In this two-count complaint, a dog owner brings a second count in negligent infliction of emotional distress against a dog groomer, alleging that the groomer negligently handled her very large dog when he removed it from her vehicle with “excessive force.” This resulted in a leg fracture, setting off lengthy and expensive care, ultimately requiring that the dog be euthanized. Count one restricts itself to financial losses for care. Count two, however, seeks compensation for the “mental anguish” involved in plaintiff's caring for the dog, and for “severe emotional distress with physical manifestations of an anxiety attack for which she was taken to the emergency room” upon the dog's euthanasia.
Defendant, attacking the second count, styles his motion as one for summary judgment, but speaks of it as a motion to strike in the text of his briefs. (See, infra.)
In defendant's first brief, he seeks to characterize the claim as one of “bystander” distress and cites the medical malpractice case of Clohessy v. Bachelor,
237 Conn. 31 (1996), as recognizing only parent-child and sibling-sibling human relationships as foundations for such recovery.
As research and contemplation began, this analogy first appeared inapt, for the Clohessy
-type restrictions placed upon second-line recovery have become law where a front-line victim had an additional, indeed, primary cause of action. Here, of course, the dog did not and it is classed as property under Connecticut General Statutes § 22-350.
Thus, one might be logically led to conclude that the owner of a pet ought not be seen as a second-line victim but a primary one, the dog having disappeared from the radar screen as a cognizable “victim” with rights.
However, research uncovered Superior Court cases which left the harmed animal in place, so to speak, at least as the primary subject
of the “tortious” behavior, leaving the owner to remain something of a bystander, and thus outside the ambit of Clohessy. Rees v. Flaherty,
CV01-0077316, 2002 Ct.Sup. 7196, 32 Conn. L. Rptr. 292 (June 7, 2002) (Scholl, J.); Coston v. Reardon,
No. 063892, 2001 Ct.Sup. 14867-h, 30 Conn. L. Rptr. 611 (Oct. 18, 2001) (Foley, J.).
These cases, if correctly decided, would seem to dispose of the plaintiff's claim. In addition, they rely upon additional rationale which suggests that emotional distress does not actionably result from damage to property.
Yet, this court was not fully persuaded that the law does or should bar recovery for emotional distress in all
pet or property cases and went on to consider what would likely distinguish the situations in which liability might attach from those in which it would not.
There would appear to be three levels of tortious conduct which might be seen in bringing harm to one's dog. The first would occur when the conduct would present as pure negligence with neither malice toward the pet nor intent to produce emotional distress to the owner. The next level would include contexts in which a tortfeasor intends harm to the dog but for reasons rather clearly divorced from any consideration of or intent to upset an owner. (Harm to animals trespassing or jeopardizing crops, property or animals of a defendant would most often fit such a category.) Finally, a category suggests itself where harm to an animal occurs for the sole reason of visiting misery upon one who loves the animal.
The last category prompts this possibly unnecessary analysis, for, at bottom, it seemed that our law would never bar an emotional distress claim in such a setting and that no rationale such as (a) the animal is property and an insufficient basis for emotional harm recourse or (b) a plaintiff would be deemed a constructive bystander a la
those in Rees
or Coston, supra,
and thus outside Clohessy, supra,
would or should defeat the action. (Discussion, infra,
will touch upon a 1978 Supreme Court case apparently allowing for intentional infliction of emotional distress .)
Withal, the case at bar is not one attended by any claim of intent to harm the plaintiff's dog much less the plaintiff herself.
Thus, this court's conclusion, in dicta,
that an intent to harm plaintiff
would present a sufficient claim also strives to suggest that anything less than such a goal-oriented, purposeful infliction would not avail a plaintiff as a matter of policy line-drawing as well as a matter of the rationale seen in the “constructive bystander” explanations and, to a lesser extent, the property-damage-is-not-a-basis-for-recovery cases.
As a result, it is apparently our law that plaintiff's claim for negligent infliction of emotional distress cannot lie under the specific facts pleaded.
However, one cannot deem this topic exhausted without considering whether Montinieri v. Southern New England Telephone Co.,
175 Conn. 337 (1978), leaves plaintiff yet an opening. There, conduct deemed negligent was allowed to serve as a basis for a recovery in emotional distress under the restrictions contained in the trial court's jury charge, approved by the Supreme Court. Judge Wright told the jury that “[u]nless the act ... was intentional
... a defendant is not liable for emotional distress unless
the defendant ... should have realized that its conduct involved an unreasonable risk of causing the distress, and from the facts known to it ... should have realized that the distress, if it were caused, might result in illness or bodily harm.” Id.
at 341. FN1
FN1. In Montinieri, plaintiff was the intended victim of a would-be kidnapper who managed to elicit from the defendant telephone company's information operator the unlisted information about the home address of the intended victim-plaintiff. The kidnaping effort was foiled but only after the kidnapper got to plaintiff's house. The telephone company was sued regarding the distress involved.
announced, in a seminal holding, that emotional distress claims could lie in the de facto
absence of physical injury, but the negligent defendant is liable only where he should have perceived not only the risk of distress but that it might also result in illness or bodily harm.
This rather unworkable formulation has remained the law since Montinieri
was released in 1978. (See Scanlon v. Connecticut Light & Power Co.,
258 Conn. 436, 446 (2001), for the intervening cases. FN2
FN2. Interestingly, the Scanlon facts approached those of this case in that animals play a central role. It was alleged that the power company's poorly installed power lines damaged plaintiff's dairy herd, prompting serious economic loss, prompting emotional distress. The case thus misses the bulls-eye in that the distress is economically based rather than founded upon distress over the cattle being sick per se. In the event, however, the plaintiff's trial success was overturned for the charge's failure to include the Montinieri caveat.
Thus, the Montinieri
review leaves this negligence plaintiff an ostensible opening, but one with three hurdles, all of which have now been discussed: (a) the complaint does not allege that defendant groomer should have realized his negligence created the risk of plaintiff's emotional distress which might result in illness or bodily harm to her; (b) the plaintiff may still be seen as a bystander, outside the embrace of Clohessy, supra,
under the rationale employed in superior court cases Rees
and Coston, supra;
(c) the apparent inhospitable response in our cases to emotional distress emanating from property
It is at this point that the summary judgment/strike duality comes back into view. As noted, the defendant's motion shifts in title and content between summary judgment and strike premises. If the Montinieri
doctrine holds hope for a plaintiff in these circumstances, summary judgment may well be inappropriate, for the tortfeasor's conduct needs a trier's assessment in character. If the court strikes
the second count, and it is re-pleaded to be more closely in line with Montinieri,
one is back to the place we now occupy. However, it would appear that neither a motion to strike nor a re-pleading is appropriate here.
“A challenge to legal sufficiency of a complaint, through a motion to strike, must be pleaded and ruled on before the defendant files an answer to the plaintiff's complaint.” Burke v. Avitabile,
32 Conn.App. 765, 769, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993); see also Practice Book §§ 10-6 and 10-7. “By operation of Practice Book § [10-7], the filing of [an] answer to [an] amended complaint acts as a waiver of the right to file a motion to strike the amended complaint.” Wilson v. Hryniewicz,
38 Conn.App. 715, 719, 663 A.2d 1073, cert. denied, 235 Conn. 918, 665 A.2d 610 (1995). Here, defendant answered first. Nevertheless, “failure by the defendants to [move to strike] any portion of the amended complaint does not prevent them from claiming that the [plaintiff] had no cause of action and that a judgment in their favor was not warranted.” Burke v. Avitabile, supra,
32 Conn.App. at 769. A motion for summary judgment is a proper way to test the legal sufficiency of a complaint. See Drahan v. Board of Education,
42 Conn.App. 480 498 n. 17, cert. denied, 239 Conn. 921 (1996); see also Boucher Agency, Inc. v. Zimmer,
160 Conn. 404, 408-09 (1971). The question before the court is therefore, whether the defendant is entitled to judgment as a matter of law. See Drahan, supra,
42 Conn.App. at 498.
Plaintiff has not briefed the notion that the case meets criteria for Montinieri
style negligent infliction of emotional distress. Therein, as noted, lies daunting requirements: “Unless the ... defendant ... or its agents or servants, should have realized that its conduct involved an unreasonable risk of causing the distress, and from the facts known to it, or its agents, should have realized that the distress, if it were caused, might result in illness or bodily harm,” no recovery is available. Montinieri, supra,
175 Conn. at 341.
It tips the balance against plaintiff a bit to view this case under the Montinieri
test for negligent infliction, even if the Montinieri
criteria need not be precisely pleaded.
However, even if a Montinieri
-styled complaint had been alleged, and if one supposes the allegedly tortious conduct rises to the required degree, an anomaly would result, to wit: Any
dog owner could have
a cause of action while hardly
any suffering second-line victim (“bystander”) in a human
injury context would. And, it should be kept in mind, a Montinieri
approach must trump the doctrinal hurdles of Rees
(plaintiff should be seen as a bystander) and the notion that property damage is not an appropriate basis for emotional distress recovery.
Therefore, for an accumulation of the aforesaid factors, this court does not envision this pet owner's cause of action coming to be recognized. FN3
FN3. It should be noted that the court has found no cases allowing anything but property value to an owner in veterinary malpractice cases. Oddly, no cases were found articulating that limitation, but the first absence is more telling than the latter. This is not a universally held American truism; see surveys set out, e.g., in The Standard of Care for Veterinarians in Medical Malpractice Claims, Tenn.L.Rev., Fall, 1990; and Recovery of Damages for Emotional Distress Due to Treatment of Pets and Animals, 91 A.L.R.5th 545 (2001).
Motion for summary judgment as against plaintiff's count two is granted.