ZURZOLA v. DANBURY HOSPITAL, No. CV02-0347228S (Dec. 17, 2003)


ROBERT ZURZOLA ET AL. v. DANBURY HOSPITAL.

2003 Ct. Sup. 14722, 36 CLR 207
No. CV02-0347228SConnecticut Superior Court, Judicial District of Danbury at Danbury
December 17, 2003

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO STRIKE (#103)
UPSON, JUDGE.

Before the court is the motion to strike of the defendant Danbury Hospital, which seeks to strike the two counts of the revised complaint and the corresponding request for punitive damages. The facts as alleged in the revised complaint are as follows. On September 28, 2000, the plaintiffs, Kelly Zurzola and Robert Zurzola, brought their infant son to the defendant complaining that the infant had a persistent cough. The defendant immediately admitted the infant for treatment. To facilitate feedings, the plaintiff mother expressed breast milk into bottles that were conspicuously marked “Zurzola” on the outside and stored in a refrigerator on the floor where the infant was receiving treatment. In the early morning of October 2, 2000, the plaintiff father asked a nurse employed by the defendant to bring him the bottles of breast milk so that he could feed the infant. The nurse brought two bottles in a pan of warm water. She gave one bottle to the plaintiff father and left the other bottle in the pan. The plaintiff father attempted to feed the infant, who at first refused the bottle, but, after several minutes, consumed the entire two ounces of breast milk. After feeding the infant the contents of the first bottle, the plaintiff father noticed that the second bottle was labeled “Sanchez” not “Zurzola.” He checked the bottle he had just fed the infant and that bottle also was labeled “Sanchez.” Later that morning, at approximately 7 a.m., the plaintiff father told the plaintiff mother over the phone about the incident.

On September 26, 2002, the plaintiffs commenced the present action against the defendant. The plaintiffs allege that “as a result of [the defendant’s] misapplication of the wrong breast milk” the plaintiffs were “immediately frightened and concerned about the possibility that HIV-AIDS, Hepatitis B and Hepatitis C might have been transmitted via breast milk to their infant son.” Count one of the December 13, 2002 revised complaint purports to CT Page 14723 state a claim of negligent infliction of emotional distress as to the plaintiff mother. Count two states an identical claim on behalf of the plaintiff father.

On December 23, 2002, the defendant filed this motion to strike count one and count two of the complaint on the ground that the plaintiffs failed to properly state a cause of action for bystander emotional distress because they have not asserted that the infant suffered injury as a result of having been fed the wrong breast milk. Further, the defendant moves to strike count one on the ground that the plaintiff mother did not witness the alleged negligent conduct or arrive on the scene shortly after the event. Finally, the defendant moves to strike the plaintiffs’ prayer for relief seeking punitive damages on the ground that the plaintiffs have not alleged sufficient facts to support an award of punitive damages. The defendant filed a memorandum of law in support of its motion to strike. The plaintiffs filed a timely memorandum in opposition, to which the defendant filed a reply.

“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 is also the proper means for a party to test the legal sufficiency of a prayer for relief. Practice Book § 10-39. “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.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.” (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293
(1997). Further, “[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. Therefore, “[t]he role of the trial court is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.” (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859
(1997). CT Page 14724

Connecticut law recognizes that a plaintiff may recover for emotional distress suffered as a result of a negligent act directed toward the plaintiff and that recovery “does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact.” Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978). In such cases, liability for emotional distress attaches if the defendant’s conduct breached a duty of care owed to the plaintiff and “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.” Id., 341.

In addition to a cause of action for infliction of emotional distress stemming from a direct act of negligence, Connecticut has recognized that in some limited circumstances a party may recover for emotional distress arising from a negligently caused injury to a third party, or so-called bystander emotional distress. Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852
(1996). A bystander emotional distress claim exists only when each of the following conditions are met: “(1) [the bystander] is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim’s condition or location; (3) the injury of the victim [is] substantial, resulting in his or her death or serious physical injury; and (4) the bystander’s emotional injury [is] serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.”

The plaintiffs in the present action have not stated a legally sufficient cause of action for negligent infliction of emotional distress unless the facts as alleged in the complaint are sufficient to fall within one of the two preceding theories of recovery. That determination depends largely on the nature of the defendant’s alleged negligent act and whether the plaintiffs are properly characterized as the primary or secondary victims of that act. Janicki v. Hospital of St. Raphael, 46 Conn. Sup. 204, 226, 744 A.2d 963, 25 Conn. L. Rptr. 511 (1999). A primary or direct victim of an act of negligence states a cause of action by alleging sufficient facts to fall within the Montinieri
standard. In contrast, the victim of a secondary or indirect CT Page 14725 negligent act must meet the stricter Clohessy test.

In its motion to strike, the defendant urges the court to construe the plaintiffs’ claims as sounding in bystander emotional distress. It argues that “[t]o treat the parents as primary victims of negligence on these facts would effectively render Connecticut law on bystander emotional distress inapplicable to any situation.” In their opposition memorandum, however, the plaintiffs argue that they never intended to claim bystander emotional distress, but instead have alleged a direct claim of negligent infliction of emotional distress. The court finds that the allegations as stated in the complaint support the defendant’s position.

In the revised complaint, the only negligent act that the plaintiffs complain of is the defendants “misapplication of the wrong breast milk.” This act was directed toward the infant, the recipient of the breast milk, not the parents. Further, the plaintiffs allege that their emotional distress resulted from their fright and concern that the breast milk was contaminated with HIV or other viruses, not from shock or outrage that the defendant’s nurse had mixed up their bottles with those of another patient. The infant, not his parents, was the direct victim of being fed potentially harmful breast milk, and the plaintiffs’ claims are merely derivative of that negligent conduct directed at the infant.

In Champagne v. Mid-Maine Medical Center, 711 A.2d 842 (Me. 1998), the Supreme Judicial Court of Maine refused to allow a mother to proceed with a claim for negligent infliction of emotional distress on similar facts. In Champagne, a student nurse took the plaintiff mother’s newly born infant from the nursery and gave the infant to the wrong mother to breast feed Id., 844. The infant was breast fed for several minutes before the mistake was discovered. Id. The infant suffered no ill effects from the experience. Id. On summary judgment as to the plaintiff’s negligent infliction of emotional distress claim, the court concluded as a matter of law that the mother’s attempt to characterize herself as a direct victim of the defendants negligence in allowing the infant to nurse from the wrong mother was unpersuasive. Id., 845. “The defendants’ negligence in allowing [the infant] to be nursed by the wrong mother was directed toward [the infant], not his mother.” Id.

In an effort to support their characterization of this case as CT Page 14726 one involving direct negligence, the plaintiffs improperly attempt to supplement the allegations made in the complaint. In reaching a decision on a motion to strike, however, the court properly can consider only those facts alleged in the complaint and those necessarily implied from the allegations. Gazo v. Stamford, supra, 255 Conn. 260. Although the plaintiffs have tried to recast their claim as one stemming from a direct negligent act of the defendant, on the basis of the facts alleged in the complaint, the court construes their claims as one for bystander emotional distress.

Having decided that the plaintiffs’ claims sound in bystander emotional distress, the court must next examine whether the plaintiffs have alleged sufficient facts to fall within the test outlined in Clohessy. Because the plaintiffs have not alleged that ingesting the wrong milk harmed the infant in any way, the plaintiffs cannot satisfy prong three of the Clohessy test and the plaintiffs’ claims for emotional distress fail as a matter of law.[1]

Because the court has concluded that both counts of the complaint are legally insufficient to support a cause of action for bystander emotional distress, the court does not need to decide whether the prayer for relief seeking punitive damages was legally sufficient.

For the foregoing reasons, the court grants the defendants’ motion to strike as to both counts of the complaint. It is, so ordered.

BY THE COURT, UPSON, JUDGE.

[1] The plaintiffs concede in their memorandum in opposition to the motion to strike that the infant was uninjured and that this is why the infant was not made a party to this action. Because of the lack of injury to the infant, the court need not address whether the mother’s failure to witness the event or arrive at the hospital shortly thereafter would also prove fatal to her claim.

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