Kathleen B. McCurdy v. Frederick Jones (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 128)

The plaintiff, Kathleen B. McCurdy, brings this action against the defendant, Frederick Jones, a Connecticut state employee, seeking damages for negligent and intentional infliction of emotional distress arising out of alleged inappropriate comments made during a phone call.   Before the court is the defendant's motion (# 128) seeking summary judgment as to both counts of the revised complaint (# 107).   The defendant contends that:  (1) he is protected from a claim for negligent infliction of emotional distress pursuant to the statutory immunity conferred by General Statutes § 4–165 and (2) there is no genuine issue of material fact as to any element of the plaintiff's intentional infliction of emotional distress claim and he is entitled to judgment as a matter of law.   For the following reasons, the court denies the motion for summary judgment in its entirety.

I

BACKGROUND

The plaintiff's relevant allegations, as set forth in the revised complaint, are as follows.   The defendant was an employee of the soldiers,' sailors' and marines' fund (fund), a state agency that provided assistance to needy veterans and their families.   The plaintiff telephoned the fund on October 31, 2006, seeking benefits on behalf of her disabled veteran husband.   She was directed to speak with the defendant.   During this conversation, the defendant made inappropriate sexual comments to the plaintiff.  “Specifically, [he] asked ‘if he [the plaintiff's husband] got in bed with [her], does it ever stick out,’ and ‘boy Kathleen you are so nice and pleasant, I always wanted to put you on my desk.’  “ (Revised Complaint, Counts One and Two, ¶ 6.)  “The [d]efendant [also] made another comment where he insinuated ‘he wanted to do something sexual’ to the [p]laintiff.”  (Id., ¶ 7.)

The defendant alleges the following relevant facts by way of special defense.   The defendant was a state employee at work on October 31, 2006, the day that he took the phone call from the plaintiff.   His interaction with the plaintiff during that call was within the scope of his employment duties and was not wanton, reckless or malicious.

The plaintiff filed the original complaint in this action on October 22, 2008, and the revised complaint on May 15, 2009.   In the revised complaint, the plaintiff alleges a claim for negligent infliction of emotional distress in count one and intentional infliction of emotional distress in count two.   On January 19, 2010, [49 Conn. L. Rptr. 242] the court denied the defendant's motion to dismiss count one (# 105), in which he argued that he was immune from liability under General Statutes § 4–165.   Thereafter, on June 15, 2010, the court denied the defendant's motion to strike count two (# 112), in which he argued that the plaintiff failed to state a claim for intentional infliction of emotional distress.

The defendant filed the present motion for summary judgment along with a supporting memorandum of law (# 129) on May 2, 2011.   The plaintiff filed her objection (# 132) on May 18, 2011, and the defendant filed a reply memorandum (# 133) on June 1, 2011.   The court heard argument on the motion at short calendar on June 21, 2011.

II

JURISDICTION

One of the grounds for summary judgment advanced by the defendant is that count one is barred on account of statutory immunity under § 4–165.¹  “Claims involving ․ statutory immunity, pursuant to § 4–165, implicate the court's subject matter jurisdiction.”  Manifold v. Ragaglia, 94 Conn.App. 103, 113–14, 891 A.2d 106 (2006).  “Once the question of subject matter jurisdiction has been raised, cognizance of it must be taken and the matter passed upon before [the court] can move one further step in the cause;  as any movement is necessarily the exercise of jurisdiction.”  (Internal quotation marks omitted.)  Schaghticoke Tribal Nation v. Harrison, 264 Conn. 829, 839 n.6, 826 A.2d 1102 (2003).   Moreover, “[a]ny claim of lack of jurisdiction over the subject matter cannot be waived;  and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.”  Practice Book § 10–33.   Accordingly, the court must dispose of this jurisdictional challenge prior to considering any other issues.

The plaintiff points out that the court has already denied the defendant's motion to dismiss on this ground.   Nevertheless, “a motion for summary judgment can and should be used to address claims for lack of subject matter jurisdiction in certain circumstances ․” Manifold v. Ragaglia, supra, 94 Conn.App. 120;  see also Practice Book § 10–34 (“If any motion to dismiss is denied with respect to any jurisdictional issue, the defendant may plead further without waiving the right to contest jurisdiction further”).   The court will consider a motion for summary judgment renewing a previously denied jurisdictional challenge, however, only when “discovery produces additional evidence that supports dismissal of the action for lack of subject matter jurisdiction.”  Manifold v. Ragaglia, supra, 122 n.11.

The defendant asserts in his memorandum in support of summary judgment simply that, because he was a state employee and was at work when the alleged comments were made, he was acting within the scope of his employment.   The court, however, already considered these facts in its decision denying the motion to dismiss, as such facts were alleged in the revised complaint.   The court therefore finds that the defendant has presented no new evidence that warrants the reexamination of this issue.   Accordingly, the court finds that it has subject matter jurisdiction over count one of the revised complaint.

III

DISCUSSION

“The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).

The defendant contends that there is no genuine issue of material fact as to any element of the claim for intentional infliction of emotional distress and that he is entitled to judgment as a matter of law on the basis of each such element.  “To prove intentional infliction of distress, the plaintiff must demonstrate (1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result [from] 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.)  Hall v. Bergman, 296 Conn. 169, 182–83 n.9, 994 A.2d 666 (2010).

A

The defendant first argues that, as a matter of law, he did not intend to cause severe emotional distress to the plaintiff Specifically, he contends that he did not initiate the phone call, that he was nothing but courteous to the plaintiff during their other interactions and that he had no motivation to cause her such distress.   The plaintiff argues that the defendant's denial that he made the comments at issue creates a genuine issue of material fact.   She also argues that the manner in which the defendant treated the plaintiff on other occasions is not material to this issue.

“The facts at issue [in the context of summary judgment] are those alleged in the pleadings.”  (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 557, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).   In other words, the issue is whether, as a matter of law, the defendant did not intend, by making the alleged comments, to cause severe emotional distress and did not know, and had no reason to know, that such comments would cause severe emotional distress.

As the plaintiff contends, the deposition testimony of both parties indicates that there is a genuine dispute as to whether the defendant made the alleged comments.   The plaintiff's evidence indicates that the defendant asked “if [the plaintiff] got in bed with him, did it stick out,” stated that “[the plaintiff] was a very nice woman” and told the plaintiff that “[he] always wanted to put [her] on [his] desk.”  (Plaintiff's Objection, Exhibit 3, p. 12 of deposition transcript.)   The defendant, however, denies that he made these or similar statements.  (See Defendant's Memorandum of Law, Exhibit 1, p. 39 of deposition transcript.)

Nevertheless, the existence of this issue of fact does not end the court's analysis.  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).   Thus, if the defendant shows that he could not have had the requisite state of mind even if he made the comments, then whether he made the comments no longer makes a difference in the result of the case.   The defendant's evidence that he did not initiate the call, that he had no motivation to hurt the plaintiff and that there were no other incidents of harassing conduct, however, does not meet this burden.   Accordingly, the defendant is not entitled to summary judgment on this ground.

B

The defendant's second argument is that, even if the plaintiff established that he made the comments, such conduct was not extreme or outrageous as a matter of law.   Effectively, the defendant is making an argument based on the allegations of the complaint rather than one based on evidence in the record.²  The court rejected this same argument when it denied the defendant's motion to strike.

Judges are reluctant to reconsider questions or issues that have already been decided.  Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 656, 954 A.2d 816 (2008).   Thus, “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.”  (Internal quotation marks omitted.)  Id. In this case, the court already determined, albeit implicitly, that the defendant's conduct, as alleged in the complaint, could constitute extreme and outrageous conduct.   There is nothing presented by the defendant warranting a reconsideration of that ruling.   Thus, the defendant is not entitled to summary judgment on this ground.

C

Third, the defendant argues that he was not the cause of the plaintiff's emotional distress, but rather that other negative life experiences caused such distress.   In support of his argument, the defendant cites to various portions of the record in which the plaintiff describes various experiences in her life and the distress resulting therefrom.   None of these citations establishes, however, that the defendant, as a matter of law, did not cause the plaintiff severe emotional distress by making the alleged comments.   That the plaintiff experienced stress caused by other factors does not foreclose the possibility that she experienced severe emotional distress caused by acts of the defendant.   Accordingly, the defendant is not entitled to summary judgment on this basis.

D

Finally, the defendant contends that the plaintiff did not suffer emotional distress severe enough for recovery in a claim for intentional infliction of emotional distress.   He states, without citation to the record, that the plaintiff suffered “ ‘stress' that did not curtail her life responsibilities, ‘aggravation’ of a limited duration, and ‘mental anguish’ for which she did not seek psychiatric assistance”;  (Defendant's Memorandum of Law, p. 19);  but that such injuries are not sufficiently severe that no reasonable person should be expected to endure them.

The injury recoverable in a claim for intentional infliction of emotional distress is limited to “mental distress of a very serious kind.”  (Internal quotation marks omitted.)  Muniz v. Kravis, 59 Conn.App. 704, 708, 757 A.2d 1207 (2000).  “The law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it.   The intensity and the duration of the distress are factors to be considered in determining its severity.”  (Internal quotation marks omitted.)   Le v. Saporoso, Superior Court, judicial district of Hartford, Docket No. CV 09 5028391 (October 19, 2009, Domnarski, J.), quoting 1 Restatement (Second), Torts § 46, comment (j), pp. 77–78 (1965).   The defendant points out that the Appellate Court has held that evidence of mere humiliation, even great humiliation, or embarrassment is legally insufficient to constitute severe emotional distress, citing Drew v. K–Mart Corp., 37 Conn.App. 239, 252, 655 A.2d 806 (1995), and Barry v. Posi–Seal International, Inc., 36 Conn.App. 1, 19 n.17, 647 A.2d 1031 (1994).

There is evidence indicating that the plaintiff's injuries were more severe than mere embarrassment or humiliation.   In fact the injuries are characterized in the plaintiff's deposition as “anxiety,” “mental stress,” “undue stress,” “aggravation” and “mental anguish.”  (Defendant's Memorandum of Law, Exhibit 2, pp. 6, 45–46 of deposition transcript.)   Moreover, the plaintiff stated in her response to the defendant's interrogatories that, because of the alleged incident, she has “issues trusting people of authority” and that she will not be alone in a room with a man whom she does not know because of the degree of discomfort it causes her.  (Id., Exhibit 3, pp. 2–3.)   The court therefore finds that the defendant has failed to make a showing sufficient to compel the court to find that the emotional distress suffered was not severe as a matter of law.   Accordingly, the defendant is not entitled to summary judgment on this ground.

IV

CONCLUSION

On the basis of the above analysis, the court finds that the defendant has failed to establish the absence of any genuine issue of material fact or entitlement to judgment as a matter of law.   Accordingly, the motion for summary judgment is denied.

Martin, J.

FOOTNOTES

FN1. General Statutes § 4–165(a) provides in relevant part:  “[n]o state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment.”.  FN1. General Statutes § 4–165(a) provides in relevant part:  “[n]o state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment.”

FN2. In his memorandum, at the end of his argument, however, the defendant attempts to use the plaintiff's characterization of the alleged conduct in her deposition as “inappropriate” and “unprofessional” as evidence that the conduct was insufficient to meet the standard of extreme and outrageous.   Because this is an objective standard, however, the plaintiff's subjective characterization of the conduct is irrelevant.   See Appleton v. Board of Education, 254 Conn. 205, 210–11, 757 A.2d 1059 (2000) (“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!’  “ [Internal quotation marks omitted] )..  FN2. In his memorandum, at the end of his argument, however, the defendant attempts to use the plaintiff's characterization of the alleged conduct in her deposition as “inappropriate” and “unprofessional” as evidence that the conduct was insufficient to meet the standard of extreme and outrageous.   Because this is an objective standard, however, the plaintiff's subjective characterization of the conduct is irrelevant.   See Appleton v. Board of Education, 254 Conn. 205, 210–11, 757 A.2d 1059 (2000) (“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!’  “ [Internal quotation marks omitted] ).

Martin, Robert A., J.