Carl Giannettino et al. v. Vince Scarpetti et al.

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Superior Court of Connecticut.

Carl Giannettino et al. v. Vince Scarpetti et al.

NNHCV095030562S

Decided: July 14, 2011

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 112)

FACTS

The plaintiffs, Carl Giannettino, Dakota Callahan and Acadia Callahan, commenced this action by filing an eighteen-count complaint against the defendants, Vince Scarpetti and Jessica Renkowsky on July 17, 2009.1  Each plaintiff brings claims against each defendant for intentional and negligent infliction of emotional distress as well as invasion of privacy.   The complaint alleges the following facts.   On October 17, 2007, the defendants conducted an improper interrogation of Acadia Callahan at the Pumpkin Delight School which caused her to accuse her brother of inappropriately touching her.   The interrogation was contrary to the standard protocol for conducting such interviews.   As a result of the interrogation, the Milford police and Connecticut department of children and families (DCF) conducted a lengthy investigation of the plaintiffs.   Though the plaintiffs were eventually exonerated, they suffered severe emotional distress due to the actions that the defendants knew or should have known would cause the plaintiffs to suffer emotional distress sufficiently severe that their health could be affected.

The defendants filed an answer and special defenses on December 2, 2009.   A motion for summary judgment and accompanying memorandum of law was filed by the defendants on December 21, 2010 on the grounds that:  (1) they have immunity pursuant to General Statutes § 17a–101 et seq. as mandatory reporters, (2) the plaintiffs have failed to state a claim for intentional infliction of emotional distress because they did not allege facts sufficient to demonstrate that the defendants' conduct was extreme and outrageous, (3) the plaintiffs have failed to demonstrate that the defendants' conduct meets the standard for intentional infliction of emotional distress, (4) the plaintiffs have failed to state a claim for negligent infliction of emotional distress because they did not allege facts sufficient to demonstrate that the defendants' conduct created an unreasonable risk of inflicting emotional distress on the plaintiffs, (5) the plaintiffs cannot prove negligent infliction of emotional distress because the defendants followed the proper procedure in investigating Acadia Callahan's allegations, (6) the defendants are entitled to governmental immunity and (7) the plaintiffs have failed to demonstrate that the defendants unreasonably intruded into their private affairs.   In support of their motion, the defendants submitted:  (1) a copy of the relevant section of the 2009–2010 Milford Public Schools Parent & Student Handbook:  Middle School Edition, (2) an affidavit by Scarpetti and (3) an affidavit by Renkowsky.

The plaintiffs filed an objection on December 30, 2010.   In support of their objection, the plaintiffs submitted:  (1) an affidavit by the plaintiff, (2) a redacted copy of the DCF record of the investigation that was initiated as a result of the report filed by the defendants, (3) a bill by Dr. Hyman, a psychologist who has been treating the plaintiff and (4) a medical report by Dr. Hyman.

The defendants filed a reply on March 22, 2011.   The matter was heard at short calendar on March 28, 2011.

DISCUSSION

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.”  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 554, 985 A.2d 1042 (2010).

“On a motion by [the] defendant for summary judgment, the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ․ Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  (Internal quotation marks omitted.)  Vitale v. Kowal, 101 Conn.App. 691, 696–97, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).  “Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case.”  (Internal quotation marks omitted.)  Doty v. Shawmut Bank, 58 Conn.App. 427, 431, 755 A.2d 219 (2000).

The defendants assert that the complaint is insufficient because it does not include facts to support a cause of action for negligent and intentional infliction of emotional distress.   They further argue that they are entitled to immunity on all counts due to their status as mandated reporters.   They maintain that because, as mandated reporters pursuant to § 17a–101 et seq., they filed a report of allegations of sexual abuse in good faith, they are protected from all criminal or civil liability.   They also argue that they are immune from the negligent infliction of emotional distress counts due to governmental immunity.   The way in which the defendants conducted the investigation which led to the report is a discretionary act and that the plaintiffs cannot claim the foreseeable victim/imminent harm exception to the governmental immunity doctrine.   Finally, the defendants assert that the plaintiffs have failed to meet their burden of proving that the defendants are liable for the claims of negligent and intentional infliction of emotional distress and invasion of privacy.

The plaintiffs counter that the mandated reporter immunity only applies to good faith reports and that there is sufficient evidence to create a question of fact as to whether the defendants acted in good faith and that false accusations of wrongdoing are sufficient to support an allegation of extreme and outrageous behavior.   They further assert that the defendants' conflicting arguments about whether their acts were ministerial or discretionary creates a question of fact.

The defendants reply that the plaintiffs have failed to provide evidence that counters the defendants' evidence that they acted in good faith in reporting the allegations of sexual abuse.   They argue that the defendants did not knowingly make a false statement to DCF, and therefore, the elements of intentional infliction of emotional distress have not been met.   They further reiterate that the minor plaintiffs are not exempt from the governmental immunity doctrine because their severe emotional distress was not confined in duration or geography.   Finally, they maintain that whether an allegation that triggers mandated reporting ultimately is deemed false does not compel the conclusion that a mandated reporter has invaded anyone's privacy.

I

Allegations of Insufficient Facts

The defendants argue that the allegations of negligent and intentional infliction of emotional distress in the complaint are insufficient because they fail to allege facts to support the elements for those causes of action.   Specifically, the defendants allege that the plaintiffs have failed to provide facts to support the element of unreasonable risk of emotional distress for negligent infliction of emotional distress and extreme and outrageous conduct for intentional infliction of emotional distress.   The plaintiffs counter that they have sufficiently pleaded the elements for negligent infliction of emotional distress and that the allegations of false accusations of wrongdoing are sufficient to survive a motion to strike a claim for intentional infliction of emotional distress.   Additionally, the plaintiffs argue that a motion for summary judgment is not the appropriate procedural vehicle to challenge the sufficiency of the pleadings if the defect can be cured by repleading.

The Connecticut Supreme Court has held that “the use of a motion for summary judgment instead of a motion to strike [to challenge the legal sufficiency of a complaint] may be unfair to the nonmoving party because [t]he granting of a defendant's motion for summary judgment puts the plaintiff out of court ․ [while the] granting of a motion to strike allows the plaintiff to replead his or her case.”  (Internal quotation marks omitted.)  Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).   Accordingly, “the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading.”   Id. If, however, the nonmoving party argues that any purported defects could be cured by repleading, and the moving party fails to demonstrate that, if the nonmoving party were permitted to replead, the legal deficiency underlying the motion for summary judgment would not be cured, the trial court should treat the motion for summary judgment as a motion to strike, under which the nonmoving party would be “afforded the opportunity to replead upon the granting of the motion.”  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 124–25, 971 A.2d 17 (2009).

In the present case, the defendants have raised a challenge to the legal sufficiency of the allegations for the intentional and negligent infliction of emotional distress counts.   The plaintiffs have argued that the arguments relating to legal sufficiency are not appropriately raised by a motion for summary judgment.   Since the defendants, as the moving party, have failed to argue that the defect could not be cured by repleading, the court will treat those arguments as a motion to strike.2  “The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any [pleading] ․ 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).  “We take the facts to be alleged in the complaint ․ and construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ 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 206 (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).

A

Negligent Infliction of Emotional Distress

To establish a claim of negligent infliction of emotional distress, the plaintiff must prove that “(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 defendant's conduct was the cause of the plaintiff's distress.”  Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).  “[T]he elements of negligent infliction of emotional distress do not require proof of any particular level of intent.   In fact, intent need not be proven at all to establish a claim of negligent infliction of emotional distress.”  Stohlts v. Gilkinson, 87 Conn.App. 634, 645, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005).   “This ․ test essentially requires that the fear or distress experienced by the plaintiffs be reasonable in light of the conduct of the defendants.   If such [distress] were reasonable in light of the defendants' conduct, the defendants should have realized that their conduct created an unreasonable risk of causing distress, and they, therefore, properly would be held liable.   Conversely, if the [distress] were unreasonable in light of the defendants' conduct, the defendants would not have recognized that their conduct could cause this distress and, therefore, they would not be liable.”  (Internal quotation marks omitted.)  Larobina v. McDonald, supra, 274 Conn. 410.

In the present case, the plaintiffs allege that the defendants' questioning of Acadia Callahan was improper because they suggested to her that she had been a victim of improper touching by Dakota Callahan and it was done contrary to the standard protocol for conducting such interviews.   As a result of the questioning, the Milford Police and DCF were contacted and DCF conducted an investigation.   The court can infer from those allegations that the defendants' conduct in improperly suggesting that Acadia Callahan had been subject to sexual abuse would cause her untruthfully to affirm those allegations and would cause her and her family emotional distress.   The defendants knew that they were mandated to report such allegations and that an investigation by DCF might follow, causing more emotional distress based on the defendants' improper conduct.   Given the allegations and the facts that can be implied from the allegations, the plaintiffs have alleged sufficient facts to support the elements of negligent infliction of emotional distress and, therefore, the motion to strike is denied for counts one through six.

B

Intentional Infliction of Emotional Distress

“To prove intentional infliction of distress, the plaintiff must demonstrate (1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result [from] his conduct;  (2) that the conduct was extreme and outrageous;  (3) that the defendant's conduct was the cause of the plaintiff's distress;  and (4) that the emotional distress sustained by the plaintiff was severe.”  (Internal quotation marks omitted.)  Hall v. Bergman, 296 Conn. 169, 182–83 n.9, 994 A.2d 666 (2010).  “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.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569–70, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).   “Mere insults, indignities, or annoyances that are not extreme or outrageous will not suffice.”  Brown v. Ellis, 40 Conn.Sup. 165, 167, 484 A.2d 944 (1984).

“Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine ․ Only where reasonable minds disagree does it become an issue for the jury ․ [Therefore], [i]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function.   In this capacity, the role of the court is to determine whether the allegations of a complaint ․ set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.   In exercising this responsibility, the court is not fact-finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress.”  (Citation omitted;  internal quotation marks omitted.)  Tracy v. New Milford Public Schools, supra, 101 Conn.App. 568–69.  “[A] pivotal difference between claims for emotional distress based on intentional conduct and those based on negligent conduct is that an essential component of an intentional infliction claim is that the defendant's alleged behavior must be extreme and outrageous.   A claim based on negligent infliction of emotional distress requires only that the actor's conduct be unreasonable and create an unreasonable risk of foreseeable emotional harm.”  Olson v. Bristol–Burlington Health District, 87 Conn.App. 1, 7, 863 A.2d 748, cert. granted on other grounds, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005).  “[T]he plaintiff has a more difficult burden when the defendant's state of mind is intentional, rather than negligent ․ Where the defendant's state of mind is purposefully to inflict emotional distress on the plaintiff, the plaintiff may not recover unless the defendant's conduct in pursuance of that intent is also extreme and outrageous.”  Id., 7–8.

In the present case, the plaintiffs allege that the defendants questioned Acadia Callahan, who was eight years old at the time of the incident, in variance to the standard protocol for conducting such interviews.   The plaintiffs allege that the defendants questioned Acadia Callahan in such a way to suggest that she had been the victim of inappropriate touching by her brother, Dakota Callahan, and led her to imply that wrongdoing had occurred.   Based on the facts provided in the complaint, the court cannot conclude that the allegations support the element of extreme and outrageous conduct.   While the subject matter upon which the questioning was based is undoubtably a sensitive one, the plaintiffs have not alleged sufficient facts which set forth behaviors that a reasonable fact finder could find to be extreme or outrageous.   Moreover, while the plaintiffs cite several cases to support their position that a defendant making false reports are sufficient to survive a motion to strike and a motion for summary judgment, those cases are distinguishable.   In those cases, the plaintiffs had alleged or established that the defendants knew that the statements were false at the time that they were made.   In the present case, the court cannot infer from the allegations that the defendants knew Acadia Callahan's statements to be untrue.   Therefore, the motion to strike the intentional infliction of emotional distress claims, counts seven through twelve, is granted.

II

Immunity Defenses

The defendants argue that they are entitled to immunity for all claims pursuant to § 17a–101 et seq. and for the negligent infliction of emotional distress claims due to governmental immunity.

The defendants maintain that their reporting of the allegations of Acadia Callahan were made in good faith and, thus, they are entitled to statutory immunity pursuant to § 17a–101e as mandated reporters.3  The plaintiffs assert that there is sufficient evidence to permit a jury to conclude that the defendants did not act in good faith, and, therefore, are not entitled to immunity as mandated reporters.

Pursuant to General Statutes § 17a–101a, a mandated reporter “who in the ordinary course of such person's employment or profession has reasonable cause to suspect or believe that any child under the age of eighteen years (1) has been abused or neglected, as defined in section 46b–120, (2) has had nonaccidental physical injury, or injury which is at variance with the history given of such injury, inflicted upon such child, or (3) is placed at imminent risk of serious harm, shall report or cause a report to be made in accordance with the provisions of section 17a–101b to 17–101d, inclusive.”   Mandated reporters include school teachers, principals and social workers.  Section 17a–101(b).  Section 17a–101e(b) provides:  “Any person, institution or agency which, in good faith, makes, or in good faith does not make, the report pursuant to sections 17a–101a to 17a–101d, inclusive, and 17a–103 shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed and shall have the same immunity with respect to any judicial proceeding which results from such report provided such person did not perpetrate or cause such abuse or neglect.”

“[Good faith] is a subjective standard of honesty of fact in the conduct or transaction concerned, taking into account the person's state of mind, actual knowledge and motives ․ Whether good faith exists is a question of fact to be determined from all the circumstances ․ [H]owever, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of material fact, even with respect to motive, intent or good faith.”  (Citation omitted;  internal quotation marks omitted.)  Jaser v. Fischer, 65 Conn.App. 349, 359–60, 783 A.2d 28 (2001).  “It is the burden of the party asserting the lack of good faith to establish its existence and whether that burden has been satisfied in a particular case is a question of fact.”  (Internal quotation marks omitted.)  Kronberg Bros., Inc. v. Steele, 72 Conn.App. 53, 63, 804 A.2d 239, cert. denied, 262 Conn. 912, 810 A.2d 277 (2002).

“In common usage, the term ‘good faith’ has a well defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation.”  (Internal quotation marks omitted.)  Kendzierski v. Goodson, 21 Conn.App. 424, 429, 574 A.2d 249 (1990).

“Construing § 17a–101a, which requires ‘reasonable cause to suspect or believe’ that the child abuse took place and imposes penalties on the mandatory reporters who fail to report child abuse, in conjunction with § 17a–101e(b), which requires the report to be made in good faith for the statutory immunity to apply, it can be inferred that if the reporter, when making a report, had a reasonable cause to suspect or believe that the child has been abused, the report has been made in good faith.”   Parisi v. Johnsky, Superior Court, judicial district of New Haven, Docket No. CV 05 4009374 (February 20, 2007, Cosgrove, J.).

In the present case, the defendants submitted affidavits detailing how, when and why the minor plaintiffs were questioned.   Scarpetti stated that he initially began questioning Acadia Callahan about inappropriate, sexually-explicit words that she had been writing in school for two consecutive days.   When Scarpetti asked her where she had learned the words, Acadia Callahan responded that she had learned the words from her brother and began to cry.   When Scarpetti inquired as to why she was crying, Acadia Callahan stated that Dakota Callahan strikes her when he is angry and touches her.   Scarpetti then began asking Acadia Callahan specific questions about where Dakota Callahan touches her.   After she indicated where, by pointing to her vaginal area, Scarpetti stopped the interview and brought Renkowsky, the school social worker, into his office.   Renkowsky asked Acadia Callahan to repeat what she had just told Scarpetti, which she did.   Acadia Callahan additionally indicated that Dakota Callahan had touched her in her behind area, that he had inappropriately touched her with his fingers over her clothes, that it had occurred more than once and that she was fearful of Dakota Callahan as a result.

Scarpetti asked the plaintiff to come to the school, then questioned Dakota Callahan about the inappropriate touching, first outside the presence of, then in the presence of Acadia Callahan.   He denied touching Acadia Callahan in both instances.   When asked in Dakota Callahan's presence if he had ever touched her inappropriately, Acadia Callahan denied it, but when outside of his presence, she again admitted that Dakota Callahan had inappropriately touched her.

When the plaintiff arrived, he questioned Acadia Callahan in the presence of the defendants about whether Dakota Callahan had ever inappropriately touched her.   She responded that he had.   The plaintiff asked her why she had never told him and Acadia Callahan responded that she had told him, but that he had ignored her.   Scarpetti subsequently questioned all plaintiffs and, at the end of questioning, told the plaintiff that, as a mandated reporter, he was compelled to report the allegations of sexual abuse.

The plaintiff also submitted an affidavit as well as a redacted copy of the DCF investigation report.   The plaintiff states that on November 17, 2007, he met with Scarpetti.   At the meeting, Scarpetti admitted that he had directly asked her if anyone had touched her, that prior to his question Acadia Callahan had not said anything about being touched and that he was unable to offer any explanation for questioning her in that way.   The DCF report indicates that after learning that her brother had taught her the sexually-explicit words, the mandated reporter “asked does anyone touch you” and Acadia Callahan “pointed to her genitals and behind and said that her brother touches her.”

While the evidence presented by the parties does create a question as to who initially broached the issue of touching, it does not create a genuine issue of material fact about whether the defendants acted in good faith.   The plaintiffs did not submit any evidence refuting the events leading up to the initial questioning of Acadia Callahan by Scarpetti, namely that she had been writing sexually-explicit words for two days and that she began to cry when Scarpetti questioned her about the words.   Nor do the plaintiffs provide evidence to refute the fact that Acadia Callahan admitted to being touched by Dakota Callahan numerous times to the defendants as well as to the plaintiff.

In order to survive a motion for summary judgment, the plaintiffs must provide evidence that the defendants when making the report, did not have reasonable cause to suspect or believe that Acadia Callahan had been abused, in order to show a lack of good faith.  Parisi v. Johnsky, supra, Superior Court, Docket No. CV 05 4009374.   Given the other evidence that has been submitted, whether or not Scarpetti was the first person to mention inappropriate touching is not sufficient to show a lack of good faith on the part of the defendants.   The plaintiffs have submitted no evidence that the defendants knew that Acadia Callahan was lying when they made the report or that the defendants had any reason to file a false report.   Therefore, the motion for summary judgment on the claims of negligent infliction of emotional distress, counts one through six, and invasion of privacy, counts thirteen through eighteen, is granted on this ground.

Since the court has determined that the defendants are entitled to statutory immunity as to all remaining claims, it will not consider their governmental immunity argument nor the arguments that there is no genuine issue of material facts as to the counts for negligent infliction of emotional distress or invasion of privacy.

CONCLUSION

For the foregoing reasons, the motion to strike counts one through six, for negligent infliction of emotional distress, is denied and the motion to strike counts seven through twelve, for intentional infliction of emotional distress, is granted.   Further the motion for summary judgment as to the claims of negligent infliction of emotional distress and invasion of privacy, counts one through six and counts thirteen through eighteen, is granted.

Woods, J.

FOOTNOTES

FN1. Giannettino is the father of Dakota and Acadia Callahan.   Giannettino will be referred to as the plaintiff, and Dakota and Acadia will be referred to as the minor plaintiffs..  FN1. Giannettino is the father of Dakota and Acadia Callahan.   Giannettino will be referred to as the plaintiff, and Dakota and Acadia will be referred to as the minor plaintiffs.

FN2. The defendants filed an answer to the complaint on December 2, 2009, raising the issue that they have filed a motion to strike outside of the proper order of pleadings.   See Practice Book § 10–6.   Pursuant to Practice Book § 10–7, the court can allow a party to file a pleading out of the order prescribed in Practice Book § 10–6.   The court is choosing to exercise its discretion in this case..  FN2. The defendants filed an answer to the complaint on December 2, 2009, raising the issue that they have filed a motion to strike outside of the proper order of pleadings.   See Practice Book § 10–6.   Pursuant to Practice Book § 10–7, the court can allow a party to file a pleading out of the order prescribed in Practice Book § 10–6.   The court is choosing to exercise its discretion in this case.

FN3. Since the court has denied the motion to strike the negligent infliction of emotional distress counts and granted the motion as to the intentional infliction of emotional distress counts, the claim of statutory immunity pursuant to § 17a–101e only applies to the remaining causes of action for negligent infliction of emotional distress and invasion of privacy..  FN3. Since the court has denied the motion to strike the negligent infliction of emotional distress counts and granted the motion as to the intentional infliction of emotional distress counts, the claim of statutory immunity pursuant to § 17a–101e only applies to the remaining causes of action for negligent infliction of emotional distress and invasion of privacy.

Woods, Glenn A., J.