Opinion
KNLCV166027295S
01-05-2017
Leah L. Malloy v. Sally Beauty Supply, LLC
UNPUBLISHED OPINION
OPINION
Robert F. Vacchelli, Judge
RULING RE DEFENDANT'S MOTION TO STRIKE
This case is an action by the plaintiff, Leah L. Malloy, against her employer, the defendant, Sally Beauty Supply, LLC, seeking money damages for mental and emotional injuries sustained at work when the store where she was working was robbed on July 31, 2014. The plaintiff's amended complaint alleges one count for negligence. Pending before the court is the defendant's motion to strike arguing that a claim for negligence does not lie where there is no primary physical injury. For the following reasons, the court grants the defendant's motion to strike.
I
A motion to strike is used " [w]henever any party wishes to contest . . . the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defenses contained therein . . ." Practice Book § 10-39(a)(5). " 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." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Citation omitted; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). " The role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Citations omitted; 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." (Citations omitted; internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252- 53, 990 A.2d 206 (2010).
" [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citation omitted; internal quotation marks omitted.) Id., 252. Nevertheless, " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
II
The pertinent facts, taken from the amended complaint, are as follows: On July 31, 2014, the plaintiff, Leah L. Malloy, was employed by the defendant, Sally Beauty, LLC, as a retail sales associate at a Sally Beauty Store in Marcus Plaza, Norwich, CT. The store was owned, operated, managed, inspected and maintained by the defendant.
On the afternoon of July 31, 2014, the plaintiff was working alone in the store when two armed men entered the store to rob it. During the course of the robbery, she was ordered to the back room, threatened with physical harm, told she would be shot if she tried " anything stupid, " and ordered to get money from the registers at the front of the store. She managed to escape by running out the front door (the store's only means of egress) when a deliveryman entered the store. She alleges that the defendant was negligent and careless in that its security was deficient in a variety of ways. Pertinent to the issue in the instant case, she alleges that, as a result of the defendant's negligence, she suffered " mental and emotional injuries including stress, anguish, post-traumatic stress disorder, nightmares, flashbacks, sleep disturbance, and physical sickness." Amended Complaint, para. 6. She further alleges that her suit is not barred by the exclusivity provisions of the Workers' Compensation Act because she is only claiming mental and emotional injuries, which are not compensable under the Act. Amended Complaint, para. 7.
III
The defendant moves to strike the complaint essentially arguing that negligence does not lie where there is no primary physical injury. The court agrees.
In actions for negligence, mental and emotional injuries are compensable if they are a natural and proximate consequence of a physical injury. Bushnell v. Bushnell, 103 Conn. 583, 594, 131 A.432 (1925). A tort recovery for mental and emotional suffering is available where there has been some impact. D. Wright, J. FitzGerald, W. Ankerman, Connecticut Law of Torts (Third Edition, 1991) § 172. Recovery is allowed in negligence where there is a physical offshoot to the accident, as well as an emotional disturbance. See, e.g., Mitnick v. Whalen Bros., Inc., 115 Conn. 650, 651, 163 A.414 (1932); Block v. Pascucci, 111 Conn. 58, 62, 149 A. 210 (1930); but not where there is no physical offshoot. O'Connell v. The Hartford Times, 15 Conn.Supp. 85, 86 (1947). Thus, in a case where a plaintiff sued her employer for negligently failing to safeguard her personal identifying information resulting in her being harassed by a fellow employee and causing her to sustain emotional duress, trauma, anxiety, aggravation of a preexisting post traumatic distress disorder condition, migraine headaches, depression, sleeplessness, nausea and stress-related temporo-mandibular joint pain, the court granted a motion to strike her negligence count, ruling:
The gravamen of the shared grounds for the motions to strike is that a claim for negligence does not lie where there is no primary physical injury and that the appropriate claim is for negligent infliction of emotional distress. Emotional injury can provide the basis of a claim for simple negligence only as a consequence of a physical injury. " Mental suffering, --this is also as proper an element of damage as physical suffering when it is a natural and proximate consequence of the physical injury." Bushnell v. Bushnell, 103 Conn. 583, 594, 131 A. 432 (1925). Although the Bushnell opinion is rather ancient, the general principle that emotional distress is recoverable under negligence theory only as a result of physical injury remains viable today. As characterized in the Restatement (3d) of Torts:
Claims for emotional disturbance. This Restatement is limited to liability for physical harm. Thus, whether and when the interest in emotional tranquility is protected against culpable invasion is a matter left to the Restatement Second of Torts § § 46-47 and § 436A, the developing case law, and future Third Restatement efforts. Emotional disturbance, often referred to as mental suffering or emotional distress, is recoverable under the rules of this Restatement when it results from bodily harm.
Restatement (Third) of Torts: Liability for Physical Harm § 4, comment d (Proposed Final Draft).
Because of this strict and sometimes harsh limitation on negligence causes of action, our courts have come to recognize that emotional injury can occur as a result of the negligence of another party where no physical injury has occurred. This doctrine has developed not as an evolution of negligence theory, but rather by way of the entirely distinct cause of action known as negligent infliction of emotional distress. " In Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978), this court recognized for the first time that recovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact. We concluded, rather, that, in such cases, the defendant would not be liable unless 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.) Perodeau v. Hartford, 259 Conn. 729, 749, 792 A.2d 752 (2002).
The net result of this doctrinal development is a fairly straightforward dichotomy in tort law pertaining to emotional distress. Claims that emotional distress resulted from a physical injury should be made, under the rule of Bushnell v. Bushnell, supra, and the proposed Restatement (3d) of Torts, by way of a straight negligence cause of action. On the other hand, where the injury claimed is a physical manifestation of an emotional injury, the claim is one for negligent infliction of emotional distress.Fisher v. Yale University, Superior Court, judicial district of New Haven, Doc. No. X10 CV 04-4003207 (February 8, 2006, Munro, J.) [40 Conn.L.Rptr. 726, ].
Consistent with the above, the instant case is subject to being stricken. Accord, Allen v. Verizon Wireless, Civ. No. 3:12 CV 482 (JCH) (D.Conn. June 6, 2013), 2013 WL 2467923; Estate of Haskos v. Jung, Superior Court, judicial district of New Haven, Doc. No. CV 01-0448262, (July 28, 2006, Pittman, J.); Restatement (Third) of Torts § 4, comment (d) (October 2016 Update).
Plaintiff argues that the physical injury requirement has been met in this case because she has alleged that she suffered physical sickness and other physical manifestations of her emotional injury. The court is not persuaded. In negligence actions, a plaintiff may be compensated for mental and emotional injury flowing from physical injury. Bushnell v. Bushnell, supra, 103 Conn. 594. The plaintiff has not alleged that. She has alleged physical sickness flowing from mental and emotional injury.
Alternatively, she argues that numerous cases have held that emotional distress is a proper element of damages even without physical injury, citing examples. However, the cases cited involved different causes of action. See Burns v. Grudberg, Superior Court, judicial district of New Haven, Doc. No. CV 15-6051882, (August 20, 2015, Wilson, J.) (negligent infliction of emotional distress action); He v. Litchfield County Obstetrics & Gynecology, P.C., Superior Court, judicial district of Litchfield, Doc. No. CV 10-6002542, (February 29, 2012, Roche, J.) (negligent infliction of emotional distress action); Chamberland v. Physicians for Women's Health, LLC, judicial district of Waterbury, Doc. No. CV 01 0164040, (February 8, 2006, Gallagher, J.) [40 Conn.L.Rptr. 731, ] (wrongful birth action). Plaintiff has not pleaded those causes of action. The cases cited, therefore, are inapposite.
Finally, plaintiff argues that her action must be allowed to proceed because, otherwise, she would be left without a remedy for her injury in violation of the remedy clause the Connecticut Constitution, article First, § 10. She states that while her injury is work-related, such mental and/or emotional injuries are not compensated under the Workers' Compensation Act. The issue is stated, but not briefed. Connecticut constitutional issues that are stated but not briefed are deemed to be waived. State v. Ross, 230 Conn. 183, 208, 646 A.2d 1318 (1994).
The remedy clause provides:
IV
For all of the foregoing reasons, the court grants the defendant's motion to strike.
All courts shall be open, and every person for an injury done in his person, property or reputation, shall have remedy by due process of law, and right and justice administered without sale, denial or delay. Article First, § 10, Connecticut Constitution.