Brian Forsyth v. Mark Richardson (2015)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE (# 103)

The complaint of the plaintiff, Brian Forsyth, is in four counts sounding respectively in assault, battery, intentional infliction of emotional distress, and statutory recklessness.   On November 24, 2015, the defendant, Mark Richardson, moved to strike all four counts.   On January 15, 2015, the plaintiff filed an opposing brief to which the defendant replied on February 19, 2015.   The motion was argued on February 23, 2015.   The motion was granted on June 22, 2015, with this memorandum to follow.

FACTS

For present purposes, the court takes the facts to be those alleged in the complaint, construed in favor of its legal sufficiency.  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012);  see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010) (necessarily implied allegations are accepted as true).   A motion to strike does not admit legal conclusions or the correctness of opinions.  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   Viewing the complaint in this light, the essential facts are as follows.

At approximately 6:39 p.m. on August 31, 2012, the plaintiff was the operator of a Jeep Wrangler “pulling out” of a residential driveway onto Route 163 in Montville.   The plaintiff became aware that a motorcycle was approaching westbound on Route 163.   The defendant was the operator of that motorcycle.   The plaintiff stopped the Jeep abruptly about halfway out of the driveway.   At that moment the defendant's motorcycle began to wobble, and he crossed the double center lines in the roadway toward the Jeep. The plaintiff saw the defendant was not in control of the motorcycle ¹ and that the defendant had the ability to cause the plaintiff harm by colliding with his vehicle.   The plaintiff apprehended that a harmful contact would result from an imminent collision.   The defendant attempted to regain control of his motorcycle, but he collided with a curb area and the defendant was ejected from the right shoulder of the roadway and into the woods.   The motorcycle proceeded to collide with the plaintiff's Jeep. The defendant later admitted to paramedics at the scene that he had been drinking alcohol prior to operating his motorcycle.   Further factual allegations will be discussed as needed below.

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).   In ruling on a motion to strike, the court takes “the facts to be those alleged in the [complaint] ․ and ․ 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).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   Claims based on conclusions of law which are unsupported by the facts alleged will be stricken.  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

The first count is for assault.  “[L]iability for assault arises if [A] [a person] acts intending to cause a harmful or offensive contact with the person of [another] or [to cause] an imminent apprehension of such a contact, and [B] the other is thereby put in such imminent apprehension.”  (Internal quotations omitted.)  Simms v. Chaisson, 277 Conn. 319, 331, 890 A.2d 548 (2006) (quoting 1 Restatement (Second) of Torts, § 21 (1965)).

In plead assaulting assault, the allegations must be explicit enough to inform the court and the defendant that what kind of misconduct is alleged.   See Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003), superseded by statute on other grounds as stated in O'Dell v. Kozee, 307 Conn. 231, 265, 53 A.3d 178 (2012).   Though the heading of the first count is simply “Assault,” ² it is clear that the plaintiff intends the claim to be one for intentional or reckless misconduct, as distinguished from mere negligence.   The interpretation of pleadings is always a question of law for the court.   Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

The plaintiff argues that the defendant's wilful decision to drink alcohol before operating his motorcycle supplies the requisite intent for assault.   The first count does not allege that the defendant was under the influence of alcohol, let alone that his blood alcohol content was eight hundredths of a percent or more.   See General Statutes § 14–227a.   More fundamentally, and ignoring that the evidentiary allegation of the defendant's admission to drinking before driving violates Practice Book § 10–1, such conduct does not alter the elements of the tort of assault.

The plaintiff also argues that he well alleges that he saw the defendant lose control of the motorcycle and apprehended a harmful contact would result from “an imminent collision” with his Jeep. The plaintiff does not allege that the defendant wilfully or voluntarily drove his motorcycle at the plaintiff's Jeep, let alone at the plaintiff.   Thus, as to the first count, the essential question is whether the allegation that the defendant decided to drink and drive satisfies the intent requirement for assault based on an event ³ following that decision.

Wilful misconduct is intentional conduct designed to injure, as found by direct evidence or inference, for which conduct there is no just cause or excuse.  Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988).   Both the action and the resulting injury must be intentional.  Id. “Intent” means that the actor desires to cause certain consequences of his act and includes the belief that those consequences are substantially certain to follow from his act.   See Brown v. Branford, 12 Conn.App. 106, 108, 529 A.2d 743 (1987).   “The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act.”  Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985).

Recklessness is also a state of consciousness regarding the consequences of one's acts.  Craig v. Driscoll, supra, 262 Conn. 342–43;  see Brock v. Waldron, 127 Conn. 79, 84, 14 A.2d 713 (1940) (reckless misconduct requires knowing, or having reason to know facts, from which a reasonable person would realize an action would create a high probability of substantial harm).   As with wilful misconduct, consciousness constituting recklessness may be inferred from the actor's conduct, provided both the awareness and the reckless disregard of the just rights of others, or of the danger or other substantially certain consequences of the act to others are present.  Id. In practice, however, wilful and reckless and wanton mean the same thing.  Id. “[W]illful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  (Internal quotation marks omitted.)  Id.

The first count does not allege facts sufficient to constitute assault.   No facts are alleged showing that the action producing the injury—losing control of the motorcycle—was reckless, let alone intentional.   No facts are alleged showing that the defendant intended to cause any contact with the plaintiff ⁴ or to cause an imminent apprehension of such a contact.   The defendant's motion to strike the first count must be granted.⁵

Turning to count two, for battery, the elements of that tort for present purposes are 1) that the defendant acted with the intention of causing a harmful or offensive contact with the person of the plaintiff or of causing an imminent apprehension of such contact;  and 2) such harmful or offensive contact was the direct or indirect result.   See Alteri v. Colasso, 168 Conn. 329, 334, n.3, 362 A.2d 798 (1975) (quoting 1 Restatement (Second) of Torts § 13 (1965)).   The defendant claims count two fails to state facts meeting these elements, particularly the requisite intent and actual touching.

Unlike the first count, count two alleges that the defendant's motorcycle collided with the plaintiff's vehicle;  that, construing the count in favor of sufficiency, the defendant was impaired by alcohol at the time of the collision;  and that he “made a conscious choice to drive fully aware of the risks, which he recklessly disregarded, that his impaired driving would cause to other persons driving on the same roads as the impaired defendant.” ⁶  Despite these added allegations, the court agrees with the defendant for the same basic reasons discussed above regarding the claim of assault.  “The intent required for a battery is similar to that required for an assault ․ The touching must be an intentional and unpermitted contact with the body of the plaintiff.”  (Citations omitted;  internal quotation marks omitted.)   Tyson v. Franco–Camacho, Superior Court, judicial district of New Haven, Docket No. CV–05–5001078–S (March 23, 2012).   An actual touching is required.   See Texeira v. Curren, Superior Court, judicial district of New Haven, Docket No. CV–14–6044710–S (August 21, 2014).   Count two does not allege facts showing either that the defendant acted with the intention of causing harmful contact with the person of the plaintiff (or imminent apprehension of such contact) or that an actual, harmful touching of the plaintiff's person was the result.

Connecticut courts have granted motions to strike claims of reckless misconduct where the plaintiff alleged that the defendant drank alcohol before driving but not “how much alcohol defendant consumed or how the defendant's consumption of alcohol raised [the] level of conduct to that of recklessness.”   See Gaudet v. Ziobran, Superior Court, judicial district of Middlesex, Docket No. 61126 (June 10, 1992) (6 Conn. L. Rptr. 862, 864) (defendant allegedly drove at high speed while impaired by alcohol or drugs, lost control and crashed his vehicle into the plaintiff's vehicle);  see also Dean v. Ballas, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–89–028582–S (October 30, 1989) (4 C.S.C.R. 864) (alleging that the defendant “operated a motor vehicle after he consumed alcoholic beverages”);  compare Andrade v Tradition Golf Club at Wallingford, LLC, Superior Court, judicial district of New Haven, Docket No. CV–13–6039774–S (March 5, 2014) (57 Conn. L. Rptr. 732, 733) (denying motion to strike where defendant allegedly “operated the vehicle at a greater rate of speed than the circumstances warranted ․ turned the vehicle unreasonably sharply under the circumstances ․ and ․ operated the vehicle while under the influence of intoxicating liquors”).   However, the cases just cited do not involve claims of battery.

The plaintiff argues that his allegation of the defendant's deliberate consumption of alcohol before driving his motorcycle supplies the requisite intent for battery and that the motorcycle colliding with the Jeep satisfies the touching requirement.   The plaintiff's argument, taken to its logical conclusion, would mean that every action against someone allegedly impaired by alcohol consumption could be an action for battery if the plaintiff claims a touching by parts of his or her own car resulted from the impairment.   That is not the law.   The court need and does not rely on the absence from count two of any allegation as to how the defendant's impairment due to consumption of alcohol equated to recklessness, let alone intention.   The motion to strike count two is granted simply because it does not allege the requisite intent of the defendant to cause a harmful or offensive contact with the person of the plaintiff (or imminent apprehension of such contact).

Count three is for intentional infliction of emotional distress, which has four elements.   The plaintiff must prove, first, that the defendant either intended to inflict emotional distress or knew, or should have known, that such emotional distress was the likely result of his conduct.   Second, the defendant's conduct must have been extreme and outrageous.   Third, the defendant's conduct must have been the cause of the plaintiff's distress.   Fourth, the plaintiff's emotional distress must be severe.  Perez–Dickson v. Bridgeport, 304 Conn. 483, 526–27, 43 A.3d 69 (2012).  “Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society ․ 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.)  Id., 527.   The present motion claims that count three fails to allege facts constituting a claim for intentional infliction of emotional distress, in general, and extreme and outrageous conduct, in particular.

After incorporating all of the allegations of counts one and two, count three alleges the defendant “should have known that emotional distress was the likely result of his conduct in operating his motorcycle while intoxicated.”   There is no separate allegation that the defendant was intoxicated.  (Up to this point, the only allegation akin to intoxication is the implied allegation that the defendant was “impaired.”)   The rule that necessarily implied allegations are taken as true;  Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. 252–53;  saves the allegation of intoxication, but it does not cure the failure to allege that the defendant should have known that emotional distress to the plaintiff was the likely result of operating his motorcycle while intoxicated.   That failure is fatal to the third count.   See Brown v. Branford, supra, 12 Conn.App. 108 (“intent” means that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to follow from it).   Taking what is alleged as true, the defendant should have known that emotional distress to somebody would likely result from his conduct, but that is not enough to allege the first element of intentional infliction of emotional distress.   If it were, anyone within earshot or view of an extreme and outrageous act would have a claim against the actor.   That is not the law.   See Restatement (Second) of Torts § 46 (1965), Comment (i).⁷  In the present case, there are no allegations that the defendant knew it was substantially certain or that there was a high degree of probability that he would cause emotional distress to the plaintiff.

Nor does the third count allege facts meeting the second element of intentional infliction of emotional distress—extreme and outrageous conduct.   The plaintiff claims that operating a motorcycle while intoxicated is extreme and outrageous because it has no social utility and is illegal.   In this case, as in all such cases, whether the defendant's alleged conduct could reasonably be found to be extreme and outrageous is a question for the court.   See Grasso v. Connecticut Hospice, Inc., 138 Conn.App. 759, 774, 54 A.3d 221 (2012).   When the sufficiency of the alleged act is challenged, the court performs a gatekeeping function.  Gagnon v. Housatonic Valley Tourism District Commission, 92 Conn.App. 835, 847, 888 A.2d 104 (2006).

This function does not involve finding facts.   The court only determines, as a matter of law, whether a reasonable fact finder could conclude that the alleged behavior, if proven, was extreme or outrageous.  Id. Where reasonable minds could disagree as to whether the defendant's conduct is extreme and outrageous, the issue is for the jury.  Id. If any facts provable under the stated and implied allegations support the cause of action, a motion to strike must be denied.  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   Although there is no bright line boundary of such conduct, a “line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional acts wholly lacking in social utility.”  (Internal quotation marks omitted.)   Leone v New England Communications, Superior Court, judicial district of New Britain, Docket No. CV–01–0509752–S (April 10, 2002) (32 Conn. L. Rptr. 72, 73).

Connecticut certainly has a strong public policy against driving while under the influence of alcohol;  see Tuxis Ohr's Fuel, Inc. v. Administrator, Unemployment Compensation Act, 309 Conn. 412, 434, 72 A.3d 13 (2013);  and it is illegal behavior.   See General Statutes § 14–227a.   The fact that conduct is illegal, however, does not in and of itself, make it extreme and outrageous.   Syme v. Hawthorne Inn, Inc., Superior Court, judicial district of New Britain, Docket No. CV–09–5014632–S (April 6, 2010).   Despite the allegation of intoxication, the third count is still missing facts illustrating the level of the defendant's intoxication, how his intoxication affected his driving, and how his intoxication led to conduct that was “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.”  Perez–Dickson v. Bridgeport, supra, 304 Conn. 527.   While driving under the influence may form the basis—or at least part of the basis—for extreme and outrageous conduct under certain facts, the allegations in this case fall short.

The third count also fails to allege that the defendant's intoxication, as distinguished from the collision, caused the plaintiff to suffer emotional distress.   The plaintiff must plead a factual basis demonstrating how the defendant's conduct caused his emotional distress.   See Perez–Dickson v. City of Bridgeport, supra, 304 Conn. 526–27.   The plaintiff alleges no facts showing that the defendant's driving while intoxicated—and not his trying to avoid the plaintiff's Jeep—caused him to lose control of his motorcycle and collide with the Jeep. The third count alleges no details such as the level of the defendant's intoxication and how his intoxication affected his driving.

More fundamentally, and apart from the fact that “extreme and outrageous” are legal conclusions not admitted for present purposes, if “operating his motorcycle while intoxicated”—unconnected to any intention to cause emotional distress to a particular person or persons—met the second element of intentional infliction of emotional distress, anyone who claimed to have suffered such distress from that act could claim a general intent to cause emotional distress and have a claim for intentional infliction of emotional distress.   That is not the law.   See Restatement (Second) of Torts, supra, § 46.   In contrast to criminal liability and administrative sanctions, there is no strict civil liability of a person who drives while intoxicated, let alone strict liability for intentional infliction of emotional distress.   The plaintiff has not claimed that there is such liability, let alone provided authority for such a claim.   For all the foregoing reasons, his claim for intentional infliction of emotional distress based on operation of a motorcycle while intoxicated is legally insufficient.

The fourth count seeks double or treble damages for recklessness under General Statutes § 14–295.  Section 14–295 provides, in pertinent part:  “In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14–218a, 14–219, 14–222, 14–227a, 14–230, 14–234, 14–237, 14–239 or 14–240a, and that such violation was a substantial factor in causing such injury, death or damage to property.”   The defendant argues that count four fails to state a claim under § 14–295 because the plaintiff neither pleaded a claim of negligence nor that the defendant was driving while under the influence and/or while having an elevated blood alcohol content in violation of General Statutes § 14–227a.

There is no specific appellate guidance regarding how to plead a claim under § 14–295.   This court, in Rose v. Cuadro, Superior Court, judicial district of New London, Docket No. CV11–6011627–S (October 21, 2013), after acknowledging a split among Superior Court judges as over how to plead § 14–295 claims, concluded that § 14–295 is self-contained in describing its pleading requirements.   Simply to allege that a defendant violated the statute would only be a conclusion of law.   See Santorso v. Bristol Hospital, supra, 308 Conn. 349 (“motion to strike is properly granted if the complaint alleges conclusions of law unsupported by the facts alleged”).   The statutory requirement that “the injured party ․ specifically [plead] ․ that another party has deliberately or with reckless disregard operated a motor vehicle in violation of [any of nine sections of Title 14]”;  General Statutes § 14–295;  means facts showing violation of at least one of the nine statutes listed in § 14–295 must be pleaded.   See Rose v. Cuadro, supra;  see also Rogers v. Dellop, Superior Court, judicial district of Fairfield, Docket No. CV–12–6032092–S (May 8, 2013) (56 Conn. L. Rptr. 152, 155) (“there is nothing fundamentally different about the recklessness element that would preclude it from being subjected to the same pleading requirement as the other provisions in the statute, nor from ․ Practice Book § 10–1”).⁸

Requiring the pleading of facts to support an alleged violation of a statute is consistent not only with our pleading practice, but also with the law of recklessness.   As discussed above, the state of mind amounting to recklessness may be inferred from conduct, provided the facts show something more than negligence.   See Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003).   In this court's view, § 14–295 does not eliminate the requirement that “something more” be pleaded.   See Rogers v. Dellop, supra, Superior Court, Docket No. CV–12–6032092–S (complaint must allege specific facts which bring the defendant within the provisions of § 14–295).

Turning to the present motion, count four, in its best light,⁹ alleges that the defendant admitted to the paramedics who subsequently arrived at the scene that he had been drinking alcohol prior to operating his motorcycle;  the defendant made the conscious choice to drive fully aware of the risks that his impaired driving would cause to other persons driving on the same roads;  and the defendant operated his motorcycle while impaired and intoxicated.   These allegations are sufficient to allege that the defendant “operate[d] a motor vehicle ․ while under the influence of intoxicating liquor or any drug or both.”   See General Statutes § 14–227a.¹⁰  Section 14–227a is one of the statutes which can trigger § 14–295 liability.   Exact use of statutory language is not required.  State v. Lameirao, 135 Conn.App. 302, 323, 42 A.3d 414, cert. denied, 305 Conn. 915, 46 A.3d 171 (2012).   The fourth count does allege sufficient facts for a claim of double or treble damages under § 14–295.   However, § 14–295 applies to “any civil action to recover damages resulting from personal injury:” it clearly requires that there be a civil action for damages which, if awarded, might be doubled or trebled if the statutory claim is found to apply.

The defendant argues that a claim under § 14–295 must be ancillary to a claim of negligence, which the plaintiff did not plead.   The plaintiff argues that alleging a negligence cause of action is not required under General Statutes § 14–295.   The court agrees:  § 14–295 does not require that “any civil action to recover damages resulting from personal injury” be a negligence claim.   Because a claim is typically pled a certain way or in conjunction with certain other claims does not make it necessary to do so.   Claims of common-law recklessness or intentional tort might support a § 14–295 claim as well as a negligence claim.   Still, the defendant has attacked the fourth count as having no underlying theory of recovery.   The striking of the first, second and third counts makes the substance of defendant's claim true.¹¹

For the foregoing reasons, the motion to strike all four counts is granted.

Cole–Chu, J.

FOOTNOTES

FN1. The first count alleges that the plaintiff “saw that the defendant was not in control of his motorcycle.”   That is both evidentiary and a matter of opinion.   Although the correctness of opinions is not admitted for present purposes;  Faulkner v. United Technologies Corp., supra, 240 Conn. 588;  the first count must be construed reasonably to include its full and fair meaning.  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006)..  FN1. The first count alleges that the plaintiff “saw that the defendant was not in control of his motorcycle.”   That is both evidentiary and a matter of opinion.   Although the correctness of opinions is not admitted for present purposes;  Faulkner v. United Technologies Corp., supra, 240 Conn. 588;  the first count must be construed reasonably to include its full and fair meaning.  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006).

FN2. A heading is not dispositive of what cause of action is alleged and the court's analysis is based on the language of the complaint itself.   See Blardo v. General Security Indemnity Co. of Arizona, Superior Court, judicial district of Hartford, Docket No. CV–03–0829825–S (September 28, 2004) (titles which a plaintiff assigns to claims are not determinative)..  FN2. A heading is not dispositive of what cause of action is alleged and the court's analysis is based on the language of the complaint itself.   See Blardo v. General Security Indemnity Co. of Arizona, Superior Court, judicial district of Hartford, Docket No. CV–03–0829825–S (September 28, 2004) (titles which a plaintiff assigns to claims are not determinative).

FN3. The first count does not allege that the motorcycle touched the plaintiff's Jeep, let alone the plaintiff, and the court regards neither of those allegations as necessarily implied and, therefore, admitted for purposes of this motion.   Indeed, a reasonable inference from the first count is that the defendant lost control of the motorcycle trying to avoid a collision, in reaction to the plaintiff's driving his vehicle half of its length into Route 163..  FN3. The first count does not allege that the motorcycle touched the plaintiff's Jeep, let alone the plaintiff, and the court regards neither of those allegations as necessarily implied and, therefore, admitted for purposes of this motion.   Indeed, a reasonable inference from the first count is that the defendant lost control of the motorcycle trying to avoid a collision, in reaction to the plaintiff's driving his vehicle half of its length into Route 163.

FN4. The only collision alleged in the first count is between the motorcycle and “a curb area.”.  FN4. The only collision alleged in the first count is between the motorcycle and “a curb area.”

FN5. The court need not decide the other basis of the defendant's motion to strike the first count, i.e., that the plaintiff does not allege facts showing that the plaintiff was in imminent apprehension of harmful contact.   The court notes, however, that although the plaintiff's allegation that he “apprehended a harmful contact would result from an imminent collision” is a conclusion of law, it is supported by the allegation that the plaintiff saw the defendant was not in control of his motorcycle and was on a collision course with his own vehicle..  FN5. The court need not decide the other basis of the defendant's motion to strike the first count, i.e., that the plaintiff does not allege facts showing that the plaintiff was in imminent apprehension of harmful contact.   The court notes, however, that although the plaintiff's allegation that he “apprehended a harmful contact would result from an imminent collision” is a conclusion of law, it is supported by the allegation that the plaintiff saw the defendant was not in control of his motorcycle and was on a collision course with his own vehicle.

FN6. The allegations that the defendant and his driving were “impaired” are arguably opinion or conclusions of law which are not admitted for present purposes.   However, because count two is to be construed in favor of sufficiency, and because they could be interpreted as of fact, the court considers them as such..  FN6. The allegations that the defendant and his driving were “impaired” are arguably opinion or conclusions of law which are not admitted for present purposes.   However, because count two is to be construed in favor of sufficiency, and because they could be interpreted as of fact, the court considers them as such.

FN7. “The rule stated in [section 46] applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain to result from his conduct.   It applies also where he acts recklessly ․ in deliberate disregard of a high degree of probability that the emotional distress will follow.”   Restatement (Second) of Torts, supra, § 46, comment (I).   Illustrations fifteen of § 46 includes this illustration that the actor's state of mind must anticipate the emotional harm of the particular plaintiff:  “During A's absence from her home, B attempts to commit suicide in A's kitchen by cutting his throat.   B knows that A is substantially certain to return and find his body, and to suffer emotional distress.   A finds B lying in her kitchen in a pool of gore, and suffers severe emotional distress.   B is subject to liability to A.” Illustration sixteen of § 46 includes the same facts as fifteen and adds that B will be liable even if he “know that there is a high degree of probability that” A will return and find him.  (The court does not rule out meeting the element of intent by an allegation of transferred intent, but count three does not present that issue.).  FN7. “The rule stated in [section 46] applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain to result from his conduct.   It applies also where he acts recklessly ․ in deliberate disregard of a high degree of probability that the emotional distress will follow.”   Restatement (Second) of Torts, supra, § 46, comment (I).   Illustrations fifteen of § 46 includes this illustration that the actor's state of mind must anticipate the emotional harm of the particular plaintiff:  “During A's absence from her home, B attempts to commit suicide in A's kitchen by cutting his throat.   B knows that A is substantially certain to return and find his body, and to suffer emotional distress.   A finds B lying in her kitchen in a pool of gore, and suffers severe emotional distress.   B is subject to liability to A.” Illustration sixteen of § 46 includes the same facts as fifteen and adds that B will be liable even if he “know that there is a high degree of probability that” A will return and find him.  (The court does not rule out meeting the element of intent by an allegation of transferred intent, but count three does not present that issue.)

FN8. See also Smith v. Verma, Superior Court, judicial district of New London, Docket No. CV–13–6105809–S (December 6, 2013);  Martin v. LaQuerre, Superior Court, judicial district of New London, Docket No. CV–13–6017265–S (December 18, 2013)..  FN8. See also Smith v. Verma, Superior Court, judicial district of New London, Docket No. CV–13–6105809–S (December 6, 2013);  Martin v. LaQuerre, Superior Court, judicial district of New London, Docket No. CV–13–6017265–S (December 18, 2013).

FN9. Paragraphs 28, 29, and 34 of count four state that General Statutes § 14–222a was violated.   It is clear, and conceded by the defendant in his reply memorandum, that plaintiff's counsel erred in writing § 14–222a instead of § 14–227a.   The defendant clearly understood what the plaintiff intended and was not prejudiced by the error.   The court will proceed with its analysis of this motion as though § 14–227a were properly alleged.   See, e.g., Practice Book § 10–62;  Lay v. Stamford Emergency Medical Services, Inc., Superior Court, Docket No. CV–98–0356539–S (June 4, 2001) (allowing variance of proof from the pleading if there is no prejudice to the non-pleader)..  FN9. Paragraphs 28, 29, and 34 of count four state that General Statutes § 14–222a was violated.   It is clear, and conceded by the defendant in his reply memorandum, that plaintiff's counsel erred in writing § 14–222a instead of § 14–227a.   The defendant clearly understood what the plaintiff intended and was not prejudiced by the error.   The court will proceed with its analysis of this motion as though § 14–227a were properly alleged.   See, e.g., Practice Book § 10–62;  Lay v. Stamford Emergency Medical Services, Inc., Superior Court, Docket No. CV–98–0356539–S (June 4, 2001) (allowing variance of proof from the pleading if there is no prejudice to the non-pleader).

FN10. Section 14–227a provides, in pertinent part:  “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both.   A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content.   For the purposes of this section, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight ․”.  FN10. Section 14–227a provides, in pertinent part:  “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both.   A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle (1) while under the influence of intoxicating liquor or any drug or both, or (2) while such person has an elevated blood alcohol content.   For the purposes of this section, ‘elevated blood alcohol content’ means a ratio of alcohol in the blood of such person that is eight-hundredths of one per cent or more of alcohol, by weight ․”

FN11. The court does not need to analyze whether emotional distress of an “injured party” is “personal injury” as those terms are used in § 14–295.   See Eng v. Sheehy, Superior Court, judicial district of Bridgeport, Docket No. CV–00–0370984–S (February 15, 2001) (28 Conn. L. Rptr. 719, 720) (under § 14–295, bystander emotional distress is an injury but split is noted among trial judges as to whether derivative claims like loss of consortium are actionable)..  FN11. The court does not need to analyze whether emotional distress of an “injured party” is “personal injury” as those terms are used in § 14–295.   See Eng v. Sheehy, Superior Court, judicial district of Bridgeport, Docket No. CV–00–0370984–S (February 15, 2001) (28 Conn. L. Rptr. 719, 720) (under § 14–295, bystander emotional distress is an injury but split is noted among trial judges as to whether derivative claims like loss of consortium are actionable).

Cole–Chu, Leeland J., J.