- Connecticut Superior Court Judicial District of New Haven at New Haven
- ·
- No. NNH CV 06 5005107 S (Conn. Super. Ct. Jul 20, 2009)
GLEASON v. SMOLINSKI, No. NNH CV 06 5005107 S (Jul. 20
MADELINE GLEASON ET AL. v. JANICE SMOLINSKI ET AL.
No. NNH CV 06 5005107 S
Connecticut Superior Court Judicial District of New Haven at New Haven
July 20, 2009
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (#115)
STATEMENT OF CASE
On November 15, 2007, the plaintiffs, Madeleine Gleason and B and B
Transportation, Inc., filed a revised complaint with the court.1
In an eighteen-count complaint, the plaintiffs allege multiple causes
of action against each of the defendants, Janice Smolinski, Paula Bell
and John Murray. Specifically, counts thirteen through eighteen allege
unreasonable intrusion upon seclusion and privacy, appropriation of name
and likeness, unreasonable publicity to the private life, false light,
intentional infliction of emotional distress and negligent infliction of
emotional distress, respectively, against Murray.
1.
This action was originally commenced against John Murray by service of process on July 12, 2006.
The facts, as alleged by the revised complaint, are as follows. Gleason
is a private citizen who resides in Woodbridge, Connecticut and Murray
is the owner, publisher and editor of The Waterbury Observer, a
monthly newspaper with wide circulation in the New Haven county area. In
March 2006, Murray authored an article and published it in his
newspaper. The article reported the events surrounding the disappearance
of a local man named Billy Smolinski, a former romantic interest of
Gleason's. In the story, Murray chronicled many of the events of
Gleason's life, including her relationship with Billy, her multiple
marriages and divorces, the suicide of one of her children, the drug
overdose of another and the incarceration of a third. In addition,
Murray seemingly interviewed Billy's mother, Janice Smolinski, and
published her version of the multiple altercations that she had with
Gleason after the disappearance of her son, including her witnessing
Gleason's destruction of the missing person posters that she had placed
throughout the community. Finally, Murray also published several
photographs that depicted Gleason in public, albeit without her
permission, and printed Janice Smolinski's opinion that Gleason "knew
something about Billy's disappearance."
On
February 6, 2009, the defendant Murray filed a motion to strike CT Page
12185 counts thirteen through eighteen of the revised complaint, on the
ground that each is legally insufficient. In addition, Murray also filed
a memorandum of law in support of the motion to strike at that time. On
February 17, 2009, the plaintiffs filed a brief in opposition to the
motion to strike counts thirteen through eighteen, in which, they argue
that each count states a claim upon which relief can be granted.
DISCUSSION LEGAL
"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). "A motion to strike challenges the legal sufficiency of a
pleading . . . and, consequently, requires no factual findings by the
trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 914 A.2d 996
(2007). "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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310,318, 907 A.2d 1188
(2006). The court must "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). "If any facts provable under the express and implied
allegations in the plaintiff's complaint support a course 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). Nevertheless, "[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.
1. Count Thirteen: Unreasonable Intrusion Upon the Seclusion of Another
In count thirteen, the plaintiffs allege that the article published by
Murray's newspaper constituted an unreasonable intrusion upon her
seclusion and therefore, Murray is liable for an invasion of privacy.
Murray moves to strike count thirteen on the ground that "the complaint
fails to allege facts necessary to complete the tort of invasion of
privacy." In their brief in opposition to the motion to strike, the
plaintiffs respond that Murray is obligated to expand his argument by CT
Page 12186 specifying why count thirteen does not satisfy the required
elements of this tort, and until he has done so, they are not required
to respond. Although it is true that the Connecticut Supreme Court "will
not uphold the granting of [a] motion to strike on a ground not alleged
in the motion;" Blancato v Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235
(1987); in this case Murray has alleged sufficient grounds upon which a
motion to strike can be granted. He claims that the complaint does not
allege the required elements of the unreasonable intrusion upon the
seclusion of another. Therefore, the court will examine the required
elements of this claim to determine whether the facts alleged by the
plaintiffs can support this cause of action.
"[T]he law of privacy has not developed as a single tort, but as a
complex of four distinct kinds of invasion of four different interests
of the plaintiff, which are tied together by the common name, but
otherwise have almost nothing in common except that each represents an
interference with the right of the plaintiff to be let alone . . . The
four categories of invasion of privacy are set forth . . . as follows:
(a) unreasonable intrusion upon the seclusion of another; (b)
appropriation of the other's name or likeness; (c) unreasonable
publicity given to the other's private life; or (d) publicity that
unreasonably places the other in a false light before the public.
Indeed, these four categories have been adopted by a number of courts
that have recognized the privacy right of action." (Citations omitted;
internal quotation marks omitted.) Foncello v. Amorossi, 284 Conn. 225, 234, 931 A.2d 924
(2007). "The Connecticut Appellate Courts have yet to interpret what
constitutes an invasion of privacy under the first category: an
unreasonable intrusion upon the seclusion of another." (Internal
quotation marks omitted.) Birge v. Medical Electronic Distributors, Inc.,
Superior Court, judicial district of New London, Docket No. CV 07
6000054S (December 1, 2008, Abrams, J.). The Supreme Court, however, has
often adopted the Restatement when adjudicating an invasion of privacy
claim; see Foncello v. Amorossi, supra, 284 Conn. 234; Goodrich v. Waterbury Republican-American, Inc.,188 Conn. 107, 127, 448 A.2d 1317
(1982); and the Superior Court has consistently followed this practice
when considering the tort of unreasonable intrusion upon the seclusion
of another. See Birge v. Medical Electronic Distributors, Inc., supra, Superior Court, Docket No. CV 07 6000054S; Bonanno v. Dan Perkins Chevrolet,
Superior Court, judicial district of Ansonia-Milford, Docket No. CV 99
066602 (February 4, 2000, Nadeau, J.) [26 Conn. L. Rptr. 368]; Hellanbrand v. National Waste Associates, LLC,
Superior Court, judicial district of Hartford, Docket No. CV 07 5010727
(January 31, 2008, Hale, J.T.R.) (44 Conn. L. Rptr. 849). This court,
therefore, will do the same.
"One who
intentionally intrudes, physically or otherwise, upon the CT Page 12187
solitude or seclusion of another or his private affairs or concerns, is
subject to liability to the other for invasion of his privacy, if the
intrusion would be highly offensive to a reasonable person." 3
Restatement (Second), Torts § 652B, p. 378 (1977). "This is said to
consist of intentional interference with another's interest in solitude
or seclusion, either as to his person or to his private affairs or
concerns." W. Prosser W. Keeton, Torts (5th Ed. 1984) § 117, p. 854.
The plaintiffs' complaint quotes several excerpts from Murray's
newspaper article, but it fails to allege an actual intrusion, physical
or otherwise. It has been said that, "[t]he invasion may be by physical
intrusion into a place in which the plaintiff has secluded himself, as
when the defendant forces his way into the plaintiff's room in a hotel
or insists over the plaintiff's objection in entering his home. It may
also be by the use of the defendant's senses, with or without mechanical
aids, to oversee or overhear the plaintiff's private affairs, as by
looking into his upstairs windows with binoculars or taping his
telephone wires. It may be by some other form of investigation or
examination into his private concerns, as by opening his private and
personal mail, searching his safe or his wallet, examining his private
bank account, or compelling him by a forged court order to permit an
inspection of his personal documents. The intrusion itself makes the
defendant subject to liability, even though there is no publication or
other use of any kind of the photograph or information outlined." See 3
Restatement (Second), supra, § 652B, comment (b). The plaintiffs
do not allege facts concerning how Murray obtained any of this
information and therefore, there is no allegation of any form of
offensive investigation or other intrusion into Gleason's life by
invading her privacy. Publication of private information alone is not
legally sufficient to sustain this particular cause of action, which is
concerned with the methods used when obtaining private information,
rather than its subsequent dissemination. Id. Accordingly, the defendant's motion to strike count thirteen is granted.
2. Count Fourteen: Appropriation of the Other's Name or Likeness
In count fourteen of the plaintiffs' revised complaint, the plaintiffs
incorporate the above summarized facts and further allege that "the
defendant Murray tortiously appropriated the name and likeness of the
plaintiff Gleason." In his motion to strike, Murray argues that this
count "fails to allege facts necessary to complete the tort of
appropriation of likeness, and thus fails to state a claim upon which
relief can be granted." Specifically, in his memorandum of law in
support, Murray contends that "there can be no invasion of privacy claim
where the photograph is made in a public space." In their brief in
opposition, the CT Page 12188 plaintiffs claim that Murray, "has indeed
attempted to market his newspaper through the use of the plaintiff's
private information, her name, and her secretly photographed likeness."
Although the Supreme Court has never provided the courts with the
elements required to state a claim sounding in appropriation of name or
likeness, it has acknowledged the tort's existence under the law of
Connecticut. Goodrich v. Waterbury Republican-American, Inc., supra,188 Conn. 127; Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933
(1983) (seeming to accept the plaintiff's contention that the elements
required for this tort under the law of Connecticut are provided by the
Restatement). The Restatement provides that: "One who appropriates to
his own use or benefit the name or likeness of another is subject to
liability to the other for invasion of his privacy." 3 Restatement
(Second), supra, § 652C. The restatement also provides, however,
that "[t]he value of the plaintiff's name is not appropriated by mere
mention of it, or by reference to it in connection with legitimate
mention of his public activities; nor is the value of his likeness
appropriated when it is published for purposes other than taking
advantage of his reputation, prestige, or other value associated with
him, for purposes of publicity. No one has the right to object merely
because his name or his appearance is brought before the public, since
neither is in any way a private matter and both are open to public
observation. It is only when the publicity is given for the purpose
of appropriating to the defendant's benefit the commercial or other
values associated with the name or the likeness that the right of
privacy is invaded. The fact that the defendant is engaged in the
business of publication, for example of a newspaper, out of which he
makes or seeks to make a profit, is not enough to make the incidental
publication a commercial use of the name or likeness. Thus a newspaper,
although it is not a philanthropic institution, does not become liable
under the rule stated in this Section to every person whose name or
likeness it publishes." (Emphasis added.) Id., § 652C, comment (d).
Upon considering count fourteen of the revised complaint, the court
notes that the plaintiffs do little more than allege that Murray wrote
an article about the circumstances surrounding the disappearance of
Billy Smolinski, which included a discussion of Gleason's past
activities. "The common form of invasion of privacy under the rule here
stated is the appropriation and use of the plaintiff's name or likeness
to advertise the defendant's business or product, or for some similar
commercial purpose." 3 Restatement (Second), supra, § 652C,
comment (b). For example, it has been said that a plaintiff's privacy is
invaded if "A is an actress, noted for her beautiful figure. B, seeking
to advertise his bread, publishes in a newspaper a photograph of A,
under the caption, `Keep That CT Page 12189 Sylph-Like Figure by Eating
More of B's Rye and Whole Wheat Bread.'" Id., § 652B, comment (b)
illustration (1). The plaintiffs, in this case, have alleged a
publication, but failed to allege any invasion similar to this example.
Rather, their claim seemingly relies on the mere fact that Murray
published Gleason's name and photograph in his newspaper article. As the
restatement makes clear, without facts evidencing an actual
appropriation, this claim is legally insufficient.
The court, therefore, finds that count fourteen of the plaintiffs'
revised complaint fails to state a cause of action upon which relief can
be granted. Accordingly, Murray's motion to strike count fourteen of
the revised complaint is granted.
3. Count Fifteen: Unreasonable Publicity Given to the Other's Private Life
In count fifteen, the plaintiffs allege that the article published by
Murray's newspaper was an unreasonable publicity given to Gleason's
private life. Murray moves to strike this count on the ground that it is
legally insufficient because "the Observer addresses an actual missing
man, and the perceived lack of law enforcement in the solution of the
case. The complaint does not allege there is no legitimate public
concern to the issue, nor do the facts presented demonstrate the absence
of a legitimate public concern." In response, the plaintiffs argue
that, "[t]he defendant does not even attempt to support his argument
with any sort of analysis. In what possible way can his long and lurid
newspaper articles discussing the alleged details of the plaintiff's
intimate personal life be `of legitimate public concern.'"
The Supreme Court has made clear that the claim of unreasonable
publicity given to the other's private life is "governed by first
amendment principles." Goodrich v. Waterbury Republican-American, Inc., supra,
188 Conn. 132. "Such a private facts claim is actionable only if the
matter publicized is of a kind that (a) would be highly offensive to a
reasonable person, and (b) is not of legitimate concern to the
public . . . A media defendant is constitutionally permitted to
publicize facts concerning an individual's private life so long as those
facts are newsworthy . . . and in conducting this inquiry we consider
[1] the social value of the facts published, [2] the depth of the
article's intrusion into ostensibly private affairs, and [3] the extent
to which the party voluntarily acceded to a position of public
notoriety." (Citations omitted; emphasis in original; internal quotation
marks omitted.) Id., 133.
Upon
considering the allegations contained in count thirteen and CT Page
12190 incorporated by reference into count fifteen, the court finds that
most of the quoted excerpts of the article at issue pertain to
Gleason's relationship with Billy Smolinski shortly before his
disappearance, and therefore is a legitimate concern of the public. The
remaining passages, however, briefly discuss Gleason's children and her
previous marriages. Although these excerpts do not have particular
relevance to the disappearance of Billy Smolinski, reports of suicide,
overdose and incarceration are typically considered newsworthy. Although
tragic and painful to family and friends, the media publishes stories
regarding occurrences such as these on a daily basis. In addition, these
quoted excerpts do not delve into the depths of these happenings,
unearthing the most intimate private matters, but rather merely inform
the reader of their existence. A finding that such facts are legally
sufficient would surely set the first amendment bar too low for this
cause of action.
Count fifteen, therefore,
fails to allege private facts that are not of legitimate concern to the
public. Accordingly, the defendant's motion to strike count fifteen is
granted.
4. Count Sixteen: False Light
In count sixteen, the plaintiffs allege that the aforementioned facts
"placed [Gleason] in a false light before the public." Murray moves to
strike this count on the ground that "[t]here is no claim the contents
of the article were false." Responding to Murray's motion, the
plaintiffs argue that, "[t]he defendant did not file a request to revise
the complaint seeking greater detail in that allegation and therefore
must be content with it as it is. While it is a brief assertion, it
expressly states that Murray's assertions placed the plaintiff before
the public in false light and therefore, albeit perhaps only barely,
states the necessary allegations to maintain this claim." Contrary to
the plaintiffs' claim, however, the Appellate Court has made it clear
that a party is not required to file a request to revise when a
complaint is legally insufficient. See JP Morgan Chase Bank, Trustee v. Rodrigues,109 Conn.App. 125, 130, 952 A.2d 56
(2008) ("[s]pecifically, the defendants claim that instead of filing a
motion to strike, the plaintiff should have filed a request to revise
under Practice Book § 10-35 et seq. We disagree"). The court, therefore,
must determine whether count sixteen contains the elements required to
sufficiently plead a false light invasion of privacy tort.
"To the extent that freedom of the press is involved in this claim,
federal law is relevant. The United States Supreme Court first
considered the parameters of false light invasions of privacy in Time, Inc. v. Hill,385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456
(1967). In construing New CT Page 12191 York's statutory right of
privacy against the requirements of the first amendment, the court held
that the actual malice standard of New York Times Co. v. Sullivan
was applicable to privacy actions. `We hold that the constitutional
protections for speech and press preclude the application of the . . .
statute to redress false reports of matters of public interest in
the absence of proof that the defendant published the report with
knowledge of its falsity or in reckless disregard of the truth."
(Citations omitted; emphasis in original; internal quotation marks
omitted.) Goodrich v. Waterbury Republican-American, Inc., supra,188 Conn. 129.
"[A] false light invasion of privacy occurs if (a) the false light in
which the other was placed would be highly offensive to a reasonable
person, and (b) the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and the false light
in which the other would be placed . . . This form of invasion of
privacy protects one's interest in not being placed before the public in
an objectionable false light or false position, or in other words,
otherwise than as he is . . . The essence of a false light privacy claim
is that the matter published concerning the plaintiff (1) is not true .
. . and (2) is such a major misrepresentation of his character,
history, activities or beliefs that serious offense may reasonably be
expected to be taken by a reasonable man in his position." (Citations
omitted; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra,188 Conn. 131.
The plaintiffs claim that the facts alleged in the complaint place
Gleason in a false light and that this is legally sufficient to maintain
this cause of action. Nowhere in count sixteen do the plaintiffs plead
that any part of the article authored and published by Murray in The Waterbury Observer
was false or inaccurate. The plaintiffs' complaint, therefore, can be
interpreted as merely alleging that, "[d]espite the truth of such
statements there exist additional circumstances which when expanded,
cast [Gleason] in a more favorable light more in keeping with
reality . . . To allow recovery upon such a claim would violate the
defendant's first amendment rights since [t]he choice of material to go
into a newspaper, and the decisions made as to limitations on the size
and content of the paper, and treatment of public issues and public
officials — whether fair or unfair — constitute the exercise of
editorial control and judgment . . . Under the first amendment, a media
defendant can be liable for a false light invasion of privacy only where
it publishes highly offensive material without regard to its falsity,
and to the false impression relayed to the public . . . As long as the
matter published is substantially true, the defendant was
constitutionally protected from liability for a false light invasion of
privacy, regardless CT Page 12192 of its decision to omit facts that may
place the plaintiff under less harsh public scrutiny." (Citations
omitted; emphasis in original; internal quotation marks omitted.) Goodrich v. Waterbury Republican-American, Inc., supra, 188 Conn. 132.
The court, therefore, finds that contrary to the plaintiffs' argument,
count sixteen fails to plead a legally sufficient cause of action
because it lacks an allegation that statements in the article were
false. Accordingly, the defendant's motion to strike count sixteen is
granted.
5. Count Seventeen: Intentional Infliction of Emotional Distress
In count seventeen of the revised complaint, the plaintiffs claim that
"[t]he conduct of defendant Murray described above was extreme and
outrageous and was carried out with the knowledge that it probably would
cause the plaintiff Gleason to suffer emotional distress." Murray moves
to strike this count on the ground that the alleged conduct is not
extreme and outrageous and that "[t]here can be no serious disagreement
that the facts contained in the article do not rise to this level,
particularly where there is no claim the article is false." Responding
to Murray's motion to strike, the plaintiffs contend that "it is
difficult to imagine behavior more extreme and outrageous than that
alleged in this case." The plaintiffs then summarize several cases where
a complaint was found to be sufficient and argue that the facts of this
case are more extreme and outrageous than precedent requires.
"In order for the plaintiff to prevail in a case for liability under . .
. [intentional infliction of emotional distress], four elements must be
established. It must be shown: (1) that the actor intended to inflict
emotional distress or that he knew or should have known that emotional
distress was the likely result of 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 . . . 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 . .
.
"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 CT Page 12193 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!' . . . Conduct
on the part of the defendant that is merely insulting or displays bad
manners or results in hurt feelings is insufficient to form the basis
for an action based upon intentional infliction of emotional distress."
(Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11,757 A.2d 1059
(2000). "[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." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
Although the plaintiffs argue that "[t]his court does not `sit as a
seventh juror,'" precedent makes clear that the court must perform its
gatekeeping function by applying the "Outrageous!" test. In addition,
the court notes that none of the cases cited by the plaintiffs are
directly on point with the facts of this case. Upon considering the
quoted excerpts of the subject article contained within the plaintiffs'
complaint, the court finds that count seventeen fails to set forth
behaviors that a reasonable fact finder could find to be extreme or
outrageous. As previously discussed, the complaint fails to allege any
invasive behavior on the part of Murray when investigating this
information and the substantive content of the article itself is
newsworthy and resembles what a reasonable person may expect from
investigative journalism. Surely, reasonable minds would agree that
count seventeen is lacking of any allegation that would cause an average
member of the community resentment against Murray, and lead him to
exclaim "Outrageous!"
The court, therefore,
finds that count seventeen is legally insufficient because it fails to
allege extreme and outrageous conduct which rises to the level required
by the law. Accordingly, Murray's motion to strike count seventeen is
granted.
6. Count Eighteen: Negligent Infliction of Emotional Distress
In count eighteen of the revised complaint, the plaintiffs claim that,
CT Page 12194 given the aforementioned facts, "the defendant Murray
negligently engaged in conduct which he knew or should have known was
likely to cause the plaintiff Gleason, as it would any person of
ordinary sensibilities, to suffer emotional distress so severe that it
could result in physical illness." In his motion to strike, Murray
contends that "[t]he complaint does little more than recite certain
portions of one article from the Observer. Without offering a single
example of how the publication of the information in the article, as
opposed to the events themselves, caused a risk of distress leading to
illness." The plaintiffs respond by arguing that "these elements are
fairly to be inferred from the allegations of the Revised complaint."
"[I]n order to prevail on a claim of negligent infliction of emotional
distress, the plaintiff must prove that the defendant should have
realized that its conduct involved an unreasonable risk of causing
emotional distress and that that distress, if it were caused, might
result in illness or bodily harm." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 410, 876 A.2d 522
(2005). To prevail on a claim of negligent infliction of emotional
distress, a plaintiff must prove the following elements: "(1) the
defendant's conduct created an unreasonable risk of causing the
plaintiff emotional distress; (2) the plaintiff's distress was
foreseeable; (3) the emotional distress was severe enough that it might
result in illness or bodily harm; and (4) the 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).
As to the first and second elements, they "essentially [require] 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.
After reviewing count eighteen of the defendant's complaint, the court
finds that the plaintiffs do little more than recite the generic
language provided by the Supreme Court in Carrol. There are no
specific facts alleged pertaining to Gleason's distress and thus, it is
impossible to tell whether it could be reasonable, given Murray's
conduct. As previously stated, "[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 CT Page 12195 Conservancy, LLC v. Alves, supra,
262 Conn. 498. In this case, the complaint states that the defendant's
conduct "cause[d] the plaintiff Gleason, as it would any person of
ordinary sensibilities, to suffer emotional distress." Such a statement
is a legal conclusion because it lacks any substantive facts particular
to Gleason. Allowing such allegations to survive a motion to strike
would essentially render Connecticut's fact pleading requirements
irrelevant.
Furthermore, courts have held
that when the facts suggest that emotional distress could be caused by a
number of external factors, the plaintiff must show why this specific
defendant's conduct created an additional risk of distress, above and
beyond the distress that would have otherwise occurred. Ancona v. Manafort Bros., Inc.,56 Conn.App. 701, 713-14, 746 A.2d 184, cert. denied, 252 Conn. 953,749 A.2d 1202 (2000); Hayes v. Yale-New Haven Hospital, 48 Conn.Sup. 311,345, 844 A.2d 258 (2001), aff'd, 82 Conn.App. 58, 842 A.2d 616
(2004). In this case, there are several alleged facts that could have
caused Gleason emotional distress, including the abrupt disappearance of
Billy Smolinski. If Gleason suffered emotional distress, whether
reasonable or not, it is unclear from the facts alleged whether it was
caused by Murray's conduct. The plaintiffs do not allege that Gleason
read Murray's article about Billy Smolinski, nor do they allege
Gleason's immediate reaction, if she did in fact read the article.
Without such allegations, the fourth element required to state a claim
of negligent infliction of emotional distress cannot be satisfied.
Count eighteen, therefore, fails to allege facts that are legally
sufficient to state the claim of negligent infliction of emotional
stress. Accordingly, Murray's motion to strike count eighteen of the
plaintiffs' complaint is granted.
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