Opinion
No. CV 09 5026298 S
February 5, 2010
MEMORANDUM OF DECISION
This is personal injury action arising out of an accident that occurred during a dirt bike race. The defendants' move to strike twenty-five counts of the plaintiffs' forty-count complaint. Specifically, the defendants move to strike five counts alleging recklessness on the ground that the plaintiffs fail to allege sufficient facts to sustain that cause of action, ten counts alleging intentional infliction of emotional distress on the ground that the plaintiffs fail to allege facts establishing that the defendants engaged in extreme and outrageous conduct, and ten counts alleging negligence and negligent infliction of emotional distress on the ground that the plaintiffs fail to allege a legal duty owed by the defendants. The court denies the defendants' motion to strike the plaintiffs' recklessness counts and intentional infliction of emotional distress counts; and grants the defendants' motion to strike the challenged negligence counts and challenged negligent infliction of emotional distress counts.
The plaintiffs, Nicholas Canny and Cameron Drew, initially filed a forty-eight count complaint on January 13, 2009. On September 1, 2009, the plaintiffs amended that complaint, resulting in the forty-count complaint currently before the court. The allegations in that amended complaint concern five defendants: Mototown Properties USA, Inc. (Mototown Inc.), Mototown Properties, LLC (Mototown LLC), Mototown Productions, LLC (Mototown Productions), Thomas DeFranzo and Tommy D's Moto Town USA.
The original complaint and summons named two additional defendants, Infinity VII, LLC and Ferraina Company, LLC, but the plaintiffs subsequently withdrew their claims against these defendants. Tommy D's Moto Town USA was added as a defendant in this action pursuant to the plaintiffs' motion to cite it in, which was granted by the court on July 22, 2009.
The amended complaint alleges the following facts. On January 6, 2007, Canny was participating in a dirt bike race, which he had paid to enter, that was conducted, sponsored or promoted by Mototown Productions and conducted or promoted by Mototown Inc. and Mototown LLC at a motocross facility known as Mototown USA. Mototown USA was owned, operated, possessed, leased, maintained, controlled or managed by Tommy D's Moto Town USA and also possessed, controlled or maintained by Mototown Inc. and Mototown LLC. During the race, DeFranzo, a member, owner, agent, servant or employee of Mototown Inc., Mototown LLC and Mototown Productions, walked, without warning, onto the track in plain clothes and into Canny's path. In order to avoid hitting DeFranzo, Canny let off the throttle of his dirt bike, causing him to fail to clear a jump, and to be thrown from the bike onto the track. While Canny was on the track, the defendants allowed the race to continue, failed to warn the other participants in the race that Canny was on the track and caused another participant to run over Canny. Canny suffered severe, painful and permanent physical and emotional injuries. On the day of this incident, Drew, who is Canny's mother, was on the Mototown USA premises and witnessed Canny's injuries. As a result, Drew suffered emotional distress.
Canny alleges claims of negligence against the defendants in five separate counts, with each count naming a different defendant but containing essentially the same allegations. The same is true of Canny's claims of recklessness, negligent infliction of emotional distress and intentional infliction of emotional distress. Drew alleges claims of bystander emotional distress, negligent infliction of emotional distress, intentional infliction of emotional distress and negligence against all five defendants in the same fashion.
On September 17, 2009, the defendants filed a motion to strike twenty-five counts of the complaint. Specifically, the defendants move to strike Canny's recklessness claims (counts two, six, ten, twenty-three and thirty-four) on the ground that the plaintiffs fail to plead specific factual allegations of reckless conduct. The defendants move to strike Canny's intentional infliction of emotional distress claims (counts four, eight, twelve, twenty-five and thirty-six) and Drew's intentional infliction of emotional distress claims (counts fifteen, eighteen, twenty-one, twenty-nine and forty) on the ground that the plaintiffs fail to allege conduct by the defendants that is sufficiently extreme and outrageous. Finally, the defendants move to strike Drew's negligence claims (counts twenty-six, thirty, thirty-one, thirty-two and thirty-seven) and negligent infliction of emotional distress claims (counts fourteen, seventeen, twenty, twenty-eight and thirty-nine) on the ground that the plaintiffs fail to allege facts establishing that the defendants owed a legal duty to Drew. The defendants submitted a memorandum of law in support of the motion. The plaintiffs filed an objection to the motion to strike on October 19, 2009, with a memorandum of law in support. The matter was heard at the short calendar on November 23, 2009.
DISCUSSION
"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). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Id., 580. The court should "construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). Alternatively, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.
The defendants argue in their motion to strike that twenty-five counts of the forty counts alleged in the complaint, representing four different types of causes of action, are legally insufficient to state a claim. The recklessness and intentional infliction of emotional distress causes of action are considered individually, while the negligence and negligent infliction of emotional distress claims are considered together.
I RECKLESSNESS
The defendants argue that counts two, six, ten, twenty-three and thirty-four are legally insufficient to state a claim for recklessness because the plaintiffs fail to plead specific factual allegations of reckless conduct by the defendants. Specifically, the defendants contend that the recklessness counts are insufficient because they simply incorporate the allegations of negligence in other counts. The plaintiffs argue that the recklessness counts are sufficient because they have alleged facts adequate to establish that the defendants engaged in reckless conduct.
"To determine whether the plaintiffs' amended complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior. Recklessness is 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 [wilful], 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 . . . It is at least clear . . . that such 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.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003). "[The Supreme Court has] said that no specific rule can be established which will determine what constitutes reckless or wanton misconduct on any given state of facts, and that it is a question of fact for the jury." Brock v. Waldron, 127 Conn. 79, 82-83, 14 A.2d 713 (1940).
The defendants argue that "[i]n the [plaintiffs'] recklessness counts, the plaintiff simply incorporates his negligence allegations in his recklessness counts . . ."; and that because of this, "[a]lthough the plaintiff uses words such as `reckless' and `recklessness,' he fails to allege facts to show how the defendant's conduct was reckless, or that the defendant made a conscious choice to act knowing the possible negative consequences of his actions. Accordingly, the pleadings do not justify elevating the case of action from negligence to recklessness."
The court disagrees. Indeed, the Connecticut Supreme Court has rejected a virtually identical claim in Craig v. Driscoll, supra, 262 Conn. 312. In that case, the defendants contended that "because the plaintiffs use the same language to allege negligent and reckless conduct, the allegations are insufficient" to state a cause of action for reckless infliction of emotional distress on a bystander. Id., 341. In disagreeing with that contention, our Supreme Court stated: "The defendants are mired in the fact that, aside from the addition of the words `[wilful], wanton and/or reckless actions,' the plaintiffs' allegations in their reckless counts mirror their assertions in the counts charging the defendants with negligence. 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." Id., 343.
As the Supreme Court has often stated, "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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
Pursuant to this standard, the plaintiffs' recklessness counts sufficiently state causes of action in recklessness by alleging conduct by the defendants that goes beyond ordinary negligence. As the Appellate Court stated in Craig v. Driscoll, 64 Conn.App. 699, 722, 781 A.2d 440 (2001), aff'd, 262 Conn. 312 (2003); "[w]hether the evidence will support a cause of action is not to be decided here . . . The question is whether the complaint states a cause of action . . . [A] jury should determine whether the defendants proximately caused the plaintiffs' injuries and, if so, whether their acts were reckless or merely negligent." (Citation omitted.) The recklessness counts are not insufficient because they incorporate the negligence allegations, since the language, and what may be implied therefrom, and organization of the amended complaint is clear enough to inform the court and opposing counsel that both negligence and recklessness are being asserted. As the Supreme Court said in Craig v. Driscoll, supra, 262 Conn. 343 n. 22, "[r]ather than adopting the defendants' conclusion that the allegations are not sufficient to state a cause of action for recklessness . . . we suggest that the plaintiffs' allegations of negligence were overinclusive." Counts two, six, ten, twenty-three and thirty-four of the plaintiffs' amended complaint are, therefore, legally sufficient to state a claim for recklessness.
II INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The defendants argue that counts four, eight, twelve, twenty-five and thirty-six, alleging claims of intentional infliction of emotional distress on behalf of Canny, and counts fifteen, eighteen, twenty-one, twenty-nine and forty, alleging claims of intentional infliction of emotional distress on behalf of Drew, are legally insufficient to state a claim for intentional infliction of emotional distress because the plaintiffs have failed to allege that the defendants engaged in conduct that meets the standard for extreme and outrageous conduct. The plaintiffs argue that Canny's intentional infliction of emotional distress claims sufficiently allege 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 plaintiffs 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 (2099).
As to the second element, which is the only one at issue here, "[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. "Only where reasonable minds disagree does it become an issue for the jury." CT Page 4515 Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
"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, supra, 254 Conn. 210-11.
In the intentional infliction of emotional distress counts, the plaintiffs allege the following. "On January 6, 2007 . . . [Canny] was riding a dirt bike [at Mototown USA] during a race when suddenly and without warning [DeFranzo] . . . appeared walking on the track in plain clothes in [Canny's] path as he was racing . . . [C]ausing [Canny] to be thrown from his bike and to be down on the track during the race. While [Canny] was down on the track, [the defendants] allowed the race to continue, failed to warn the other drivers that [Canny] was down on the track, and caused another driver to run over [Canny] . . . [The defendants] failed to have an ambulance or adequate medical personnel on site during the race."
Within the context of the allegations that the defendants owned, operated, conducted or promoted a commercial motocross dirt bike race, the defendants' alleged conduct and the facts that may be implied therefrom, could be found to be extreme and outrageous by a reasonable fact finder. DeFranzo is alleged to have walked onto a dirt bike track during a race featuring multiple dirt bikes that were likely traveling at high rates of speed. He appeared without warning and wearing plain clothes, rather than any kind of special clothing or safety gear that might have provided notice or warning of his presence to Canny and the other drivers. After Canny was thrown from his bike as a result of DeFranzo's conduct, it is alleged that the defendants allowed the race to continue and did not warn the other drivers that Canny had fallen. Allowing a dirt bike race to continue while a driver is down on the track certainly creates a hazardous situation for that driver, including the significant risk of being run over by another dirt bike. Further, despite the dangerous nature of dirt bike racing, the defendants are alleged to have failed to have an ambulance or adequate medical personnel on site. These allegations are enough for a reasonable fact finder to find extreme and outrageous conduct. Therefore, counts four, eight, twelve, fifteen, eighteen, twenty-one, twenty-five, twenty-nine, thirty-six and forty of the plaintiffs' amended complaint are therefore legally sufficient to satisfy this element of their claims for intentional infliction of emotional distress.
III NEGLIGENCE AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The defendants argue that counts twenty-six, thirty, thirty-one, thirty-two and thirty-seven, alleging claims for negligence on behalf of Drew, and counts fourteen, seventeen, twenty, twenty-eight and thirty-nine, alleging claims for negligent infliction of emotional distress on behalf of Drew, are legally insufficient to state such claims because the plaintiffs' allegations fail to allege that the defendants owed a legal duty to Drew. The plaintiffs argue that in these counts, they sufficiently allege facts showing that the defendants owed a duty of care to Drew.
"The essential elements of a cause of action in negligence are well established: [D]uty; breach of that duty; causation; and actual injury . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Citation omitted; internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 593, 945 A.2d 388 (2008). "[O]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 217, 905 A.2d 1135 (2006). "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., supra, 593-94. "We have stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, supra, 217-18.
The Supreme Court has emphasized the necessity of the second part of this test for duty, explaining: "A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Citations omitted; internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 756, 792 A.2d 752 (2002). The Supreme Court has not also noted that "[a court is] not required to address the first prong as to foreseeability if [it] determine[s], based on the public policy prong, that no duty of care existed." Neuhaus v. Decholnoky, supra, 280 Conn. 218.
"To prevail on a claim of negligent infliction of emotional distress, the plaintiff must plead and prove the following: `(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). Thus, [t]he 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." (Internal quotation marks omitted.) Davis v. Davis, supra, 112 Conn.App. 68. Given that to prevail on a claim of negligent infliction of emotional distress the plaintiff's distress must be found to have been foreseeable, a court must determine that the defendant owed a legal duty to the plaintiff. See Perodeau v. Hartford, supra, 259 Conn. 754 (applying a duty analysis to a claim of negligent infliction of emotional distress); Zamstein v. Marvasti, 240 Conn. 549, 564, 692 A.2d 781 (1997) (finding that the trial court properly struck the plaintiff's negligence counts, including negligent infliction of emotional distress, because the defendant owed no duty of care to the plaintiff). However, [i]n negligent infliction of emotional distress claims, unlike general negligence claims, the foreseeability of the precise nature of the harm to be anticipated [is] a prerequisite to recovery even where a breach of duty might otherwise be found . . ." (Citation omitted; internal quotation marks omitted.) Perodeau v. Hartford, supra, 754.
Because claims for negligence and negligent infliction of emotional distress both require that the defendants owed a legal duty to the plaintiffs, and because the motion to strike challenges the sufficiency of this element of Drew's negligence and negligent infliction of emotional distress claims, the court must determine whether the plaintiffs have sufficiently alleged that the defendants owed a duty to Drew.
The claim asserted here is a form of third party liability. "[T]hird party liability . . . [seeks] to recover . . . not for tortious harms that the defendants inflicted directly on [the plaintiff asserting the claim], but for emotional harms [that individual] suffered as a result of the defendants' tortious conduct committed against another with whom [the individual] ha[s] a close relationship . . . [O]ur cases suggest that the imposition of third party liability on a tortfeasor is an exception to the general rule of the scope of tort liability that requires satisfaction of a special policy inquiry." Mendillo v. Board of Education, 246 Conn. 456, 480, 717 A.2d 1177 (1998). "[I]mposing third party liability . . . remains the exception rather than the rule." Id., 481-82.
"[The Supreme Court's] reluctance to recognize causes of action in tort based on third party liability, in the absence of satisfaction of a special policy inquiry, is based in part upon our realization that the scope of the tortfeasor's third party liability, measured only by pure rules of foreseeability could lead to unlimited liability . . . That is because [i]t is foreseeable that any injured person will be party to a number of relationships . . . Moreover, where the primary victim of the tortious behavior recovers for her own injuries, those direct consequences of the wrongful conduct are compensated and the wrongdoer does not escape liability. Consequently, the fundamental policy purposes of the tort compensation system . . . are satisfied in large measure, and will not be vitiated if the defendant's liability is not extended further. Furthermore, as our cases reveal, imposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy." (Citations omitted; internal quotation marks omitted). Id., 482-83.
The court concludes that the present case "the general rule of limiting the tortfeasor's liability to the person directly harmed should prevail." Id., 484. The recognition of a direct duty owed by operators of a dirt bike race, other recreational sporting competitions or owners of recreational sporting facilities to avoid inflicting emotional distress on third party spectators would violate principles of public policy. Given the wide-ranging sensitivities of individuals, it would be inequitable to hold defendants, such as those in the present case, accountable for any emotional distress that might result from observing acts undertaken by such defendants. While the resulting emotional distress might be "quite literally foreseeable," it would be nearly impossible for such defendants to prepare for or avoid causing emotional distress to third parties to a "controllable degree." See Perodeau v. Hartford, supra, 259 Conn. 756. Recognizing the duty contemplated by the plaintiffs would burden Connecticut's tort compensation system in potentially exposing defendants such as those in this case to unlimited liability and open the courts to a flood of increased litigation. Further, in this case, not only does the primary victim of the defendants' alleged misconduct, Canny, have several theories of tort recovery available to him, many of which are already alleged, but Drew herself has the potential ability to recover under an alleged cause of action that is specially tailored to her relationship to the primary victim, bystander emotional distress. See Clohessy v. Bachelor, 237 Conn. 31, 52-54, 675 A.2d 852 (1996).
As a result, there is no risk that the direct consequences of the alleged wrongful conduct will go uncompensated, or that the alleged wrongdoer will escape liability. See Mendillo v. Board of Education, supra, 246 Conn. 482-83. Given these policy considerations, the court concludes that, on the basis of the facts alleged and as a matter of law, the defendants did not owe a direct legal duty to Drew (except for that duty recognized in a bystander emotional distress claim), independent of any duty they may have owed to Canny. Therefore, counts fourteen, seventeen, twenty, twenty-six, twenty-eight, thirty, thirty-one, thirty-two, thirty-seven and thirty-nine of the plaintiffs' amended complaint are legally insufficient to state a claim for negligence or negligent infliction of emotional distress.
CONCLUSION
For the foregoing reasons, the court denies the defendants' motion to strike the plaintiffs' recklessness counts (counts two, six, ten, twenty-three and thirty-four) and intentional infliction of emotional distress counts (four, eight, twelve, fifteen, eighteen, twenty-one, twenty-five, twenty-nine, thirty-six and forty); and grants the defendants' motion to strike Drew's negligence counts (counts twenty-six, thirty, thirty-one, thirty-two and thirty-seven) and Drew's negligent infliction of emotional distress counts (fourteen, seventeen, twenty, twenty-eight and thirty-nine).