Case 3:03-cv-00372-AVC Document 32-9 Filed 05/24/2004 Page 1 of 4
2%E
26 Coma. L. Rp?. 213
(Cite as: 2800 WL 38451 (C0m1.Supez·.))
F} complaint 1:0 state sx claim upon which relief can
UNPUBLISHED OPINION. CHECK COURT be g1·az1ted." (Internal quotation marks amitiicd.}
__ _ BEFORE CITXNG. Peter Mfchaef, Inc. v. Sea Sheff Associates, 244
Conn. 269, 270, 709 A.2d 558 (1998). The court
"must take as true the facts alleged in iha plaintiffs
complaint and must construe the c0m§1aim in the
Superior Court 0fC01m€cticut. manner mcsi favcrabia ta sustaining its Ecgal
sufficiency If facts pwvablc in the complaint
F1·zmkDcLEOetai., would support 21 cause of action, ih:-2 motion t0
V. strike must be de>:1icd." (Citations omitted; interna?
Eiizabcth REED. quotation marks omiitcd.} Id, 270-71. "A motion iu
strike is propariy granted if the compiaint alleges
Nc. CV 999172435. mere conclusions of law that axe unsupported by thc
‘ facts aElcg<=:d." Nvvezmezrzbc Medica! Systems, Inc. v.
` Iam. 3, 2000. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25
(1992).
MEMORANDUM OF DECISION E; MOTEON A. Count Four--Intentional iniicticm of Emotional
TO STRIKE Distress
HICKEY. The defendant argues that count four of the
plaim;iffs' complaint fails $0 allege ai} 0f the
*2 This case arises out of ex propcriy dispuic elements required ic support a cause 0f action for
between two neighbors owning adjoining parcels cf intentional inflicticm of emotional distress.
iand in Darien, Connecticut. The ccmpiaint alleges Specifically, the defendant argues that damage .
the following. facts. The plaintiffs, Frank and solely to property docs not satisfy the cicment of
Fatricia De:Lco, aye the owners and residents 0f 12 outrageous conduct. The plaintiffs, however, argue
Outlook Drive and the defendant, Elizabeth Reed, is that they have pleaded 21 prima facie case suffkzicnt
the owner and resident of 14 Outlook Drive. The to overcame a mation to strike. The pIai11tiHs
plaintiffs ailcge that in or prior to November 1975, fhrthcr argue that the element cf outrageous conduct
a fence was erected that ram paxalici E0 the entire is szziisficd because the defendant hired workers to
boundary between I2 Outlook Drive and 14 cut down and remove: ihc fence and trees, in the
Outicck Drive. Thereafter, large Eucnymus tyccs plaintiffs' presence. Moreover, they ailcgc that thc
were pianied along the entire length cf the fence. defendant knew that the fence and trees belonged tc
The plaintiffs further allege that although the fence the plaintiffs.
and trees were positioned cm 14 Outlook Drive they
acquired ownership of the ircas, fence, and property "It is wcli settled that, in order 1:0 state Fl claim of
within the fence by virtue ofadvczsc possession. intentional infiiction of emotional distress, §i]’s must
bc shawn: (1) that the actor intended to infiici
On August 9, 1999, thc defendant filed E1 mation to emotional distress or that im knew or should have
strike counts four and five of the pEai1ztiffs' known that emotional distress was time likeiy result
complaint cm the ground that Connecticut docs not of his conduct; (2) that the conduct was extreme and
recognize claims for emotional distress based solely outrageous; (3) that the de:fc1zdam‘s conduct was ihc
cm damage to property. cause: of the plaintiffs distress; and (4) that the
emotional distress sustained by the plaintiff was
"Thc pu1·p0s<-: 0f a motion to strike is to contest severe? (Internal quotation marks omitted.)
tha legal sufficiency of the allegations of any Parsons v. United Techrwlbgies Carp., supra, 243
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rage 3 ot iw
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Not Reported in A.2d Page 2
26 Conn. L. Rptr. 213
(Cite as: 2000 WL 38451 (Co11n.Super.))
Conn. 101. "A§i four eiements must be pleaded in Wargar v. New London Motors, Inc., supra,
order to survive a motion to stril
l district of New London at New London, Docket No. B. Count Five--Negligent lnfliction of Emotional
528715 (August 30, 1994) (Hurley, J). Distress
"[lintentional infliction of emotional distress
requires conduct exceeding all hounds usualiy The defendant next moves to strike count five of
· tolerated by decent society, of a nature which is the plaintiffs complaint which asserts a claim for
especially calculated to cause, and does cause, negligent intliction of emotional distress. The
mental distress of a very serious kind Thus, [i]t is defendant argues that Connecticut law does not
the intent to Cause l1i_jLlI`y that is the gfavalhen of the authorize an action for negligent mfliction of
tort ..." (Citations omitted; internal quotation marks emotional distress where such distress arises solely
omitted.) DeLaurena‘z`s v. New Haven, 220 Conn. from property damage or inconvenience. The
225, 267, 597 A.2d 807 (i99l). defendant relies on the decisions of other
jurisdictions as persuasive authority in support of
*2 "Whether the defendants conduct and the her position that the plaintiffs may not recover for
plaintiffs resulting distress are sufficient to satisfy emotional distress resuiting solely from the loss or
either of these eiements is a question, in the first damage to their property. The piaintiffs, however,
instance, for this court. Only where reasonabie argue that there is no appellate authority in
minds can differ does it become an issue for the Connecticut that supports the notion that a ciaim for
jury," Melloly v. Eastman Kodak Co., 42 negligent infliction of emotional distress cannot
Conn.Supp. l7, IS, 597 A.2d 846 (1992). "[T§he arise out of the theft, misappropriation, or
plaintiff must allege and prove conduct destruction of real or personal property. Moreover,
considerably more egregious than that experienced the plaintiffs argue that Connecticut courts routinely.
in the rough and tumble of everyday life {A] line award damages for negligent infliction of emotionai
can be drawn between the slight hurts which are the distress arising out of the theft, misappropriation, or
price of a complex society and the severe rnentai destruction of real and personai property, or
disturbances inflicted by intentional actions wiioliy trespass thereon.
lacking in social utiiity." (Citations omitted; internal
quotation marks omitted.) Whelan v. Whelan, 41 *3 "We first recognized a cause of action for
Conn.Supp. 519, 522, 588 A.2d 251, 3 negligent infliction of emotional distress in
CONN.L.R.PTR. 135 (l99l). Moniinz'eri v. Southern New England T efephone Co.,
175 Conn. 337, 345, 398 A.2d 1180 (1978). We
Here, the plaintiffs allege that the defendant, with concluded that in order to state such a claim, the
knowledge of their ownership, hired workers to piaintiff has the burden of pleading that the
trespass on their property and cut down the fence defendant should have realized that its conduct
and trees. They further ailege that the defendant involved an unreasonaéie risk of causing emotional
authorized the removal even though she knew of the distress and that distress, if it were caused, might
plaintiffs love and attachment to the trees. Such result in iiiness or bodily harm." (Emphasis added;
allegations, when considered as true and construed internal quotation marks omitted.) Parsons v.
in a manner most favorable to sustaining the Unz'rea’ Technologies Corp., 243 Conn. 66, 88, 706
complaints legal sufficiency, do not rise to the level A.2d 655 (1997). " Unreasonahle conduct' has been
of outrageous conduct, or exceed all bounds usually interpreted by the superior courts as conduct
toierated by a decent society. See DeLaurentfs v. performed in an inconsiderate, humiliating or
New Haven, supra, 220 Coun. 267. indeed, the embarrassing manner? (Internal quotation marks
plaintiffs allegations amount to no more than the omitted.) Srosuy v. Stamford Superior Court,
"rough and tumble of everyday life ..." Whelan v. judicial district of Fairfield at Bridgeport, Docket
Whelan, szrpra, 4i Conn.Sup. 522, 3 No. 358369 (August 30, 1999) (Nadeau, J).
CONN.L.RPTR. 135. Therefore, count four must be
stricken because the plaintiffs fail to allege all of the "[R]ecovery for unintentionally—caused emotionai
elements necessary to support a cause of action for distress does not depend on proof of either an
intentional infiiction of emotional distress. See ensuing physical injury or a risk of harm from
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Case 3:03-cv-00372-AVC Document 32-9 Filed 05/24/2004 Page 3 of 4
Not ReportedinA.2d " Page3
26 Conn. L. Rptr. 213
_ (Cite as: 2800 WL 38451 (C0m1.Super.))
physical impact. Nevertheless, we recognize that the damage is the type of injury that will
protection the Saw accords to ’the interest in one‘s usually be wholly out of proportion to the
peace of mind' must be limited so as not to open cuipability of the negligent party. The
up a wide vista of iitigation in the field of had emotional pain that is recoverable in
manners, where relatively minor anuoyances nad negligent intliction of ernotionai distress
better be dealt with by instruments of social control cases must be related to an extraordinary
other than tiie lawn" (Citation omitted; internai event. Having G1'l€’S property damaged is
quotation marks omitted.) Mont1'nicri u. Southern not nearly as devastating as witnessing or
New England Telephone Co, 175 Conn. 337, 345, being invoived in the loss of a close
398 ABCE 1iSO (1978). "In order to press a _ relative This is not to say that people
negligent intliction of emotional distress claim, a cannot necome extremely distraught when
piaintiff must allege facts showing that the they learn of damage to their property,
defendant negligeotiy breached a duty owed to the especially property which is quite
plaintiff The existence of a duty is a question of significant to them personally. However,
law and only if such a duty is found to exist does such types of distress are not compensated
the trier of fact then determine whether the because {they are} life experience[s] tiiat
defendant vioiated the duty in the particular all [unfortunately] may expect to endure."
situation at hand" (Citation omitted; iritenial (lnterual quotation marks omitted.) [af,
quotation marks omitted.) Shaham v. Wheeler, 145,549 N.W.2d 714.
Superior Court, judicial, district of Danbury at
Danbury, Docket No. 321879 (March E2, 1998) (
Nadeau, JC). "Applying the standard of a reasonable *4 Here, because the plaintiffs plead, as a part of
and prudent person, the test is whether defendant their claim, emotional distress as a resuit of the
should have realized his acts were likely to cause defendants workers rebuking and chasing them off
piaintiff such distress? Ancona v. i`!/[anafort the property, the complaint aiieges more than
Brothers, Inc., Superior Court, judicial district of damage to property. [FN2} Nevertheless, the
HartfordJNew Britain at Hartford, Docket No. plaintiffs claim for negligent infiiction of emotional
541193 (April 17, i998) {Satfer, .12112.). "No distress is predominantly based on damage to
Connecticut cases specifically aiiow recovery for property, and as such it does not state a claim upon
negligent iofliction of emotionai distress resulting which reiief may he granted. See East v. Rosemont
from an injury solely to property." {FNQ Eos: v. Association, Inc, supra, Superior Court, Docket
Rosemont Association, Inc., Superior Court, judiciai No. i4i496; Librandi v. Stamford supra, Superior
district of Stamford/Norwalk at Stamford, Docket Court, Docket No. il1346, 3 CONN.L.RPTR. 364;
No. 141496 (February 28, 1996) {Ryan, J); see also Kleinke v. Farmers Co—0p Supply & Shipping,
Librandi v. Stamforal Superior Court, judicial supra, 202 Wis.2d 145.
district of Stamfordfhiorwaik at Stamford, Docket
No. 111346, 3 CONN.L.RPTR. 364 (March 20,
1991) {Ryan, JT). FN2. The cases that the plaintiffs rely upon
in their opposition to the motion to strike
are inapposite. See Weigert v. Windsor
FN1. The Wisconsin Supreme Court’s Locks Savings & Loan Association,
decision in Klainke v. Farmers Co-op., Superior Court, judicial district of
Sappiy & Skqoping, 202 Wis.2d 138, 549 1-1artfordfNevv Britain at Hartford, Docket
N.W.2d 7i4 (E996), provides further No. 114066 (December 13, i998} {
persuasive authority for rejecting a cause Hoizherg, .1); Bloain in Blouin, Superior
of action for negligent infliction of Court, judicial district of New Haven at
emotional distress based on damage to New Haven, Docket No. 295774 (January
property. in Kleinke, the court stated that E7, 1992) (Healey, .,(T.R.). Those cases are
"it is unlikely that a plaintiff could ever predicated on conduct that amounts to
recover for the emotional distress caused more than damage to property. See
by negligent damage to his or her property, Wcigerr v. Windsor Locks Savings &
First, emotional distress based on property Loans Association, supra, Superior Court,
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Case 3:03-cv-00372-AVC Document 32-9 Filed 05/24/2004 Page 4 of 4
Not Reported in A.2d Page 4 .
26 Conn. L. Rptr. 213
(Cite as: 2000 WL 38451 (C0nn.Super.)}
Docket No. 114066 [where the plaintiff
asserted a claim for negligent infiiction of
emotionai distress eased on the defendants
unlawful removal and destruction of her .
cherished family possessions from the
` cellar portion of the premises which sine
rented, which the court stated was more in
the nature of a theft); Biouin v. Bfoain,
supra, Superior Conri, Docket No. 2957%
(where the 65 year oid piaintiffs negiigent
infliciiori of emotional distress claim ,
against his son and dauglitenin-law arose
out of a property dispute in which his son
permitted ine property to fall into an
- unsightiy and congested appearance, told
tire plaintiff that ne would welcome his
· early demise, made obscene gestures,
caused the plaintiff to be apprehensive
aeout leaving the property and damaged
some of the plaintiffs property).
Moreover, an action for negligent mfliction of
emotional distress must, as a matter of law, inciude
the aiiegation that the defendant should have
realized that her conduct might result in iiiness or
bodily harm. See Roberts v. Kefiey, Superior Court,
judicial district of New Haven at New Haven,
Docket No. 418904 (Aprii 9, 1999) (Silbert, J). "
Here, the plaintiffs faii to ailege any facts which
would show that the defendant shouid have
anticipated her conduct might result in iliness or
bodiiy injury, therefore, the defendants rnotion to `
strike count five must be granted. See id. _
Based upon the foregoing, the defendant's motion
to strike counts four and iive of the plaintiffs
compiaint is granted.
2000 WL 3845} (Conn.Super.), 26 Conn. L. Rptr.
2.13
END OF DOCUMENT l .
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