Erwin Lerch v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 107)

FACTS

On March 3, 2011, the plaintiff, Erwin Lerch, filed a three-count complaint against the defendant, The Stop & Shop Supermarket Co., LLC, after allegedly being burned by a caustic material in a soap dispenser in the bathroom of a Stop & Shop in Colchester, Connecticut.   The complaint alleges that the plaintiff, a business invitee of the retail store operated by the defendant, utilized the soap dispenser in the store's public restroom when he began to feel pain and irritation in his hands.   The plaintiff further alleges that he went to the emergency room upon returning home and was diagnosed by treating physicians as having suffered chemical burns to both his hands.   Count one of the complaint sounds in negligence;  count two bases its theory of liability on respondeat superior.   Count three alleges that the defendant was involved in a labor dispute with its employees at the time of the plaintiff's injuries and thus the defendant knew or should have known that one or more of its employees would carry out an act of sabotage such as that resulting in the plaintiff's injuries.   The count sounds in negligence.

On June 9, 2011, the defendant filed a motion to strike counts two and three of the complaint.   The motion is accompanied by a memorandum of law.   On June 21, 2011, the plaintiff filed an objection to the motion to strike and memorandum of law in support of his objection.

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 ommitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “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 293 (2010).  “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).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Id., 580.   “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.

In the present case, the defendant argues that count two of the complaint should be stricken on the ground that the plaintiff fails to allege any facts that would support a cause of action under the doctrine of respondeat superior.   In addition, the defendant argues that count three should be stricken on the ground that there is no cognizable cause of action in this state for a “heightened” duty on the part of the defendant, and another count of negligence would be duplicative of count one.   In response, the plaintiff contends that the second count clearly alleges sufficient facts to support a cause of action under respondeat superior, and the third count alleges facts different from the first count and is thus not duplicative.   The court will consider each of the contested counts in turn.

The Supreme Court has “long adhered to the principle that in order to hold an employer liable for the intentional torts of his employee, the employee must be acting within the scope of his employment and in furtherance of the employer's business ․ But it must be the affairs of the principal, and not solely the affairs of the agent, which are being furthered in order for the doctrine to apply.”  (Citations omitted;  internal quotation marks omitted.)  A–G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990).  “A servant acts within the scope of employment while engaged in the service of the master, and it is not synonymous with the phrase during the period covered by his employment ․ While a servant may be acting within the scope of his employment when his conduct is negligent, disobedient and unfaithful ․ that does not end the inquiry.   Rather, the vital inquiry in this type of case is whether the servant on the occasion in question was engaged in a disobedient or unfaithful conducting of the master's business, or was engaged in an abandonment of the master's business ․ Unless [the employee] was actuated at least in part by a purpose to serve a principal, the principal is not liable.”  (Internal quotation marks omitted.)  Mullen v. Horton, 46 Conn.App. 759, 764, 700 A.2d 1377 (1997).

This court previously noted:  “A cause of action under a theory of respondeat superior requires that the plaintiff allege facts to support two elements:  (1) the employee's actions were within the scope of his employment and (2) the employee's actions were in furtherance of the employer's business.”   McColl v. Senski, Superior Court, judicial district of New London, Docket No. CV 095010862 (October 22, 2009, Cosgrove, J.).   In the present case, the plaintiff has not pleaded any facts to support either of these elements.   Rather, in count two, the plaintiff has alleged only that his injuries were “caused by the willful acts or omissions of one or more of the defendant's employees, agents and servants who were acting within the scope of his/her/their employment and in furtherance of the defendant's business.”   Beyond this legal conclusion concerning causation, count two does not contain any factual support that the defendant's employees, agents or servants were acting within the scope of their employment in furtherance of the defendant's business.   The count alleges that the plaintiff suffered chemical burns to his hands after using the soap dispenser in the defendant's bathroom.   There are no factual allegations relating to how the alleged caustic material ended up in the soap dispenser as a result of an employee of the defendant and how that would be in the course of his or her employment and how that would be in furtherance of the defendant's business.

In his objection to the defendant's motion to strike, the plaintiff maintains that his allegations state or reasonably infer “that the soap dispenser was willfully filled with a caustic solution by an employee of [the] defendant.”   The court can find no such allegation or inference in count two of the complaint.  “It is a well established principle that Connecticut is a fact pleading jurisdiction ․ Although the court is required to read the pleadings broadly and in the light most favorable to sustaining the legal sufficiency of the claim, it cannot read additional allegations into the pleading ․” (Citation omitted.)  Pike v. Bugbee, 115 Conn.App. 820, 828 n.5, 974 A.2d 743, cert. granted on other grounds, 293 Conn. 923, 980 A.2d 912 (2009).   Therefore, the court will grant the defendant's motion to strike with respect to count two.

With respect to count three, the plaintiff appears to allege facts separate and distinct from count one that, if proven, would render the defendant liable for negligence.  “Under our pleading practice, a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint.”  Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164 (1985);  see also Practice Book § 10–25.  “Case law suggests that alternative pleading is justified only when the pleader does not know all the facts necessary to make an election.”  DeVita v. Esposito, 13 Conn.App. 101, 105, 535 A.2d 364 (1987), cert. denied, 207 Conn. 807, 540 A.2d 375 (1988).

In count one of the complaint, the plaintiff alleges that his chemical burns were caused by the defendant's failure to adequately control dangerous substances in use in the store, its employee's inattentiveness to their duties, its failure to provide appropriate training, oversight and guidance for its employees to ensure that dangerous cleaning agents were properly utilized and controlled and its failure to protect business invitees from dangerous cleaning agents.

In contrast, count three alleges that the defendant was involved in a labor dispute with its employees at the time of the plaintiff's injuries.   The theory of liability is based on the allegation that the defendant knew or should have known that one or more of its employees would carry out an act of sabotage that would result in harm to the plaintiff.   Specifically, count three alleges that the defendant was negligent in failing to take adequate measures to ensure the safety and security of its business invitees given the circumstances and in failing to warn business invitees of the potential harm arising from its labor dispute.

At such an early stage in the proceedings, the plaintiff may not have all the necessary evidence to base his theory of liability against the defendant on either the negligent handling and control of dangerous cleaning agents or the negligent failure to protect its business invitees from possible sabotage relating to a labor dispute.   Viewing count three in a light most favorable to sustaining its legal sufficiency, the court finds that the allegations support a cause of action sounding in negligence that is separate and distinct from the facts alleged in the negligence claim in count one.   This alternative pleading is permissible by our courts, and therefore, the defendant's motion to strike count three is denied.

CONCLUSION

Based on the foregoing, the court hereby grants the defendant's motion to strike with respect to count two and denies the motion with respect to count three.

Cosgrove, J.

Cosgrove, Emmet L., J.