MOLINA v. SACRED HEART UNIVERSITY, No. CV08-5015995 S (Apr. 17, 2009)

BELLIS, J.

The matter presently before the court arises out of an intramural flag football game at the William H. Pitt Center facility at Sacred Heart University in Fairfield, Connecticut. The operative complaint is the Revised Complaint dated December 2, 2008 which essentially alleges that on September 20, 2006, the plaintiff, Samuel Molina III, a freshman at Sacred Heart, suffered traumatic injury and damage to the mouth and teeth as a result of an elbow to the mouth by the defendant Colin Price, a senior at Sacred Heart. Also named as defendants in the eight-count revised complaint are Sacred Heart University, Anthony J. Cernera, the president of the University, Gary Reho, the operations manager of the William H. Pitt Center, Elizabeth McGreevy, the director of intramurals, Nicholas Kasal, the assistant director of intramurals, and Richard Deecken, a student at Sacred Heart and captain of its flag football team, "the NY Giants."

On February 5, 2009, the defendant Colin Price filed a motion to strike Count Seven of the Revised Complaint, alleging intentional infliction of emotional distress. The plaintiff filed his objection and supporting memorandum of law on February 18, 2009. The matter was argued at short calendar on April 6, 2009.

Before addressing the merits of this motion, the court sets forth the applicable standard of review.

"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 challenges the legal sufficiency of a CT Page 7027 [complaint] . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). The role of the trial court in ruling on a motion to strike 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). "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). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, supra, 294.

The defendant has moved to strike the seventh count of the revised complaint, on the ground that the plaintiff has failed to specifically allege conduct that would be considered "extreme and outrageous" as required by law. In response, the plaintiff argues that he has sufficiently alleged extreme and outrageous conduct, in light of the nature of the injuries incurred, along with the allegations of aggressive physical contact in the revised complaint.

"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . .

"Liability for intentional infliction of emotional distress requires conduct that exceeds all bounds usually tolerated by decent society . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" . . . Conduct on the part of the defendant that is merely CT Page 7028 insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000). "[I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact finding, but rather is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). "There is no bright line rule to determine what constitutes extreme and outrageous conduct . . . The court looks to the specific facts and circumstances of each case in making its decision . . ." Leone v. New England Communications, Superior Court, judicial district of New Britain, Docket No. CV 010509752 (April 10, 2002, Quinn, J.) (Citations omitted) [32 Conn. L. Rptr. 72].

In the present case, the operative complaint alleges that the defendant, a college student, deliberately used extreme and excessive force against the plaintiff, also a college student, during a recreational no contact flag football game, resulting in serious injury to the plaintiff. The bare bones allegations contained in count seven, even construed most favorably to the plaintiff, do not give rise to facts sufficient to lead an average member of the community to exclaim, "outrageous!"

The plaintiff argues that the court should consider the devastating injuries allegedly sustained by the plaintiff, as well as the allegations relating to the "extremely forceful and aggressive contact" at issue, which, as mentioned above, was an elbow to the mouth. The plaintiff cites to Cole v. Moorehouse, Superior Court, judicial district of New Haven at New Haven, Docket No. 99 0427337 (September 18, 2002, Robinson-Thomas, J.), for the argument that where the allegations include physical conduct, it should be left for the jury to determine whether the physical contact at issue was extreme and outrageous. The Cole case involved allegations of physical contact and threats in the context of an employment relationship between the plaintiff and the defendant, who was her supervisor. See also Arnold v. Thermospas, Inc., Superior Court, judicial district of New Britain at New Britain, Docket No. 04 0527180 (November 2, 2004, Murray, J.) (denying motion to strike, where the complaint contained allegations of physical restraint in the context of CT Page 7029 an employment relationship).

The plaintiff's argument, while interesting, is not persuasive. The Cole, and Arnold, cases both involve subordinate relationships; the conduct at issue in the present case not only took place on a sports field, but also took place on a level playing field. Here, both the plaintiff and defendant were college students, and voluntary participants in a football game, albeit a flag football game. While the complaint does allege that the flag football game was non-contact, and the court therefore assumes that both tackling and blocking are prohibited, even non-contact flag football involves physical activity and/or contact such as leaping up for a pass, the grabbing of flags which frequently necessitates physical contact with an opponent's mid-section, and the like. As always, the nature of the alleged extreme and outrageous conduct must be considered in the context of the relationship between the parties and the situation existing at the time. An elbow to the mouth may be unwanted physical contact but is nonetheless a not unexpected happening in a football game; the same allegations — an elbow to the mouth — may very well be considered extreme and outrageous in another context, such as in the classroom between a teacher and a student. This allegation, standing alone, is insufficient to satisfy the requirement that conduct is extreme and outrageous in a claim for intentional infliction of emotional distress. CF. O'Donnell v. Corte, Superior Court, judicial district of New Haven at New Haven, Docket No. 07 5012829 (November 15, 2007, Licari, J.) (denying motion to strike, where complaint alleged unwanted physical and personal contact and sexual harassment in an employment relationship; stating "[a]s already noted each case stands on its own unique facts. The relationship of the parties here is . . . unequal. This plaintiff is more vulnerable on paper at least. The physical contact here was persistent and egregious"); Lamothe v. Russell, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 07 4022729 (March 25, 2008, Bellis, J.) (denying motion to strike where complaint alleged, in context of employment relationship, frequent verbal harassment and abuse coupled with physical conduct including the defendant's throwing objects and/or near the plaintiff and grabbing a cigarette out of her hands and/or mouth while screaming at the plaintiff).

In the context as alleged, the allegations contained in count seven of the complaint do not give rise to extreme, outrageous, or indecent conduct intolerable by society sufficient to withstand a motion to strike. Do the allegations give rise to conduct that may be considered unsportsmanlike? Yes. However, they simply do not give rise to the level of conduct where an average citizen would be outraged.

CT Page 7030 For the foregoing reasons, the defendant's motion to strike is granted.

CT Page 7031