Kerrilene Sinapi v. Ronald Thomas et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTIONS TO STRIKE (# 's 125 & 127)

I. INTRODUCTION

This case arises out of the suicide of Sean P. Valente on January 30, 2010.   Before the court are two motions to strike a claim of bystander emotional distress in a nine-count complaint brought by the plaintiff, Kerrilene Sinapi, both individually and as the executrix of her deceased husband, Sean P. Valente, against the defendants, the Hospital of Saint Raphael (“HSR”) and Ronald Gene Thomas, the Director of Emergency Service at HSR.

Both defendants argue that the allegations contained in the bystander emotional distress count do not support a conclusion that the plaintiff's emotional injury was caused by the contemporaneous sensory perception of the defendant's conduct which caused the injury, or by viewing the victim immediately after the injury-causing conduct.   In response, the plaintiff asserts that:  (1) reasonable foreseeability is not an element of a bystander emotional distress claim and, even if it is, the plaintiff has satisfied it;  and (2) the complaint satisfies the temporal proximity requirements.   Even when construing the complaint in the manner most favorable to sustaining its legal sufficiency, the plaintiff fails to satisfy the second required element of a claim for bystander emotional distress as set forth in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 825 (1996).   Accordingly, both motions to strike are GRANTED.

II. FACTS

In her revised nine-count complaint, the plaintiff alleges the following relevant facts.   On June 4, 2009, Valente started work as a physician's assistant in the Emergency Department at HSR, with Thomas as his supervisor.   At the end of his first day of work, Valente was placed on administrative leave.   On June 10, 2009, Thomas told Valente he was being placed on administrative leave.   HSR subsequently discharged Valente because he had performed an unauthorized procedure on a patient that caused injury to that patient.   On August 5, 2009, Valente and HSR signed a settlement agreement (“the settlement agreement”) regarding his termination, which provided that the circumstances surrounding Valente's separation from HSR would remain confidential and would not be disclosed to any third party.

As result of his discharge, Valente became anxious and depressed.   He subsequently applied for several positions with different hospitals as a physician's assistant.   Eventually, on November 30, 2009, he received a conditional offer of employment from Middlesex Hospital.   Pursuant to the settlement agreement, Valente's application did not list his previous affiliation with HSR. On December 2, 2009, Valente executed an employment agreement with Middlesex Hospital.

On December 17, 2009, in violation of the settlement agreement, Thomas disclosed to Middlesex Hospital information about Valente's employment at HSR and his subsequent termination.   Thomas, or other employees of HSR, also disclosed to Middlesex that Valente had injured a patient while performing an unauthorized procedure.   On December 17, 2009, Middlesex rescinded its offer of employment to Valente.

Following this event, Valente contacted numerous other medical employers, including those who had previously offered him a position;  however, he was unable to obtain employment elsewhere.   Valente became severely depressed and sought medical treatment.   On January 30, 2010, Valente committed suicide by hanging at his home in Bethany, Connecticut, where the plaintiff discovered his body.

On January 24, 2013, HSR filed a motion to strike count six,¹ sounding in bystander emotional distress, and a memorandum in support.   On January 30, 2013, Thomas also filed a motion to strike the same count six and a memorandum of law in support.   On February 1, 2013, the plaintiff filed a memorandum in opposition to HSR's motion to strike, and HSR filed a surreply on February 13, 2013.   On February 14, 2013, the plaintiff filed a memorandum in opposition to Thomas' motion to strike.   On March 18, 2013, the court heard argument in this matter at short calendar.

III. 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).  “It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).  “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.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).

This court also “construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).  “[P]leadings 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, 253, 990 A.2d 206 (2010).  “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.)  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

A. HSR'S MOTION TO STRIKE NO. 125

In its motion to strike, HSR argues that count six of the revised complaint is legally insufficient as it fails to plead the required elements for bystander emotional distress established in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996).²  Specifically, HSR asserts that the allegations do not support a conclusion that the plaintiff's emotional injury was caused by (1) a contemporaneous sensory perception of the defendant's conduct which caused the injury or (2) by viewing the victim immediately after the injury-causing conduct because here, the alleged injury-causing conduct was the breach of the confidentiality provision, which occurred more than a month before Valente's suicide and outside the presence of the plaintiff.

In response, the plaintiff asserts that (1) reasonable foreseeability is not an element of a bystander emotional distress claim and, even if it is, the plaintiff has satisfied it;  and (2) the complaint satisfies the temporal proximity requirements.   In support of her first point, the plaintiff argues that, under Clohessy, so long as a claim satisfies the four enumerated conditions, the bystander's emotional distress is reasonably foreseeable as a matter of law.   Furthermore, the plaintiff asserts that, even so, she has properly alleged that the defendants should have foreseen that their misconduct could cause Valente serious injuries, including death.

Regarding her second argument, the plaintiff argues that her allegations satisfy the second Clohessy requirement.   The plaintiff emphasizes that Clohessy made it clear that the bystander need not perceive the injury to his or her close relative, and that case law permits some delay between injury and perception.   The plaintiff further asserts the court should look to Walsh v. Tehachapi, 827 F.Sup.2d 1107 (E.D.Cal.2011), and view Valente's suicide as the culmination of the misconduct of the Hospital defendants.   Under such circumstances, the plaintiff asserts that her observation of Valente's dead body soon after he hanged himself and before the body had substantially changed condition or location satisfies the temporal proximity requirement of Clohessy.

In a surreply, HSR clarifies that, contrary to the plaintiff's assertion, it is not basing its motion to strike on a claim that the harm to Valente was not foreseeable.³  HSR reiterates that the alleged wrongful conduct by the defendants was a communication weeks before Valente's suicide, and that the plaintiff did not witness the defendants' conduct or arrive on the scene shortly thereafter.   Accordingly, the plaintiff has failed to satisfy the second requirement of Clohessy.   Finally, HSR argues that the plaintiff's theory of bystander emotional distress is not a claim recognized by Clohessy.

As the parties note, our Supreme Court first recognized a cause of action for bystander emotional distress under Connecticut law in Clohessy v. Bachelor, supra, 237 Conn. 31.   In recognizing this cause of action, the Court adopted the “reasonable foreseeability” rule, subject to certain specific conditions.   Id., 47.   The Court acknowledged that it had long held that the “ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised ․ By that [it] is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?”  (Internal quotation marks omitted.)  Id.

The Court identified the conditions on the reasonable foreseeability rule to be as follows:  “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.”  Id., 56.

The question presented by this motion to strike is whether the second condition of Clohessy is met by the allegations of this complaint.   In order to resolve this issue, the event or conduct that caused the injury must be established.   HSR asserts that the injury-causing conduct is the alleged breach of the settlement agreement, while the plaintiff argues that Valente's suicide was effectively the “culmination of the misconduct” of HSR.

The Supreme Court in Clohessy did not elaborate on what constitutes the “injury causing event”;  however, other Superior Courts' analyses of the Clohessy requirement shed some light upon this question.   It is correct that some courts have recognized bystander emotional distress claims when the plaintiff was not physically present to witness the defendant's allegedly wrongful conduct or injury causing event.   Those situations, however, are generally limited to instances where the plaintiff views the immediate aftermath of the conduct.   See, e.g., Thomas v. Trudeau, Superior Court, judicial district of Windham, Docket No. CV 07 5001330 (December 11, 2007, Martin, J.) (denying a motion to strike a bystander emotional distress claim where the mother did not observe the actual explosion that injured her son by noting that the plaintiff did witness her son in the “immediate aftermath” of the accident, which was not a substantial change in the condition or location of the victim for purposes of bystander emotional distress);  Squeo v. Norwalk Hospital Assn., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV 09 5012548 (September 16, 2010, Karazin, J.) (50 Conn. L. Rptr. 618, 618–21) (denying a motion to strike a bystander emotional distress claim in a medical malpractice case where the parents discovered their suicidal son hanging from a tree, apparently still alive, thirty-five minutes after he was released into his own care by the hospital which had indicated that he was not a danger to himself or others).

Furthermore, courts also have repeatedly recognized situations where the plaintiff was too remote from the alleged injury causing event or wrongful conduct to meet the second Clohessy requirement.   See e.g. Abbhi v. Ami, Superior Court, judicial district of New Haven, Docket No. CV 96 0382195 (June 3, 1997, Silbert, J.) (19 Conn. L. Rptr. 493, 500) (granting a motion to strike a claim for bystander emotional distress where the mother observed her daughter suffering a fatal allergic reaction within two hours of eating a pastry that contained peanuts but did not observe the ingestion of the pastry or the mislabeling of the product, and finding that the “mother was too far removed both from the negligent act that caused the accident as well as from the actual injury, even though she was present to see its tragic aftermath”);  Hernandez v. Yale, Superior Court, judicial district of New Haven, Docket No. CV 09 5028884 (August 31, 2010, Wilson, J.) (granting a motion to strike a bystander emotional distress claim in a medical malpractice case where the mother did not observe the actual act of medical negligence but “[m]erely observe[d] the consequences of the defendant's [alleged] negligence towards [her son] without perceiving the actual negligent behavior, [which] is insufficient to maintain a cause of action for emotional distress to a bystander”).   Accordingly, the court must look to the allegations of the complaint to determine the wrongful conduct and the plaintiff's relationship to it.

In the present case, the revised complaint alleges that “Valente's suicide was proximately caused by ․ Thomas and [HSR's] tortious and wrongful intrusion into [Valente's] prospective employment relationship with Middlesex Hospital.”  (Emphasis added.)  (Revised Complaint, ¶ 97.)   The complaint also states that Middlesex rescinded its offer of employment to Valente based upon Thomas' violation of HSR's settlement agreement and communication of “negative and disparaging information about [Valente]” concerning Valente's employment at HSR. (Revised Complaint, ¶¶ 31–33.)   Based on the foregoing, when reading the complaint broadly and realistically, the event or conduct that interfered with Valente's prospective employment relationship with Middlesex Hospital, and thus allegedly caused the suicide that resulted in the plaintiff's emotional distress, was the breach of the settlement agreement.

Both the alleged breach of the settlement agreement and Middlesex's rescission of its offer of employment occurred on or about December 17, 2009.  (Revised Complaint, ¶¶ 31, 33.)   The complaint does not allege that the plaintiff was present when the alleged breach of the settlement agreement occurred, nor does it allege that she witnessed that conduct or arrived on the scene shortly thereafter.   Valente's suicide occurred on January 30, 2010, almost a month and a half after the alleged breach of the settlement agreement.  (Revised Complaint, ¶¶ 39, 96.)   The plaintiff claims her emotional distress was caused by her sensory perception of Valente's dead body soon after he hanged himself.   Although this allegation may satisfy the third Clohessy requirement, it does not satisfy the second Clohessy requirement.

Even assuming arguendo, that Valente's suicide was the culmination of his reaction to the defendants' intrusion into the prospective employment relationship, the plaintiff still remains too remote from the injury causing event and/or wrongful conduct, i.e., the alleged breach of the settlement agreement, to recover under Clohessy.   HSR's motion to strike count six is therefore granted.

B. THOMAS' MOTION TO STRIKE NO. 127

In his motion to strike, Thomas also asserts that count six of the revised complaint is legally insufficient as it fails to plead the required elements for bystander emotional distress.   Thomas incorporates by reference HSR's memorandum of law in support of its motion to strike.   The arguments raised by the plaintiff in opposition to Thomas' motion to strike are identical to those raised in opposition to HSR's motion to strike.   Accordingly, for the reasons enunciated above, Thomas' motion to strike count six is granted.

IV. CONCLUSION

For the foregoing reasons, the motions to strike count six of the revised complaint are GRANTED.

Mullins, J.

FOOTNOTES

FN1. The operative complaint—the revised complaint dated December 26, 2012—contains nine counts which are numbered as follows:  count one, count two, count three, count four, count five, count six, count seven, count seven, and count six.   The count six at issue in the current motion to strike is the final count six, which reads “Kerrilene Sinapi, Individually, as to Ronald G. Thomas and Hospital of Saint Raphael—Bystander Emotional Distress,” and is found on page fifteen of the operative complaint..  FN1. The operative complaint—the revised complaint dated December 26, 2012—contains nine counts which are numbered as follows:  count one, count two, count three, count four, count five, count six, count seven, count seven, and count six.   The count six at issue in the current motion to strike is the final count six, which reads “Kerrilene Sinapi, Individually, as to Ronald G. Thomas and Hospital of Saint Raphael—Bystander Emotional Distress,” and is found on page fifteen of the operative complaint.

FN2. HSR broadly states in its memorandum that “[t]he plaintiff does not meet these additional limitations imposed by the Clohessy opinion,” however, the specific arguments made by HSR are exclusively directed at the plaintiff's failure to meet the second limitation.   Accordingly, the court will address only Clohessy's second limitation..  FN2. HSR broadly states in its memorandum that “[t]he plaintiff does not meet these additional limitations imposed by the Clohessy opinion,” however, the specific arguments made by HSR are exclusively directed at the plaintiff's failure to meet the second limitation.   Accordingly, the court will address only Clohessy's second limitation.

FN3. HSR also argues that the plaintiff is incorrect in contending that the law will not require her to prove foreseeability because Clohessy did not reject a requirement for reasonable foreseeability, but rather concluded that specific limitations should be placed upon it..  FN3. HSR also argues that the plaintiff is incorrect in contending that the law will not require her to prove foreseeability because Clohessy did not reject a requirement for reasonable foreseeability, but rather concluded that specific limitations should be placed upon it.

Mullins, Raheem, J.