Craig v. Driscoll

• Decision Date: 07 August 2001
• Docket Number: (AC 19299)
• Citation: 781 A.2d 440,64 Conn. App. 699
• Court: Connecticut Court of Appeals
• Parties: VALERIE P. CRAIG ET AL. v. STEVEN DRISCOLL ET AL.

64 Conn. App. 699

781 A.2d 440

VALERIE P. CRAIG ET AL. v. STEVEN DRISCOLL ET AL.

(AC 19299)

Appellate Court of Connecticut.

Argued November 1, 2000.

Officially released August 7, 2001.

Landau, Pellegrino and Dupont, Js. Christopher G. Wall, for the appellants (named plaintiff et al.).

Patrick J. Walsh, with whom, on the brief, was Richard P. Hastings, for the appellees (defendant David L. Davis et al.).

Opinion

LANDAU, J.

The plaintiffs, Valerie P. Craig and Samuel Craig,¹ appeal from the judgment of the trial court rendered subsequent to its granting of the motion to strike filed by the defendants David L. Davis and Hawk's Nest, Inc.,² pursuant to Practice Book § 10-44. On appeal, the plaintiffs claim that the court improperly granted the defendants' motion to strike by concluding that the allegations of the plaintiffs' amended complaint failed to state a cause of action for bystander emotional distress against the defendant purveyors of alcohol for (1) negligent infliction of emotional distress and (2) reckless infliction of emotional distress.³ We reverse the judgment of the trial court. The following facts and procedural history are necessary for our resolution of the plaintiffs' appeal. Because the issues concern the granting of a motion to strike, we are limited to and must accept as true the facts alleged in the plaintiffs' amended complaint dated May 28, 1998. See Waters v. Autuori, 236 Conn. 820, 822, 676 A.2d 357 (1996). Those facts are that between 8:30 p.m. and midnight on May 21, 1996, the defendant Steven Driscoll was a patron of The Pub and Restaurant (The Pub), a business located in Norfolk, which is owned by the defendant Hawk's Nest, Inc. The defendant David L. Davis was the president of Hawk's Nest, Inc., and the permittee of The Pub. The defendants, through their agents, servants and employees, invited the public to enter The Pub and sold alcoholic beverages to its patrons. At the time in question, Driscoll was intoxicated when the defendants sold him alcoholic beverages, although they knew, or should have known, that Driscoll was an alcoholic who would operate a motor vehicle after leaving The Pub.

At 12:10 a.m. on May 22, 1996, Sarah Craig was a pedestrian on the west shoulder of Route 272 near its intersection with Route 44 in Norfolk. At that time, Driscoll, who had left The Pub, was operating a motor vehicle south on Route 44 when he caused the vehicle to veer off the roadway and strike Craig. Very shortly thereafter, Valerie P. Craig, the mother of Sarah Craig, and Samuel Craig, the brother of Sarah Craig, arrived at the scene of the accident and viewed Sarah Craig before a substantial change in her condition or location had taken place. Sarah Craig died on May 24, 1996, of the injuries she sustained in the accident. As a result of having witnessed Sarah Craig's severe and substantial injuries, the plaintiffs sustained severe emotional injuries. The amended complaint was alleged in sixteen counts. We are concerned only with counts three through six, which contain allegations against the defendants who are involved in this appeal. The court originally granted the defendants' motion to strike counts three through twelve. The plaintiffs thereafter filed a motion to reargue the motion to strike. The court denied the motion. The plaintiffs then moved for judgment on counts three through twelve for the purpose of appealing the propriety of the court's having stricken those counts. The court rendered judgment in accordance with the motion. The plaintiffs subsequently appealed from the judgment only with respect to counts three through six.⁴

"Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ... or of any one or more counts thereof, to state a claim upon which relief can be granted ... that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39 (a).

Our standard of review for granting a motion to strike is well settled. "In an appeal from a judgment following the granting of a motion to strike, we must take as true the facts alleged in the plaintiffs complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency. Sassone v. Lepore, 226 Conn. 773, 780, 629 A.2d 357 (1993); Michaud v. Wawruck, 209 Conn. 407, 408, 551 A.2d 738 (1988)." Waters v. Autuori, supra, 236 Conn. 822. A motion to strike admits all facts well pleaded. See Practice Book § 10-39. "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a ... cause of action, the motion to strike must fail. Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). What is necessarily implied need not be expressly alleged." (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 33 n.4, 675 A.2d 852 (1996). "A determination regarding the legal sufficiency of a claim is, therefore, a conclusion of law, not a finding of fact. Accordingly, our review is plenary. Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S. Ct. 1106, 137 L. Ed.2d 308 (1997)." Parsons v. United Technologies Corp., 243 Conn. 66, 68, 700 A.2d 655 (1997). With that standard in mind, we turn to the plaintiffs' claims.

I

The plaintiffs' first claim is that the court improperly granted the defendants' motion to strike by concluding that the allegations of counts three and five failed to state causes of action, specifically, negligent infliction of bystander emotional distress as enunciated in Clohessy v. Bachelor, supra, 237 Conn. 31. We agree with the plaintiffs.

The allegations in question are those contained in paragraph twelve of counts three and five in which Valerie P. Craig and Samuel Craig, respectively, pleaded: "The collision, the injuries to Sarah Craig, and the severe emotional injury sustained by [the plaintiffs], were caused by the carelessness and negligence of [the defendants] ... in one or more of the following ways: (a) in that they served numerous drinks to Steven Driscoll, which caused his intoxication, when the Defendants knew, or should have known, that Steven Driscoll would operate a motor vehicle upon leaving the [defendants'] premises, when in the exercise of due care they should not have done so ... (b) in that they maintained an alcohol service policy within the bar in which intoxicated patrons would not be refused service, when in the exercise of due care they should not have done so ... (c) in that they maintained an alcohol service policy with regard to Steven Driscoll in particular in which Steven Driscoll would not be refused service of alcohol even when intoxicated, when in the exercise of due care they should not have done so ... (d) in that they failed to supervise and monitor the distribution of alcohol within the pub, when in the exercise of due care they should have done so ... (e) in that they failed to warn patrons of the dangers of drinking and driving, when in the exercise of due care they should have done so ... (f) in that they allowed Steven Driscoll to operate a motor vehicle upon leaving the pub when [they] knew or should have known that Steven Driscoll was in an intoxicated state, when in the exercise of due care they should not have done so ... (g) in that they failed to implement a designated driver or other similar program for patrons of the pub, when in the exercise of due care they should have done so... (h) in that they failed to have a Breathalyzer or intoxication measuring device within the pub, when in the exercise of due care they should have done so ... (i) in that they negligently supplied alcohol to Steven Driscoll when [they] knew or should have known that Steven Driscoll was an alcoholic and/or tended to drink alcohol excessively, when in the exercise of due care they should not have done so [and] (j) in that they negligently supplied alcohol to Steven Driscoll when [they] knew or should have known that Steven Driscoll lacked the capacity to fully understand the risks associated with intoxication due to his alcoholism and/or his propensity to drink alcohol excessively, when in the exercise of due care they should not have done so."

In Clohessy, our Supreme Court concluded that when certain conditions are satisfied, "both the parent and the sibling of the tort victim may recover damages for the negligent infliction of emotional distress." Id., 32. The tort is sometimes referred to as bystander emotional distress.⁵ In Clohessy, the plaintiffs, the mother and brother of a seven year old boy, witnessed the boy's death as the family crossed a street in a marked crosswalk on Hillhouse Avenue at its intersection with Trumbull Street in New Haven. The defendant had operated his motor vehicle at an excessive speed on Trumbull Street and caused the exterior side view mirror to strike the boy and throw him to the ground. The mother and brother suffered serious emotional injuries as a result of witnessing the boy's fatal head wounds. Id., 33-34.

In recognizing a claim for bystander emotional distress, the Clohessy court reexamined the history of the cause of action in this jurisdiction and the legal theories under which other jurisdictions have adopted it. Our Supreme Court rejected the zone of danger limitation on bystander emotional distress⁶ in favor of the reasonable foreseeability theory because bystander emotional distress is reasonably foreseeable.⁷ Id., 46-49. The court identified four criteria that must be alleged to state a claim for bystander emotional distress: The bystander must be closely related to the injured victim; id., 52; the bystander's emotional injury must be caused by a contemporaneous sensory perception of the event or the conduct that causes the injury, or by witnessing the...