DocketNumber: No. X03 CV 00 0503175 S
Citation Numbers: 2001 Conn. Super. Ct. 11418
Judges: AURIGEMMA, JUDGE.
Filed Date: 8/22/2001
Status: Non-Precedential
Modified Date: 4/17/2021
Facts
The Complaint alleges that on March 6, 1998, at approximately 8:30 a.m., Matthew Beck killed the plaintiffs' decedent, Linda Blogoslawski Mlynarczyk, and three other individuals at the headquarters of the Connecticut Lottery Corporation located at 85 Alumni Road, Newington, Connecticut. It further alleges that the plaintiff, Peter Mlynarczyk, was married to Linda Blogoslawski Mlynarczyk and is the administrator of her estate, that Karen Mehigan was the Director of Human Resources for CLC responsible for personnel matters involving Matthew Beck, and that Alfred W. Dupuis was the Director of Security for CLC.
The Complaint also alleges that Matthew Beck was on leave from work for stress related to his dissatisfaction with work, anger at his superiors and his explosive personality. The Seventh Count alleges that Karen Mehigan was negligent in hiring, screening and/or retaining Matthew Beck in various ways including that she "permitted Matthew Beck to re-enter the workplace at a time when she knew or reasonably should have known that this placed a class of victims, including the Plaintiff's decedent, Linda Blogoslawski Mlynarczyk, at an unreasonable risk of serious harm." ¶ 27. The Eighth Count contains the same allegations of negligence and misconduct with respect to Alfred W. Dupuis.
The Fourteenth alleges loss of consortium against Karen Mehigan based on the allegations of the Seventh and Tenth Counts and the Fifteenth Counts allege loss of consortium against Alfred Dupuis based on the allegations of the Eighth and Eleventh Counts.
The Twelfth Count alleges a claim for bystander emotional distress against CLC. This Count claims that the defendant "should have realized that its conduct involved an unreasonable risk of causing emotional harm to the plaintiff Peter Mlynarczyk, and that such distress, if it were caused, might result in illness or bodily injury." ¶ 2. It further alleges that:
3. The attack at the headquarters of the Connecticut CT Page 11420 Lottery Corporation occurred at approximately 8:30 a.m. Peter Mlynarczyk received a phone call from an acquaintance and he immediately went to the scene at the Connecticut Lottery Corporation arriving at approximately 9:15 a.m. thereupon witnessing the ensuing aftermath of this attack which caused him great mental and emotional distress. There was extensive and prompt coverage in the local media from the scene which was also observed by Peter Mlynarczyk, knowing that his wife had been a victim of Matthew Beck, thereby causing him further mental and emotional distress. Such media reporters aggravated his distress by continuously seeking interviews/comments from him for the next several weeks following the tragedy . . .
Discussion of Law and Ruling
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book §
The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz,
Section 1983 Claims
The Seventh and Eighth Counts purport to state claims for relief pursuant to
The plaintiffs allege that Mehigan and Dupuis were agents, employees, CT Page 11421 or contractors of the Connecticut Lottery Corporation, "which is an agency of the State of Connecticut." (Counts Seven and Eight ¶ 26) The plaintiffs also allege that the decedent worked at the Connecticut Lottery. (¶ 3)
The plaintiffs allege that these defendants "owed a duty under the
The Defendant, KAREN MEHIGAN, by acting to promote the placing of Matthew Beck back into the workplace when she knew or reasonably should have known that he presented an immediate risk of danger to the Plaintiff's decedent, and when no warnings were provided and no security measures were in place, thereby was a substantial factor in creating a danger to the Plaintiff's decedent.
(Seventh Count, ¶ 29).
As to Alfred W. Dupuis, the plaintiffs allege:
The Defendant, ALFRED W. DUPUIS, by permitting the return of Matthew Beck to the workplace without taking any preventative security action, and by allowing grossly inadequate security procedures to exist, despite the fact that he knew that the [sic] Matthew Beck posed an immediate threat of serious harm to the Plaintiff's decedent, was also a substantial factor in the creation of the danger to the Plaintiff's decedent.
(Eighth Count, ¶ 28)
1.
The
2.
The
3.
"The
In their Memorandum of Law in Opposition to Defendants' Motion to Strike, the plaintiffs have not presented any case law or argument in support of the defendants' claimed duties under the
4.
"As a general matter, the [Supreme] Court has always been reluctant-to expand the concept of substantive due process, because guideposts for responsible decisionmaking in this uncharted area are scarce and open-ended." Collins v. Harker Heights,
In Collins, the plaintiff's decedent was a Sanitation Department employee who died as a result of asphyxia after descending a manhole to unstop a sewer line. The plaintiff commenced a § 1983 action against the decedent's employer, the City of Harker Heights. Her § 1983 claim was predicated solely on the allegation that substantive due process was CT Page 11423 violated by the failure of the employer-city to provide a safe work environment for the decedent. The Supreme Court summarized the plaintiff's allegations as follows:
[The plaintiff] brought this action alleging that [the decedent] had a constitutional right to be free from unreasonable risks of harm to his body, mind and emotions and a constitutional right to be protected from the City of Harker Heights' custom and policy of deliberate indifference towards the safety of its employees. [The] complaint alleged that the city violated that right by following a custom and policy of not training its employees about the dangers of working in sewer lines and manholes, not providing safety equipment at job sites, and not providing safety warnings. The complaint also alleged that a prior incident had given the city notice of the risks of entering the sewer lines, and that the city had systematically and intentionally failed to provide the equipment and training required by a Texas statute.
Id. at 117-8 (internal citations and quotation marks omitted).
The Supreme Court held that "[n]either the text nor the history of the Due Process Clause supports petitioner's claim that the governmental employer's duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause." Id. at 126
The Due Process Clause of the
Fourteenth Amendment was intended to prevent government from abusing its power, or employing it as an instrument of oppression. . . . The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty or property without due process of law, but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. . . .Petitioner's submission that the city violated a federal constitutional obligation to provide its employees with certain minimal levels of safety and security is unprecedented.
CT Page 11424Id. at 126-27 (citations, internal brackets and quotation marks omitted; emphasis added).
The Court specifically distinguished cases involving state confinement of pretrial detainees, involuntary commitment in mental institutions, convicted felons, and persons under arrest. In those circumstances, the Court noted that the
In affirming the District Court's dismissal of the plaintiff's complaint for its failure to state a claim upon which relief could be granted, the Court also noted that "the Due Process Clause `does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society.'" Id. at 128 (citations omitted). The Court's reasoning was based, in part, on considerations specific to the employer-employee relationship:
Decisions concerning the allocation of resources to individual programs, such as sewer maintenance, and two particular aspects of those programs, such as the training and compensation of employees, involve a host of policy choices that must be made by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country. The Due Process Clause `is not a guarantee against incorrect or ill-advised personnel decisions.' Bishop v. Wood,
426 U.S. at 350 .
Id. at 128-29.
Other courts have also long recognized that the federal Constitution does not create a duty to provide a safe work environment to public employees.
42 U.S.C. § 1983 provides an individual with a cause of action where a person under color of law causes another to be deprived of rights secured by the federal Constitution or the laws of the United States. However, there is no federal, constitutional right to a safe place to work.
CT Page 11425Cope v. State,
The case of Walker v. Rowe,
The defendants did not kill or injure the guards; prisoners did, and this makes all the difference. To see why, consider the language of the due process clause of the
fourteenth amendment, on which the guards rely: "Nor shall any State deprive any person of life, liberty or property, without due process of law . . ." The constitution requires the state to grant "process" before it deprives people of life, liberty or property. It is a constraint on the state's power to act, a prohibition on the misuse of official power. It does not require the state to guarantee life, liberty or property against invasion by private actors; it requires only that the state not act, unless with due process, when life, liberty or property are in the balance.
Id. at 509 (citations omitted; emphasis added).
The Court concluded by noting that "the constitution no more assures a safe job than it does a job with a generous salary" and that "[t]heconstitution does not assure employees of the government better terms orworking conditions or amenities than those available in privateemployment". Id. at 510 (emphasis added). The Court held, therefore, that jury verdicts in favor of the plaintiffs required reversal. CT Page 11426
The United States Constitution "deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society." County ofSacramento v. Lewis,
Here, in the Seventh Count, the plaintiffs allege that Karen Mehigan "knew or reasonably should have known" that her actions put the plaintiffs' decedent at an unreasonable risk of serious harm. In Paragraph 27 the plaintiffs allege that Karen Mehigan "failed to recognize or adequately warn that Matthew Beck had the propensity to be violent in the workplace. . . ." These allegations expressly sound in negligence. In Paragraph 28 the plaintiffs allege that Mehigan owed a duty to plaintiffs' decedent to avoid acting with deliberate indifference toward his safety, but there is no allegation that the defendant in fact acted with deliberate indifference. In Kostiuk v. Queally,
In Count Eight, paragraphs 1 through 17 are the preliminary paragraphs. Paragraph 20 expressly sounds in negligence. While it is alleged in paragraph 27 of Count Eight that the defendant had a duty to avoid acting with deliberate indifference, there is no allegation in Count Eight that the defendant in fact acted with deliberate indifference. Moreover, the defendants' alleged deliberate indifference to the safety of the plaintiffs' decedent based on the fact that they knew or should have known that Beck could be dangerous does not rise to CT Page 11427 the level of conduct that is arbitrary and shocks the conscience. Only that type of conduct can form the basis a claim for violation of substantive due process. See infra.
In opposing the Motion to Strike, the plaintiffs principally rely upon the lower federal court decisions purportedly expounding upon implied exceptions contained in a prior United States Supreme Court decision,DeShaney v. Winnebago County Department of Social Services,
The plaintiffs recognize that the DeShaney case established the general rule that there is no constitutional right to sue state employees who fail to protect against harm inflicted by third persons. However, they argue that lower court decisions have created two exceptions to this rule: (1) the special relationship exception and (2) the increase in vulnerability exception, also reportedly known as the "state-created danger" exception.
With regard to the alleged "special relationship exception," the plaintiffs claim that "courts have found that a state actor's creation of the danger in an employment setting creates a "quasi-custodial' relationship with the plaintiff thereby establishing a duty to protect from that very danger introduced by the state actor/employer." The plaintiffs cite Cornelius v. Highland Lake,
Cornelius involved allegations of the state placing prison inmates into the plaintiff's work environment. The plaintiff was subsequently held hostage and threatened with sexual assault by some of the prisoners.
The subsequent Eleventh Circuit case of White v. Lemacks involved similar factual allegations. The plaintiffs were nurses working in a jail CT Page 11428 infirmary. They alleged that they were required to be in close contact with inmates and that their freedom of movement and ability to flee and protect themselves were limited. They further alleged that they had received assurances from their employer that adequate security measures would be in place to protect them from injury and that, in fact, inadequate steps were taken to protect them. The plaintiffs were attacked and brutally beaten by an inmate who was being held on aggravated assault charges.
In White, the Court stated that the allegations in both the Cornelius
and White cases did not rise to the level of a due process violation under Collins, which recognized a substantive due process violation only where the defendant's conduct was "arbitrary, or conscience shocking, in a constitutional sense."
The opinion reminds us, for example, that the Supreme Court has been "reluctant to expand the concept of substantive due process," and that judicial self-restraint requires courts to exercise the utmost care in this area. More specifically, we are told in the Collins opinion that when governmental action or inaction reflects policy decisions about resource allocation (as is often the case), those decisions are better made "by locally elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country." In other words, when someone not in custody is harmed because too few resources were devoted to their safety and protection, that harm will seldom, if ever, be cognizable under the Due Process Clause. Finally, we have the reasoning and holding in Collins that the city's breach of its duty to provide a safe work environment is not arbitrary or conscience-shocking in a constitutional sense, but instead is "analogous to a fairly typical state-law tort claim."In determining whether the conduct alleged in Cornelius or in this case was "arbitrary or conscience shocking" under Collins, it is important to note that the plaintiffs in Collins, Cornelius, and this case did not allege that the defendants had intended to harm them or their relatives. They alleged that the defendants had been, at most, deliberately indifferent to their safety. Although [County of Sacramento v.] CT Page 11429 Lewis [
523 U.S. 833 , ___,118 S. Ct. 1708 ,140 L. Ed. 2d 1043 (1998)] leaves open the possibility that deliberate indifference on the part of government officials or employees will "shock the conscience" in some circumstances, it is clear after Collins that such indifference in the context of routine decisions about employee or workplace safety cannot carry a plaintiff's case across that high threshold.
Thus, it is clear that Cornelius has been overruled and that in the wake of Collins the so-called "special relationship" exception has no application in the employer-employee context.
There is no United States Supreme Court or applicable Second Circuit Court of Appeals authority cited by the plaintiffs in support of the so-called "state-created danger" exception. All but one of the cases cited by the plaintiffs with regard to the alleged state-created danger exception have either been reversed, overruled, or do not pertain to the employer-employee context.
The plaintiffs rely upon Page v. School District of Philadelphia,
The plaintiffs cite the case of L.W. v. Grubbs,
The plaintiffs also rely upon Collier by Collier v. William Penn SchoolDistrict,
The Second Circuit Court of Appeals has also long held that the United States Constitution does not impose a duty on public employers to provide a safe work environment. In McClary v. O'Hare,
[T]he Highway Department and its Superintendent deliberately disregarded and violated state laws, rules, and regulations for occupational safety and the operation of mobile cranes thereby creating a high risk of danger to the decedent. . . . [The plaintiff also alleged] that an established state procedure — the alleged policy of disobeying state and federal safety regulations — caused [the decedent] to be deprived of his life. . . .
Id. at 85, 86 (emphasis added).
The Court noted that the plaintiff had attempted to circumvent the clear rule establishing that mere negligence could not give rise to a due process violation. Id. at 85 citing Daniels v. Williams,
Citing Daniels,
The plaintiffs have not distinguished the Collins decision or any applicable Second Circuit case law, specifically McClary, supra, and its progeny. McClary continues to be cited as good law. See, Thomas v. City ofCT Page 11431New York,
The plaintiffs attempt to distinguish the Collins decision by claiming that in this case the plaintiffs' allegations are that Alfred Dupuis and Karen Mehigan "created and/or contributed to the creation of the danger." However, there are no Second Circuit decisions or any United States Supreme Court decisions applying the alleged state-created danger exception in the context of an employer-employee or employee-fellow employee substantive due process claim. Indeed, as the Court in White v.Lemacks observed, the "state-created danger" exception recognized inCornelius has been supplanted by Collins. "Under Collins, government officials violate the substantive due process rights of a person not in CT Page 11432 custody only by conduct `that can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.' Collins,
When we look at the facts of White and McClary, it becomes clear that the allegation that Alfred Dupuis and Karen Mehigan "created and/or contributed to the creation of the danger" simply does not constitute conduct that is arbitrary or conscience shocking in a constitutional sense. In White the employer also created the dangerous condition in which the plaintiff nurses were required to work in close contact with prison inmates, including one who was being held for aggravated assault. The Court found that such conduct was not conscience shocking, but, rather, was "analogous to a fairly typical state-law tort claim." Id.
In McClary, the plaintiff's decedent died when a wire cable on a mobile truck crane operated by a fellow employee broke, causing the boom crane to fall and strike the decedent in the head. The plaintiff alleged that the employer, the Steuben County Highway Department, required the fellow employee to operate the crane without a certificate of competency required under New York law and created a high risk of danger to the decedent. The Court upheld the dismissal of the case because the employer's creation of a dangerous condition did not constitute a violation of the decedent's substantive due process rights:
Daniels [v. Williams,106 S. Ct. 662 (1986)] held that the due process clause was intended to "prevent governmental power from being `used for purposes of oppression.'". . . Much of the case law on substantive due process was developed with this notion implicit, if not expressed; in Johnson [v. Glick,481 F.2d 1028 (2d. Cir.), cert denied414 U.S. 1033 ,94 S. Ct. 462 (1973)] e.g., the plaintiff was substantially under the state's control and many of the cases permitting recovery on a substantive due process ground for personal injury or death involve a person in state custody or under the state's control. Such persons are clearly subject to abuses of the government's significant power over them. . . . Where the government's control is lessened, so is its duty, and its failings are less likely to be of constitutional proportions cognizable under section 1983.
For the foregoing reasons the court finds that the plaintiffs have CT Page 11433 failed to state a claim under
Ninth, Ten and Eleventh Counts Decedent's Claim for NegligentInfliction of Emotional Distress
In the Ninth, Tenth, and Eleventh Counts the plaintiff alleges negligent infliction [on the decedent] of emotional distress by CLC, Mehigan, and Dupuis, respectively. "In an action by the estate of the victim pursuant to
Instead, CLC argues that while there are antecedent acts of negligence alleged on the part of CLC. Mehigan, and Dupuis, the actions upon which the plaintiffs base their claim are the actions of Matthew Beck. Further, CLC argues that in order to state a claim for negligent infliction of emotional distress, the plaintiffs must plead and prove that "the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." Montinieriv. Southern New England Telephone Co.,
The Ninth, Tenth, and Eleventh Counts are hereby ordered stricken for the reason that they are duplicative of allegations of mental anguish suffered by the plaintiffs' decedent contained in other counts and because they do not allege that the defendant should have realized that its (his/her) conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm. CT Page 11434
Fourteenth and Fifteenth Counts for Loss of Consortium
The Fourteenth alleges loss of consortium against Karen Mehigan based on the allegations of the Seventh and Tenth Counts and the Fifteenth Counts allege loss of consortium against Alfred Dupuis based on the allegations of the Eighth and Eleventh Counts. The court has ruled that the Seventh, Eighth, Tenth and Eleventh Counts fail to state claims upon which relief may be granted, as set forth above. Being derivative, the loss of consortium counts must also fail. Murray v. Commissioner ofTransportation,
Twelfth Count Bystander Emotional Distress
The common law rule in Connecticut as in other jurisdictions was that there could be no recovery for so-called bystander emotional distress. The Connecticut Supreme Court stated the common law rule in Strazza v.McKittrick,
[A plaintiff] cannot recover for injuries occasioned by fear of threatened harm or injury to the person or property of another. Such injuries are too remote in the chain of causation to permit recovery. Even where a plaintiff has suffered physical injury in the accident, there can be no recovery for nervous shock and mental anguish caused by the sight of injury or threatened harm to another.
Id. at 719 (citations omitted).
In Clohessy v. Bachelor,
Among the grounds cited for imposing the specific limitations and conditions were the Court's awareness "that the application of pure rules of foreseeability could lead to unlimited liability," "fears of flooding the courts with spurious and fraudulent claims," "problems of proof of the damage suffered," "exposing the defendant to an endless number of claims," and "economic burdens on the industry." Id. at 50 (citations and internal quotations marks omitted).
Recognizing that the specific limitations it was imposing were "somewhat arbitrary," the Court nonetheless stated that the limitations were "necessary in order not to leave the liability of a negligent CT Page 11435 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." Id. at 51 (citations and internal quotation marks omitted).
The Court imposed four specific limitations on the cause of action:
[W]e conclude that a bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (1) he or she 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 must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.
The Complaint certainly satisfies the first, third and fourth conditions. However, it does not satisfy the second requirement, that is, that the bystander's emotional injury must be caused by the contemporaneous sensory perception of the event or conduct that causes the injury or by viewing the victim immediately after the injury-causing event if no material change has occurred with respect to the victim's location and condition.
The Clohessy Court referred to this particular limitation as being necessary to avoid "limitless liability". Id. at 44. "Without such perception, the threat of emotional injury is lessened and the justification for liability is fatally weakened." Id. (citation internal quotation marks omitted; emphasis added).
The plaintiffs have alleged that "[t]he attack at the headquarters of the Connecticut Lottery Corporation occurred at approximately 8:30 a.m. Peter Mlynarczyk received a phone call from an acquaintance and he immediately went to the scene . . . arriving at approximately 9:15 a.m. thereupon witnessing the ensuing aftermath of this attack . . ." Count CT Page 11436 Twelve, ¶ 3.
The foregoing does not allege that the plaintiff either contemporaneously perceived the event or conduct that caused the injury or viewed the decedent before substantial change had occurred in the victim's condition or location. The knowledge of the tragic events which he gained from media accounts or from arriving on the scene after approximately 45 minutes doubtless produced emotional distress in the plaintiff, but such emotional distress clearly does not fit within the narrowly circumscribed requirements of Clohessy, and, therefore, is not actionable.
For the foregoing reasons, the Motion to Strike the Twelfth Count is hereby granted.
By the court,
Aurigemma, J.
White v. Lemacks , 183 F.3d 1253 ( 1999 )
harriet-cornelius-v-town-of-highland-lake-alabama-a-municipal-corp , 880 F.2d 348 ( 1989 )
pauline-a-mcclary-administratrix-of-the-estate-of-roger-c-mcclary , 786 F.2d 83 ( 1986 )
Dale Walker v. Charles Rowe and David Sandahl , 791 F.2d 507 ( 1986 )
joanne-medeiros-individually-and-as-administratrix-of-estate-of-joshua , 150 F.3d 164 ( 1998 )
australia-johnson-v-a-glick-warden-of-manhattan-house-of-detention-for , 481 F.2d 1028 ( 1973 )
Cope v. State , 108 Idaho 416 ( 1985 )
L.W. v. Dee Grubbs, Thomas Nelson Marlin Hutton Richard ... , 974 F.2d 119 ( 1992 )
Dumond v. Denehy , 145 Conn. 88 ( 1958 )
Strazza v. McKittrick , 146 Conn. 714 ( 1959 )
Floyd v. Fruit Industries, Inc. , 144 Conn. 659 ( 1957 )
Public Utilities Commission v. Pollak , 72 S. Ct. 813 ( 1952 )
Ingraham v. Wright , 97 S. Ct. 1401 ( 1977 )
Daniels v. Williams , 106 S. Ct. 662 ( 1986 )
DeShaney v. Winnebago County Department of Social Services , 109 S. Ct. 998 ( 1989 )
Collins v. City of Harker Heights , 112 S. Ct. 1061 ( 1992 )