Frank Iannuzzi v. Orange Board of Education et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 103

The plaintiff commenced this action by way of complaint dated April 8, 2013.   He has named two defendants, the Orange Board of Education and Lynne K. McMullin.   The plaintiff alleges in a one-count complaint that the defendants terminated his employment and thereafter asked him to sign an agreement not to sue.   The plaintiff contends that these actions created severe emotional distress for which they are legally liable.   The complaint consists of one count.   The defendant has submitted this September 3, 2013 motion to strike the complaint for failure to sufficiently allege facts in support of the claim for negligent infliction of emotional distress.   The defendant also contends that the allegations must be stricken because the defendants are entitled to governmental immunity.   The plaintiff has filed an objection to the motion dated November 19, 2013.   The court heard argument on November 25, 2013.

“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).  “[T]he moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).  “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, 498.   A “failure to include a necessary allegation in a complaint precludes a recovery by the plaintiff under that complaint.”  (Internal quotation marks omitted.)   Madsen v. Gates, 85 Conn.App. 383, 398, 857 A.2d 412, cert. denied, 272 Conn. 902, 853 A.2d 615 (2004).   The court should “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2005).

The plaintiff has alleged only one cause of action, that is, the defendants through their actions caused negligent infliction of emotional distress.   This cause of action requires that the plaintiffs allege facts to support 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 defendants conduct was the cause of the plaintiff's distress.”  Carrol v. Allstate Ins. Co., 262 Conn. 433, 815 A.2d 119 (2003).

A claim for negligent infliction of emotional distress requires facts that the defendants should have realized that their conduct involved an unreasonable risk of causing emotional distress, and that distress, if it were caused might result in illness or bodily harm.  Stancuna v. Schaffer, 122 Conn.App. 484, 490, 998 A.2d 122 (2010).

“The foreseeability requirement in a negligent infliction of emotional distress claim is more specific that the standard negligence requirement that an actor should have foreseen that his tortious conduct was likely to cause harm ․ In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that their behavior would likely cause harm of a specific nature i.e. emotional distress likely to lead to illness or bodily harm.”  (Internal quotation marks omitted.)  Stancuna v. Schaffer, supra, 122 Conn.App. 490.   In the present action, paragraph 7 alleges that the conduct of the defendant “was negligent in that a reasonable actor under the circumstances would have known that the manner in which they treated the plaintiff was likely to cause him, and any person of ordinary sensibilities, to suffer emotional distress sufficiently severe that physical illness was likely to result.”   Although the allegations are bare bones, they provide facts that are directly related to the cause of action for negligent infliction of emotional distress.   There may be further information that supports the claims other than the claims in paragraph 7 and the defendants have the opportunity to inquire as to the underlying factual basis through the discovery process.   The complaint alerts the defendants as to the claims and provides the language which satisfies the elements of the claim.   Reviewing the complaint as a whole there are sufficient allegations to survive a motion to strike.   Additionally, the claim that the action is precluded by governmental immunity is not clear on the basis of the facts alleged.   Because of the allegations, the issues of identifiable victim and imminent harm are areas requiring further evidence and/or testimony.

The motion to strike is Denied in all respects.

THE COURT

Brazzel–Massaro, J.

Brazzel–Massaro, Barbara, J.