Opinion
No. X07-CV02 0080891S
July 28, 2003
MEMORANDUM OF DECISION
The defendants, the town of West Hartford, and the other defendants in this case, West Hartford Police Chief James Strillaci and West Hartford Police Lieutenant Len Coppinger, have separately moved to strike the counts of the complaint which pertain to them. The plaintiffs are the estate of Todd Smith, Jane Smith, his widow, and the decedent's children, Jessica and Ryan Smith.
Although a cause of action survives in favor of the representative of a deceased's estate, General Statues §§ 52-106 and 52-599 (a), and a wrongful death claim must be brought by the representative rater than the estate itself under General Statutes § 52-555, see Estate of Schoeller v. Becker, 33 Conn. Sup. 79, 80 (1975), no issue regarding this defect has been raised by the defendants.
The first count of the complaint purports to allege a cause of action for negligently causing the suicide of Todd Smith. The second count merely states that the Connecticut accidental failure of suit statute, General Statutes § 52-592, permits this action to proceed despite a previous dismissal for improper return of the writ. This count was removed in response to a request to revise. The third, fourth, and fifth counts allege wrongful death, loss of spousal consortium and loss of parental consortium (mislabeled as "filial" consortium), respectively. The sixth count alleges intentional infliction of emotional distress.
A motion to strike "admits all the facts well pleaded; it does not admit conclusions or the truth or accuracy of opinions stated in the pleadings." Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985).
I
Counts 1, 3, 4 AND 5
The town moves to strike, with respect to it, the first, third, and fourth counts on the basis of the exclusivity of the Connecticut Workers' Compensation Act. The plaintiffs conceded, at oral argument, that they are claiming that Smith committed suicide arising out of and in the course of his employment.
Recently, our Supreme Court reiterated the broad reach of the exclusivity provision in the case of Stebbins v. Doncasters, Inc., 263 Conn. 231 (2003), which adopted the decision of the trial court. Stebbins v. Doncasters, Inc., 47 Conn. Sup. 638 (2002). It is useful to quote, at length, from that opinion.
"General Statutes § 31-284 (a) exempts employers from liability for civil damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . .' `Arising out of and in the course of his employment' is defined as an accidental injury or occupational disease originating while, the employee is engaged `in the line of [his] duty in the business or affairs of the employer upon the employer's premises . . .' General Statutes § 31-275 (1). `Personal injury' includes accidental injury and `injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease.' General Statutes § 31-275 (16) (A).
"`Occupational disease' includes diseases peculiar to the occupation and `due to causes in excess of the ordinary hazards of employment' and specifically embraces disease resulting from `exposure to or contact with any radioactive material . . .' General Statutes § 31-275 (15).
"The Workers' Compensation Act is remedial and should be `construed generously to accomplish its purpose.' Driscoll v. General Nutrition Corp., 252 Conn. 215, 220, 752 A.2d 1069 (2000). The exclusivity afforded by § 31-284 (a) `manifests a legislative policy decision that a limitation on remedies under tort law is an appropriate trade-off for the benefits provided by workers' compensation.' Driscoll, supra, 220-21. This trade-off is one of the primary purposes of the act. Id., 222. Section 31-284 (a) reflects a compromise of the right to common law remedies for work place injury in exchange for `relatively quick and certain compensation.' (Internal quotation marks omitted.) Id. Any ambiguities in the act must be resolved to advance this remedial purpose . Id.
"Before Jett v. Dunlop, 179 Conn. 215, 425 A.2d 1263 (1979), our Supreme Court had consistently ruled that workers' compensation is the sole remedy available to employees for work-related injury. Id., 217. In Jett, the Supreme Court recognized, in dictum, a possible exception to the exclusivity of workers' compensation where the employer intentionally directs or authorizes another employee to assault the injured party. Id., 218. An `employer' in this context means not merely an agent or one in a supervisory role but one `of such rank' so as to `be deemed the alter ego' of the employer . Id., 219.
"In Mingachos v. CBS, Inc., 196 Conn. 91, 491 A.2d 368 (1985), our Supreme Court was asked to extend the exception mentioned in Jett, to the situation where an employer intentionally violates safety rules and regulations regarding safe ventilation, fails to correct such violations, and fails to warn employees of the dangers created, which consequently results in an explosion killing a employee. The Supreme Court declined this invitation to expand the crack in the exclusivity shield. Id., 100. Instead, the court held that `intentionally,' for purposes of avoiding the exclusive remedy of workers' compensation, means to intend the consequent harm and not just the action which precipitated that harm. Id., 101. This intent is distinguishable from reckless behavior. Id., 102-03. High forseeability or strong probability are insufficient to establish this intent. Id. Although such intent may be proven circumstantially, what must be established is that the employer knew that the injury was substantially certain to follow the employer's deliberate course of action. Id. To hold otherwise would undermine the statutory scheme and purpose of the workers' compensation law and usurp legislative prerogative. Id., 106.
"Definitive explication of the intentional injury exception to workers' compensation exclusivity came in Suarez I. Our Supreme Court explained in Suarez I that the substantial certainty test differed from a pure intent test in that the employee need only show that the employer believed there was a substantial certainty that the employee would suffer injury from its deliberate conduct rather than a requirement that the employer intended the injury to occur. Suarez v. Dickmont Plastics Corp., supra, 299 Conn. 109-11.
"The documentary evidence submitted in opposition to a motion for summary judgment in Suarez I raised a genuine dispute concerning the employer's belief that an employee would inevitably amputate his fingers as a result of the employer's demands of the employee. Id., 111. The evidence proffered showed that the employer refused to allow a machine maintainer to turn off a plastic molding device or to use a vacuum to remove waste plastic from the machine. The evidence showed that the employer insisted that the employee plunge his bare hands into an operating machine. The Supreme Court remanded the case for trial; on remand the trial resulted in a plaintiff's verdict. The matter was appealed once again in Suarez II. In Suarez II, our Supreme Court described its earlier ruling as establishing an exception to the workers' compensation exclusivity provision if the employee can prove `either that the employer actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiff's injuries substantially certain to occur (substantial certainty standard).' Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 257-58. The jury had found that the employer actually intended that the plaintiff sustain harm rather than utilizing the substantial certainty standard. The Supreme Court reversed and ordered the verdict set aside because the trial evidence was inadequate to support actual intent. Id., 280-81. The court reiterated that `[s]ubstantial certainty centers on whether the employer believed the injury was substantially certain to follow the employer's act or conduct . . .' (Emphasis in original.) Id., 280." Stebbins v. Doncasters, Inc., 47 Conn. Sup. 638, 639-42 (2002).
"It is not the gravity of the employer's conduct which comes under scrutiny but rather, the employer's subjective belief. Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 279. The evidence submitted by the plaintiffs amounts to no more `than a mere failure to provide appropriate safety or protective measures.' Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 111. The substantial certainty standard requires a showing that the activity producing the injury to the employee `was intentional or deliberate and the resulting injury, from the standpoint of the employer, was substantially certain to result from the employer's acts or conduct.' Ramos v. Branford, 63 Conn. App. 671, 680, 778 A.2d 972 (2001).
"`Failure to take affirmative remedial action, even if wrongful, does not demonstrate an affirmative intent to create a situation that causes persons injury.' Melanson v. West Hartford, 61 Conn. App. 683, 689, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001). Such delinquencies are not circumstantial evidence of a subjective belief that injury is substantially certain to occur." Id., 644.
The exclusivity provision is a "central feature" of our statutory scheme of workers' compensation. Melanson v. West Hartford, supra, 684. Our legislature has specifically designed our law to make it difficult for employees to avoid the prohibition against lawsuits seeking compensation for workplace injuries. Id., 687.
The first and third counts are bereft of any allegations of intentional injury or reasonable certainty, subjectively held, which are necessary to overcome the bar against civil suits for workplace injury or death. The first count is entitled " NEGLIGENCE," and employs the traditional negligence language of "knew or should have known" that Todd Smith's mental health had deteriorated and that he was suicidal. Paragraphs 22 and 23 aver that the defendants breached a duty of care "to ensure the safety of its employees and co-workers." Count 3 incorporates these allegations and adds, in paragraph 27, that "the death of plaintiff Smith [sic] was caused by the carelessness and negligence of the defendants." Paragraph 28 continues, "[a]s a result of the carelessness and negligence of the defendants, plaintiff Smith [sic] was caused to commit suicide." Clearly, these allegations fail to state facts supporting any level of culpability beyond ordinary negligence and must be stricken because of the exclusivity of the Workers' Compensation Act.
The fourth and fifth counts, as noted above, present claims of loss of parental and spousal consortium. Loss of consortium claims are derivative of the principal claim and must be stricken if that claim fails to set forth a cognizable cause of action. The fifth count also must be stricken because our Supreme Court refuses to recognize the viability of loss of parental consortium claims. Mendillo v. Board of Education, 246 Conn. 456, 477 (1998).
II INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM
The sixth count alleges that the defendants "intended to inflict severe emotional distress upon Plaintiff Crowley-Smith, and knew or should have known that their acts or omissions as alleged herein would result in severe emotional distress to the plaintiff." The acts or omissions referred to are the acts of negligence set forth in the first and third counts, viz, that the defendants inadequately addressed Todd Smith's suicidal state by failing to refer him to a professional counselor, failing to remove his firearm, and failing to reassign him to desk duty. The allegations characterize these acts or omissions as extreme and outrageous. It is further stated that the decedent's wife was engaged in a cell phone conversation with her husband when he committed suicide, causing her severe emotional distress.
The necessary elements of a cause of action for intentional infliction of emotional distress are (1) that the actor intended to inflict emotional distress or that the actor knew or should have known that emotional distress was likely to result from the actor's conduct; (2) that the conduct was extreme and outrageous; (3) that the conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe. Carnemolla v. Walsh, 75 Conn. App. 319, 331 (2003).
The town argues that it bears no liability for intentional infliction of emotional distress by virtue of General Statutes § 52-557n (a)(2) which exempts municipalities from liability for the actions of its officers, employees, or agents which exhibit "actual malice or wilful misconduct." The court holds that proof of the elements of this tort which require that the town employees, agents, or officers either intended to inflict such severe distress, or should have known that severe distress was likely to result from conduct which is extreme and outrageous, necessarily constitutes proof of either actual malice or wilful misconduct.
All of the defendants argue that the conduct alleged fails, as a matter of law, to fall within the meaning of the phrase "extreme and outrageous." The court also agrees with this argument.
It is for the court to determine, as a matter of law, in the first instance whether the conduct alleged is extreme and outrageous. Carnemolla v. Walsh, supra. Only where reasonable minds could disagree does the existence of extreme and outrageous behavior become a factual issue. Id., 332.
Extreme and outrageous conduct means behavior exceeding all bounds usually tolerated by decent society. Id. The activity under attack must be regarded as "atrocious, and utterly intolerable in a civilized community." Id. False accusations of crime have been held insufficient to meet this definition. Id. Public criticism, admonishment, and termination from employment have also been rejected as sufficient as a matter of law. Dollard v. Board of Education, 630 Conn. App. 550, 552-53 (2001); Appleton v. Board of Education, 254 Conn. 205, 211 (2000). Repeated demands to sign fraudulent documents do not constitute extreme and outrageous conduct. Campbell v. Plymouth, 74 Conn. App. 67, 78-79 (2002). Often, public ridicule is a component necessary to constitute extreme and outrageous conduct. Id.
The sixth count lacks any allegation of affirmative misbehavior on the part of the defendants. See Carrol v. Allstate Insurance Co., 262 Conn. 433 (2003). Rather, it asserts as extreme and outrageous the negligent failure of the decedent's superior officer to perceive the urgent need to intervene more aggressively in order to deter their subordinate from taking his own life. Ridicule, public or private, is absent. The court cannot conceive that the average citizen in the community would regard the purported shortcomings as extreme or outrageous and beyond the bounds of socially acceptable behavior. Reasonable minds cannot differ on this point. As a matter of law, the misconduct alleged falls short of extreme and outrageous. This count must also be stricken.
The motions to strike are granted as to all counts.
Sferrazza, J.