly private affairs, and [3] the extent to which the party voluntarily acceded to a position of public notoriety." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 133.
Upon considering the allegations contained in count thirteen and incorporated by reference into count fifteen, the court finds that most of the quoted excerpts of the article at issue pertain to Gleason's relationship with Billy Smolinski shortly before his disappearance, and therefore is a legitimate concern of the public. The remaining passages, however, briefly discuss Gleason's children and her previous marriages. Although these excerpts do not have particular relevance to the disappearance of Billy Smolinski, reports of suicide, overdose and incarceration are typically considered newsworthy. Although tragic and painful to family and friends, the media publishes stories regarding occurrences such as these on a daily basis. In addition, these quoted excerpts do not delve into the depths of these happenings, unearthing the most intimate private matters, but rather merely inform the reader of their existence. A finding that such facts are legally sufficient would surely set the first amendment bar too low for this cause of action.
Count fifteen, therefore, fails to allege private facts that are not of legitimate concern to the public. Accordingly, the defendant's motion to strike count fifteen is granted.
4. Count Sixteen: False Light
In count sixteen, the plaintiffs allege that the aforementioned facts "placed [Gleason] in a false light before the public." Murray moves to strike this count on the ground that "[t]here is no claim the contents of the article were false." Responding to Murray's motion, the plaintiffs argue that, "[t]he defendant did not file a request to revise the complaint seeking greater detail in that allegation and therefore must be content with it as it is. While it is a brief assertion, it expressly states that Murray's assertions placed the plaintiff before the public in false light and therefore, albeit perhaps only barely, states the necessary allegations to maintain this claim." Contrary to the plaintiffs' claim, however, the Appellate Court has made it clear that a party is not required to file a request to revise when a complaint is legally insufficient. See JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 130, 952 A.2d 56 (2008) ("[s]pecifically, the defendants claim that instead of filing a motion to strike, the plaintiff should have filed a request to revise under Practice Book § 10-35 et seq. We disagree"). The court, therefore, must determine whether count sixteen contains the elements required to sufficiently plead a false light invasion of privacy tort.
"To the extent that freedom of the press is involved in this claim, federal law is relevant. The United States Supreme Court first considered the parameters of false light invasions of privacy in Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). In construing New York's statutory right of privacy against the requirements of the first amendment, the court held that the actual malice standard of New York Times Co. v. Sullivan was applicable to privacy actions. `We hold that the constitutional protections for speech and press preclude the application of the . . . statute to redress false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth." (Citations omitted; emphasis in original; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 129.
"[A] false light invasion of privacy occurs if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed . . . This form of invasion of privacy protects one's interest in not being placed before the public in an objectionable false light or false position, or in other words, otherwise than as he is . . . The essence of a false light privacy claim is that the matter published concerning the plaintiff (1) is not true . . . and (2) is such a major misrepresentation of his character, history, activities or beliefs that serious offense may reasonably be expected to be taken by a reasonable man in his position." (Citations omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 131.
The plaintiffs claim that the facts alleged in the complaint place Gleason in a false light and that this is legally sufficient to maintain this cause of action. Nowhere in count sixteen do the plaintiffs plead that any part of the article authored and published by Murray in The Waterbury Observer was false or inaccurate. The plaintiffs' complaint, therefore, can be interpreted as merely alleging that, "[d]espite the truth of such statements there exist additional circumstances which when expanded, cast [Gleason] in a more favorable light more in keeping with reality . . . To allow recovery upon such a claim would violate the defendant's first amendment rights since [t]he choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment . . . Under the first amendment, a media defendant can be liable for a false light invasion of privacy only where it publishes highly offensive material without regard to its falsity, and to the false impression relayed to the public . . . As long as the matter published is substantially true, the defendant was constitutionally protected from liability for a false light invasion of privacy, regardless of its decision to omit facts that may place the plaintiff under less harsh public scrutiny." (Citations omitted; emphasis in original; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 132.
The court, therefore, finds that contrary to the plaintiffs' argument, count sixteen fails to plead a legally sufficient cause of action because it lacks an allegation that statements in the article were false. Accordingly, the defendant's motion to strike count sixteen is granted.
5. Count Seventeen: Intentional Infliction of Emotional Distress
In count seventeen of the revised complaint, the plaintiffs claim that "[t]he conduct of defendant Murray described above was extreme and outrageous and was carried out with the knowledge that it probably would cause the plaintiff Gleason to suffer emotional distress." Murray moves to strike this count on the ground that the alleged conduct is not extreme and outrageous and that "[t]here can be no serious disagreement that the facts contained in the article do not rise to this level, particularly where there is no claim the article is false." Responding to Murray's motion to strike, the plaintiffs contend that "it is difficult to imagine behavior more extreme and outrageous than that alleged in this case." The plaintiffs then summarize several cases where a complaint was found to be sufficient and argue that the facts of this case are more extreme and outrageous than precedent requires.
"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 . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . .
"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim `Outrageous!' . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). "[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
Although the plaintiffs argue that "[t]his court does not `sit as a seventh juror,'" precedent makes clear that the court must perform its gatekeeping function by applying the "Outrageous!" test. In addition, the court notes that none of the cases cited by the plaintiffs are directly on point with the facts of this case. Upon considering the quoted excerpts of the subject article contained within the plaintiffs' complaint, the court finds that count seventeen fails to set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. As previously discussed, the complaint fails to allege any invasive behavior on the part of Murray when investigating this information and the substantive content of the article itself is newsworthy and resembles what a reasonable person may expect from investigative journalism. Surely, reasonable minds would agree that count seventeen is lacking of any allegation that would cause an average member of the community resentment against Murray, and lead him to exclaim "Outrageous!"
The court, therefore, finds that count seventeen is legally insufficient because it fails to allege extreme and outrageous conduct which rises to the level required by the law. Accordingly, Murray's motion to strike count seventeen is granted.
6. Count Eighteen: Negligent Infliction of Emotional Distress
In count eighteen of the revised complaint, the plaintiffs claim that, given the aforementioned facts, "the defendant Murray negligently engaged in conduct which he knew or should have known was likely to cause the plaintiff Gleason, as it would any person of ordinary sensibilities, to suffer emotional distress so severe that it could result in physical illness." In his motion to strike, Murray contends that "[t]he complaint does little more than recite certain portions of one article from the Observer. Without offering a single example of how the publication of the information in the article, as opposed to the events themselves, caused a risk of distress leading to illness." The plaintiffs respond by arguing that "these elements are fairly to be inferred from the allegations of the Revised complaint."
"[I]n 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.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522 (2005). To prevail on a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
As to the first and second elements, they "essentially [require] that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Larobina v. McDonald, supra, 274 Conn. 410.
After reviewing count eighteen of the defendant's complaint, the court finds that the plaintiffs do little more than recite the generic language provided by the Supreme Court in Carrol. There are no specific facts alleged pertaining to Gleason's distress and thus, it is impossible to tell whether it could be reasonable, given Murray's conduct. As previously stated, "[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, supra, 262 Conn. 498. In this case, the complaint states that the defendant's conduct "cause[d] the plaintiff Gleason, as it would any person of ordinary sensibilities, to suffer emotional distress." Such a statement is a legal conclusion because it lacks any substantive facts particular to Gleason. Allowing such allegations to survive a motion to strike would essentially render Connecticut's fact pleading requirements irrelevant.
Furthermore, courts have held that when the facts suggest that emotional distress could be caused by a number of external factors, the plaintiff must show why this specific defendant's conduct created an additional risk of distress, above and beyond the distress that would have otherwise occurred. Ancona v. Manafort Bros., Inc., 56 Conn.App. 701, 713-14, 746 A.2d 184, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000); Hayes v. Yale-New Haven Hospital, 48 Conn.Sup. 311, 345, 844 A.2d 258 (2001), aff'd, 82 Conn.App. 58, 842 A.2d 616 (2004). In this case, there are several alleged facts that could have caused Gleason emotional distress, including the abrupt disappearance of Billy Smolinski. If Gleason suffered emotional distress, whether reasonable or not, it is unclear from the facts alleged whether it was caused by Murray's conduct. The plaintiffs do not allege that Gleason read Murray's article about Billy Smolinski, nor do they allege Gleason's immediate reaction, if she did in fact read the article. Without such allegations, the fourth element required to state a claim of negligent infliction of emotional distress cannot be satisfied.
Count eighteen, therefore, fails to allege facts that are legally sufficient to state the claim of negligent infliction of emotional stress. Accordingly, Murray's motion to strike count eighteen of the plaintiffs' complaint is granted.
CONCLUSION
For the aforementioned reasons, each count of the revised complaint alleged against the defendant Murray is legally insufficient. Accordingly is motion to strike each claim is granted.