Opinion
CV166032664S
11-01-2016
Franklin Rutledge v. Thomas Krynski
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE, #102
PETER EMMETT WIESE, JUDGE.
I
Procedural History
In an eight-count complaint dated March 3, 2016, the plaintiff, Franklin Rutledge, claims various constitutional and state law violations against the defendant, Thomas Krynski. The complaint alleges the following facts. On April 13, 2015, the plaintiff was traveling on Route 72 West towards Plainville, Connecticut, when his car hit a pothole causing a flat tire. The plaintiff subsequently pulled over, called for roadside assistance and activated his hazard lights. While waiting for roadside assistance, Krynski, a state trooper, arrived and informed the plaintiff to change the tire and to move his car. The plaintiff informed him that he was waiting for a tow truck. An argument ensued, during which the defendant threatened to arrest the plaintiff if he kept talking and placed his hand or finger onto the plaintiff's chest. The plaintiff also alleges that the defendant grabbed his Taser gun and pointed and/or displayed it to the plaintiff and stated that the plaintiff was being disrespectful. By this time, another trooper arrived and informed the plaintiff that he should move his car because it was in a dangerous area. During discussion with the troopers, the plaintiff conceded to drive away from the area, but was worried that driving on the fiat tire would ruin the tire rim. The plaintiff, followed by the troopers, drove his car to a Kohl's parking lot, at which point he examined the tire rim and found two marks from the asphalt. Further conversation between the plaintiff and the troopers ensued, at some point the troopers left and roadside assistance arrived.
The plaintiff brings a 42 U.S.C. § 1983 action against the defendant in his individual capacity. Count one alleges excessive force in violation of the plaintiff's fourth and fourteenth amendment rights. Count two claims that the plaintiff's rights under the first and fourteenth amendments to freedom of speech and due process were also violated. The remaining six counts are state claims sounding in assault, battery, gross negligence, recklessness, intentional infliction of emotional distress and negligent infliction of emotional distress. As a result of the defendant's conduct, the plaintiff contends that he has suffered psychological harm, emotional distress and pain and suffering. The plaintiff seeks compensatory damages, attorneys fees and other just and appropriate relief.
On May 5, 2016, the defendant filed a motion to strike with supporting memorandum of law (102.00). On June 5, 2016, the plaintiff filed an objection to the motion to strike (105.00). The parties presented oral argument at short calendar on July 18, 2016.
II
DISCUSSION
A. Legal Standard--Motion to Strike
" [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [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.) Geysen v. Securitas Security Services U.S.A., Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents . . . We are limited . . . to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988) (in ruling on motion to strike, court cannot resort to information outside of complaint). " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
B. Parties' Arguments
In his motion to strike, the defendant argues that counts one (excessive force), two (freedom of speech), five (gross deviation from reasonable care), six (recklessness), seven (intentional infliction of emotional distress) and eight (negligent infliction of emotional distress) should be stricken on the grounds that they fail to state a claim upon which relief can be granted. As to the excessive force allegation, the defendant asserts that displaying a Taser gun is not a use of force, and that placing a finger or hand on the plaintiff's chest does not rise to a fourth amendment violation. The defendant asserts that a freedom of speech violation requires an " actual chill" to the plaintiff's speech, which according to the complaint, did not occur. As to count five, the defendant argues that gross deviation from reasonable care as a state trooper is not an actionable claim for monetary damages. As to the recklessness claim, the defendant argues that the plaintiff failed to allege any reckless conduct. Furthermore, the defendant avers that the allegations do not constitute extreme and outrageous conduct as required for an intentional infliction of emotional distress claim. Lastly, the defendant avers that statutory immunity under General Statutes § 4-165 bars the negligent infliction of emotional distress claim.
In his opposition to the motion, the plaintiff contends that the defendant's threat to use a Taser gun and to arrest him constitutes unlawful use of force. As to the freedom of speech violation, the plaintiff argues the allegation of nonspeech injuries, such as a damaged tire rim, sustains his first amendment claim. The plaintiff also argues that the complaint alleges sufficient facts to sustain the gross deviation from reasonable care and recklessness counts. Lastly, the plaintiff asserts that the display of a Taser gun constitutes extreme and outrageous conduct.
C. Analysis
Constitutional Claims
Count One--Excessive Force
Count one, brought under 42 U.S.C. § 1983, alleges excessive force in violation of the plaintiff's fourth and fourteenth amendment rights." To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under the color of state law . . . These two elements denote two separate areas of inquiry: the plaintiff must prove a constitutional or [federal] statutory violation and that violation must have been committed by the defendant acting under color of law." (Citations omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 38 Conn.App. 715, 719-20, 663 A.2d 1073, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995). " [Section] 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." (Internal quotation marks omitted.) Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). " In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force." Id., 394.
42 U.S.C. § 1983 provides in relevant part: " Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . ."
Our Appellate Court has stated: " [A]ll claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other seizure of a free citizen should be analyzed under the Fourth Amendment and its reasonableness standard . . . Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it . . . Because [t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application . . . its proper application requires careful attention to the facts and circumstances of each particular case . . ." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Weyel v. Catania, 52 Conn.App. 292, 296-97, 728 A.2d 512, cert. denied, 248 Conn. 922, 733 A.2d 846 (1999).
A determination of reasonableness under the fourth amendment " requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake . . . [I]ts proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." (Citations omitted; internal quotation marks omitted.) Graham v. Connor, supra, 490 U.S. at 396. See also Odom v. Matteo, 772 F.Supp.2d 377, 391 (D.Conn. 2011) (" the use of a Taser is a significant use of force, and a reasonable jury could well find that its repeated deployment on an individual who is suspected of only minor traffic infractions, poses no immediate threat, is not attempting to escape . . . constitutes an excessive and unreasonable use of force"). " A Taser is a type of controlled electronic weapon capable of firing wires tipped with a pair of barbed darts to deliver a paralyzing electric charge . . . A police Taser, which is capable of causing death or serious injury, may meet the definition of a dangerous instrument under General Statutes § 53-206 and § 53a-3(7)." (Citation omitted.) State v. Daniel G., 147 Conn.App. 523, 573 n.11, 84 A.3d 9, cert. denied, 311 Conn. 931, 87 A.3d 579 (2014).
In the present matter, paragraph 12 of the complaint (incorporated into count one) alleges the " [de]fendant then grabbed his TASER and pointed it at plaintiff." Paragraph 20 further states " [t]here was no legal cause to justify [the defendant's] use of force by displaying his TASER in a threatening manner at plaintiff as a show of force." Construing the complaint in the manner most favorable to sustaining its legal sufficiency, the plaintiff has alleged a cause of action of excessive force in violation of his fourth amendment rights.
Count Two-First Amendment Freedom of Speech
The plaintiff alleges in count two that the defendant violated his first amendment rights by threatening him with arrest numerous times because " he challenged the trooper, questioned the trooper['s] conduct and actions as to what he had done wrong . . ."
" To plead a First Amendment retaliation claim a plaintiff must show: (1) he has a right protected by the First Amendment; (2) the defendant's actions were motivated or substantially caused by his exercise of that right; and (3) the defendant's actions caused him some injury." Dorsett v. County of Nassau, 732 F.3d 157, 160 (2d Cir. 2013). " [T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers . . . Speech directed at police officers will be protected unless it is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest." (Citation omitted; internal quotation marks omitted.) Kerman v. New York, 261 F.3d 229, 242 (2d Cir. 2001).
The plaintiff's right to criticize the police or state troopers without reprisal satisfies the first prong. The second prong is also satisfied because paragraph 10 of the complaint (incorporated by reference into count two) alleges that the defendant told the plaintiff to " shut up and be quiet" and that " if plaintiff kept talking he was going to arrest [him]." The defendant argues that the plaintiff has not met the third prong because he " suffered no chill whatsoever, " therefore the first amendment retaliation claim must be stricken. The plaintiff contends that he suffered from nonspeech injuries, including being forced to drive his disabled vehicle with a flat tire to a different area.
" As we have recognized, there is some tension in our First Amendment standing cases . . . We have sometimes given the impression that silencing of the plaintiff's speech is the only injury sufficient to give a First Amendment plaintiff standing . . . This was an imprecise statement of law. Chilled speech is not the sine qua non of a First Amendment claim. A plaintiff has standing if he can show either that his speech has been adversely affected by the government retaliation or that he has suffered some other concrete harm. Various non-speech related harms are sufficient to give a plaintiff standing." (Citations omitted; emphasis in original.) Dorsett v. County of Nassau, supra, 732 F.3d 160. See also Griffin v. O'Connell, Superior Court, judicial district of New Haven, Docket No. CV-13-5034557-S, (February 6, 2015, Wilson, J.).
In count two, the plaintiff alleges that he sustained damage to his tire rim from driving to a parking lot after discussion with the troopers. The plaintiff also asserts that he was threatened with arrest numerous times because he challenged the defendant's conduct and actions. The plaintiff has alleged concrete harm, thus satisfying the injury requirement under a first amendment retaliation claim.
State Law Claims
Count Five--Gross Deviation from Reasonable Care
In count five, the plaintiff claims that the defendant grossly breached his duty to act with reasonable care and that his conduct was unbecoming of a state trooper, in violation of Department of Emergency Services and Public Protection standards. The defendant argues that this count is not an actionable claim, stating that an allegation of a deviation from the appropriate standard of professional conduct expected of state troopers " does not amount to an actionable claim for money damages."
Although the count is captioned " gross deviation from reasonable care, " paragraph 1 of the complaint describes this as a claim of gross negligence.
" [G]ross negligence has never been recognized in this state as a separate basis of liability in the law of torts. We have never recognized degrees of negligence as slight, ordinary, and gross in the law of torts." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 833 n.10, 836 A.2d 394 (2003). See also Dziadowicz v. American Medical Response of Connecticut, Inc., Superior Court, judicial district of New Britain, Docket No. CV-11-6010944-S (January 23, 2012, Swienton, J.) (53 Conn.L.Rptr. 445, 448, ) (" [b]ecause the legislature did not explicitly create a cause of action in gross negligence, and since the appellate courts of this state have explicitly declined to recognize one, this court is without authority to permit the plaintiff to maintain such a cause of action in gross negligence"). Accordingly, count five is stricken.
Count Six--Recklessness
In count six, the plaintiff alleges that the defendant acted recklessly in carrying out his duties as a state trooper. In his memorandum, the defendant argues that the claim fails as a matter of law because the complaint fails to allege that the defendant " engaged in highly unreasonable conduct in a situation where a high degree of danger was present or that he otherwise jeopardized the plaintiff's health or safety or created an unreasonable risk of harm." The plaintiff contends that a jury could find that the drawing of a Taser gun was an unreasonable risk of harm.
Our Supreme Court has stated: " Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent . . . More recently, we have described recklessness as a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Citations omitted; internal quotation marks omitted.) Matthiessen v. Vanech, supra, 266 Conn. at 832-33. " [S]uch aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted.) Pecan v. Madigan, 97 Conn.App. 617, 622 n.5, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007).
" Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted . . . [A] brief reference to recklessness, contained within a count which otherwise is clearly limited to ordinary negligence is [not] sufficient to raise a claim of reckless and wanton misconduct. Simply using the word 'reckless' or 'recklessness' is not enough . . . Some additional factual allegations are necessary to alter the nature of the conduct complained of from an action for negligence to an action for wilful and wanton conduct . . . If the plaintiff merely reiterates the facts from the negligence count and inserts the word 'reckless, ' a motion to strike is properly granted . . . If, however, the factual allegations in the negligence count are detailed and specific enough to support a claim of recklessness, the motion to strike may be denied . . . To state a claim of recklessness . . . the [plaintiff] must allege facts demonstrating both egregious conduct and the requisite state of mind." (Citation omitted; internal quotation marks omitted.) Connolly v. Reels, Superior Court, judicial district of New London, Docket No. CV-05-4004013-S, (May 2, 2006, Hurley, J.T.R.).
In the present matter, the plaintiff alleges that the defendant pointed his Taser gun at him, made repeated threats to arrest him, and told him that he was being disrespectful during an encounter in which the plaintiff was pulled over on the side of the road due to a flat tire. The plaintiff has alleged facts inferencing conduct that exhibits an extreme departure from ordinary care of a state trooper under the present circumstances. See, e.g., 18 Brewer Associates, LLC v. Mormino, Superior Court, judicial district of Hartford, Docket No. CVH-01-6792, (December 5, 2007, Wiese, J.) (summary judgment denied as factual allegations support claim of recklessness against police officers who threatened and harassed plaintiff's with arrest); Kolton v. Stamford Police Dep't, Superior Court, judicial district of Stamford-Norwalk, Docket No. FST-CV-11-6008948-S, (December 27, 2013, Karazin, J.T.R.) (motion to strike denied as to recklessness claim against police chief). Cf. Medina v. Birts, Superior Court, judicial district of Fairfield, Docket No. CV-99-0366905-S, (November 14, 2000, Skolnick, J.) (motion to strike granted as to recklessness claim because plaintiff did not allege conduct more than gross negligence).
Count Seven--Intentional Infliction of Emotional Distress
The defendant argues that count seven of the plaintiff's complaint for intentional infliction of emotional distress should be stricken on the ground that the alleged underlying conduct is not extreme or outrageous. The plaintiff counters that drawing a Taser weapon constitutes extreme and outrageous conduct.
" To establish a claim of intentional infliction of emotional distress, the plaintiff must plead and prove the following four elements: (1) that the [defendant] 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." (Internal quotation marks omitted.) Davis v. Davis, 112 Conn.App. 56, 65, 962 A.2d 140 (2009). As to the second element, which is the only element the defendant argues in his motion, " [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 . . . 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." (Internal quotation marks omitted.) Id., 66.
" 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!" (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
" 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.) Bombalicki v. Pastore, 71 Conn.App. 835, 840, 804 A.2d 856 (2002).
Here, the complaint alleges that the defendant pointed and/or displayed his Taser gun and threatened with arrest when the plaintiff was stopped on the side of the road with a flat tire, waiting for roadside assistance to arrive. Under such circumstances, the defendant's actions could amount to extreme and outrageous conduct. Accordingly, construing the complaint in the manner most favorable to sustaining its legal sufficiency, the plaintiff has alleged a claim of intentional infliction of emotional distress.
Count Eight--Negligent Infliction of Emotional Distress
Lastly, the defendant argues that the negligent infliction of emotional distress claim should be stricken because the defendant is entitled to statutory sovereign immunity pursuant to General Statutes § 4-165.
" [I]n order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that 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 . . . This . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable. Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable." (Internal quotation marks omitted.) Wilson v. Jefferson, 98 Conn.App. 147, 162, 908 A.2d 13 (2006). " The elements of negligent and intentional infliction of emotional distress differ as to the state of mind of the actor and not to the conduct claimed to be extreme and outrageous." Muniz v. Kravis, 59 Conn.App. 704, 709, 757 A.2d 1207 (2000).
General Statutes § 4-165 provides in relevant part: " No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment." " [T]he defense of statutory immunity can be raised for claims brought against state employees acting in their individual capacities." Mercer v. Strange, 96 Conn.App. 123, 128, 899 A.2d 683 (2006). " A claim of negligent infliction of emotional distress, by definition, is not a claim of wanton, reckless or malicious behavior." (Internal quotation marks omitted.) McKinney v. Chapman, Superior Court, judicial district of Hartford, Docket No. 04-0833378-S, (March 21, 2006, Tanzer, J.), aff'd, 103 Conn.App. 446, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007). See also McCurdy v. Jones, Superior Court, judicial district of New London, Docket No. CV-08-5009093-S (January 19, 2010, Cosgrove, J.) (49 Conn.L.Rptr. 242, 243, ) (" [a] cause of action for negligent infliction of emotional distress, by definition, is not a claim that the defendant acted 'wilfully or maliciously'"). In the present matter, the defendant is sued only in his individual capacity. As a claim for negligent infliction of emotional distress is barred by statutory immunity, count eight of the plaintiff's complaint is stricken.
III
CONCLUSION
For the foregoing reasons, the plaintiff's motion to strike is granted as to counts five and eight. The motion to strike is denied as to counts one, two, six and seven.
SO ORDERED.