Opinion
No. 566731
March 15, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#102)
The plaintiffs, Suzette Izquierdo and Juan Carlos Mendez, filed a complaint on August 14, 2003, claiming a violation of General Statutes § 22-357, negligence and bystander emotional distress arising from an incident between Izquierdo and the defendants' dog. The first two counts, the statutory claim and the negligence claim, are brought by Izquierdo, while the claim for bystander emotional distress is brought by Mendez.
The plaintiffs allege that they were at all relevant times engaged to be married and residing together in the same home. They further allege that on May 29, 2002, they were riding their bicycles at the same time that Michael Ricitelli was walking his dogs. One of the dogs, who was not restrained by a leash, ran after Izquierdo striking her bicycle and causing her to fall off the bicycle and sustain various injuries. Mendez further alleges that he was present and saw the attack and the injuries that Izquierdo received from the attack, and that he suffers emotional distress as a result of witnessing the attack that is beyond what would be anticipated by a disinterested witness.
On September 22, 2003, the defendants filed a motion to strike count three of the complaint, bystander emotional distress, accompanied by a memorandum of law in support of the motion. In accordance with Practice Book § 10-42, the plaintiffs filed a memorandum of law in opposition of the defendants' motion to strike on September 26, 2003. Oral argument was heard on this matter on December 8, 2003.
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 Conservatory, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike is the proper vehicle to test whether Connecticut is ready to recognize some newly emerging ground of liability." Allan v. Hartford Courant, Superior Court, judicial district of Hartford, Docket No. CV 00 0599993 (March 8, 2001, Berger, J.). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party'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). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 822 A.2d 1202 (2003).
In order to allege properly a claim for bystander emotional distress a plaintiff must allege facts to satisfy a four-part test. First, the plaintiff must be "closely related to the injured victim." (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 52, 675 A.2d 852 (1996). Second, "the bystander's emotional distress must be caused by the contemporaneous sensory perception of the event or conduct that causes the injury." Id. Third, "the injury to the victim must be substantial, resulting in either death or serious physical injury." Id., 53. Finally, the bystander must have "sustained a serious emotional injury — that is a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances." (Internal quotation marks omitted.) Id., 54.
The defendants move to strike count three on the ground that it does not state a claim for which relief can be granted. In support of their motion to strike the defendants argue that under Clohessy, Mendez would not be able to recover because as Izquierdo's fiancee he is not a member of her family. This court agrees with the holding in Miller v. Curtis, Superior Court, judicial district of Hartford, Docket No. CV 99 0587266 (October 22, 1999, Booth, J.) (25 Conn. L. Rptr 565, 566), that a cohabiting fiancee is a member of the victim's family under Clohessy.
In recognizing a cause of action for bystander emotional distress, the court in Clohessy placed a great emphasis on what is reasonably foreseeable. Clohessy v. Bachelor, supra, 237 Conn. 47. Furthermore, "[t]he class of potential plaintiffs should be limited to those who because of their relationship suffer the greatest emotional distress. When the right to recover is limited in this manner, the liability bears a reasonable relationship to the culpability of the negligent defendant . . . This court has previously recognized the importance of such relationships within the framework of our tort law. For example, the court recognized in the context of loss of consortium between husband and wife that the mental and emotional anguish caused by seeing a healthy, loving, companionable mate turn into a shell of a person is undeniably a real injury." (Citation omitted; internal quotation marks omitted.) Id., 52.
The court in Clohessy intentionally did not define the term "closely related." Id. ("[leaving] to another day the question of what other relationships may qualify"). The definition of the word "relation" is not limited to a marital or familial bond. Relation is "the connection of two persons, or their situation with respect to each other, who are associated, whether by law, by their agreement, or by kinship, in some social status or union for the purpose of domestic life . . ." Black's Law Dictionary (6th Ed. 1990). A cohabitating fiancee falls within this definition.
In Miller v. Curtis, supra, 25 Conn. L. Rptr. 565, the court considered a New Jersey Supreme Court case, Dunphy v. Gregory, 136 N.J. 99, 642 A.2d 372, 377 (1994), which deals with the same issue now before this court. The relationship prong under New Jersey law is different from Connecticut law. In New Jersey, a plaintiff must show that there exists "a marital or intimate, family relationship between the plaintiff and the injured person" Miller v. Curtis, supra, 25 Conn. L. Rptr. 565, quoting Dunphy v. Gregory, supra, 136 N.J.103. In Miller v. Curtis, supra, the court, while acknowledging the differences between the tests in the two states, found the reasoning in Dunphy applicable. "Foreseeability based on [a standard of a martial or intimate family relationship] . . . preserves the distinction that must be made between ordinary emotional injuries that would be experienced by friends and relatives in general and those indelibly stunning emotional injuries suffered by one whose relationship with the victim at the time of the injury, is deep, lasting, and genuinely intimate . . . Persons engaged to be married and living together may foreseeably fall into that category of relationship. Given the widespread reality and acceptance of unmarried cohabitation, a reasonable person would not find the plaintiff's emotional trauma to be remote and unexpected." (Citation omitted; internal quotation marks omitted.) Miller v. Curtis, supra, 25 Conn. L. Rptr. 565-66, quoting Dunphy v. Gregory, supra, 136 N.J. 110. This court agrees with Judge Booth's decision in Miller v. Curtis and holds that the relationship between a cohabitating engaged couple is one of the relationships that qualify under the definition of a person who is "closely related to the injured victim."
Based on the foregoing, the defendants' motion to strike the third count, bystander emotional distress, is denied.
D. Michael Hurley, JTR