Tavan J. Chin Individually and as Administrator of the Estate of Margaret Mesier, deceased v. Nicholas D'Agostino et al. (2012)

MEMORANDUM OF DECISION

In his Second Revised and Amended Complaint, dated August 4, 2011, the plaintiff, Tavan Chin, alleges the following facts.   He is the nephew of Margaret Mesler who died on September 27, 2007.   He was duly appointed as Executor of the Estate of Margaret Mesler by the Probate Court for the District of Stamford.   He commenced this action individually and in his fiduciary capacity.   The Second Revised and Amended Complaint alleges twenty-five counts against the following defendants:  Nicholas D'Agostino, Corey D'Agostino, Patricia D'Agostino, Christopher O'Brien, Craig O'Brien, First County Savings Bank and Stamford Hospital.

The complaint asserts a variety of common-law and statutory claims, essentially alleging that, prior to her death, Margaret Mesler was the victim of undue influence and fraud by her caretaker, Nicholas D'Agostino (D'Agostino) and was negligently treated by D'Agostino and other defendants both before and subsequent to her death.   Presently before the court is a motion to strike filed on October 19, 2011 by the defendant Stamford Hospital ¹ seeking to strike Counts Fifteen, Eighteen, Nineteen, Twenty, Twenty-three, Twenty-four and Twenty-five of the Second Revised and Amended Complaint.   An objection to the motion to strike was filed by the plaintiff on November 20, 2011 and a reply to that objection was filed by the plaintiff on December 2, 2011.   The motion was heard at the short calendar on December 5, 2011.

In Count Fifteen of his Second Revised and Amended Complaint the plaintiff claims, in his individual capacity, common-law negligence against the defendant.   The plaintiff alleges that the defendant owed the decedent a duty of reasonable care and that the defendant breached that duty by:  (1) failing to notify the commissioner of social services of signs of neglect and abuse noted by hospital staff on the decedent's admission;  (2) discussing removal of the decedent's life support systems with Nicholas D'Agostino (D'Agostino) when his powers as health care agent had not become operative;  (3) honoring D'Agostino as the decedent's health care agent when she was admitted with visual signs of abuse and/or neglect and he was her sole caretaker;  (4) removing the decedent's life support systems when her living will had not become operative and when she had not indicated her wish to have life support systems removed;  (5) failing to order or to perform an autopsy;  (6) failing to order a medical examiner's release;  (7) failing to contact or attempt to contact the decedent's next-of-kin to inform them that she had died and that her next-of-kin had the right of disposition of her body;  and (8) releasing the decedent's body to D'Agostino when it knew or should have known that he had no right of possession of the decedent's body.   The plaintiff alleges damages as a direct and proximate result of the defendant's acts and omissions.

In Count Eighteen the plaintiff claims interference with the right to disposition of a dead body.   The plaintiff alleges that the defendant released the body of the decedent to D'Agostino when it knew or should have known that he had no right of disposition to the decedent's body, that he intended to cremate the body of the decedent and that the plaintiff and Tairo Chin, the plaintiff's brother, had the right of disposition to the decedent's body, including the right to bury the decedent without interference.   The plaintiff alleges damages from the defendant's actions.

Count Nineteen sounds in intentional infliction of emotional distress and alleges that the defendant's conduct was extreme and outrageous, that it knew or should have known that emotional distress would likely result from its conduct and that as a result of the defendant's actions and omissions resulting in the mutilation of the decedent's body, the plaintiff has suffered severe emotional distress.

Count Twenty sounds in negligent infliction of emotional distress and alleges that the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress, that the plaintiff's distress was foreseeable and that because of the defendant's actions resulting in the mutilation of the decedent's body, the plaintiff suffered emotional distress coupled with physical manifestations thereof.

Count Twenty–Three sounds in statutory negligence, and the plaintiff alleges in his individual capacity that the defendant owed the decedent a duty of care, that the defendant breached its duty by:  (1) failing to notify the commissioner of social services of the signs of neglect and abuse noted by hospital staff on the decedent's admission, in violation of General Statutes § 17b–451;  and (2) failing to contact or attempt to contact the decedent's next-of-kin to inform them that she had died and that her next-of-kin had the right of disposition of her body, in violation of General Statutes § 45a–318(c).  The plaintiff claims that he has suffered damages as a direct and proximate result of the defendant's acts and omissions in violation of the aforementioned statutes.

The plaintiff's Count Twenty-four makes the same allegations of defendant's negligence as in Count Fifteen, but is brought by the plaintiff in his fiduciary capacity.   Similarly, the plaintiff's Count Twenty-fifth makes the same allegations of defendant's statutory negligence as in Count Twenty-three, but is brought by the plaintiff in his fiduciary capacity.

In its motion to strike, the defendant claims that:  (1) Counts Fifteen, Eighteen and Twenty of the plaintiff's Second Revised and Amended complaint must be stricken because they fail to allege that the defendant owed a legally recognizable duty to the plaintiff;  (2) in Count Nineteen the plaintiff has not sufficiently alleged the elements of a claim for intentional infliction of emotional distress;  (3) Counts Twenty-three and Twenty-five must be stricken because no private right of action exists with respect to alleged violations of General Statutes §§ 17b–451 and 45a–318(c);  and (4) Counts Twenty-four and Twenty-five must be stricken because no remedy exists outside the wrongful death statute.

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 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).  “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).   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).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)   Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

COUNT FIFTEEN:  NEGLIGENCE

The defendant argues that the defendant did not owe any duty to the plaintiff individually and that the plaintiff does not even allege that the defendant was aware of his existence.   The defendant maintains that the plaintiff has not alleged any facts that establish a relationship between the plaintiff and the defendant from which a duty of care could be derived.   The plaintiff responds that he was the decedent's nephew and that, therefore, the defendant's actions could cause foreseeable harm to the plaintiff, and that the defendant thus owed a duty to him.   The defendant counters that the mere fact that a patient has relatives does not create a duty that runs from the defendant to those relatives, without any further allegations.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action ․ Thus, [t]here can be no actionable negligence ․ unless there exists a cognizable duty of care.”  (Internal quotation marks omitted.)  Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007).  “The existence of a duty is a question of law and 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 ․ We have stated that the test for the existence of a legal duty of care 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 ․ The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy.”  (Internal quotation marks omitted.)   Neuhaus v. DeCholnoky, 280 Conn. 190, 217–18 (2006).

“[The] first step in an analysis of whether a duty exists and the extent of the defendant[s'] duty ․ is to determine the foreseeability of the plaintiff [s'] injury ․ It is a well established tenet of our tort jurisprudence, however, that [d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable ․ [A] defendant [is] not required to take precautions against hazards [that are] too remote to be reasonably foreseeable ․ Due care is always predicated on the existing circumstances.”  (Citations omitted;  internal quotation marks omitted.)   Lachowicz v. Rugens, 119 Conn.App. 866, 869, cert. denied 297 Conn. 901 (2010).  “The requisite duty to use care may stem from a contract, from a statute, or from circumstances under which a reasonable person would anticipate that harm of the general nature of that suffered was likely to result ․ Negligence cannot be predicated upon the failure to perform an act which the actor was under no duty or obligation to perform.”  (Citation omitted.)   Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 45 (1985).

The plaintiff makes allegations against the defendant regarding its duty, but he only alleges duty in terms of that allegedly owed to the decedent, not to the plaintiff.   The plaintiff never alleges that the defendant owed him a duty nor that the injury to him was foreseeable.   The plaintiff fails to allege under Count Fifteen that he is the decedent's next-of-kin.   The only time in which the plaintiff alleges that he is the decedent's next-of-kin is in paragraph thirty-nine of Count Eight;  the plaintiff does not incorporate that allegation into Count Fifteen.   The only allegation that the plaintiff makes under Count Fifteen that is relevant to a claim of negligence is that he has suffered damages as a direct and proximate result of the defendant's conduct.   This allegation fails to establish that the defendant owed the plaintiff a duty and, therefore, the claims made in the count are not legally sufficient to sustain a negligence claim against the defendant.   Accordingly, the court grants the defendant's motion to strike Count Fifteen.

COUNT EIGHTEEN:  INTERFERENCE WITH A DEAD BODY

The defendant's arguments for its motion to strike the plaintiff's Count Eighteen are similar to its arguments directed at the plaintiff's Count Fifteen.   The defendant maintains that it owed no duty to the plaintiff and that his alleged damages were not foreseeable.   The defendant further argues that it was not in control of the decedent's body when it was cremated and, therefore, cannot be held liable for interference with a dead body.   The plaintiff responds that the decedent's closest relatives were her nephews, which included the plaintiff.   The plaintiff further argues that the harm he suffered was not the decedent's cremation, but rather the deprivation of the right to bury the decedent's body.

Connecticut recognizes the tort of negligent interference with a dead body.   See Del Core v. Mohican Historic Housing Associates, 81 Conn App. 120, 124–25 (2004) (“Connecticut should recognize a claim for negligent interference with the right of a family member to control the proper burial of a deceased”).   In that case, relying in part on 4 Restatement (Second), Torts § 868, p. 274 (1979),² the court recognized the tort in the context of a landlord who failed to provide timely notice of the decedent's death to his sister.  “Although Del Core does not directly discuss the other language contained in § 868 of the Restatement (Second) of Torts, namely, liability for mutilating a dead body, a natural and logical implication of its holding is that a custodian of a dead body has a corollary duty to refrain from mutilating a corpse in its custody as any such damage may also interfere with the interest of family members in knowing that the deceased received a dignified burial.   As hospitals are often the custodian of the recently deceased, family members are completely reliant on these institutions to preserve the corpse of their loved ones until it can be transported to a mortuary or funeral home.”   Ginsberg v. Manchester Memorial Hospital, Superior Court, judicial district of Hartford, Docket No. CV 09 5030482 (February 2, 2010, Peck, J.).³

Having established that Connecticut law recognizes a cause of action for interference with the right to possession of a dead body, the next step is to analyze the elements of that claim.   A claim for interference with the right to possession of a body sounds in negligence.   See Del Core v. Mohican Historic Housing Associates, supra, 81 Conn App. 123–24;  accord Ginsberg v. Manchester Memorial Hospital, supra, Superior Court, Docket No. CV 09 5030482;  and 4 Restatement (Second), supra, § 868.   Therefore, a plaintiff bringing this claim must plead the elements of a cause of action for negligence, which include the existence of a duty owed to the plaintiff.   See Mazurek v. Great American Ins. Co., supra, 284 Conn. 29.   The specific type of duty that is owed in a claim for negligent interference with the right to possession of a dead body is “a duty to facilitate [the plaintiff's] right to bury [his family member] promptly.”  Del Core v. Mohican Historic Housing Associates, supra, 81 Conn App. 125.   The question of to whom that duty is owed must be answered by analyzing who is entitled to the disposition of the body as a matter of law.   See Ginsberg v. Manchester Memorial Hospital, supra, Superior Court, Docket No. CV 09 5030482 (“Although Section 868 of the Restatement (Second) of Torts allows an action for interference with dead bodies, it limits recovery to ‘a member of the family of the deceased who is entitled to the disposition of the body.’   Thus, the hospital's duty is confined to that specific person and not to all of the decedent's family members”).   In determining which member of the family of the deceased is entitled to the disposition of the body, courts may turn to General Statutes § 45a–318(c).  See id.  Section 45a–318(c) provides in relevant part:  “In the absence of a written designation of an individual ․ or in the event that an individual and any alternate designated ․ decline to act or cannot be located within forty-eight hours after the time of death or the discovery of the body, the following individuals, in the priority listed, shall have the right to custody and control of the disposition of a person's body upon the death of such person ․ (1) The deceased person's spouse ․ (2) The deceased person's surviving children;  (3) The deceased persons' surviving parents;  (4) The deceased person's surviving siblings;  (5) Any adult person in the next degree of kinship in the order named by law to inherit the deceased person's estate, provided such adult person shall be of the third degree of kinship or higher ․”

The defendant's motion to strike raises the issue of whether the plaintiff's Count Eighteen properly alleges that he was entitled to the disposition of the decedent's body.   The plaintiff alleges in paragraph thirty-nine of Count Eight that he was the decedent's next-of-kin and had the right of proper and lawful disposition of the decedent's body.   This allegation is incorporated by reference into Count Eighteen.   The plaintiff further alleges in Count Eighteen that he and his brother had the right of disposition of the decedent's body, including the right to bury the decedent's body without interference.⁴  Because the plaintiff claims that he was entitled to the disposition of the decedent's body, he has alleged sufficient facts to establish that the defendant owed him a duty to facilitate his right to bury his decedent's body without interference.   The facts of this case are distinguishable from Del Core, in which the court upheld the decision of the trial court to strike the plaintiff's claim of negligent interference with the right to possession of a dead body.   In that case, the court concluded that the defendant landlord did not owe a duty to the plaintiff, who was the sister of the decedent tenant, to notify promptly her of the decedent's death because the landlord never had physical custody of the body of the decedent.  Del Core v. Mohican Historic Housing Associates, supra, 81 Conn.App. 125–26.   Conversely, in this case, as the hospital at which the decedent was receiving care, the defendant had physical custody of the decedent's body and, accordingly, owed a duty to whomever was entitled to the disposition of the decedent's body.

Although the plaintiff has alleged sufficient facts to establish that the defendant owed him a duty, he still must plead the remaining elements of a negligence claim.   The plaintiff has failed to allege that the defendant breached its duty to the plaintiff and caused the plaintiff injury.   The plaintiff simply “claims damages.”   The court finds that the plaintiff has not sufficiently alleged a recognizable cause of action in Count Eighteen and the court, accordingly, grants the motion to strike that Count.

COUNT NINETEEN:  INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In moving to strike Count Nineteen, the defendant argues that the plaintiff has not alleged facts to support his conclusion that the defendant's conduct was extreme and outrageous.   The plaintiff responds that the right of disposition of a family member's remains is sacrosanct, and that the defendant's interference with that right rose to the level of extreme and outrageous conduct.   The plaintiff further argues that the defendant had a duty to notify the decedent's family members of her death, as the defendant had physical custody of the decedent at the time of her death.   The defendant replies that the notion that it could have acted to intentionally inflict emotional distress on the plaintiff when he was not at the hospital, was not the decedent's care provider and had no form of contact with the defendant is preposterous.

“In order for the plaintiff to prevail in a case for liability under ․ [intentional infliction of emotional distress], four elements must be established.   It must be shown:  (1) that the actor 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 ․ Unlike a claim based on negligence, therefore, the existence of a duty is not a required element for establishing liability for intentional infliction of emotional distress.”  (Citation omitted;  internal quotation marks omitted.)  Watts v. Chittenden, 301 Conn. 575, 586 (2011).  “Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind ․ [I]t is the intent to cause injury that is the gravamen of the tort.”  (Internal quotation marks omitted.)  Stancuna v. Schaffer, 122 Conn.App. 484, 492 (2010).  “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!  ․ Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.”  (Internal quotation marks omitted.)  Id., 492–93.

The plaintiff's allegation that the defendant engaged in acts and omissions that resulted in the mutilation of the decedent's body, without more, does not amount to extreme and outrageous conduct.   Alleging that the plaintiff was entitled to the disposition of the decedent's body as the decedent's next of kin—as that claim was incorporated by reference into Count Nineteen—is inadequate to substantiate the plaintiff's legal conclusion that the defendant's conduct was extreme and outrageous.   See, e.g., Ginsberg v. Manchester Memorial Hospital, supra, Superior Court, Docket No. CV 09 5030482 (holding that the plaintiffs' allegation that the defendant “caused or permitted to be caused” a gash on the forehead, eyes bruised and broken nose on the decedent's corpse while it was in the defendant's custody “is not sufficiently outrageous to meet the high bar established by our appellate courts for such a claim”);  see also Reich v. Spencer, Superior Court, judicial district of Hartford, Docket No. CV 07 5012682 (December 10, 2010, Peck, J.) (In deciding a motion for summary judgment, holding that evidence of a failure “to promptly return a portion of the decedent's remains to the plaintiff,” even when considered in the light most favorable to the plaintiff, “does not meet the standard of outrageousness that is required to sustain a claim of intentional infliction of emotional distress”).   The plaintiff's attempts to distinguish the foregoing case law in its opposition memorandum, by simply arguing that the conduct at issue in both of those cases does not rise to the same level of extreme and outrageous conduct as in this case, is not persuasive.   Since the defendant has failed to allege facts in support of its conclusion that the defendant's conduct was extreme and outrageous, he has failed to state a legally sufficient cause of action for intentional infliction of emotional distress.   Accordingly, the court grants the defendant's motion to strike Count Nineteen.

COUNT TWENTY:  NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

In its motion to strike Count Twenty alleging negligent infliction of emotional distress, the defendant argues that the plaintiff's alleged emotional distress was not foreseeable and, that therefore, the defendant did not owe the plaintiff a duty.   The plaintiff responds that his emotional distress was sufficiently foreseeable, as a family member was listed as the decedent's next of kin.   The defendant replies that to claim that it was reasonably foreseeable to the defendant that a relative, who was not listed as the next of kin and who was not present at the hospital, would suffer injury based on the release of the decedent's body to a funeral home designated by the decedent's sole caretaker and documented healthcare proxy is wholly without merit and unsupported by case law and public policy.

To establish a claim of negligent infliction of emotional distress, a plaintiff must prove the following elements:  “(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 Ins. Co., 262 Conn. 433, 444 (2003).  “[The] Supreme Court continually [has] held that in 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.)  Murphy v. Lord Thompson Manor, Inc., 105 Conn.App. 546, 552–53, cert. denied, 286 Conn. 914 (2008).  “The requirement of forseeability in negligent infliction of emotional distress claims is different from that required in general negligence actions.”  Scanlon v. Connecticut Light & Power, 258 Conn. 436, 447–48 (2001).  “[T]he defendant is not responsible for the plaintiffs' emotional distress unless it or its agents knew or should have realized that its conduct involved an unreasonable risk of causing emotional distress ․ [which] might result in illness or bodily harm.”  (Internal quotation marks omitted.)  Id.

In this case, the plaintiff incorporates by reference his allegation that he was the decedent's next of kin and had the right of disposition of the decedent's body.   For the reasons discussed under Count Eighteen, this allegation sufficiently pleads a duty owed by the defendant to the plaintiff.   Nevertheless, the issue remains as to whether the plaintiff has alleged sufficiently the foreseeability prong of his emotional distress claim.   See Perodeau v. Hartford, 259 Conn. 729, 754 (2002) (“In negligent infliction of emotional distress claims, unlike general negligence claims, the foreseeability of the precise nature of the harm to be anticipated [is] a prerequisite to recovery even where a breach of duty might otherwise be found ․”) (internal quotation marks omitted).   In Ginsberg v. Manchester Memorial Hospital, supra, Superior Court, Docket No. CV 09 5030482, the plaintiffs alleged that after his death, the decedent's corpse was under the care and custody of the defendant hospital and the defendant funeral home.  “[W]hile under such care and custody, the defendant caused, or allowed, the decedent's corpse to be ‘damaged’ by a gash on the forehead, bruised eyes and a broken nose.   The widow alleges that the defendant owed her a duty to safeguard the integrity of the decedent's body while it was in defendant's custody so that she could ‘exercise her right to bury the body without interference.’   The children and the nephew each allege a right to the disposition of the decedent's body.”  Ginsberg v. Manchester Memorial Hospital, supra, Superior Court, Docket No. CV 09 5030482.   In denying the defendant's motion to strike the plaintiffs' claim for negligent infliction of emotional distress, the court held:  “Here, [the plaintiffs] have sufficiently pleaded a cause of action for negligent infliction of emotional distress.   First ․ considerations of public health require family members to entrust the hospital with the custody of their loved one's corpse, until proper arrangements can be made.   It is logical to conclude that parties charged with the custody and control of the remains of a deceased know or reasonably should know that the surviving relatives are emotionally vulnerable.   As such, it is foreseeable that the family members would be harmed if they were subjected to the sight of the mutilated corpse of the deceased, and such mutilation was caused by the hospital.   Further, on the basis of public policy, responsibility for negligent conduct on the part of the hospital in failing to safeguard the bodily integrity of the decent's corpse should be extended to the immediate family.”  Id.

Similarly, in this case, the plaintiff incorporates by reference his allegations from Count Eighteen that the defendant released the decedent's body to D'Agostini when it knew or should have known that he had no right of the disposition of the decedent's body and that he intended to cremate the body of the decedent.   These allegations, coupled with the plaintiff's claim that the defendant owed the plaintiff a duty of care, sufficiently allege that it was foreseeable that the plaintiff would suffer emotional distress from the ultimate cremation of the decedent's body.   For the foregoing reasons, the defendant's motion to strike Count Twenty is denied.

STATUTORY NEGLIGENCE

In its motion to strike, the defendant addresses Counts Twenty-three and Twenty-five together, as does the plaintiff's memorandum in opposition and the defendant's reply memorandum.   Both Counts allege statutory negligence;  the only difference between them is that Count Twenty-three is brought in the plaintiff's individual capacity, whereas Count Twenty-five is brought in the plaintiff's capacity as executor.

A. COUNT TWENTY–THREE

In its motion to strike Count Twenty-three, the defendant argues that there is no private right of action for violations of §§ 17b–451 and 45a–318(c) and that a violation of these statutes does not constitute negligence per se as to the plaintiff.   With respect to § 17b–451, the defendant argues that the plaintiff is not a member of the class for whose benefit the statute was enacted, namely the elderly who are victims of abuse.   The defendant further contends that the very content of the statute evinces an implicit denial of a private right of action as it provides for a specific remedy for a violation that does not include a civil action.   With respect to § 45a–318(c), the defendant argues that the statute applies only to probate proceedings and that the plaintiff is not a member of the class who the statute was intended to protect.   The defendant also notes that the statute does not contain any form of punitive remedy for its violation and reasons that the statute neither creates a cause of action nor can be used to support a claim of negligence per se.   On his part, the plaintiff claims that his allegation that the defendant breached its duty of care under § 45a–318(c) is sufficient to allege a claim of negligence per se under that statute.

Section 17b–451(a) provides in relevant part:  “[A]ny resident physician or intern in any hospital in this state, whether or not so licensed ․ and any licensed practical nurse, medical examiner ․ who has reasonable cause to suspect or believe that any elderly person has been abused, neglected, exploited or abandoned, or is in a condition which is the result of such abuse, neglect, exploitation or abandonment, or is in need of protective services, shall, not later than seventy-two hours after such suspicion or belief arose, report such information or cause a report to be made in any reasonable manner to the Commissioner of Social Services or to the person or persons designated by the commissioner to receive such reports.   Any person required to report under the provisions of this section who fails to make such report within the prescribed time period shall be fined not more than five hundred dollars ․”

“[T]here exists a presumption ․ that private enforcement does not exist unless expressly provided in a statute.   In order to overcome that presumption, the plaintiff bears the burden of demonstrating that such an action is created implicitly in the statute ․ In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant.   First, is the plaintiff one of the class for whose ․ benefit the statute was enacted ․ ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?  ․ Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?”  (Citation omitted;  internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 777–78 (2007).

Based on the plain language of the statute, the fact that it provides punitive fines against violators and the absence of any mention of a private cause of action, the court finds that the plaintiff has failed to allege sufficient facts that § 17b–451 creates a private right of action.   See Rivera v. Simonetti, Superior Court, judicial district of Ansonia–Milford at Derby, Docket No. CV 04 4000920 (August 5, 2005, Lager, J.) (39 Conn. L. Rptr. 757, 760 n.4) (finding that an allegation of negligence per se or statutory negligence under § 17b–451 is “superfluous” in that the statute “do[es] not set forth a legislative standard of care that is to be substituted for the common-law standard of care”).

In pleading his § 45a–318(c) claim, the plaintiff fails to allege that the defendant owed him a duty.   Instead, the plaintiff merely alleges that the defendant owed the decedent a duty of reasonable care.   The plaintiff does not incorporate into this claim his allegations from earlier Counts that he was the decedent's next of kin.   Additionally, the plaintiff fails to allege sufficient facts that § 45a–318(c) creates a private right of action, given that the plain language of that statute simply lists the priority over the right to the custody and control of the disposition of a person's body and that the statute nowhere mentions a private right of action.   Accordingly, the court grants the defendant's motion to strike Count Twenty-three.

B. COUNT TWENTY–FIVE

The parties' arguments for Count Twenty-five are combined with and identical to their arguments for Counts Twenty-three and Twenty-four, with certain additions.   The defendant, repeating points he makes with respect to Count Twenty-four, claims that the wrongful death statute, General Statutes § 52–555, is the exclusive means for which damages resulting from death are recoverable.   The defendant contends that Count Twenty-fifth alleges damages stemming from the decedent's death but does not allege a wrongful death claim pursuant to § 52–555.   The defendant further argues that the plaintiff's prayer for relief seeks punitive damages, which are not permitted by the wrongful death statute.   The plaintiff responds that he is in the class of persons that § 17b–451 was intended to protect in that, as the executor of the decedent's estate, he stands in the shoes of the decedent.   The plaintiff further claims that in his Twenty-fifth Count he is not pleading damages resulting from death.   Instead, he is alleging damages for the defendant's negligent acts that occurred prior to the decedent's death as well as for the defendant's negligence that occurred subsequent to the decedent's death.   In reply, the defendant asks if death is not the damage for which the plaintiff is seeking relief, then what are the damages.

“An executor ․ does not stand in the shoes of the decedent but represents the rights of the heirs, distributees, and creditors of the estate.  Cadle Company v. D'Addario, 268 Conn. 441, 445 (2004).”   Matlis v. Probate Appeal, Superior Court, judicial district of Tolland, Docket No. CV 03 0082717 (November 19, 2004, Scholl, J.) (38 Conn. L. Rptr. 299, 300).   The plaintiff's reliance on Nolan v. Morelli, 154 Conn. 432, 435 (1967) for the proposition that he stands in the shoes of the decedent is not persuasive, as the court made that statement in the narrow context of claims brought under § 52–555.   Specifically, the court stated:  “The plaintiff, in this suit under our wrongful death statute, stands in the shoes of the decedent and can recover only if the decedent, had his injuries not proven fatal, could himself have recovered.”  (Emphasis added.)  Nolan v. Morelli, 154 Conn. 432, 435 (1967).   In Count Twenty-five, the plaintiff seeks to recover as executor under § 17b–451.   However, as discussed above, the plaintiff has not demonstrated that there is a private right of action under that statute for any litigant.

With respect to his § 45a–318(c) claim, the plaintiff has failed to plead sufficient facts to constitute a private right of action, as discussed above.   Accordingly, the court grants the defendant's motion to strike Count Twenty-five.

C. COUNT TWENTY–FOUR

Count Twenty-four asserts a cause of action sounding in negligence and brought by the plaintiff in his capacity as the executor of the decedent's estate.   The parties' arguments for this Count are subsumed within their arguments for Count Twenty–Five.

Construing the plaintiff's complaint broadly and in the manner most favorable to sustaining its legal sufficiency, it appears that the plaintiff is alleging damages, at least in part, for injuries that the decedent sustained prior to her death.   Subparagraphs (a)-(d) of Count Twenty-four, which are identical to those alleged in Count Fifteen, allege facts that occurred before the decedent died.   Although subparagraphs (e)-(h) appear to allege facts subsequent to the decedent's death, the court cannot strike individual paragraphs within a count ⁵ and, therefore, need not reach the merits of the defendant's arguments with regard to those allegations.   The court finds that Count Twenty-four sufficiently alleges the elements of a viable cause of action and, accordingly, denies the defendant's motion to strike that Count.

CONCLUSION

For the reasons stated above, the court grants the defendant's motion to strike Counts Fifteen, Eighteen, Nineteen, Twenty-three and Twenty-five;  and denies the defendant's motion to strike Counts Twenty and Twenty-four.

David R. Tobin, J.

FOOTNOTES

FN1. The moving defendant, Stamford Hospital, will be referred to as “the defendant” in this memorandum..  FN1. The moving defendant, Stamford Hospital, will be referred to as “the defendant” in this memorandum.

FN2. That section provides:  “One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.”.  FN2. That section provides:  “One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.”

FN3. To avoid any potential confusion, it should be noted that Judge Peck issued two memoranda of decision in Ginsberg on the same date.   One memorandum of decision addresses a motion to strike filed by the defendant hospital, while the other addresses a separate motion to strike filed by the defendant funeral home.   The memorandum of decision referred to in this court's decision is the one addressing the motion to strike filed by the defendant hospital..  FN3. To avoid any potential confusion, it should be noted that Judge Peck issued two memoranda of decision in Ginsberg on the same date.   One memorandum of decision addresses a motion to strike filed by the defendant hospital, while the other addresses a separate motion to strike filed by the defendant funeral home.   The memorandum of decision referred to in this court's decision is the one addressing the motion to strike filed by the defendant hospital.

FN4. These allegations appear to be grounded in § 45a–318(c)(5), because the plaintiff may be entitled to the disposition of the decedent's body under that provision as next of kin, in the absence of a will or other document by the decedent directing the disposition of her body.   Practice Book § 10–3(a) provides in relevant part;  “When any claim made in a complaint ․ is grounded on a statute, the statute shall be specifically identified by its number.”   The plaintiff never cites § 45a–318(c) in Counts Eight or Eighteen.   Nevertheless, “[t]he Appellate Court ․ concluded that Practice Book § 109A [now § 10–3(a) ] was directory, rather than mandatory ․ We agree with the reasoning of, and the result reached by the Appellate Court in deciding the plaintiff's claims relative to the defendant's alleged failure to comply with Practice Book ․ [§ ]109A.” (Citation omitted.)  Rowe v. Godou, 209 Conn. 273, 275, 550 A.2d 1073 (1988).   Moreover, “[a]s long as the defendant is sufficiently apprised of the nature of the action ․ the failure to comply with the directive of Practice Book § 10–3(a) will not bar recovery.”   (Internal quotation marks omitted.)  Rocco v. Garrison, 268 Conn. 541, 557, 848 A.2d 352 (2004).The plaintiff's labeling of Count Eighteen as “Interference with a Dead Body” makes sufficiently clear what cause of action he is alleging in that count.   Accordingly, the plaintiff's failure to cite § 45a–318(c) is not fatal to his claim..  FN4. These allegations appear to be grounded in § 45a–318(c)(5), because the plaintiff may be entitled to the disposition of the decedent's body under that provision as next of kin, in the absence of a will or other document by the decedent directing the disposition of her body.   Practice Book § 10–3(a) provides in relevant part;  “When any claim made in a complaint ․ is grounded on a statute, the statute shall be specifically identified by its number.”   The plaintiff never cites § 45a–318(c) in Counts Eight or Eighteen.   Nevertheless, “[t]he Appellate Court ․ concluded that Practice Book § 109A [now § 10–3(a) ] was directory, rather than mandatory ․ We agree with the reasoning of, and the result reached by the Appellate Court in deciding the plaintiff's claims relative to the defendant's alleged failure to comply with Practice Book ․ [§ ]109A.” (Citation omitted.)  Rowe v. Godou, 209 Conn. 273, 275, 550 A.2d 1073 (1988).   Moreover, “[a]s long as the defendant is sufficiently apprised of the nature of the action ․ the failure to comply with the directive of Practice Book § 10–3(a) will not bar recovery.”   (Internal quotation marks omitted.)  Rocco v. Garrison, 268 Conn. 541, 557, 848 A.2d 352 (2004).The plaintiff's labeling of Count Eighteen as “Interference with a Dead Body” makes sufficiently clear what cause of action he is alleging in that count.   Accordingly, the plaintiff's failure to cite § 45a–318(c) is not fatal to his claim.

FN5. “[A]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense ․ Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count ․ However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action ․ [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense.”  (Citation omitted;  internal quotation marks omitted.)   Vanstean–Holland v. Lavigne, Superior Court, judicial district of New London, Docket No. CV 08 5007959 (September 2, 2009, Martin, J.);   see also Zamstein v. Marvasti, 240 Conn. 549, 553 (1997) (noting that trial court “struck paragraph twenty-eight of the plaintiff's complaint because the court construed it as a claim for loss of filial consortium ․”)..  FN5. “[A]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense ․ Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count ․ However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action ․ [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense.”  (Citation omitted;  internal quotation marks omitted.)   Vanstean–Holland v. Lavigne, Superior Court, judicial district of New London, Docket No. CV 08 5007959 (September 2, 2009, Martin, J.);   see also Zamstein v. Marvasti, 240 Conn. 549, 553 (1997) (noting that trial court “struck paragraph twenty-eight of the plaintiff's complaint because the court construed it as a claim for loss of filial consortium ․”).

Tobin, David R., J.