William Turnier v. James Farina (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE [# 107]

I

FACTS

On August 29, 2007, the plaintiff, William Turnier, filed a five-count amended complaint against the defendant, James E. Farnia, for negligent assault, intentional assault, reckless and wanton misconduct, negligent infliction of emotional distress and intentional infliction of emotional distress, respectively.   In his complaint, the plaintiff alleges that on or about July 17, 2005, while both parties were attending an American Legion baseball game in Waterford, Connecticut, the defendant struck the plaintiff about the face, head, ear and jaw.   The plaintiff further alleges that as a result of the defendant's actions, the plaintiff suffered serious injuries.

On September 7, 2007, the defendant filed a motion to strike counts three, four and five of the plaintiff's complaint for reckless and wanton misconduct, negligent infliction of emotional distress and intentional infliction of emotional distress, respectively.   The defendant filed a memorandum of law in support of his motion.   On March 25, 2010, the plaintiff filed an objection to the defendant's motion to strike.

II

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 challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)   Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).  “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.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  “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).

A

Reckless and Wanton Misconduct

The defendant argues that count three of the plaintiff's complaint for reckless and wanton misconduct should be stricken because the plaintiff failed to allege that the defendant owed a duty to the plaintiff.   The defendant further argues that the plaintiff's claim is based upon intentional conduct, and therefore, the claim is repetitious of count two of the plaintiff's complaint for intentional assault.   The plaintiff counters that Connecticut recognizes a cause of action for assault and battery based on reckless and wanton behavior.

“In order to establish that the conduct of a defendant ․ was deliberate, wanton and reckless, the plaintiff must prove ․ the existence of a state of consciousness with reference to the consequences of one's acts ․ [Such conduct] is more than negligence, more than gross negligence ․ [I]n 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 ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ [In sum, such] 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.”   (Internal quotation marks omitted.)  Vitale v. Kowal, 101 Conn.App. 691, 698-99, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).   “The mere use of the words ‘reckless' and ‘wanton’ is insufficient to raise an actionable claim of reckless and wanton misconduct.”  Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985).

To be legally sufficient, “[a] count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff.”  (Internal quotation marks omitted.)  Vitale v. Kowal, supra, 101 Conn.App. 698.  “The existence of a duty is a question of law ․ Only 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.”  Id. “[T]he test for the existence of a legal duty 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.”  (Internal quotation marks omitted.)  Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007).

In the present case, the plaintiff alleges in count three of his complaint that the defendant “suddenly and without warning approached the plaintiff and recklessly, wantonly and maliciously assaulted the plaintiff by striking him about the fac[e], head, ear and jaw thereby causing the plaintiff to sustain and suffer personal injuries and losses ․” The plaintiff fails to allege, however, a duty running from the defendant to the plaintiff in his claim for reckless and wanton misconduct.   Therefore, the defendant's motion to strike count three of the plaintiff's complaint is granted.

B

Intentional Infliction of Emotional Distress

The defendant also argues that count five of the plaintiff's complaint for intentional infliction of emotional distress should be stricken on the ground that the alleged underlying conduct is not extreme or outrageous.   The plaintiff counters that the defendant's violent assault upon the plaintiff at a public baseball game constitutes extreme and outrageous conduct for purposes of an intentional infliction of emotional distress claim.

“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 plaintiff's 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 (2009).   As to the second element, which is the only element 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.

“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, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).  “A review of the cases addressing the definition and parameters of extreme and outrageous conduct in intentional infliction of emotional distress cases reveals that courts do not typically strike claims or grant judgments where physical contact has occurred.”  (Internal quotation marks omitted.)   Burke v. State, Department of Children & Families, Superior Court, judicial district of Middletown, Docket No. CV 06 5000409 (February 2, 2010, Bear, J.).

In the present case, the plaintiff alleges in count five of his complaint that the defendant “suddenly and without warning approached the plaintiff and intentionally assaulted him by striking him about his face, head and jaw thereby causing the plaintiff to suffer personal injuries and losses ․” The plaintiff further alleges the defendant's conduct was extreme and outrageous, and caused the plaintiff to suffer severe emotional distress.   The defendant's alleged conduct, and the facts that may be implied therefrom, could be found to be extreme and outrageous by a reasonable fact finder.   Therefore, the defendant's motion to strike count five of the plaintiff's complaint is denied.

C

Negligent Infliction of Emotional Distress

The defendant further argues that count four of the plaintiff's complaint for negligent infliction of emotional distress should be stricken on the ground that the defendant's alleged conduct is not severe.   The plaintiff counters that he has alleged sufficient facts to satisfy all of the elements required for a negligent infliction of emotional distress claim.

“[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 ․ This test ․ essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants.   If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable.   Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable.”   (Internal quotation marks omitted.)  Wilson v. Jefferson, 98 Conn.App. 147, 162, 908 A.2d 13 (2006).  “The elements of negligent and intentional infliction of emotional distress differ as to the state of mind of the actor and not to the conduct claimed to be extreme and outrageous.”  Muniz v. Kravis, 59 Conn.App. 704, 709, 757 A.2d 1207 (2000).

In the present case, the plaintiff alleges in count four of his complaint that the defendant “violently struck the plaintiff about the head, face and jaw, causing serious injury to the plaintiff ․ violently swung his fists in such a way to harmfully come in contact with the plaintiff's face causing serious injury to the plaintiff ․ and used excessive force on the plaintiff when he knew or should have known that his conduct was likely to cause and inflict injury.”   As discussed herein, the defendant's alleged conduct, and the facts that may be implied therefrom, could be found to be extreme and outrageous by a reasonable fact finder.   Therefore, the defendant's motion to strike count four of the plaintiff's complaint is denied.

III

CONCLUSION

Based on the foregoing, the court hereby grants the defendant's motion to strike count three of the plaintiff's complaint, and denies the defendant's motion to strike count four and count five of the plaintiff's complaint.

Martin, J.

Martin, Robert A., J.