Opinion
No. CV02 07 72 28
March 17, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE
On February 20, 2002, the plaintiff, Helen Rodriguez, filed a three-count complaint against the defendant, Westland Properties, Inc. This action arises out of injuries and losses allegedly sustained as a result of the plaintiff's fall, on November 17, 2001, at a shopping mall owned and operated by the defendant.
In the complaint, the plaintiff asserts causes of action against the defendant for negligence, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and negligent infliction of emotional distress. In the first count, the plaintiff alleges that as she was entering the mall, she tripped and fell on several misplaced and wrinkled floor mats, located just inside the doorway of the entrance foyer, that the defendant failed to maintain in a reasonably safe condition. In addition to incorporating the allegations contained in count one, in the second count, the plaintiff alleges that the defendant violated CUTPA because its security personnel attempted to have her execute a release of liability form and complete a written incident report while she was lying on the floor following her fall. In count three, the plaintiff alleges that the defendant's conduct has caused her to suffer severe emotional distress.
On April 12, 2002, the defendant filed a motion to strike the second and third counts of the complaint, accompanied by a supporting memorandum of law. The plaintiff filed a memorandum of law in opposition on May 7, 2002.
"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). "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.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
The defendant moves to strike counts two and three on the ground that the plaintiff has failed to allege sufficient causes of action upon which relief may be granted. As to count two, the defendant argues that CUTPA is not applicable to the alleged conduct, even if the conduct was wrongful, because it was merely incidental to the defendant's primary business activity. It also argues that the plaintiff fails to properly allege an ascertainable loss, and the alleged conduct was not unfair or deceptive, required elements of a CUTPA claim.
The plaintiff counters that she sufficiently alleges that the defendant's conduct was committed in the course of its trade or commerce because the defendant's business encompasses maintaining the common areas of the mall, as well as hiring adequate security personnel. She also counters that she has properly alleged an ascertainable loss because CUTPA claimants are not required to prove measurable monetary damages, and that the defendant's failure to warn of a defective or dangerous condition constitutes an unfair trade practice under General Statutes § 42-110g(a).
General Statutes § 42-110g provides in relevant part: "(a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages . . ."
"The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce, and whether a practice is unfair depends upon the finding of a violation of an identifiable public policy . . . CUTPA, by its own terms, applies to a broad spectrum of commercial activity. The operative provision of the act, [General Statutes] § 42-110b(a), states merely that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Trade or commerce, in turn, is broadly defined as the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state. General Statutes § 42-110a(4). The entire act is remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit." (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 42, 717 A.2d 77 (1998).
Although our Supreme Court has not specifically enumerated what constitutes trade or commerce, it has stated that "a consumer relationship is not a prerequisite to having standing to assert a CUTPA violation." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 643, 804 A.2d 180 (2002). It has also stated, however, that "it strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any trade or commerce." (Internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 88, 793 A.2d 1048 (2002). In addition, while "our Supreme Court has frequently stated that unjustified consumer injury is the hallmark of a CUTPA violation . . . it has done so in the context of trade, rather than personal injuries." (Citation omitted; internal quotation marks omitted.) Simms v. Candela, 45 Conn. Sup. 267, 270, 711 A.2d 778, 21 Conn. L. Rptr. 479 (1998). Furthermore, in interpreting the CUTPA's definition of trade or commerce, albeit in a medical malpractice context, the court has focused on the alleged conduct's "entrepreneurial or business aspect." Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 32-33, 699 A.2d 964 (1997).
In the present case, although the defendant is in the business of running shopping malls and the plaintiff fell while patronizing one of the defendant's malls, the plaintiff's alleged injuries are not within the scope of injuries that CUTPA was intended to redress. Despite CUTPA's broad language and remedial purpose, the plaintiff's alleged injuries do not satisfy the distinction alluded to in Haynes because they are personal, rather than economic. Despite the plaintiff's reliance on Simms for the proposition that CUTPA does not distinguish between personal injuries and economic ones, in that case the court denied the motion to strike and held that the alleged CUTPA claim "passe[d] the Haynes test because the entrepreneurial aspects of the [nonmovant's] business [were] implicated." Simms v. Candela, supra, 45 Conn. Sup. 276. Therefore, the court grants the defendant's motion to strike count two of the complaint because, even under the most favorable construction of CUTPA, the plaintiff's alleged injuries are not entrepreneurial in nature. Since this is dispositive of the motion to strike the second count, the court will not consider the remaining arguments raised pertaining to it.
The defendant argues that inasmuch as the third count is premised on the second count, it too must be stricken. The plaintiff contends that count three sufficiently states an independent cause of action because, in addition to incorporating the aforementioned CUTPA allegations, the plaintiff alleges the necessary elements of a negligent infliction of emotional distress claim.
Our Supreme Court has held that to establish a claim of negligent infliction of emotional distress, the 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). In construing the plaintiff's allegations contained in count three in her favor, the plaintiff states a legally sufficient cause of action of negligent infliction of emotional distress because the allegations incorporate the necessary elements of the action. In count three, the plaintiff alleges that the defendant knew or should have known that its conduct created an unreasonable risk of causing the plaintiff emotional distress, and the defendant's conduct caused the plaintiff to suffer severe emotional distress. Therefore, the court denies the defendant's motion to strike count three of the plaintiff's complaint.
Based on the foregoing, the court grants the defendant's motion to strike as to count two and denies the motion as to count three.
UPSON, J.