McCauliff v. Sharif, CV–12–6005375.

Decision Date22 February 2013
Docket NumberNo. CV–12–6005375.,CV–12–6005375.
Citation52 Conn.Supp. 579,72 A.3d 478
PartiesStephanie McCAULIFF et al. v. Osman SHARIF et al.
CourtConnecticut Superior Court

OPINION TEXT STARTS HERE

Matthew E. Willis, Vernon, for the plaintiff Sheryl Miller.

Richard C. Tynan, Hartford, for the defendants.

GRAHAM, J.

This motion to strike presents the question of whether an emotional distress claim may be made in Connecticut by a close relative who is telephonically present at the time of an accident.

The plaintiffs, Stephanie McCauliff and Sheryl Miller, have filed a four count complaint against the defendants, Osman Sharif and Capital Bros., LLC, in which they allege the following facts: On June 28, 2011, McCauliff was operating her motor vehicle, traveling westbound on Interstate 84 near exit 54 in East Hartford. After coming to a stop for traffic, McCauliff's vehicle became disabled on the roadway. She immediately used her cellular phone to contact the state police and requested assistance. McCauliff then called her mother, Miller. Osman Sharif was operating a tractor trailer owned by Capital Bros., LLC, within the scope of his employment, and was also traveling westbound on Interstate 84. While McCauliff was on the phone with Miller, McCauliff's vehicle was negligently struck from behind by Sharif's vehicle. As a result of the defendants' negligence, the plaintiff McCauliff sustained multiple serious physical injuries, and the plaintiff Miller suffered emotional distress and anguish resulting from her contemporaneous sensory perception of the accident.

In counts one and two, the plaintiff McCauliff alleges causes of action in negligence against, respectively, Sharif and Capital Bros., LLC. In counts three and four, the plaintiff Miller alleges causes of action in bystander emotional distress against, respectively, Sharif and Capital Bros., LLC.

The defendants filed this motion to strike counts three and four on the ground that the claims are not cognizable as a matter of law. Specifically, the defendants claim that the plaintiff Miller has failed to allege a necessary element for recovery, to wit either arrival at the scene shortly after the collision and before McCauliff was moved or a contemporaneous sensory perception of the accident. The plaintiffs have conceded the former but not the latter. This motion turns then upon whether Miller's audio perception of the collision and its aftermath meets the element of a contemporaneous sensory perception of the accident.

“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). Practice Book § 10–39(a) provides in pertinent part: “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, 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.” [I]t 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.) Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011). [P]leadings 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, 253, 990 A.2d 206 (2010). This court takes “the facts to be those alleged in the [complaint] ... and ... construe[s] the [complaint] in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).

The current state of Connecticut law with respect to an action sounding in bystander emotional distress was articulated by our Supreme Court in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996). The court held that Connecticut will recognize a cause of action for bystander emotional distress, based on a ‘reasonable foreseeability’ test. Id., at 47, 675 A.2d 852.

The court found that bystander emotional distress is foreseeable. “The emotional harm following the perception of the death or serious injury to a loved one is just as foreseeable as the injury itself, for few persons travel through life alone.... We believe that the interest in emotional stability we have described is sufficiently important to warrant this protection.” (Internal quotation marks omitted.) Id., at 46–47, 675 A.2d 852. We therefore conclude, on the basis of sound public policy and principles of reasonable foreseeability, that a plaintiff should be allowed to recover, within certain limitations, for emotional distress as a result of harm done to a third party. In doing so, we join the courts of other jurisdictions that have adopted the rule of foreseeability in various forms.” Id., at 49, 675 A.2d 852.

[B]orrowing from the experience of other jurisdictions, we agree that specific limitations must be imposed upon the reasonable foreseeability rule. We recognize that those limitations, albeit somewhat arbitrary, are necessary in order not to leave the liability of a negligent defendant open to undue extension by the verdict of sympathetic juries, who under our system must define and apply any general rule to the facts of the case before them.” (Internal quotation marks omitted.) Id., at 51, 675 A.2d 852.

The court concluded “that a bystander may recover damages for emotionaldistress under the rule of reasonable foreseeability if...

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