Opinion
No. HHD-CV-09-5027087
May 13, 2010
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The plaintiff, Rebecca Reilly, acting both in her individual capacity and as the mother and next friend of her minor son, Xavier Steven Reilly, has brought this action against five defendants — Joni's Childcare and Preschool Joni L. Schneider, Robert R. Schneider, Kelli Taylor, and Schneider's III, Inc. — to recover damages for injuries and losses she claims that she and her son have suffered or incurred as a result of her son's fall to the ground from playground equipment when he was in the defendants' care and custody on March 12, 2007. In her nine-count Complaint dated January 30, 2009, the plaintiff makes the following claims: in her First through Fifth Counts, respectively; separate claims of negligence on behalf of her son, the minor plaintiff, against defendants Joni's Childcare and Preschool, Joni L. Schneider, Robert R. Schneider, Kelli Taylor and Schneider's III, Inc.; in her Sixth Count, a claim of negligent infliction of emotional distress on behalf of the minor plaintiff against four defendants only — defendants Joni's Childcare, Joni L. Schneider, Kelli Taylor and Schneider's III, Inc.; in her Seventh Count, a claim of negligence on behalf of the minor plaintiff to recover damages for his past and future pain and suffering against the same four defendants as the Sixth Count; in her Eighth Count, a claim on her own behalf to recover damages for economic losses she has incurred to provide care and treatment for her minor son against the same four defendants as the Sixth and Seventh Counts; and in the Ninth Count, a claim on her own behalf of negligent infliction of emotional distress against the same four defendants as the Sixth, Seventh and Eighth Counts.
Because he is a minor, Xavier Reilly brings this action through his mother and next friend, Rebecca Reilly. All references to "the minor plaintiff" are to Xavier Reilly.
The defendant, Joni's Childcare and Preschool, is referred to as both "Joni's Child care and Preschool" and "Joni's Childcare and Preschool" throughout the pleadings. For the sake of consistency, all references throughout this memorandum are to "Joni's Childcare."
Joni's Childcare; Joni L. Schneider; Robert R. Schneider; Kevin Taylor; and Schneider's III, Inc. are collectively referred to herein as the defendants.
The foregoing claims are all based at their core upon the following common set of pleaded facts. Joni's Childcare is a "child day care center," within the meaning of section 19a-77(a)(1) of the General Statutes and section 19a-79-1a(9) of the Regulations of Connecticut State Agencies. It has a primary business address of 304 Spielman Highway, Burlington, Connecticut, and operates a daycare facility at 545 Spring Street, Windsor Locks, Connecticut. At 8 a.m. on March 12, 2007, Rebecca Reilly dropped off the minor plaintiff for day care at the Windsor Locks facility of Joni's Childcare. Around 11:30 a.m. on that day, as the minor plaintiff and twenty other children were playing outside on a playground under the supervision of a single staff person from Joni's Childcare who was never closer to him than forty feet away, he fell six feet to the ground from a wooden jungle gym and ladder and suffered serious injury. Although the blacktop on which he fell was covered with wooden chips, the chips made his injuries more significant by imbedding themselves in his broken skin. After his fall, a staff member of Joni's Childcare picked up the minor plaintiff and moved him into the daycare building without thoroughly assessing his injuries. Thereafter, Emergency Medical Services arrived and transported the minor plaintiff to the Emergency Room at the Connecticut Children's Medical Center.
The case is now before the Court on the defendants' Motion to Strike dated October 19, 2010. In that Motion, which was duly supported by a memorandum of law of even date, the defendants claim that the First, Second, Third, Seventh and Ninth Counts of the Complaint should be stricken for the following reasons. They claim initially that the plaintiff's claim of negligence against Joni's Childcare, as pleaded in the First Count, should be stricken because the allegations of that Count establish that Joni's Childcare is not a legal entity amenable to suit. Next, they argue that the plaintiff's separate claims of negligence against defendants Joni L. Schneider and Robert R. Schneider, as pleaded in her Second and Third Counts, should be stricken because the conduct there alleged is that of the defendants' corporation, defendant Schneider's III, Inc., but insufficient facts have been alleged to justify piercing the corporate veil and making the defendants personally liable for the torts of their corporation. Further, the defendants argue that the plaintiffs separate claim of damages for pain and suffering, as pleaded in her Seventh Count, should be stricken because such damages are also sought in other counts, and thus the Seventh Count seeks a double recovery. Finally, the defendants claim that the plaintiff's claim of bystander emotional distress, as pleaded in her Ninth Count, should be stricken because it fails to state a claim upon which relief can be granted.
Although not essential to the issue before the Court, and not a part of the record for purposes of this motion, pursuant to section 10-35 of the Practice Book, the defendants filed a request to revise counts one and seven of the complaint on April 17, 2009. The defendants stated that the reason for the requested revision to count one was that Joni's Childcare is not an independent legal entity amenable to suit. Their reasons for the requested revisions to count seven were that there exists no independent action for pain and suffering in Connecticut, and the claim was duplicative and sought double recovery. The plaintiffs filed an objection to the plaintiff's request to revise on May 14, 2009. On August 11, 2009, the court, Stengel, J.T.R., sustained the defendants' objections without opinion.
I. STANDARDS FOR DECIDING MOTIONS TO STRIKE
"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). Practice Book § 10-39(a) provides that "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, 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."
"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 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). When faced with a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). Nevertheless, "[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." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." American Progressive Life Health Ins. Co. of New York v. Better Benefits LLC, supra, 120. In determining whether the facts would support a cause of action, the facts, and not the label affixed to them by the parties, are dispositive. Lattanzio v. WVIT NBC-30, Superior Court, judicial district of New London, Docket No. CV 05 5000082 (May 15, 2007, Martin, J.). See Barbiero v. Chiocca, Superior Court, judicial district of New Haven, Docket No. CV 05 4013929 (January 31, 2006, Corradino, J.) (striking count because it was labeled with incorrect cause of action would exalt form over substance); Stavola v. Costa, Superior Court, judicial district of Danbury, Docket No. CV 03 0350462 (January 18, 2005, Moraghan, J.) ( 38 Conn. L. Rptr. 530) (substance of allegations, not label affixed to them, governs motion to strike); see also Pickering v. Aspen Dental Management, Inc., 100 Conn.App. 793, 799, 919 A.2d 520 (2007) (label placed on count not relevant to motion to strike); Louis Gherlone Excavating, Inc. v. McLean Construction Co., Superior Court, judicial district of New Haven, Docket No. CV 04 0490449 (May 20, 2005, Martin, J.) (if facts alleged constitute cause of action, failure to recite "magic words" will not subject count to motion to strike).
Lastly, a motion to strike is not the proper vehicle for elimination of duplicative or repetitive counts. Cf Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988). Instead, "the proper way to cure any confusion [regarding the complaint] is to file a [request] to revise, not a motion to strike . . ." Id. Accordingly, where a motion to strike is made solely on grounds of repetition or duplication, the court will deny the motion, leaving the issue of repetitive pleadings and duplicative recovery to be dealt with by other mechanisms available to the parties. See, e.g., General Statutes § 52-130 (amendment of pleadings); Practice Book §§ 10-35 (request to revise); 10-60(a)(3) (amendment of pleadings by order of judicial authority).
II. THE DEFENDANTS' CLAIMS A. As to the First Count: Whether Joni's Childcare is Amenable to Suit
In the First Count of her Complaint, the plaintiff claims, under section 19a-80 of the General Statutes and section 19a-79-2a of the Regulations of Connecticut State Agencies, that Joni's Childcare breached statutory and regulatory duties owed to the minor plaintiff by failing to comply with General Statutes §§ 19a-77 through 19a-87 and Regs., Conn. State Agencies §§ 19a-79-1a through 19a-79-13. Those duties, she claims, arise under a license from the State of Connecticut Department of Public Health, which the plaintiff describes as follows: "Joni's Childcare operates with a license issued by the Conn. Department of Public Health to Schneider's III, Inc., a Connecticut corporation with a business address of 146 Juniper Drive, Avon, Connecticut, which corporation is licensed to operate a child day care center at 545 Spring Street in the town of Windsor Locks, Connecticut under the name of Joni's Child Care and Preschool and at all times relevant hereto did operate its Windsor Locks facility under such license." Complaint, Count I, ¶ 18.
The plaintiff further alleges that, in addition to its alleged statutory and regulatory duties, as aforesaid, Joni's Childcare had a common-law duty to take reasonable care for the oversight of children at its day care center. By allegedly failing to comply with either that common-law duty to take reasonable care for the oversight of the minor plaintiff, or the statutory and regulatory duties it owed to him, Joni's Childcare breached its duty of care to the minor plaintiff and thereby proximately caused him injury.
The defendants have moved to strike the First Count on the ground that Joni's Childcare is not a legal entity amenable to suit. In their memorandum in support of the Motion, they argue that paragraph 18 of the First Count acknowledges that Joni's Childcare is merely a business name of Schneider's III, Inc., because it alleges that Schneider's III, Inc. is the legal entity that possesses the license to do business as Joni's Childcare.
In opposition to this claim, the plaintiff argues that Joni's Childcare is a proper defendant in this case because companies are subject to the jurisdiction of the courts as defendants when they have distinct business identities even if they lack the capacity to sue in their own names as plaintiffs.
"A corporation is a person although it is not a natural person . . . It appears well settled that the use of a fictitious or assumed business name does not create a separate legal entity . . . [and that t]he designation [d/b/a] . . . is merely descriptive of the person or corporation who does business under some other name." (Citation omitted; internal quotation marks omitted.) Bauer v. Pounds, 61 Conn.App. 29, 36, 762 A.2d 499 (2000). The situation where the defendant is sued under a fictitious business name is distinguishable from the situation where the plaintiff attempts to bring an action under its assumed name. While "a plaintiff bringing an action in a trade name cannot confer jurisdiction on the court"; America's Wholesale Lender v. Pagano, 87 Conn.App. 474, 477, 866 A.2d 698 (2005); our courts have held in numerous circumstances that the mislabeling or misnaming of a defendant is not necessarily fatal where it does not result in prejudice to either party. See, e.g., Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 655 A.2d 759 (1995) (permitting plaintiff to amend citation in order to name town instead of board of tax review as defendant); Lussier v. Dept. of Transportation, 228 Conn. 343, 636 A.2d 808 (1994) (permitting action to stand when summons indicated action against state instead of action against commissioner and commissioner received actual notice); Motiejaitis v. Johnson, 117 Conn. 631, 169 A. 606 (1933) (permitting plaintiff to substitute individual for nonexistent corporation under which individual was doing business); World Fire Marine Ins. Co. v. Alliance Sandblasting Co., 105 Conn. 640, 136 A. 681 (1927) (permitting plaintiff to amend writ to include individual doing business as named defendant). Because a fictitious business name is merely a descriptive name for the corporation, a court will interpret an action against a fictitious business name as an action against its corporate parent. See, e.g., Bauer v. Pounds, supra, 61 Conn.App. at 36.
Because the defendants have moved to strike the First Count on the ground that it is not a claim upon which relief can be granted, the Court must deny the Motion with respect to that Count. Instead of striking that Count in order to avoid confusing the jury and to eliminate any possibility of a double recovery, the defendants' remedy must be to request the merger of Counts One and Five into a single claim against Schneider's III, Inc. on which a single set of charges can be given and a single finding can be made at trial.
Interpreting the claim presented in this First Count to be a claim against Schneider's III, Inc., the corporation doing business as Joni's Childcare, obviously makes the First Count duplicative of the Fifth Count, which was brought expressly against Schneider's III, Inc. Since the plaintiff's objection to the defendants' request to revise on this issue was sustained, the most appropriate remaining remedy to avoid confusing the jury and making possible a double recovery is to merge Counts One and Five into a single count, on which there can be only one combined verdict at trial.
The defendants respond by arguing that the plaintiff has failed to plead sufficient facts to establish that Joni L. Schneider and Robert R. Schneider are "operators" of Joni's Childcare, as defined under section 19a-79-1a(47) of the Regulations of Connecticut State agencies because she has not alleged that Robert R. Schneider and Joni L. Schneider are the persons to whom the license for that facility was issued. Instead, the defendants argue, the plaintiffs have clearly alleged in their Second and Third Counts that the corporation to which the license is issued, and thus the "operator" of the facility so licensed, under applicable statutes and regulations, is Schneider's III, Inc.
"It is well established that `an officer of a corporation does not incur personal liability for its torts merely because of his official position. Where, however, an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby.' Scribner v. O'Brien, Inc., 169 Conn. 389, 404, 363 A.2d 160 (1975); see also Kilduff v. Adams, Inc., 219 Conn. 314, 331-32, 593 A.2d 478 (1991) (`[i]t is black letter law that an officer of a corporation who commits a tort is personally liable to the victim regardless of whether the corporation itself is liable'). `Thus, a director or officer who commits the tort or who directs the tortious act done, or participates or operates therein, is liable to third persons injured thereby, even though the liability may also attach to the corporation for the tort.'" Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 141-42, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006). Thus, if the complaint alleges that the individual defendant himself committed the tort of negligence, then it is unnecessary to pierce the corporate veil in order for individual liability to attach. See Morris v. Cee Dee, LLC, 90 Conn.App. 403, 416-17, 877 A.2d 899 (2005) (explaining that a prejudgment attachment of an individual defendant's personal assets was appropriate notwithstanding a failure to pierce the corporate veil where the trial court concluded that the defendant was negligent in failing to repair a grate), cert. granted in part, 275 Conn. 929, 883 A.2d 1245 (appeal withdrawn March 13, 2006).
Negligence in an individual (as opposed to an official) capacity requires a plaintiff to allege that the individual owed a duty to the plaintiff, that he breached the duty, and that such breach of duty was a proximate cause of the plaintiff's injury. See id. That is, regardless of a corporate shield, an individual "may be held personally liable for tortious conduct in which [he] directly participated." Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 145. Accordingly, the question in this case becomes whether the plaintiff has sufficiently alleged, in her Second and Third Counts, that either or both of the Schneider defendants was liable in his or her individual capacity. If negligence in an individual capacity is alleged, then there is no need to allege facts to pierce the corporate veil in order to survive the motion to strike.
1. Count Two: Joni L. Schneider
In the Second Count of the Complaint, the plaintiffs allege that Joni L. Schneider was the director and manager of Joni's Childcare, and as such that she was the "operator" of Joni's Childcare under section § 19a-79-1a(42) of the Regulations of Connecticut State Agencies. They further allege in that Second Count that she is the principal, president, and director of Schneider's III, Inc. Pursuant to section 19a-79-3a of the Regulations of Connecticut State Agencies, the plaintiff claims that Joni L. Schneider is responsible for compliance with the requirements of sections 19a-79-1a through-9 in such a manner as to ensure the safety, health and development of the children and the overall management and operation of the day care center in accordance with all applicable statutes and regulations. Ms. Schneider allegedly failed to oversee, direct, train, manage, and provide resources to her employees, agents and representatives to guard against injury to the minor plaintiff. The plaintiff alleges that her "negligence . . ., as Operator of Joni's Child Care was the proximate cause of the accident suffered by [the minor plaintiff] on March 12, 1997 and the damages he suffered as a result." Complaint, Count II, ¶ 45.
The only possible paragraph of the Second Count that can be read to allege individual liability on the part of Ms. Schneider is ¶ 42, which states that, "Pursuant to RCSA § 19-79-3a the defendant Joni L. Schneider is responsible for compliance with the requirements of RCSA §§ 19a-79-1a through 19a-79-9 in such a manner as to ensure the safety, health and development of the children and is responsible for the overall management and operation of the day care center in accordance with applicable state and local laws and regulations." That section of the Regulations of Connecticut State Agencies, however, imposes obligations solely upon the "operator" of the child day care center, including the responsibility to ensure compliance with statutes and regulations. See, e.g., Regs., Conn. State Agencies § 19a-79-3a(a). The plaintiff's reference to section 19-79-3a thus alleges that Joni L. Schneider's duty to her minor son arose from her status as an "operator" of Joni's Child Care, as defined in the Regulations of Connecticut State Agencies.
It is significant that all allegations of negligence involving Joni L. Schneider in count two are based on her status as "operator." Even the arguably independent duties alleged are couched in terms of the plaintiff's status as an "operator." See, e.g., ¶ 43 ("[t]he defendant Joni L. Schneider was negligent in that as Operator of Joni's [Childcare,] she failed to oversee, direct, train, manage and provide resources to her employees, agents and representatives to guard against the injury to [the minor plaintiff]").
The term "operator" is defined in section 19a-79-1a(47) of the Regulations as "a person, group of persons, association, organization, corporation, institution or agency, public or private who has the legal responsibility for the overall operation of the child day care center or group day care home and to whom the license is issued." (Emphasis added.) Because "[a] motion to strike admits all facts well pleaded [and] not . . . legal conclusions or the truth or accuracy of opinions stated in the pleadings;" Faulkner v. United Technologies Corp., supra, 240 Conn. 588; the plaintiffs must allege sufficient facts to support the legal conclusion that Joni L. Schneider is the "operator" under the Regulations. In other words, they must allege facts tending to prove that Joni L. Schneider is the "person . . . who has the legal responsibility for the overall operation of the child day care center . . . and [the person] to whom the license is issued." See Regs., Conn. State Agencies § 19a-79-la (47). (Emphasis added.)
"`License' means the form of permission issued by the department that authorizes the operation of a child day care center or group day care home . . ." Regs., Conn. State Agencies § 19a-79-1a(39).
The Complaint, however, is devoid of any factual allegations tending to support the legal conclusion that Joni L. Schneider was the "operator" of Joni's Child Care in the relevant time frame. To the contrary, ¶ 41 of the Second Count expressly alleges that Schneider's III, Inc., is the "corporation . . . to whom the license is issued." Thus, even under a broad and realistic construction of the pleadings, the Second Count is legally insufficient to allege that Joni L. Schneider was negligent in her individual capacity as the operator of Joni's Child Care . . . Cf Coppa v. Soh-Tan, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4003679 (January 2, 2007, Robinson, J.) (Educational World, LLC, was the facility and entity but the individual defendant, Soh-Tan, was listed as the "operator").
Paragraph forty bases the legal conclusion that Joni L. Schneider is an "operator" on her status as "Director and Manager [of Joni's Childcare.]" "Director" is defined in the Regs., Conn. State Agencies § 19a-79-1a(21) as "the program administrator or person responsible for the day to day administrative operation of the program, who may be the head teacher . . ." This is insufficient to establish that Joni L. Schneider was the "operator" as defined under Regs., Conn. State Agencies § 19a-79-1a(47). "Manager" is not defined in the Regulations of Connecticut State Agencies.
"Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint. Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985); DeVita v. Esposito, 13 Conn.App. 101, 105, 535 A.2d 364 (1987) (alternative pleading justified when pleader does not know all facts necessary to make election), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988); see also Practice Book § 10-25." (Internal quotation marks omitted.) Read v. Plymouth, 110 Conn.App. 657, 662, 955 A.2d 1255 (2008), cert. denied, 289 Conn. 955, 961 A.2d 421. Nevertheless, inconsistent pleadings must be brought in separate counts. See Practice Book § 10-26; cf. Massey v. Saunders, Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 075004743 (March 16, 2010, Jennings, J.T.R.) (requiring separate counts to be pleaded where inconsistent theories are incorporated by reference).
The plaintiffs should be aware that the right to plead in the alternative stems ultimately from a party's right to use the discovery process to learn the facts of the case. Danko v. Redway Enterprises, Inc., 254 Conn. 369, 381, 757 A.2d 1064 (2000). As such, the right to plead alternatively becomes less permissive as the case proceeds through discovery.
Absent allegations that Joni L. Schneider was individually negligent, liability is based on her capacity as a principal of Schneider's III, Inc., and the count must contain allegations sufficient to pierce the corporate veil in order to survive the motion to strike. In order to hold Joni L. Schneider personally liable for the torts of the corporation solely by virtue of her status as a corporate officer, the plaintiff must satisfy the elements of either the instrumentality rule or the identity rule. See United Electrical Contractors, Inc. v. Progress Builders, Inc., 26 Conn.App. 749, 755-56, 603 A.2d 1190 (1992).
Under the instrumentality rule, the plaintiff must allege the following three elements: "(1) Control, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of plaintiff's legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of." Angelo Tomasso, Inc. v. Armor Construction Paving, Inc., 187 Conn. 544, 553, 447 A.2d 406 (1982). The plaintiff has failed to allege the essential element of control in the Second Count sufficient to pierce the corporate veil. The only allegations in the Second Count with respect to Joni L. Schneider's role in Schneider's III, Inc., state that "Joni L. Schneider is a principal of, and is President and Director of Schneider's III, Inc.," which is insufficient to allege control.
Alternatively, the plaintiff may withstand this Motion by alleging that Joni L. Schneider is liable under the identity rule. The identity rule is based on the idea that "[i]f plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise." (Internal quotation marks omitted.) Angelo Tomasso, Inc., supra, 187 Conn. 554. Once again, however, the Second Count of the Complaint is devoid of any support for the proposition that Joni L. Schneider was the alter ego of Schneider's III, Inc., such that its negligence can be attributed to her by virtue of her position as its principal.
Because the plaintiff has not alleged sufficient facts to support its legal conclusion that Joni L. Schneider was an "operator" of Joni's Child Care; because she has pleaded instead that Schneider's III, Inc. Held the license for, and thus was the "operator" of, that facility; and because she has not alleged sufficient facts to pierce the corporate veil under either the instrumentality rule or the identity rule, the defendants' Motion to Strike must be granted with respect to that Second Count.
2. Count Three: Robert R. Schneider
In addition to the allegations incorporated from the First Count, the Third Count alleges that, at all times relevant to this case, defendant Robert R. Schneider, was an "operator," as defined under § 19a-79-1a(42), and manager of Joni's Childcare. It further alleges that Mr. Schneider was a principal and the secretary of Schneider's III, Inc., who was allegedly on site at the Windsor Locks facility three times per week, where he was responsible for physical plant issues that arose at the facility, either by performing the work directly or by contracting with others to have it done. Pursuant to section 19a-79-3a, Mr. Schneider was allegedly responsible, as an operator, for compliance with all applicable statutes and regulations. He allegedly violated such statutes and regulations by failing to oversee, direct, train, manage, and provide resources to his employees, agents and representatives to guard against the injury to the minor plaintiff. The plaintiff alleges that his "negligence . . . as Operator of Joni's Child Care was the proximate cause of the accident suffered by [the minor plaintiff] on March 12, 2007 and the damages he suffered as a result." Complaint, Count III, ¶ 46.
Although the Third Count against Mr. Schneider is similar to the Second Count against Joni L. Schneider, it arguably contains an allegation of an individual duty owed by Robert R. Schneider aside from that arising out of his status as "operator." In ¶ 42 of the Third Count, the plaintiffs allege the following: "The defendant Robert R. Schneider is on site at the facility operating as Joni's [Childcare] . . . three times per week and is responsible for physical plant issues that arise at the facility, either directly or by contracting for work to be done." Nevertheless, "[t]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n. 13, 849 A.2d 813 (2004). Thus, while the plaintiff has sufficiently alleged that Robert R. Schneider owed the minor plaintiff a duty in his individual capacity, the allegations of the other elements required for a negligence action — breach of the duty and resulting causation of harm — are couched in terms of his position as an "operator" under the statute. In particular, to reiterate, ¶ 46 of the Third Count provides: "The negligence of Robert R. Schneider, as Operator of Joni's [Childcare] was the proximate cause of the accident suffered by [the minor plaintiff]. . ." (Emphasis added.)
Count three also alleges, in paragraph forty-one, that "Schneider's III, Inc. is licensed with the Connecticut Department of Public Health to operate child day care centers under the name of Joni's [Childcare]."
Because the plaintiff has failed to allege all the required elements of negligence with respect to Robert R. Schneider individually, the only basis upon which to establish his liability under the Third Count is to identify facts sufficient to make him personally responsible for the tortious conduct of Schneider's III, Inc. By piercing the corporate veil. Here, as with the plaintiff's claim against Ms. Schneider, in order to hold Robert R. Schneider personally liable for the torts of the corporation solely by virtue of his status as a corporate officer, the plaintiff must satisfy the elements of either the instrumentality or identity rule. See United Electrical Contractors, Inc. v. Progress Builders, Inc., supra, 26 Conn.App. 755-56. Like the Second Count, however, the Third Count contains no such allegations. Accordingly, the Court must grant the defendants' Motion with respect to the Third Count as well.
C. As to the Seventh Count: Whether Pain and Suffering Provides the Basis for an Additional Count
The Seventh Count of the Complaint repeats the core allegations of the First Count and further alleges that, as a result of the actions, inactions, and negligence of Joni's Childcare, Joni L. Schneider, Kelli Taylor, and Schneider's III, Inc., the minor plaintiff has endured, and will continue to endure, physical pain and suffering for which he has received, and will continue to require, medical care and treatment.
In support of their Motion, the defendants argue that the Seventh Count attempts to claim the minor plaintiff's damages for pain and suffering as an additional separate cause of action, in addition to previous counts of negligence against the same defendants, which necessarily include allegations of pain and suffering as an element of damages. The Seventh Count, as argued by the defendant, is therefore predicated upon the exact same specifications of negligence as the other counts of the Complaint. Accordingly, the defendants move to strike the Seventh Count on the ground that it seeks a double recovery for the same injury. The plaintiffs argue that the Seventh Count does not seek a double recovery because only the Seventh Count addresses the lifelong physical pain and suffering of the minor plaintiff. The plaintiffs claim that, because Connecticut generally prohibits a plaintiff from recovery for emotional distress in the absence of physical injury or a risk of harm for physical impact, it makes sense that the two measures of damages are pleaded separately.
"The elements in a negligence cause of action are duty, breach of that duty, causation and damages." Medcalf v. Washington Heights Condominium Ass'n., Inc., 57 Conn.App. 12, 16, 747 A.2d 532 (2000), cert. denied, 253 Conn. 923, 754 A.2d 797. Damages are therefore essential to recovery for negligence. On numerous occasions our courts have explained that pain and suffering are obvious from injury and need not be specially pleaded. See, e.g., Manning v. Michael, 188 Conn. 607, 617, 452 A.2d 1157 (1982); Bombero v. Marchionne, 11 Conn.App. 485, 528 A.2d 396 (1987), cert. denied, 205 Conn. 801, 529 A.2d 719. In other words, where the plaintiff alleges serious physical injury, damages for pain and suffering are implied.
In the present case, the Seventh Count repeats the core allegations of the First Count, including its allegations that the minor plaintiff suffered serious physical injury as a result of the defendants' negligence. Because pain and suffering flow naturally from serious physical injury, the plaintiffs' allegations of serious physical injury in the First Count include damages for pain and suffering. The Seventh Count is therefore duplicative of the First Count, and indeed of Counts Two, Four and Five as well, which incorporate by reference the core allegations of the First Count against the particular defendants named therein.
This is, however, not a proper ground on which to grant a motion to strike. "While `[t]here is no explicit appellate authority on the issue of the proper vehicle for the elimination of duplicative claims;' Sandru v. Boyle, Superior Court, judicial district of New Haven, Docket No. CV 07 5014056 (September 3, 2008, Zoarski, J.T.R.) ( 46 Conn. L. Rptr. 238, 238); a majority of the Superior Court decisions dealing with this dilemma have held that `[a] request to revise, and not a motion to strike, is the proper procedural device for deletion of duplicative pleadings.' Id., 239 (quoting Downing v. Yale University Health Services, Superior Court, judicial district of New Haven, Docket No. CV 94 0364862 (December 26, 1995, Zoarski, J.) and listing many cases that reached the same conclusion). But see Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, judicial district of Danbury, Docket No. CV 03 0348578 (January 10, 2005, Downey, J.) (granting motion to strike `unnecessarily duplicative' counts without discussing whether request to revise is more appropriate method); Heyward v. Friendly Ice Cream Corp., Superior Court, judicial district of New Haven, Docket No. CV 95 0375622 (November 9, 1995, Hadden, J.) (striking one count as repetitive of another without discussing whether request to revise is more appropriate method)." Law Offices of Thomas E. Porzio, LLC v. Northern Expansion, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 08 5008203 (April 15, 2009, Brunetti, J.).
"Since a claim that a count is repetitious challenges the form of the pleading but not its legal sufficiency, [a] motion to strike either [duplicative count should be] denied." Pike v. Bugbee, Superior Court, judicial district of Hartford, Docket No. CV 06 5005721 (October 30, 2007, Bentivegna, J.), aff'd, 115 Conn.App. 820, 974 A.2d 743, cert. granted, 293 Conn. 923, 980 A.2d 912 (2009). In this case, because Seventh Count is legally sufficient, albeit repetitive, as pleaded, it should not be stricken, but instead should be merged with each of the counts to which it is repetitive so that one set of instructions can be given and one verdict can be returned as to each. For the foregoing reasons, the defendants' Motion to Strike must be denied with respect to the Seventh Count of the plaintiff's Complaint.
D. As to the Ninth Count; Whether Rebecca Reilly's Claim of Negligent Infliction of Emotional Distress is Legally Sufficient
The Ninth Count alleges, in addition to the core allegations incorporated from the First Count, that Rebecca Reilly personally suffered emotional distress as a result of the injury suffered by her minor son in the following ways: (1) after he was injured, she was constantly on call to care for him and could not lead her life as an independent person; (2) she also lost the ability to focus on her work due to the need to care for her injured son, with a resulting loss of productivity at work; (3) her son's special condition created undue and unforeseen hardships on her household, including hardship occurring during the then-impending delivery of her second child; (4) she suffered emotional pain and distress due to the pain and suffering she saw her child experience on a continuing basis; and (5) she suffered physical pain due to extreme exertion in caring for her injured son. The plaintiff claims that her above-described emotional distress was proximately caused by the actions, inactions and negligence of Joni's Childcare, Joni L. Schneider, Kelli Taylor, and Schneider's III, Inc. on March 12, 2007.
The defendants have moved to strike the Ninth Count, so pleaded, on the ground that it fails to state a cognizable claim for bystander emotional distress. In their memorandum of law, the defendants argue that because the Ninth Count arises out of the injury to the minor plaintiff, the plaintiff's personal claim must be for bystander emotional distress, and not for direct emotional distress. As such, the claim is legally insufficient because it lacks an allegation that the plaintiff contemporaneously perceived her son's injury when it happened. As an additional ground for legal insufficiency, the defendants argue that the Ninth Count fails to allege that the plaintiff's emotional distress was serious, in that it resulted in more than simple mental pain and anguish.
In opposition to the Motion, the plaintiff claims that the Ninth Count is not a bystander emotional distress claim based on indirect injury, but rather a direct emotional distress claim brought by the plaintiff as a result of the injury to her son. In other words, the plaintiff claims that she suffered her own injuries and attendant emotional distress in caring for the minor plaintiff after the defendants proximately caused his injuries.
Although the Court is not bound by the labels affixed by the parties to their claims, the Motion to Strike must be denied if the plaintiff's have alleged sufficient facts to establish a claim for negligent infliction of emotional distress. To survive a motion to strike, a plaintiff claiming negligent infliction of emotional distress must plead 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). Unlike general negligence claims, in negligent infliction of emotional distress claims foreseeability of the precise "nature of the harm to be anticipated [is] a prerequisite to recovery even where a breach of duty might otherwise be found . . ." Maloney v. Conroy, 208 Conn. 392, 398, 545 A.2d 1059 (1988). In other words, the plaintiff must allege that the defendants should have realized that their conduct involved an unreasonable risk of causing emotional distress and that such distress, if in fact it were caused, might result in her illness or bodily harm.
The Ninth Count, however, contains no allegations that the plaintiff's claimed distress was foreseeable. It is also missing any allegations that the defendants should have realized that their conduct involved an unreasonable risk of causing her emotional distress, or that such distress, even if it was foreseeable, was of the sort that might cause her illness or bodily harm. Without such allegations, the Ninth Count is legally insufficient to state a claim for negligent infliction of emotional distress and will only survive the motion to strike if it contains sufficient allegations to state a claim for bystander emotional distress.
Our Supreme Court has explained that "a bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location; (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response." Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996). The Ninth Count, however, is missing the second element required under Clohessey — an allegation that the plaintiff's alleged emotional distress was caused by the contemporaneous perception or arrival on the scene of the minor plaintiff's injuries.
Because the plaintiffs have failed to allege that any emotional distress suffered by plaintiff was foreseeable or that the source of such distress was observing her son's injury at or very shortly after it occurred, the Court must grant the defendants' Motion to Strike the Ninth Count of the Complaint.
III. CONCLUSION AND ORDER
For all of the foregoing reasons, the Court hereby ORDERS that the defendants' Motion to Strike be GRANTED with respect to the Second, Third and Ninth Counts of the Plaintiff's Complaint, but it be DENIED as to the First and Seventh Counts of the Complaint, which should instead be merged into other counts of the Complaint as indicated, more particularly, in this Memorandum of Decision.
IT IS SO ORDERED this 13th day of May 2010.