Michelle L. Sullivan v. Brett A. Sullivan (2010)

MEMORANDUM OF DECISION

The defendant in this cause of action has filed a motion to strike counts two and three of the plaintiff's second amended complaint on the basis that both counts are legally insufficient.

The plaintiff's complaint alleges the following facts.

The defendant and the plaintiff are husband and wife and reside in Norwalk, Connecticut.   On March 11, 2009, while the plaintiff was in her bedroom at home with the defendant, the defendant opened the bedroom door to exit the room, which caused a closet door to close upon the plaintiffs hand.   The defendant was aware that opening the bedroom door would cause the closet door to close abruptly, and he was also aware that the plaintiff was standing at the closet door at the time he opened the bedroom door.   The plaintiff suffered injuries to her left ring finger as a result of getting it caught in the closet door.   The plaintiff was taken to the Norwalk Hospital immediately following the incident, where the medical staff at the Norwalk Hospital Emergency room amputated the plaintiff's injured finger.

The plaintiff's second amended complaint alleges three counts against the defendant, sounding in common-law negligence, recklessness and for negligent infliction of emotional distress.  “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).  “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).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

The defendant claims that the second count, sounding in recklessness, should be stricken as legally insufficient.   He argues that recklessness requires “an extreme departure from ordinary care” and here the plaintiff's allegations amount to nothing more than a claim of negligence.   Specifically, the allegations made by the plaintiff in her recklessness count do not allege that the defendant “intended to injure her” or that the defendant “consciously opened the bedroom door while he was aware of serious danger to [the plaintiff] or that he had knowledge of facts that ․ would disclose serious danger to a reasonable man.”   The defendant further argues that opening a door is not highly unreasonable conduct, nor is it a departure from ordinary care, and the plaintiff has not alleged that “the defendant knew or should have known there was a serious danger to the plaintiff or that the door would hit the plaintiff causing physical injury.”   The defendant concludes by distinguishing conduct in which a party misjudges the potential for injury from “actual knowledge or unreasonable ignorance of a degree of danger and highly unreasonable conduct.”

The plaintiff contends that her recklessness count is sufficient as a matter of law.   Specifically, she argues that the defendant “opened the bedroom door with knowledge that it would cause the closet door to slam shut, disregarding the consequences of his actions” and that the plaintiff was standing “very close” to the closet at that moment.   This displayed a conscious disregard for an injury that was likely to occur.   The plaintiff further argues that the complaint specifically pleads that (i) the defendant had specific knowledge that opening the bedroom door would cause the closet door to close and (ii) that doing so could cause serious injury to someone standing near the closet.   Finally, the plaintiff notes that our Supreme Court has held that the determination of whether conduct is “reckless” should be decided by the jury rather than by the court in a motion to strike.

“As a preliminary matter, it should be noted that similarities between the allegations of the negligence and common-law recklessness count are not necessarily grounds for the claim to be stricken.   A cause of action of common-law recklessness may be sufficient to withstand a motion to strike even though the allegations of reckless conduct are also alleged as a basis of negligent conduct in another count sounding in negligence.   The similarity of allegations does not necessarily render one cause of action invalid.”  (Citation omitted;  internal quotation marks omitted.)   Otis v. Montesi, Superior Court, judicial district of Middlesex, Docket No. CV 07 5002196 (January 25, 2008, Jones, J.).

“Whether [the] defendant's conduct constituted heedless and reckless disregard of the plaintiffs' rights [is] a question of fact.”  (Internal quotation marks omitted.)  Frillici v. Westport, 264 Conn. 266, 277, 823, A.2d 1172 (2003).  “Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent.”  (Internal quotation marks omitted.)  Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003).  “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 ․ [W]ilful, 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.”  Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).

“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.   “Rather than follow a mechanistic approach ․ it seems more appropriate to examine instead whether the facts that are alleged could, under any set of facts admissible under the pleadings, support a conclusion of recklessness.”   (Internal quotation marks omitted.)  Otis v. Montesi, supra, Superior Court, Docket No. CV 07 5002196.

The plaintiff's count alleging recklessness incorporates by reference all of the allegations of her negligence count.   The recklessness count then makes additional allegations, including the following sentence:  “16.   The plaintiff was injured as a result of the defendant's recklessness in that the defendant was aware that opening the bedroom door would cause the closet door to abruptly shut, and it was evident that the plaintiff was standing at the closet door at the time he wilfully closed the bedroom door.”

These additional facts sufficiently allege that the defendant knew how the closet door would behave when he opened the bedroom door and that the plaintiff was standing at the closet door when he opened the bedroom door.   The defendant's alleged foreknowledge in the face of this act could amount to “more than [a] mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention”;  rather, it might demonstrate a “conscious choice of a course of action ․ with knowledge of facts which would disclose this danger to any reasonable man.”   In the context of the defendant's knowledge of how the doors would behave, a jury could find that a reasonable person should have been aware of the danger of seriously injuring someone standing very close to the closet door if he opened the bedroom door.   Likewise, under these circumstances the conduct of opening the bedroom door could amount to highly unreasonable conduct and constitute a departure from ordinary care.   While it is for a jury to determine whether the defendant's conduct amounted to recklessness, for the purposes of this motion, and construing the complaint in a manner most favorable to sustaining its legal sufficiency, the plaintiff has adequately set forth a cause of action for recklessness.   The motion to strike count two is denied.

The defendant has also moved to strike count three, alleging negligent infliction of emotional distress, as legally insufficient.   The defendant argues that while a party may recover for negligent infliction of emotional distress where the emotional distress results from a “physical manifestation of an emotional injury,” a party cannot assert this cause of action where the emotional distress resulted directly from a physical injury.   In the latter scenario, emotional distress from physical injuries must be brought under a negligence cause of action.   The defendant concedes that the plaintiff may claim she suffered emotional distress resulting from her physical injuries under her first count, alleging negligence.   However, the defendant argues that because the plaintiff has failed to allege “emotional distress that occurred separate and apart from her physical injuries,” she has failed to state a valid claim to support a separate count for negligent infliction of emotional distress.   The defendant further argues that his “conduct of opening a door could not reasonably be anticipated to cause emotional distress, even if it could be anticipated to cause physical injury.”

The plaintiff does not contest the motion to strike count three in her memorandum in opposition.

The elements of a claim for negligent infliction of emotional distress include “(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.”  (Emphasis added;  internal quotation marks omitted.)  Stancuna v. Schaffer, 122 Conn.App. 484,490 (2010).

“[There] is a fairly straightforward dichotomy in tort law pertaining to emotional distress.   Claims that emotional distress resulted from physical injury should be made, under the rule of Bushnell v. Bushnell [103 Conn. 583, 594, 131 A. 492 (1925) ] and the proposed Restatement (3d) of Torts,¹ by way of a straight negligence cause of action.   On the other hand, where the injury claimed is a physical manifestation of an emotional injury, the claim is one for negligent infliction of emotional distress.”  (Emphasis in original.)   Fisher v. Yale University, Superior Court, complex litigation docket at New Haven, Docket No. X10 CV 04 4003207 (February 8, 2006, Munro, J.) (40 Conn. L. Rptr. 726, 727).

Here, the plaintiff's third count does not allege that her physical injuries are the manifestation of her emotional distress;  rather, it appears from the complaint that the plaintiff's physical injuries precipitated her emotional distress.   This fails to meet the requirement that the emotional distress subsequently result in some physical harm.   Because the plaintiff's third count does not allege that her emotional distress might “result” in illness or physical harm, a claim of negligent infliction of emotional distress is not appropriate.   Under the rationale set forth in Fisher v. Yale University, the plaintiff may still recover for emotional distress stemming from her physical injuries under her negligence count.   For the foregoing reasons, and in light of the plaintiff's failure to present any argument contesting the motion to strike the third count, the motion to strike count three is granted.

GILARDI, J.T.R.

FOOTNOTES

FN1. The Restatement (3d) of Torts provides in relevant part:  “ ‘Claims for emotional disturbance.   This Restatement is limited to liability for physical harm.   Thus, whether and when the interest in emotional tranquility is protected against culpable invasion is a matter left to the Restatement Second of Torts §§ 46-47 and § 436A, the developing case law, and future Third Restatement efforts.   Emotional disturbance, often referred to as mental suffering or emotional distress, is recoverable under the rules of this Restatement when it results from bodily harm.’   Restatement (Third) of Torts:  Liability for Physical Harm § 4, comment d (Proposed Final Draft).”   Fisher v. Yale University, Superior Court, complex litigation docket at New Haven, Docket No. X10 CV 04 4003207 (February 8, 2006, Munro, J.) (40 Conn. L. Rptr. 726, 726-27)..  FN1. The Restatement (3d) of Torts provides in relevant part:  “ ‘Claims for emotional disturbance.   This Restatement is limited to liability for physical harm.   Thus, whether and when the interest in emotional tranquility is protected against culpable invasion is a matter left to the Restatement Second of Torts §§ 46-47 and § 436A, the developing case law, and future Third Restatement efforts.   Emotional disturbance, often referred to as mental suffering or emotional distress, is recoverable under the rules of this Restatement when it results from bodily harm.’   Restatement (Third) of Torts:  Liability for Physical Harm § 4, comment d (Proposed Final Draft).”   Fisher v. Yale University, Superior Court, complex litigation docket at New Haven, Docket No. X10 CV 04 4003207 (February 8, 2006, Munro, J.) (40 Conn. L. Rptr. 726, 726-27).

Gilardi, Richard P., J.T.R.