Opinion
No. HHB CV03 0523568S
August 29, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE #114.00
I FACTUAL AND PROCEDURAL BACKGROUND
On April 3, 2006, the plaintiffs, Joseph Gregory and Cheryl Gregory, filed an eight-count revised complaint against the defendant Town of Plainville alleging negligent infliction of emotional distress. The complaint alleges in part that Joseph Gregory, a football player at Plainville High School and the son of Cheryl Gregory, was severely injured during a football practice that was conducted in a school hallway. While running sprints in the school building as part of a team practice, Joseph Gregory attempted to stop short of a set of closed doors at the end of the hallway. In doing so, he put his arm out to brace his impact with the door only to have it go through the glass window on the door. His arm was badly cut as a result. Thereafter, the football coach called Cheryl Gregory to inform her that her "son was hurt and probably needed stitches." Told that her son would be transported to the hospital, Cheryl Gregory went to the hospital, rather than to the scene of the injury. At the hospital, she saw her son in a trauma unit "surrounded by doctors with oxygen tubes in his nose and an intravenous needle in his left arm." His clothes and body, as well as material on the floor, were covered in blood and it was obvious that he had been badly hurt. In counts five, six, seven and eight, Cheryl Gregory claims that she suffered emotional distress from unexpectedly seeing her son in such a condition at the hospital. She claims additional damages and injuries based on the Town of Plainville and/or its agents' failure to warn her of the actual severity of her son's injuries.
The plaintiffs filed the original complaint on October 3, 2003.
This case is consolidated with a companion case Gregory et al. v. Cipriano, et al., Superior Court, judicial district of New Britain, Docket No. CV-03-0522872S. The motion to strike is applicable only to the instant file.
On May 17, 2006, the defendant filed a motion to strike, accompanied by a memorandum of law, requesting that the court strike the claims of Cheryl Gregory as set forth in counts five, six, seven and eight of the amended complaint, for the reason that they fail to state a claim upon which relief could be granted. Thereafter, on May 26, 2006, the plaintiff filed an objection to the motion to strike, supported by a memorandum in opposition. Oral argument was held before the court on June 13, 2006.
II STANDARD OF REVIEW
"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). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
"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." (Internal quotation marks omitted.) Commissioner of Labor v. C.M.J. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 328, 743 A.2d 622, cert. denied, 252 Conn. 950, 748 A.2d 299 (2000). "Moreover, [the court] note[s] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged." Commissioner of Labor v. C.M.J. Services, Inc., supra, 268 Conn. 292.
III DISCUSSION
In its memorandum of law in support of its motion to strike, the defendant states that the plaintiff Cheryl Gregory has sued the Town of Plainville claiming negligent infliction of emotional distress. Count five alleges such distress based upon the phone call from the coach understating the injury and thereafter, without warning, seeing her son in the hospital in a severe condition. Counts six through eight base the claim of negligent infliction of emotional distress against the Town of Plainville on General Statute § 52-557n (liability of a political subdivision of the state for personal injury caused by the negligent acts or omissions of any employee, officer, or agent acting within the scope of his employment or official duties), on the doctrine of respondeat superior, and, General Statute § 7-465 (assumption of liability by a town for an employee causing damage while acting within the scope of their employment).
A cause of action for negligent infliction of emotional distress was first recognized in Connecticut in Montinieri v. Southern. New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978). It has been more recently addressed in Carrol v. Allstate Insurance Company, 262 Conn. 433, 815 A.2d 119 (2003), and Perodeau v. City of Hartford, 259 Conn. 729, 792 A.2d 752 (2002). The elements of such a cause of action 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. Carrol v. Allstate Insurance Co., supra at 444. However, despite initially characterizing Cheryl Gregory's claims as sounding in negligent infliction of emotional distress, the defendant's memorandum in support of its motion to strike addresses her claims under the standard of a bystander emotional distress claim. In their objection to the motion to strike, the plaintiffs also substantively address the legal argument in the context of a bystander emotional distress claim, but then briefly argue in the alternative that the defendant has mischaracterized the plaintiffs' claims and that they should be construed only as ones for negligent infliction of emotional distress. At oral argument, the defendant argued that even though the plaintiffs' pleading may have used the language of negligent infliction of emotional distress, that the claims were in fact bystander emotional distress claims. The plaintiffs argued that they are separate and distinct claims and that Cheryl Gregory had properly pled a negligent infliction claim. More specifically, plaintiffs argue that the phone call from the football coach was the negligence that led to the emotional distress because it had not properly prepared Cheryl Gregory for the scene that she came upon at the hospital. Because the parties are in dispute over the meaning and intent of the language used by the plaintiffs in their pleading, the court must review the pleading to determine what cause of action the plaintiffs have attempted to allege.
In this case the plaintiffs have given different headings to each count. For example, count five states "Negligent Infliction of Emotional Distress." However, the heading of the count is not dispositive of what cause of action is alleged. See Blardo v. General Security Indemnity Co. of Arizona, Superior Court, judicial district of Hartford, Docket No. CV 03 0829825 (September 28, 2004, Shapiro, J.) ("[t]he titles which a plaintiff assigns to his causes of action in his complaint are not determinative"). It is the language of the complaint itself that must be analyzed. See Sampiere v. Zaretsky, 26 Conn.App. 490, 494, 602 A.2d 1037, cert. denied, 222 Conn. 902, 606 A.2d 1328 (1992) ("[b]ecause we are bound by the four corners of the plaintiff's complaint, we must examine the specific language to determine the particular causes of action alleged"). Here, a review of the pleadings leads the court to the conclusion that the plaintiffs have attempted to allege in each count a bystander emotional distress claim. For example, paragraph 29 of counts five, six, seven and eight, states: "[a]s a result of seeing Plaintiff [Joseph Gregory] in such condition, without warning, the Plaintiff [Cheryl Gregory] sustained damages and personal injuries, some or all of which may be permanent in nature, including but not limited to the following: a. Emotional distress; b. Psychological pain and suffering; c. fear and apprehension for her son's safety at school; d. anxiety attacks over her son's ability to pursue his love of football and continue his education." Although paragraphs 32 and 33 of each of the counts allege that Cheryl Gregory's damages were caused by the negligence of the defendant's agents through their failure to warn her of her son's condition and appearance, and by the defendant's failure to properly supervise its employees or promulgate and enforce rules regarding the conduct of practices in school hallways, such paragraphs must be read in context with the overall pleading. In so doing, it appears the gravamen of Cheryl Gregory's complaint is one of bystander emotional distress. This is underscored by Cheryl Gregory's allegation that her damages were as a result of seeing her son's physical condition at the hospital. (Plaintiffs' amended complaint, paragraph 29 of counts five, six, seven and eight.) In fact, in the objection to the motion to strike, the plaintiff's state that "Cheryl Gregory sustained her emotional injury when she saw her son in the hospital trauma center just after the injury in substantially unchanged condition from the time of the accident."
The elements of a bystander emotional distress claim were addressed by our Supreme Court in Clohessey v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996): ". . . [A] bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (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." From a reading of the pleadings, it is clear that Cheryl Gregory did not see her injured son at the location where the injury took place. She first saw him at the hospital trauma room. (Plaintiff's amended complaint counts five through eight, paragraph 27.) She did not therefore have an emotional injury caused by the contemporaneous sensory perception of the event or conduct that caused the injury. Moreover, she did not arrive on the scene of the injury soon thereafter, nor did she arrive before a substantial change had occurred in the victim's condition or location. Accordingly, her claims do not meet the second prong of the test set forth in Clohessy.
In footnote 14 of the Clohessy decision, the court took note of a Massachusetts case with a scenario fundamentally similar to the present case. Our Supreme Court expressly declined "to follow Ferriter v. Danile O'Connell's Sons, Inc., 381 Mass. 507, 518-19, 413 N.E.2d 690 (1980), wherein the Massachusetts Supreme Judicial Court expanded the Dziokonski rule [claims for bystander emotional distress] to include emotional distress claims predicated on viewing the injured person at the hospital rather than at the scene of the accident."
Plaintiffs, although specifically addressing the bystander emotional distress argument of the defendant, concurrently argue that the claims of Cheryl Gregory have been misconstrued by the defendant. They argue that the claims are not that of bystander emotional distress, but rather are separate and distinct claims of negligent infliction of emotional distress. Though making such a claim, the plaintiffs cite no legal authority for such a proposition. As noted above there are specific elements needed to establish a claim of bystander emotional distress (as set forth in Clohessy) as opposed to those elements necessary for a claim of negligent infliction of emotional distress (as set forth in Montinieri v. Southern New England Telephone Co. and Carrol v. Allstate Ins. Co.). In McKiernan v. Kmarynsky, 49 Conn.Sup. 161, 165-66, 865 A.2d. 1262 (2004), the court addressed and reviewed the differences between claims involving bystander emotional distress (noting there is no direct duty between the parties), and cases of negligent infliction of emotional distress (where the duty between the parties must be direct in order for it to be viable).
In McKiernan the court found that there was an exception for birthing mothers to the general rule that there must be a direct duty to assert a claim for negligent infliction of emotional distress when a baby was injured due to medical malpractice during birth.
As noted above there are four elements to a negligent infliction of emotional distress claim. One of the necessary allegations to such a claim is that the foreseeability of the precise nature of the harm to be anticipated is a prerequisite to recovery even if a breach of duty is otherwise found. (Internal quotations omitted.) Perodeau v. City of Hartford, supra, 259 Conn. at 754. "The foreseeability requirement in a negligent infliction of emotional distress claim is more specific than the standard negligence requirement . . ." Olson v. Bristol-Burlington Health District, 87 Conn.App. 1, 5, 863 A.2d 748, cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005). A review of the allegations of Cheryl Gregory in counts five, six, seven and eight of the amended complaint finds that she has failed to allege that the conduct of the defendant and/or its agents created an unreasonable risk of causing her emotional distress, that the distress was foreseeable, or that it was severe enough that it might result in illness or bodily harm. Because multiple elements to bring such a claim are missing, she has failed to state a cause of action for which relief can be claimed.
IV CONCLUSION
Although a reading of counts five through eight of the plaintiffs' amended complaint leads to the conclusion that Cheryl Gregory has attempted to state a cause of action for bystander emotional distress in each count, she has failed to adequately allege at least one of the necessary elements to state such a cause of action. Moreover, she has failed to adequately state a cause of action for negligent infliction of emotional distress. Therefore, the motion to strike counts five, six, seven and eight of the amended complaint is granted.