Opinion
HHDCV186086025S
09-04-2018
Evan ZANDONELLA ppa Wilder and Nicholas Zandonella et al. v. STORK CLUB, INC.
UNPUBLISHED OPINION
OPINION
Cesar A. Noble, J.
The issue before the court is whether the failure of a day care center to report the physical, emotional and psychological abuse by its employee of a two-year-old child entrusted its care to the child’s parents causing them emotional distress constitutes a breach of a direct duty owed to the parents. Because the court finds that it does, the plaintiff has stated a legally sufficient claim for negligent infliction of emotional distress and the day care center’s motion to strike must be denied.
Facts
The present action was brought by complaint dated November 27, 2017. The pertinent allegations of the complaint are as follows. In 2014, the plaintiffs, Wilder and Nicholas Zandonella (Zandonellas) placed their two-year-old son, Evan, with the defendant, Stork Club, Inc. (Stork Club), a day care center. During the fall of 2015 Evan’s behavior changed markedly including refusing to eat foods he had previously loved, difficulty sleeping and crawling in to his parents’ bed. Complaint, ¶ 51. The Zandonellas "worried not knowing what could possibly be happening to their child." Complaint, ¶ 52. "This worry about Evan caused the Zandonellas to suffer emotional distress." Complaint, ¶ 53.
Evan’s behavior was caused by verbal, physical and psychological abuse by Nicole Mayo, an employee of the Stork Club. The Zandonellas were confused and worried by his behavior which caused them to suffer emotional distress. The Zandonellas allege in the fourth count of the complaint that the Stork Club’s failure to report Evan’s abuse to them created an unreasonable risk of causing, and was in fact the cause of, emotional distress from which they suffered. Complaint, ¶¶ 56-9. The emotional distress was severe enough to result in illness and/or bodily injury. Complaint, ¶ 61.
The Stork Club moves to strike the fourth count on the grounds that the allegations state neither a claim for negligent infliction of emotional distress or bystander emotional distress. The Stork Club asserts that Connecticut does not recognize a claim for emotional distress caused by apprehension of harm to a third person, in this case Evan, unless in the context of bystander emotional distress. The distinction is important because the plaintiffs concededly have not stated a legally sufficient claim for bystander emotional distress. The Zandonellas argue that the Stork Club breached an independent duty owed directly to them, to wit: a duty to prevent harm to Evan and to report any such harm. In the plaintiff’s view the Zandonellas suffered actionable emotional harm as a consequence of the breach of this independent duty. The Stork Club does not dispute that such a duty exists. Rather, they argue that because the source of their emotional distress is the apprehension of the manifestations of Evan’s injury the Zandonellas have failed to state a claim upon which relief may be granted.
Standard
"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). "In ruling on a motion to strike, the trial court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015).
Analysis
The argument of the Stork Club relies on the proposition that the Zandonellas’ claim is properly recognized as a claim of bystander emotional distress rather than negligent infliction of emotional distress. This is significant because, as the Zandonellas admitted at oral argument, their allegations- purposed to cast a claim for negligent infliction of emotional distress- do not satisfy all the elements of bystander emotional distress.
A bystander may recover for the emotional distress if "(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." Squeo v. Norwalk Hospital. Association, 316 Conn. 558, 571, 113 A.3d 932 (2015).
The elements of negligent infliction of emotional distress are "that (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." (Quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 183, n.8, 994 A.2d 666, 675 (2010) quoting Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
In the view of the Stork’s Club, the fourth count is a "claim for bystander emotional distress masquerading as a direct emotional distress claim." The Stork Club asserts that the "apprehension of harm" approach to distinguishing between a claim for negligent infliction of emotional distress and bystander emotional distress is the applicable methodology and, once applied, yields the conclusion that the Zandonellas are asserting a claim for bystander emotional distress. The Stork Club refers the court to Vargas v. Specialized Education Services, Inc., Superior Court, Judicial District of Hartford, Docket No. 126028454, 2013 WL 6671230 (November 19, 2013, Pellegrino, J.) in which the court addressed the difference between negligent infliction of emotional distress and bystander emotional distress. "Claims for negligent infliction of emotional distress are distinguished from claims for bystander emotional distress not only by the precise cause of the plaintiff’s injury, but also by the distinct elements that a plaintiff must satisfy for each claim. Traditionally, the method by which the courts have addressed negligent infliction of emotional distress claims has depended on whether the injury was produced by the plaintiff’s apprehension of harm to himself or from apprehension of harm to another. While apprehension of harm to another is labeled as ‘bystander emotional distress,’ a person’s own anxiety over possibly suffering an injury is termed ‘negligent infliction of emotional distress.’ " (Citations omitted, quotation marks omitted.) Id., 2.
The Zandonella’s assert, correctly, that subsequent to the Vargas decision the Appellate Court in Marsala v. Yale-New Haven Hospital, Inc., 166 Conn.App. 432, 142 A.3d 316 (2016) articulated a different approach to distinguishing the two emotional distress claims. In that case a hospital was sued, inter alia, by family members of an elderly unconscious patient suffering multi-organ failures who died after being removed from a ventilator by the hospital. The family claimed to have suffered emotional distress as a consequence of the hospital’s contravention of the patient’s wishes relating to the removal of life support. The plaintiffs asserted these allegations formed the basis for claims of negligent and intentional infliction of emotional distress. The superior court, however, struck the claims because they were properly characterized as claims for bystander emotional distress the elements of which the plaintiffs had failed to satisfy. Id., 442.
The appellate court affirmed the trial court’s construction of the nature of the claims asserted. It observed that two types of negligent infliction of emotional distress are recognized in Connecticut. In the first, "the conduct that causes the emotional distress is directed toward the plaintiff (direct emotional distress claims). See Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). In the second, the conduct that causes the emotional distress is directed toward another (bystander emotional distress claims). See Clohessy v. Bachelor, supra, 237 Conn. at 56, 675 A.2d 852. Despite their differences, and like all negligence claims, both subsets of negligent infliction of emotional distress claims require proof of the breach of a legally recognized duty, causing injury ... The difference, then, between whether a set of pleadings sounds in either claim, turns on whether the duty breached was owed directly to the plaintiff (direct) or to a third party (bystander). Our agreement with the trial court that the plaintiffs’ pleadings sounded in bystander liability is based on the determination that the duty the plaintiffs alleged was breached was not a duty owed to them, but to [the patient]." (Citations omitted, quotation marks omitted.) Id., 444-45. In Marsala only the alleged consequences of that breach of duty were claimed to have impacted the plaintiffs. Id., 447.
It is significant that the appellate court in Marsala could have, but did not, apply or even consider the "apprehension of harm" approach advanced by the Zandonellas in the present case. Indeed, one of the decisions of the superior court from which the family members in Marsala appealed acknowledged that the judges of the Superior Court had utilized two approaches in characterizing a claim as either a direct claim of negligent infliction of emotional distress or a claim for bystander emotional distress. Marsala v. Yale-New Haven Hospital, Inc., Superior Court, judicial district of Ansonia Milford, Docket No. 126010861S, 2013 WL 6171307, at *4 (October 30, 2013, Lee, J.) aff’d, 166 Conn.App. 432, 142 A.3d 316 (2016). "The first looks for the existence of a legal duty owed directly to the plaintiff as opposed to the "indirect" duty owed to a bystander ... The second method finds the distinction to be primarily determined by whether a party’s emotional distress arises from the apprehension of harm to the party themself or from the apprehension of harm to a third party. If the apprehension is of harm directly to the party, the party asserts a claim for negligent infliction of emotional distress; if the apprehension is of harm to a third party, the claim is for bystander emotional distress." Id.
The Appellate Court’s use of the direct versus indirect duty analysis to the exclusion of the "apprehension of harm" approach suggests strongly that the former is the only applicable methodology in determining the nature of a claim for emotional distress. The application of the direct duty approach, considering the Zandonella’s complaint in the light most favorable to stating a legally sufficient claim, as this court must, reveals that they have stated a direct claim for emotional distress. Specifically, they claimed that the Stork Club had a duty to report, to them, the abuse visited on their child. Moreover, the Stork Club does not ask this court to decide whether our jurisprudence recognizes a duty to report under the circumstances in the present case.
The same paragraphs of the Zandonella’s complaint that assert a claim for a failure to report Evan’s abuse to them additionally allege that the Stork Club’s failure to prevent or stop the abuse was also the cause of their emotional distress. Complaint, ¶ 59. The Stork Club did not ask to have the complaint revised to separate these allegations from the failure to report nor did it ask to have a portion of a paragraph stricken. See Weingarden v. Milford Anesthesia Associates, P.C., Superior Court, judicial district of New Haven Docket No. CV-11-6016353-S (May 30, 2013, Wilson, J.) ("[O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph [or paragraphs] embodies an entire cause of action or defense" [internal quotation marks omitted] ).
See Kurisoo v. Ziegler, 174 Conn.App. 462, 470-71, 166 A.3d 75 (2017) (failure of party to raise lack of existence of a duty based on public policy basis precludes court’s consideration of same).
Conclusion
Because the Zandonellas assert a direct claim of emotional distress, one founded on a violation of the direct owed duty to them of reporting Evan’s abuse, the motion to strike of the Stork Club is denied.