Francis Syc et al. v. Stephanie Boudreau et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 120

INTRODUCTION

The plaintiff filed a writ, summons, and complaint dated April 30, 2013 and Revised on October 14, 2013 naming as defendants Stephanie Boudreau and Joseph Boudreau.   The complaint is in eight Counts.   The plaintiff, Emily Besse, brings this action through her mother claiming bystander emotional distress as a result of an incident on May 14, 2012.   The plaintiff, Francis Syc brings this action alleging negligence, strict liability and recklessness.   The defendant has filed a motion to strike counts five and six dated October 28, 2013 that allege a cause of action for bystander emotional distress and counts seven and eight that allege a recklessness claim.   The plaintiffs have submitted an objection to the motion to strike dated December 2, 2013.   The parties appeared at short calendar to argue the motion and objection on February 3, 2014.

FACTUAL BACKGROUND

The Revised Complaint consists of eight separate Counts.   The plaintiff, Francis Syc (“Francis”), is the grandfather of Emily Besse (“Emily”), the plaintiff through her parent.   On May 14, 2012, the plaintiff Francis Syc rented an in-law apartment from the defendants Joseph Boudreau and Stephanie Boudreau.   On this date, Francis was leaving his apartment accompanied by his granddaughter, Emily, when he notices the defendants' dog had escaped and was in the common area where the plaintiffs were exiting.   Francis instructed his granddaughter to “run back upstairs and shut the door.”  (Revised Complaint, Count One, ¶ 7.)   Emily complied and the dog then attacked Francis causing injuries to his hands, including “ripping off a portion of his finger.”   (Revised Complaint, Count One, ¶ 9.)

Francis brought this action alleging that the defendants were negligent and careless in that they failed to keep their dog properly and adequately restrained and controlled as well as knew the aggressive nature and failed to take reasonable steps or to warn the plaintiff of the propensity to attack.   The plaintiff, Francis also alleges that the defendants were reckless in that they knew of the dog's aggressive nature and propensity to attack and yet disregarded the risk and failed to keep the dog adequately restrained or controlled and take steps necessary to prevent the dog from gaining access to the plaintiff's in-law apartment.  (Revised Complaint, Counts Seven and Eight.)

Emily Besse brought this action through her mother alleging that she “witnessed the aftermath of her grandfather being attacked as they drove rushed him to the emergency room.”  (Revised Complaint, Counts Five and Six.) She alleged in Count One that she was with her grandfather exiting the apartment area when they saw the dog and her grandfather told her to run to the apartment and shut the door.   The plaintiff has alleged the facts support a claim for bystander emotional distress.

DISCUSSION

A. GENERAL LAW

“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.   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 (2006).

The defendants argue that the motion to strike should be granted as to counts Five and Six alleging bystander emotional distress because the plaintiff as a granddaughter is not sufficiently closely related and the injury to the plaintiff Francis Syc was not a serious injury that would set forth a claim for bystander emotional distress.   The defendants also argue that counts seven and eight are legally insufficient because the allegations do not support a claim for recklessness.

B. BYSTANDER EMOTIONAL DISTRESS

There are two arguments proposed by the defendants to strike the bystander emotional distress Claim in Counts Five and Six. Each argument addresses a different element of the claim and will be addressed separately.   The essential elements for a claim for emotional bystander distress has been established by Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996).   The court stated:  “[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 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 defendants argue that the relationship between a grandfather and granddaughter is not within the “closely related” criteria set forth in Clohessy.   The plaintiff contends that there is no hard and fast rule for the court to restrict the scope to include only the limited areas already identified in the courts, that is a spouse or child.   The defendants refer to the case of Tuccillo v. Buckmiller Brothers, 55 Conn. L. Rptr. 508 (2013), in support of their position that the bystander emotional distress claim does not extend to a grandchild.  Tuccillo did not set a hard and fast rule that there could be no claim if it involved a grandchild.  Tuccillo simply denied the claim of the grandchildren.   In addition, the factual allegation in Tuccillo did not include a direct timely connection between the grandchildren and the plaintiff as is alleged in the instant action.   In the case of Lawrence v. Sniffen, Superior Court, J.D. Stamford/Norwalk at Stamford, D.N. CV 90 0109461 (February 21, 1991, Ryan, J.), the facts involved a situation where the granddaughter saw the shooting of her grandfather.   Although this case predates the decision in Clohessy, the court made a finding on the facts that the plaintiff granddaughter was “closely related” for purposes of a legal action for emotional distress.   After this decision, the Supreme Court decision in Clohessy found that there are four essential elements necessary to demonstrate a cause of action for bystander emotional distress.   Contrary to the Defendants' argument, the court did not solely determine that that there must be a relationship limited to married partners, siblings or parent and child.   The Clohessy court has not limited “closely related” to the facts of the case.   The court recognized that the parent and sibling of the victim were within the parameters of a reasonable relationship that should be reasonably forseeable.   However, the court also had the foresight to know that the term closely related was defined more so by the factual background of the relationship than an unyielding definition or finding of relationship.   The court stated:  “The class of potential plaintiffs should be limited to those who because of their relationship suffer the greatest emotional distress.   When the right to recover is limited in this manner the liability bears a reasonable relationship to the culpability of the negligent defendant.”  Clohessy, id., 52.   The court then stated very clearly that “We leave to another day the question of what other relationships may qualify.”   Id. This language clearly left until a day like today a decision as to whether the family relationship of grandfather and granddaughter in this factual scenario is a reasonable relationship that would be forseeable for culpability.   The defendants have ignored the full extent of Clohessy and its impact on closely related individuals.   The defendants' argument loses sight of the open description that the Clohessy court recognized.   Simply because the courts have not been confronted with a relationship that is different than those previously recognized does not mean that it is not closely related.   In the instant situation the undisputed facts are that the plaintiffs are related by blood.   The parties are within a family unit that is well recognized in this country as well as given great deference throughout the world.   The complaint indicates that at least on this date the grandfather and granddaughter were together at the apartment and outside of the apartment.   It is well accepted in this day and age that the family unit goes beyond the parents and child.   Quite often the grandparents are caregivers and a very important part of the lives of the grandchildren.   They are a part of the family unit.   Given the allegations in the complaint, the court denies the motion to strike on this basis.

The second argument is that the injury is not so severe that it satisfies Clohessy as an injury that “must be substantial, resulting in his or her death or serious physical injury.”   The description of the injury in the revised complaint includes a claim of partial loss of the 3rd finger of the left hand, lacerations and puncture wounds to both left and right hands and loss of use of the right hand as well as scarring.   The defendant without any basis contends these injuries are not serious physical injury.   The injury as described was extremely brutal to both hands.   The question of whether these injuries are serious should be a question which is subject to further analysis.   Given the information available and the description of the event in the complaint, this court cannot find that the plaintiff has not made a legally sufficient claim.

C. RECKLESSNESS

Recklessness requires a conscious choice of a course of action involving a risk substantially greater than that which is necessary for negligent conduct.  Scheiman v. Lafayette Bank and Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985).

In the instant revised complaint, the plaintiff alleges in addition to the claim of negligence that the defendants were reckless in various ways.   The defendants contend that the claim of recklessness is similar to the claim of negligence and fails to satisfy the legal basis for a claim of recklessness.

Even if not different than the facts of the statutory recklessness claim, the decisions of Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), and Ritchie v. Lewis, Superior Court, judicial district of New Haven, Docket No. CV 07 5015479S, (September 3, 2008, Zoarski, J.), have ruled that it is irrelevant that the facts in a recklessness court are identical to those in a negligence count.   The language of Driscoll clearly establishes this finding when it states:  “The defendants also contend that the Appellate Court improperly determined that the allegations in the plaintiff's complaint were sufficient to state a cause of action for reckless infliction of emotional distress on a bystander.   Essentially, they contend that, because the plaintiffs use the same language to allege negligent and reckless conduct, the allegations are insufficient.   We disagree ․ The defendants are mired in the fact that, aside from the addition of the words “willful, wanton and/or reckless actions,” the plaintiffs' allegations in their reckless counts mirror their assertion in the counts charging the defendants with negligence.   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. at 341–43.  “[W]here the allegations of a count of a contested pleading support a cause of action of recklessness, the count sounding in recklessness may well 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 a count sounding in negligence.”   Haley v. Connecticut Light and Power, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 059027 (November 9, 1999, Nadeau, J.).

In the instant action, the plaintiff incorporates the factual allegations of the cause of action for negligence but also provides additional allegations as to the conduct of the defendants which he contends supports a claim of recklessness.   In particular, the plaintiff expands upon the allegations of negligence to state that the defendants “completely disregarded the risk” and “failed to control” the dog so that it had access to attack and bite the plaintiff.  (Revised Complaint, Count Seven and Count Eight, ¶ 14.)   Although the defendants are concerned with the similarity of the claims for negligence and recklessness, the claim of recklessness provides a sufficient factual basis as to the intentional conduct which would support a cause of action for recklessness.   There is support for permitting the counts to remain even if similar based upon the decision in Haley v. Connecticut Light and Power, supra., Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 059027 (November 9, 1999, Nadeau, J.).   Therefore, the allegations in counts seven and eight support a cause of action for common-law recklessness even though it contains similar allegations.   Therefore, after review of each of the counts and the court's view of the varied causes of action, the court finds that although there are some similarities, they is a supportable cause of action.   The motion to strike counts seven and eight are denied.

CONCLUSION

The motion to strike Counts Five, Six, Seven and Eight is denied.

THE COURT

Brazzel–Massaro, J.

Brazzel–Massaro, Barbara, J.