Opinion
No. CV 02 0398342
January 9, 2004
MEMORANDUM OF DECISION RE (#102) DEFENDANT'S MOTION TO STRIKE
The plaintiff, John Sizer (Sizer), was hired by the defendant Connecticut Post newspaper (Post) on December 7, 1998. On May 2, 2000, Sizer was working at or near a printing press in the Post plant when his right hand became caught in the press and the forefinger, middle finger and ring finger on his left hand were amputated.
Sizer was hospitalized after the incident and remained hospitalized for some time thereafter. He has alleged in his complaint that during his hospitalization he was "promised by agents for the defendants that he would have a job upon his return from treatment and rehabilitation." He further alleges in his complaint that he was subsequently terminated from his employment.
The plaintiff originally commenced this action in six counts, however, one count, Count Five, has subsequently been withdrawn by the plaintiff.
Count Three (intentional infliction of emotional distress) and Count Four (negligent infliction of emotional distress) of the plaintiff's complaint relate to the alleged termination of his employment by the defendants.
Count Six (intentional infliction of emotional distress) relates to the alleged injury he sustained while operating the printing press.
The defendants have moved this court to strike Count Three, Count Four and Count Six on the grounds that the allegations of these counts are not legally sufficient to state a claim upon which relief can be granted.
"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.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, 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). When deciding the motion, "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). "[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.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
The plaintiff alleges that "[w]hile cleaning the [printing press plates, his] forefinger, middle finger and ringfinger on his right master arm were caught in the press and amputated." (Complaint.)
I. AS TO COUNT THREE — INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
In count three, the plaintiff alleges intentional infliction of emotional distress. The plaintiff incorporates the allegations in count two and further alleges that the "[d]efendants' agents promised [him] a return to his employment during his rehabilitation and then proceeded to terminate his employment via a letter." (Complaint, ¶ 24.) According to the plaintiff, the defendants, through their agents, "committed actions surrounding [the plaintiff's] termination that were outrageous, and/or made with the intention of causing [him] to suffer emotional distress." (Complaint, ¶ 25.)
The defendants argue that to successfully plead a cause of action for intentional infliction of emotional distress, the plaintiff must allege facts sufficient to show that the defendants' conduct was "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.) CT Page 414 Appleton v. Board of Education, 254 Conn. 205, 211, 757 A.2d 1059 (2000). Essentially, the defendants argue that the plaintiff must show that he suffered emotional distress as a result of direct conduct imposed upon him by the defendants. According to the defendants, the plaintiff cannot succeed here because the defendants terminated his employment indirectly via a letter.
To prevail on a claim for intentional infliction of emotional distress, the plaintiff must show: "(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." (Citations omitted, internal quotation marks omitted.) Id., 210. "Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society . . . 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! 1 Restatement (Second), Torts § 46, comment (d), p. 73 (1965). 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." (Citation omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).
"A review of recent Connecticut decisions on the issue of extreme and outrageous conduct within the context of a claim for intentional infliction of emotional distress reveals that there 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." Knight v. Southeastern Council On Alcoholism, Superior Court, judicial district of New London at New London, Docket No. CV 000557182 (September 21, 2001, Harley, J.). In cases in which the plaintiffs have successfully pleaded intentional infliction of emotional distress and avoided a motion to strike, there usually is some element of public ridicule. See id. (reviewing cases where the plaintiff was successful in establishing a cause of action for intentional infliction of emotional distress).
Our courts have rejected claims for intentional infliction of emotional distress in wrongful discharge actions in which the defendant's alleged conduct was more specific and egregious than that which the present plaintiff has alleged. See, e.g., Muniz v. Kravis, 59 Conn. App. 704, 757 A.2d 1207 (2000) (no intentional infliction of emotional distress where employers sent armed security guard to notify employee, who worked as cook, that she was terminated and where employee was given only 24 hours to leave premises); see also, Appleton v. Board of Education, supra, 254 Conn. 205 (no cause of action for intentional infliction of emotional distress where principal made condescending comments to teacher in front of fellow colleagues, questioned her vision and ability to read, telephoned her daughter and represented that teacher had been acting differently and should take time off work, and then telephoned police, who escorted teacher out of building, and where teacher subjected to psychiatric examinations at request of board of education); Dollard v. Board of Education, 63 Conn. App. 550, 777 A.2d 714 (2001) (no cause of action for intentional infliction of emotional distress where board of education examined every detail of psychologist's personal and professional conduct, transferred her to school where she did not wish work, replaced her at school she had been transferred from, and publicly chastised her for chewing gum, being habitually late, and being disorganized. Conduct possibly hurtful and distressful, but not extreme and outrageous.).
In the present action, the plaintiff's complaint is devoid of facts sufficient to sustain a cause of action for intentional infliction for emotional distress. Although the plaintiff may be hurt and angered by the defendants' alleged conduct the allegations, as stated in the complaint, do not amount to extreme, unacceptable behavior, which would move an average member of the community to exclaim, "Outrageous!" Viewing the complaint in the light most favorable to the nonmoving party, this court finds that the plaintiff has not pleaded facts sufficient to support a cause of action for intentional infliction of emotional distress. Therefore, for the foregoing reasons, the court grants the defendants' motion to strike count three of the complaint.
II. AS TO COUNT FOUR — NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
In count four, the plaintiff alleges negligent infliction of emotional distress. The plaintiff incorporates the allegations in count two and further alleges that the "[d]efendants' agents promised [him] a return to his employment during his rehabilitation and then proceeded to terminate his employment via a letter." (Complaint, ¶ 24.) According to the plaintiff, the defendants, through their agents, "committed actions surrounding [the plaintiff's] termination that were outrageous, and/or made with the intention of causing [him] to suffer emotional distress." (Complaint, ¶ 25.)
The defendants argue that to successfully plead a cause of action for negligent infliction of emotional distress, the plaintiff must show that the defendants' conduct was extreme and outrageous. According to the defendants, the plaintiff has not pleaded any facts alleging that the defendants' conduct was extreme and outrageous.
The plaintiff counters that the facts as pleaded in count three and incorporated by reference in count four, are sufficient to allege negligent infliction of emotional distress. According to the plaintiff, a more detailed recitation of the facts is unnecessary.
Our Supreme Court "continually [has] held that in 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 . . . [The court has] further reasoned: This part of the . . . test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants. If such a fear 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 fear 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." (Citations omitted; internal quotation marks omitted.) Carrol v. Allstate Ins. Co., supra, 262 Conn. 446.
"[N]egligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process . . . Accordingly . . . [t]he mere termination of employment, even where it is wrongful, is therefore not, by itself, enough to sustain a claim for negligent infliction of emotional distress. The mere act of firing an employee, even if wrongfully motivated, does not transgress the bounds of socially tolerable behavior." Perodeau v. Hartford, supra, 259 Conn. 750. "The dispositive issue [is] whether the defendants conduct during the termination process was sufficiently wrongful 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." Id., 751.
"Unreasonable conduct [for the purposes of pleading negligent infliction of emotional distress] has been interpreted by the superior courts as conduct performed in an inconsiderate, humiliating or embarrassing manner." Stosuy v. Stamford, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0358369 (August 30, 1999, Nadeau, J.), aff'd., 65 Conn. App. 221, 782 A.2d 198 (2001) (plaintiff appealed after defendant denied her right to take promotional exam, no cause of action for negligent infliction of emotional distress where plaintiff alleged defendant violated due process rights by failing to notify her of rights in the appeal process. Termination not done in an humiliating or embarrassing manner); see also Saltzman v. Trailblazers Academy Inc., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 02 0187929 (September 10, 2002, Lewis, J.) (motion to strike granted where plaintiff's employment terminated over telephone. Court held private conversation hardly rises to level of "unreasonable conduct" necessary for cause of action for negligent infliction of emotional distress); Selander v. Soundview Technology Corp., Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 02 0189753 (February 10, 2003, Adams, J.) (motion to strike granted where plaintiff alleged defendant fired him days before he reduced workforce and provided laid-off employees with two weeks notice, and seven weeks severance pay); Kuhn v. People's Bank, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01 0454638 (October 4, 2002, Thompson, J.) (plaintiff took leave of absence to treat alcoholism, returned to work, relapsed and returned to disability leave. Plaintiff terminated after being assured on number of occasions, prior to returning, that she still had job. Plaintiff brought action for negligent infliction of emotional distress alleging defendant fired her after officials falsely and maliciously accused her of being drunk on that day. Plaintiff also alleged she was subject to gossip and untruthful statements, and was followed wherever she went in bank, which caused unbearable stress and relapse. Court granted motion to strike for insufficiency).
In count four of the present action, the relevant allegations are that the defendants' agent promised the plaintiff that he could return to work after rehabilitation and that the defendant fired him via letter. These facts are insufficient to show that the defendants should have realized that their conduct involved an unreasonable risk of causing the plaintiff emotional distress, which in turn, may result in illness or bodily harm. Using a letter to inform the plaintiff that he was terminated is not an inconsiderate, humiliating or embarrassing act. Like the telephone call in Saltzman, cited supra, the letter was a confidential communication between plaintiff and defendants. It is irrelevant that the defendants and or their agents may have promised the plaintiff that he would be able to return to work. See, supra, Kuhn v. People's Bank, Superior Court, Docket No. CV 01 0454638. Viewing the pleading in a light most favorable to the nonmoving party, this court finds that the plaintiff has not pleaded sufficient facts to sustain a cause of action for negligent infliction of emotional distress; therefore, the defendant's motion to strike count four of the complaint is granted.
III. AS TO COUNT SIX — INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
In count six, the plaintiff alleges intentional infliction of emotional distress. Essentially, the plaintiff alleges that the defendants were certain or substantially certain that the plaintiff could be injured when cleaning the printing press while it was operating. According to the plaintiff, the defendants' actions were extreme and outrageous and were done with the intent to cause him to suffer emotional distress.
The defendants repeat the arguments espoused for striking count four of the complaint and further argue that the action is inappropriate because any physical or emotional injury that the plaintiff suffered is adequately covered by the Connecticut Workers' Compensation Act (Workers' Compensation), General Statutes § 31-284.
According to the defendants, Workers' Compensation is the sole remedy for workplace injuries. Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263. The only exception is "when an employee alleges that he was the victim of a deliberate and conscious attempt to cause him harm, in the nature of an assault, and the assailant is of such rank in the corporation that he may be deemed the alter-ego of the corporation." (Defendant's memorandum p. 15.) According to the defendants, the plaintiff has offered no facts to show that the supervisor who ordered him to clean the printing press was, or can be considered an alter-ego of the corporation.
Furthermore, the defendants argue that the action is untimely because, pursuant to General Statute § 52-584, the statute of limitations for bringing an action for injuries caused by wanton or reckless misconduct is two years from the date that the plaintiff sustained the injury. According to the defendants, the plaintiff, in his complaint, alleges that he sustained his injury on May 2, 2000. The plaintiff did not initiate this action, however, until November 2002. The defendants concede that the statute of limitations is an affirmative defense, thus, it should be raised in a motion to dismiss. The defendants argue, however, that the defense of the statute of limitations can be raised via a motion to strike if the parties agree that the complaint sets forth all the facts pertinent to whether the action is barred by the statute of limitations. According to the defendant, having pleaded the exact date of his injury, the plaintiff has no basis for claiming that the complaint is missing facts that bear upon whether the statute of limitations has expired.
General Statute § 52-584 provides: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
The plaintiff countered that in Suarez v. Dickmont Plastic, Corp., 242 Conn. 255, 698 A.2d 838 (1997), the Supreme Court carved out an exception to the Workers' Compensation exclusivity provision. According to the plaintiff, an employee may bring a common-law action against his employer if the employer actually intended to injure the employee or if the employer "created a dangerous condition that made the plaintiff's injuries substantially certain to occur . . ." (Internal quotation marks omitted.) Id., 258. The plaintiff argues that the complaint contains facts that show that the defendants, by and through their representatives and agent, were certain or substantially certain that cleaning the printing press while it was operating could lead to injury to the plaintiff. Furthermore, he has satisfied the alter-ego requirement of the substantial certainty exception outlined in Suarez. According to the plaintiff, "a supervisor of a printing press shop was acting under the instruction or control of an individual of higher rank in the corporation thus satisfying the `alter-ego' requirement of Suarez."
Finally, the plaintiff argues that General Statutes § 52-584, which sets a two-year limitations period for actions arising out of reckless or wanton conduct, does not apply to the present count. According to the plaintiff, count six of the complaint alleges that the plaintiff sustained his injuries as a result of the defendants' intentional conduct; therefore, the three-year statute of limitations under General Statute § 52-577 is applicable here. The plaintiff argues that he sustained his injury on May 2, 2000, and the action commenced in November 2002, well within the three-year limitations period.
General Statute § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
[P]ermitting an employee to sue an employer for injuries intentionally caused to him constitutes a narrow exception to the exclusivity of [General Statutes § 31-284] . . . Since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant employer's standpoint, the common-law liability of the employer cannot . . . be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury . . . What is being tested is not the degree of gravity of the employer's conduct, but, rather, the narrow issue of intentional versus accidental conduct.
In defining intent, [our Supreme Court has] stated that intent refers to the consequences of an act . . . [and] denote[s] that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to follow from it . . . A result is intended if the act is done for the purpose of accomplishing such a result or with knowledge that to a substantial certainty such a result will ensue . . . An intended or wilful injury does not necessarily involve the ill will or malevolence shown in express malice, but it is insufficient to constitute such an [intended] injury that the act . . . was the voluntary action of the person involved . . . Both the action producing the injury and the resulting injury must be intentional . . . [The] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances . . . Therefore, to escape the exclusivity of the act, the victim of an intentional injury must rely on the intended tort theory or the substantial certainty theory. Under the former, the actor must have intended both the act itself and the injurious consequences of the act. Under the latter, the actor must have intended the act and have known that the injury was substantially certain to occur from the act.
(Citations omitted; emphasis in original; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 278-81.
In Suarez, an employer's foreman intentionally directed an employee, on several occasions, to use his bare hands to clean a plastic molding machine while it was still operating. Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 260. The Supreme Court held that, even if the court found that the employer may have created a substantial risk of injury to the employee, the employee could not prevail absent further showing that "the employer believed the injury was substantially certain to follow the employer's acts or conduct . . ." (Emphasis in original.) Id., 280. The allegations in count six of the plaintiff's complaint cannot pass the Suarez test.
The relevant allegation in count six of the complaint states that the "[d]efendants were certain or substantially certain that [cleaning the printing press while it was in operation] would lead to an injury to the [plaintiff]." Using the less stringent of the two tests espoused in Suarez, this conclusory statement does not show that the employer intended the plaintiff to clean the printing press and believed with substantial certainty that amputation of his fingers was substantially certain to follow their conduct.
Furthermore, even if this court concluded otherwise, the plaintiff cannot prevail under the test of alter ego liability set forth in Jett v. Dunlap, supra, 179 Conn. 215. In Jett, our Supreme Court articulated "[t]he correct distinction to be drawn . . . between a supervisory employee and a person who can be characterized as the alter ego of the corporation. [The court stated that i]f the [actor] is of such rank in the corporation that he may be deemed the alter ego of the corporation under the standards governing disregard of the corporate entity, then attribution of corporate responsibility for the actor's conduct is appropriate. It is inappropriate where the actor is merely a foreman or supervisor . . . The distinction is based on identification, not agency. If the assailant can be identified as the alter ego of the corporation, or the corporation has directed or authorized the [act], then the corporation may be liable in common-law tort; if the [actor] is only another employee who cannot be so identified, then the strict liability remedies provided by the Workmen's Compensation Act are exclusive and cannot be supplemented with common-law damages." Id., 219.
In the present action, the plaintiff directs the court to paragraphs 37, 38, 39 and 40, in which the plaintiff alleges that the "`[d]efendants, by and through their representatives and agents' caused the conduct which was substantially certain to lead to injury to the plaintiff . . ." (Plaintiff's memorandum p. 6.) The plaintiff contends that a supervisor acting under the instructions of his superiors satisfies the alter-ego requirement of Suarez. This argument is inconsistent with the court's statement in Jett, which the court reiterated in Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 275. Such allegations are insufficient to demonstrate that the supervisor had a determinative role within the defendants' corporate structure, and therefore, can be considered an alter ego of the defendants. Thus, for the foregoing reasons the court grants the defendants' motion to strike count six of the complaint. Having granted the motion to strike on the ground that the Workers' Compensation Act is the plaintiff's sole remedy, the court will not address the defendant's argument that the action is barred by the applicable statute of limitations.
BY THE COURT, JOSEPH W. DOHERTY, JUDGE.