Opinion
No. CV10 6014443S
June 28, 2011
MEMORANDUM OF DECISION
I FACTS
On September 10, 2010, the plaintiff, Lynn Fasano, filed a two-count complaint against the defendant, Michael Caprio, alleging negligence and negligent infliction of emotional distress, respectively. The plaintiff alleges that the defendant owned real property located at 147-49 Elizabeth Ann Drive (premises) and occupied the first floor. According to the plaintiff, prior to March 2009, the defendant lived on the first floor of the premises with his wife, Nicole Caprio, and their children. The plaintiff alleges that both the defendant and his wife had key access to her apartment and that Nicole Caprio often spent time in the plaintiff's apartment as the plaintiff assisted her with the care of her children. According to the plaintiff, sometime in March of 2009, the defendant and his wife separated. The plaintiff alleges that following their separation, Nicole Caprio experienced financial difficulties, misappropriated marital funds, refused to pay debts owed to creditors, amassed massive credit cards bills, and stole funds from her employer resulting in her arrest. The plaintiff alleges that the defendant knew or should have known about Nicole Caprio's behavior. According to the plaintiff, she was aware of Nicole Caprio's financial difficulties and was concerned that Nicole Caprio had access to her apartment. The plaintiff alleges that she requested, on numerous occasions, that the defendant change the locks on her door, but the defendant failed to do so. Thereafter, according to the plaintiff, in the fall of 2009, Nicole Caprio unlawfully entered her apartment through the use of a key maintained by the defendant in a first-floor kitchen drawer and stole an assortment of the plaintiff's jewelry from her apartment valued at over $48,000.
In count two for negligent infliction of emotional distress, the plaintiff alleges that as a result of the defendant's negligence and carelessness, the plaintiff experienced and was put at an increased risk for extreme emotional distress resulting in increased stress and anxiety, chronic insomnia, lupus, arthritis, and migraines. The plaintiff also alleges that the defendant knew or should have known that the theft of the plaintiff's property would have caused the plaintiff to suffer extreme emotional distress resulting in the aforementioned illnesses and bodily harms for one or more of the following reasons: a) the defendant knew of the plaintiff's medical history; b) the defendant knew that emotional distress caused the plaintiff's medical conditions and symptoms to increase in pain and severity; c) the plaintiff complained to the defendant that Nicole Caprio's access to her apartment was causing her great emotional stress and suffering; and d) the defendant knew of the plaintiff's significant emotional attachment to the stolen jewelry.
On February 9, 2011, the defendant filed the present motion to strike count two of the plaintiff's complaint for negligent infliction of emotional distress on the ground that the claim is legally insufficient because it derives from the plaintiff's loss of personal property. On March 10, 2011, the plaintiff filed an objection to the motion to strike arguing that she has sufficiently pleaded a claim for negligent infliction of emotional distress. The matter was heard on the March 14, 2011 short calendar.
II DISCUSSION A Motion to Strike 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). "[The court takes] the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that 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.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
B Analysis 1 Parties' Arguments
The defendant moves to strike count two of the plaintiff's complaint for negligent infliction of emotional distress on the ground that the claim is legally insufficient because it derives from the plaintiff's loss of personal property. More specifically, the defendant argues that Connecticut courts do not recognize a cause of action for negligent infliction of emotional distress based solely on damage to property because it is not foreseeable to the defendant that his conduct could have caused emotional distress and that distress, if caused, might result in illness or bodily harm. The defendant contends that the plaintiff's claim for negligent infliction of emotional distress is directly related to the loss of the plaintiff's jewelry, not the alleged failure to change the locks to the apartment. According to the defendant, it was not foreseeable that his failure to change the locks on the plaintiff's apartment could have caused emotional distress, and that such distress, if it were caused, might result in the plaintiff's alleged illness or bodily harm.
The plaintiff objects arguing that a claim for negligent infliction of emotional distress arising out of property damage is not excluded under Connecticut's jurisprudence. Rather, the viability of a negligent infliction of emotional distress claim turns on the foreseeability of the emotional harm. The plaintiff argues that she has sufficiently pleaded facts which, if taken as true, satisfy the foreseeability requirement in that they show that the defendant had peculiar knowledge that his conduct created an unreasonable risk of causing the plaintiff emotional distress and its accompanying physical manifestations.
Additionally, the plaintiff argues that the defendant relies on a faulty line of cases in support of his argument that property damage cannot be the basis for a negligent infliction of emotional distress claim. According to the plaintiff, the defendant's reliance on Myers v. Hartford, 84 Conn.App. 395, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004), is misplaced because Myers did not create a categorical bar on negligent infliction of emotional distress claims arising out of property damage, but rather refused to recognize negligent infliction of emotional distress claims resulting from "injury to such property as a pet." Id., 402. The plaintiff argues that the Appellate Court was driven by a desire to create a policy-based limitation on the potential multitude of pet injury claims, not to prohibit negligent infliction of emotional distress claims stemming from damage to property. The plaintiff contends that the Superior Court cases relied on by the defendant, which cite Myers, misconstrue the holding in Myers and should be disregarded. Instead, the plaintiff argues that the court should rely on the foreseeability standard set forth in Carrol v. Allstate Insurance Co., 262 Conn. 433, 446, 815 A.2d 119 (2003), where the court states: "[I]n 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." (Internal quotation marks omitted.)
2 Negligent Infliction of Emotional Distress
"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 . . . 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 . . . The foreseeabiity requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm . . . In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm."(Citation omitted; internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 1221 (2010); see Carrol v. Allstate Insurance Co., supra, 262 Conn. 433.
"It is fairly well established that to date, Connecticut has not recognized claims for negligent infliction of emotional distress arising out of situations resulting in property damage alone." Peck v. Perugini, Superior Court, judicial district of Fairfield, Docket No. CV 07 5012606 (September 21, 2010, Dooley, J.). "Superior Courts have found that [a] negligent infliction of emotional distress claim based on property damage is not a legally cognizable claim in Connecticut . . . reasoning that [w]here the injury alleged is solely to property, it is not foreseeable to the defendant that its conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Citation omitted; internal quotation marks omitted.) Duffy v. Wallingford, 49 Conn.Sup. 109, 122, 862 A.2d 890 (2004).
"While there is no direct appellate authority dealing with a claim for negligent infliction of emotional distress where the damage alleged is injury to property, in Myers v. Hartford, 84 Conn.App. 395, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004), our Appellate Court noted that `[o]ur common law has never recognized a right to sue an individual for intentional or negligent infliction of emotional distress resulting from injury to such property as a pet.' . . . The basis of that ruling [in Myers] was that damage or destruction to property alone, despite sentimental attachment to the property cannot be the basis of recovery for emotional distress." Goldstein v. Rapp, Superior Court, judicial district of New London, Docket No. CV 10 4010224 (October 15, 2010, Martin, J.) [ 50 Conn. L. Rptr. 779]. "The court's rationale in Myers indicated that sentimental or emotional attachment to property cannot be the basis of a claim for negligent infliction of emotional distress when solely the property is damaged or destroyed." Williams v. Feely, Superior Court, judicial district of New London, Docket No. CV 055000295 (October 2, 2006, Hurley, J.T.R.) ( 42 Conn. L. Rptr. 168, 170).
"In [ Goldstein v. Rapp, supra, Superior Court, Docket No. CV 10 4010224], the plaintiffs allege . . . that the defendant removed or caused to be removed the plaintiffs' personal possessions from the premises, including mementos, family photos and a jar containing the cremated remains of . . . Goldstein's father. The plaintiffs further allege . . . that the [defendant's] aforesaid conduct created an unreasonable risk of causing [the] [p]laintiffs' emotional distress, and [the] [p]laintiffs suffered severe emotional distress as a result . . . Pursuant to the allegations, the plaintiffs' claim of emotional distress is directly related to property damage, and the court finds that it was not foreseeable to the defendant that his conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm. As a result, even construing the allegations in the plaintiffs' favor, the plaintiffs' claim for negligent infliction of emotional distress cannot withstand a motion to strike." (Internal quotation marks omitted.) Id.
Conversely, in Duffy v. Wallingford, supra, 49 Conn.Sup. 122, the court denied the defendant's motion for summary judgment as to the plaintiffs' claim of "negligent infliction of emotional distress due to raw sewage flooding through their house on several occasions. The court . . . [reasoned] that although property damage was involved, the root of the emotional distress claim was the revolting nature and physical discomfort of the sewage in the house." Bernadt v. Leopold, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 09 5010520 (December 29, 2009, Jennings, Jr., J.); see Duffy v. Wallingford, supra, 123 ("Viewing the allegations of the complaint and the evidence in a light most favorable to the plaintiffs, their claims of emotional distress arise from their responses to the offensive exposure and continuing risk of exposure to raw sewage, not solely from the damage their property allegedly sustained as a result of the invasion of their home"). "In reaching this conclusion, the court noted that the plaintiffs claim not only that their property was damaged as a result of sewage, but also that they suffered physical discomfort and annoyance as a result of the presence of the sewage in their home." (Emphasis m original; internal quotation marks omitted.) Jameson v. Newington, Superior Court, judicial district of Hartford, Docket No. CV 04 0832671 (February 27, 2006, Tanzer, J.) ( 40 Conn. L. Rptr. 803, 805).
In the present case, the plaintiff has alleged that (1) she stored jewelry of great monetary and sentimental value in her apartment; (2) the defendant knew of the existence of the jewelry and the plaintiff's sentimental attachment to it; (3) the defendant knew that the plaintiff suffered from anxiety, lupus, arthritis and migraines, all of which were exacerbated by emotional distress; (4) the defendant knew or should have known that his wife had engaged in repeated acts of theft and was having financial difficulties; and (5) the plaintiff expressed concern to the defendant about the safety of her jewelry and repeatedly asked the defendant to change the locks to her apartment. Moreover, the plaintiff specifically alleges that the defendant "knew or should have known that the theft of the plaintiff's property would have caused the plaintiff to suffer extreme emotional distress . . ." Consequently, the plaintiff's claim of negligent infliction of emotional distress derives solely from the loss of her property. Accordingly, the motion to strike count two is granted.