Opinion
CV126006597S.
12-12-2012
David KIDNEY v. Douglas B. SHERMAN et al.
John R. Williams, New Haven, for David Kidney.
UNPUBLISHED OPINION
John R. Williams, New Haven, for David Kidney.
JOHN A. DANAHER, III, J.
On August 28, 2012, the defendants, Douglas B. Sherman, Little Town Mechanical Contractors, Inc. and Good Hill Farm Property, LLC, moved to strike counts four and five of the plaintiff's complaint. On September 13, 2012, the plaintiff, David Kidney, filed his memorandum in opposition to the motion. This matter came before the court on short calendar and was heard on October 22, 2012. The motion to strike count four is granted; the motion to strike count five is denied.
I
PROCEDURAL AND FACTUAL HISTORY
On May 3, 2012, the plaintiff filed his complaint alleging, in count one, that on various dates in 2011, and on March 7, 2012, defendant Douglas Sherman " falsely and maliciously" stated to various individuals that the plaintiff was " dishonest and incompetent in the practice of his profession." The plaintiff claims that the foregoing statements were defamatory and caused him injury. The second count incorporates the allegations of count one and alleges tortious interference with business expectations. In the third count, the plaintiff alleges that Sherman's statements constituted a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b.
In count four, one of the two counts subject to the motion to strike, the plaintiff contends that the allegedly defamatory statements were " extreme and outrageous" and that they were made with the knowledge that they were " likely to cause the plaintiff to suffer emotional distress." Thus, count four seeks recovery for intentional infliction of emotional distress. Finally, the fifth count, also subject to the motion to strike, alleges that Sherman's allegedly defamatory statements were " likely ... to [cause the plaintiff] emotional distress sufficiently severe as to cause physical illness." The plaintiff, therefore, seeks recovery for negligent infliction of emotional distress.
II
PARTIES' ARGUMENTS
The defendants move to strike count four on the ground that it is legally insufficient because it does not allege any conduct that can be considered extreme and outrageous. The defendants move to strike count five because it fails to allege the existence of a duty owed by the defendants to the plaintiff.
In contrast, the plaintiff contends that he has properly pleaded both intentional and negligent infliction of emotional distress in counts four and five, respectively.
III
DISCUSSION
Practice Book § 10-39(a) provides in relevant part: " Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ... or of any one or more counts thereof, to state a claim upon which relief can be granted, ... that party may do so by filing a motion to strike the contested pleading or part thereof." " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. " (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
In ruling on a motion to strike, the court must " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). The court is limited, in its review, " to a consideration of the facts alleged in the complaint." Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996); see Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).
" [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).
A
Count Four
" In order for [a] 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 ... 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.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442-43, 815 A.2d 119 (2003).
" 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." (Internal quotation marks omitted.) Benton v. Simpson, 78 Conn.App. 746, 753, 829 A.2d 68 (2003). " [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, counterclaim or cross 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 it 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." Hartmann v. Gulf View Estates Homeowners Ass'n., Inc., 88 Conn.App. 290, 295, 869 A.2d 275 (2005). " [T]here is no bright line rule to determine what constitutes extreme and outrageous conduct sufficient to maintain this action. The court looks to the specific facts and circumstances of each case in making its decisions." (Internal quotation marks omitted.) Craddock v. Church Community Supported Living Ass'n., Superior Court, judicial district of Hartford, Docket No. CV 99 0592711 (November 13, 2000, Hennessey, J.).
In Crane v. Northwestern Connecticut Young Mens Christian Ass'n ., Superior Court, judicial district of Litchfield, Docket No. CV 04 4001019 (May 25, 2005, Bozzuto, J.), the plaintiff alleged that the defendants " intentionally caused her emotional distress by speaking and/or publishing defamatory statements about her capabilities as a swim coach to the parents of the members of the swim team she coached ... [She] [alleged] that [a] defendant ... willfully and maliciously contacted her other employer seeking a swim coach recommendation with knowledge that she was the only swim coach at that facility and with knowledge that such inquiry would cause the plaintiff's employer to question why she was terminated from her coaching position at [the] [YMCA.]" Id. The court concluded that " [c]ourts have placed a very high burden on those claiming extreme and outrageous conduct ... While the statements and actions of the defendants may have been rude, inappropriate and potentially harmful to the plaintiff's career as a swim coach, their behavior does not rise to the level of extreme and outrageous conduct." (Citation omitted.) Id.
In Langer v. Mail Delivery & Courier Services, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 05 4008535 (February 9, 2006, Hiller, J.), shortly after the plaintiff's employment was terminated, two defendants stated in front of the plaintiff's daughter: " [Plaintiff] was a thief, a liar ... Oh yeah, yeah, [plaintiff] is a[b], many customers smelled strong alcohol odor on his breath in the daytime ... He was a useless cheat, a loafer, a common drunkard ... I am glad [plaintiff] is gone for good, customers hated him, because he was a no good[b] ... True, [plaintiff] was a thief, who always complained too much, and took my money." (Expletives omitted; internal quotation marks omitted.) In granting a motion to strike, the court concluded that " [i]n making these statements the defendants insulted the plaintiff, called him names and made vague, unsubstantiated claims against him. Nevertheless the conduct cannot be described as 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." (Internal quotation marks omitted.) Id.
The plaintiff in the present case relies upon decisions that do not offer a meaningful comparison to the allegedly defamatory remarks attributed to the defendants. Here, even less powerfully than in Langer, the defendants allegedly made vague, unsubstantiated claims that the plaintiff was dishonest in his profession. Such a remark could be found to be defamatory; Moriarty v. Lippe, 162 Conn. 371, 384, 294 A.2d 326 (1972); but it is hardly " 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." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. at 443.
The court cannot find any authority, and neither party identifies any authority, supporting a conclusion that the other allegedly defamatory remark, that the plaintiff was an " incompetent" construction manager, could be " extreme and outrageous." No reasonable finder of fact could reach a conclusion that the foregoing alleged remark was " extreme and outrageous."
For all of the foregoing reasons, the allegations of count four are legally insufficient to support a claim of intentional infliction of emotional distress. Therefore, the motion to strike count four is granted.
B
Count Five
To prevail on a claim of negligent infliction of emotional distress, a plaintiff must prove: " (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., supra, 262 Conn. at 444.
" In order to press a negligent infliction of emotional distress claim, a plaintiff must allege facts showing that the defendant negligently breached a duty owed to the plaintiff." (Internal quotation marks omitted.) DeLeo v. Reed, Superior Court, judicial district of Stamford, Docket No. CV 99 0172435 (January 3, 2000, Hickey, J.) (26 Conn. L. Rptr. 213). Although the violation of a duty is a matter for the jury to resolve, the decision as to whether a legal duty exists is a matter for the court to resolve. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988).
" The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement ... In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm." (Citation omitted.) Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005).
The defendants contend that, in the absence of an allegation that they owed a duty to the plaintiff not to cause emotional distress, the claim of negligent infliction of emotional distress must be stricken. The plaintiff does not dispute the fact that the complaint does not specifically allege that any of the defendants had a duty not to make defamatory allegations against the plaintiff. He claims, however, that " [e]veryone in Connecticut has a duty imposed by the common law not to make defamatory accusations against another." Based on that theory, the plaintiff argues that he has sufficiently stated a claim for negligent infliction of emotional distress.
Our Supreme Court recently addressed the concept of " duty" as an essential element of a negligence claim. In Sic v. Nunan, 307 Conn. 399, 407-08, 54 A.3d 553 (2012), our Supreme Court stated: " The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand ... Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ... Although it has been said that no universal test for [duty] ever has been formulated ... our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable ... [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Citations omitted; internal quotation marks omitted .) Guided by Sic v. Nunan, supra, this court concludes that the issue before it is not whether the complaint specifically alleges that the defendants owed the plaintiff a duty not to engage in conduct that would result in the negligent infliction of emotional distress, but whether the plaintiff alleged facts from which such a duty can be inferred.
There is authority for the proposition that a plaintiff can seek recovery for negligent infliction of emotional distress when the claim is derivative of a cause of action sounding in defamation. " When the defamatory words are actionable per se, the law conclusively presumes the existence of injury to the plaintiff's reputation. He is required neither to plead nor to prove it ... The individual plaintiff is entitled to recover, as general damages, for the injury to his reputation and for the humiliation and mental suffering which the [defamation] caused him." (Internal quotation marks omitted.) DeVito v. Schwartz, 66 Conn.App. 228, 234-35, 784 A.2d 376 (2001); see Lega Siciliana Social Club, Inc. v. St. Germaine, 77 Conn.App. 846, 852, 825 A.2d 827, cert. denied, 267 Conn. 901, 838 A.2d 210 (2003); Langer v. Szeibert, Superior Court, judicial district of Hartford, Docket No. CV 10 5034961, (March 15, 2012, Rittenband, J.T.R.); Hauer v. ECHN Community Healthcare Foundation, Inc., Superior Court, judicial district of Hartford, Docket No. CV 09 4046119 (February 16, 2012, Woods, J.). Of course, if the plaintiff ultimately fails to establish the claim of defamation, any derivative claims will also, necessarily, fail. See Hauer v. ECHN Community Healthcare Foundation, Inc., supra; Finnelli v. Tepfer, Superior Court, judicial district of Fairfield, Docket No. CV 07 5011659 (April 24, 2009, Gilardi, J.); Red Apple II, Inc. v. Hartford Courant, Superior Court, judicial district of Hartford, Docket No. CV 95 547043 (January 17, 1996, Hale, J.).
Thus, a plaintiff need not specifically allege negligent infliction of emotional distress in order to recover general damages for the injury to his reputation and for humiliation and mental suffering, as those damages are available to him if he prevails in his claim of defamation. A plaintiff merely needs to include a claim for damages for emotional distress in his prayer for relief.
The court notes that the plaintiff concludes count five with a claim for compensatory damages for negligent infliction of emotional distress. Such a format fails to conform to Practice Book § 10-20 which requires that the complaint " shall contain a concise statement of the facts constituting the cause of action and, on a separate page of the complaint, a demand for relief which shall be a statement of the remedy or remedies sought. " (Emphasis added.).
In the present case, although the plaintiff did not need to allege negligent infliction of emotional distress in a separate count in order to recover damages for emotional distress, he chose to do so. This court finds that the plaintiff has alleged sufficient facts, in paragraphs 1 through 7 of that count, from which a duty can be inferred. Therefore, the motion to strike count five is denied.
V
CONCLUSION
For all of the foregoing reasons, the defendants' motion to strike count four is granted; the defendants' motion to strike count five is denied.
So ordered.