Opinion
No. CV05 4001949-S
May 12, 2006
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE #114
The defendant, Renassance Alliance, LLC moves to strike the third and fourth counts of the plaintiff's second revised complaint.
In this case, the plaintiff has filed a four-count complaint against the owners of her residence. The complaint alleges that as a result of the actions of the defendants and their agents, there was a fire at said residence and that the plaintiff suffered damages as a result thereof. In the third count, the plaintiff claims intentional infliction of emotional distress. In the fourth count, the plaintiff claims negligent infliction of emotional distress. The plaintiff does not allege that she was physically injured or that she was in the "zone of danger" but rather, that she lost all of her personal belongings (Count Three, ¶ 8.) and "all of her and her family's worldly possessions." (Count Four ¶ 7.)
"[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994); see also Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989).
"The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
"The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993).
The defendant's principal argument is that Connecticut courts do not recognize a cause of action for either intentional or negligent infliction of emotional distress based solely on damage to property. Myers v. City of Hartford, 84 Conn.App. 395 (2004). The basis of that ruling was that damage or destruction to property alone, despite sentimental attachment to the property cannot be the basis of recovery for emotional distress. "Every superior court case that has addressed this issue . . . has held that Connecticut courts do not recognize a cause of action for negligent infliction of emotional distress based solely on damage to property." Burke v. Boatworks, Inc., Superior Court, Judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 4001838 (July 26, 2005, Jennings, J.). There is nothing in the complaint herein to suggest that the plaintiff was present at the time that her property was destroyed or that she was exposed to physical danger at the time; only that she suffered emotional distress as a result of the loss to her property.
"A motion to strike is the proper procedural vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Ortiz v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. 154112 (March 9, 2000, Pellegrino, J.) ( 26 Conn. L. Rptr. 547); accord Wall v. Nodine's Smokehouse, Inc., Superior Court, judicial district of Litchfield, Docket No. 076969 (November 8, 1999, Sheedy, J.).
At oral argument, the plaintiff relied upon Scanlon v. CLP, 258 Conn. 436 (2001). That case involved, not just the "injury to cows" but the destruction of and an interference with the plaintiff's dairy business and livelihood which is significantly different. The plaintiff also cites Stohlts v. Gilkinson, 87 Conn.App. 634 (2005) but that case is likewise distinguishable. In Stohlts, supra, the defendants had conducted an ongoing course of conduct to viciously harass and intimidate their next-door neighbors in an effort to drive them from their property.
Under the circumstances herein, the motion to strike paragraphs three and four is granted.