MEMORANDUM OF DECISION RE MOTION TO STRIKE (104.00)
REED, J.
*1 Pending before the court is the defendants’ motion to strike (104.00), which argues that the plaintiffs’ claims for emotional distress arising from the death of their pet dog are not valid under Connecticut law. In opposition, the plaintiffs contend that the leading appellate case on this subject, Myers v. Hartford, 84 Conn. App. 395, 402, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004), left open the possibility of a viable claim for emotional distress damages in the circumstances alleged here and, thus, the complaint states legally sufficient causes of action. The court heard oral argument on September 26, 2022, and now issues the following decision.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The incident giving rise to this action occurred on April 9, 2021, when a driver for the defendant, These Guys New York Deli Corp. d/b/a Amazon Delivery, ran over the plaintiffs’ pet dog, “Lily,” while making a delivery at their home in Ridgefield, Connecticut. According to the complaint, the plaintiff, Neil Brisson, witnessed the defendant speed down the driveway, strike, drag and eventually kill Lily, leaving behind her dismembered remains. He alleges that he “witnessed this horrific incident and rushed to the side of his family pet, observing her last movements before she succumbed to her injuries.” Co-plaintiff, Margaret Brisson, did not witness these events, but her husband showed her Lily's remains with only her head exposed “so that she could say goodbye to her faithful and loving companion, whom the Brissons had raised as a puppy and developed a bond that lasted more than a decade.”
Count One of the plaintiffs’ complaint sounds in negligence and seeks recovery for “the death and destruction of their family pet, the destruction of the deep, familial bond between the plaintiffs and their companion and significant property damage from striking, dragging and eviscerating the families’ pet down their driveway,” for “emotional distress” and “out-of-pocket expenses for property damage and the destruction of their family pet.” Count Two asserts a claim for bystander emotional distress because of the defendants’ alleged conduct and Count Three seeks damages in recklessness for the injuries and damages alleged in counts one and two. The pending motion requires the court to decide whether the plaintiffs may recover emotional distress damages in Count One, for bystander emotional distress in Count Two and emotional distress damages under a recklessness theory in Count Three.
ANALYSIS
1. Legal Standard
“Whenever any party wishes to contest ... (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein” that party may do so by filing a motion to strike the contested pleading or part thereof. Practice Book § 10-39 (a). “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 [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], [and] 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, 281 Conn. 294. “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.) Bridgeport Harbour Place I, LLC v. Ganim, 111 Conn. App. 197, 203, 958 A.2d 210 (2008), aff'd, 303 Conn. 205, 32 A.3d 296 (2011).
2. Recovery of Damages for Death or Injury to Pet Dog
*2 A dog is a chattel. Angrave v. Oates, 90 Conn.App. 427,430 n. 3, 876 A.2d 1287 (2005). “All dogs are deemed to be personal property.” General Statutes § 22-350. Our statutes define a “companion animal” as “a domesticated dog or cat that is normally kept in or near the household of its owner or keeper and is dependent on a person for food, shelter and veterinary care....” § 22-351a (a). Because our law unambiguously defines a dog as personal property, the law is clear that the recoverable damages for its injury or death are limited. See §§ 22-351a (b), 22-357 (3) (allowing recovery of costs for veterinary care, the fair monetary value of the companion animal and burial expenses for the companion animal). Accordingly, those portions of count one and count three that seek recovery of economic damages for the death of the plaintiffs’ pet dog are legally sufficient.
However, when it comes to noneconomic damages such as emotional distress, Myers noted that “[l]abeling a pet as property fails to describe the emotional value human beings place on the companionship that they enjoy with such an animal. Although dogs are considered property ... this term inadequately and inaccurately describes the relationship between an individual and his or her pet. That having been said, there is no common-law authority in this state that allows plaintiffs to recover noneconomic damages resulting from a defendant's negligent or intentional act resulting in the death of a pet....” (Citation omitted.) Myers v. Hartford, supra, 84 Conn. App. 402.1
Myers went on to note that “[o]ur common law has never recognized a right to sue an individual for intentional or negligent infliction of emotional distress resulting from injury to such property as a pet.” Id. “[T]here is no common-law authority in this state that allows plaintiffs to recover noneconomic damages resulting from a defendant's alleged negligent or intentional act resulting in the death of a pet.... Furthermore, various public policy concerns discourage us from recognizing a right to such a claim.” Id. In addition, “[b]ecause our common law has not extended the right to sue for damages for the [loss of a child or spouse] when the plaintiff has not witnessed the fatal injury, it would be incongruous to extend it to emotional distress resulting to a person from the loss of a pet.” Id., 403.
The court reads Myers as unambiguous and controlling authority that bars claims for negligent and intentional emotional distress in connection with the death of a pet dog. Because of its reference to the witnessing of a fatal injury, there is a split of authority among Superior Court judges as to whether Myers also bars a claim of bystander emotional distress by the owner of a pet. Compare Vaneck v. Cosenza-Drew, Superior Court, judicial district of Middlesex, Docket No. CV-08-5003942-S (April 20, 2009, Rubinow, J.) (47 Conn. L. Rptr. 702) (“While precluding a general cause of action for intentional or negligent infliction of emotional distress ...Myers did not expressly foreclose a claim of severe emotional distress suffered by a bystanding owner who witnesses the fatal injury to a pet.” [Emphasis added.]) with Bonilla v. Connecticut Veterinary Center, Inc., Superior Court, judicial district of Hartford, Docket No. CV-13-6040848-S (December 18, 2013, Wiese, J.) (57 Conn. L. Rptr. 335) (“In the present case, the plaintiff ... fails to meet the elements for bystander emotional distress[.]”). In Miller v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV-18-6079834, n. 4, (May 28, 2019, Wilson, J.) (68 Conn. L. Rptr. 624), the court recognized that Myers did not expressly prohibit claims for bystander emotional distress when a plaintiff is a bystander and witnesses his pet's fatal injury, but declined to follow Vaneck because the plaintiff in Miller did not allege that she witnessed her dog's injuries. Even more recently, Judge Shah adopted the reasoning in Vaneck and declined to strike a count for bystander emotional distress in which the plaintiff alleged that she witnessed her dog's injury. Field v. Astro Logistics, LLC, Superior Court, judicial district of Middlesex at Middletown, Docket No. MMX-CV-22-6033510-S (June 30, 2022, Shah, J.)
*3 Our Supreme Court has held 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.” (Emphasis added.) Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996).
Our courts have looked at several factors in deciding whether a bystander was “closely [enough] related” to a victim to maintain a cause of action for bystander emotional distress. See Yovino v. Big Bubba's BBQ, LLC, 49 Conn. Supp. 555, 565, 896 A.2d 161 (2006). The “closely related” analysis examines “whether [the parties] have a close relationship that is stable, enduring, substantial, and mutually supportive ... cemented by strong emotional bonds and providing a deep and pervasive emotional security.” (Internal quotation marks omitted.) Id. “The inquiry should take into account the duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, the extent and quality of shared experience, and ... whether the plaintiff and the injured person were members of the same household, their emotional reliance on each other, the particulars of their day to day relationship, and the manner in which they related to each other in attending to life's mundane requirements.” (Emphasis added; internal quotation marks omitted.) Id. See also, Carcaldi v. McKenzie, Superior Court, judicial district of Danbury, Docket No. CV-13-6013956-S (April 24, 2014, Roraback, J.) (chronicling definitions of the word “relation” and “relative”). Ultimately, however, Clohessy left for “another day the question of what other relationships [beyond those of parent or sibling] may qualify” to pursue a claim for bystander emotional distress. Clohessy v. Bachelor, supra, 237 Conn. 52.
The court is not persuaded by Vaneck and Field, because the relationship between a pet owner and a pet does not meet the ‘closely related’ element of Clohessy, as that case appears to restrict this element to the close relationship between a parent and a child or between siblings. Absent appellate clarification that this factor includes other relationships, including the one at issue here between a pet owner and pet, this court cannot conclude that such a relationship is sufficiently like the close human relationships required under Clohessy.
The defendants argue that adopting the Vaneck and Field lines of authority would amount to creating a new cause of action without legislative or appellate authority. In response, the plaintiff relies on the Field court's rationale that “the plaintiffs’ claims for bystander emotional distress based on a relationship to the dog may be met. In the absence of any limit imposed by our appellate courts, this court will not impose a limit in the law that does not otherwise exist.” Field v. Astro Logistics, supra, Superior Court, Docket No. MMX-CV-22-6033510-S. The court agrees with the defendants. As the court noted in Carcaldi, “[t]he legislature certainly has the prerogative of creating a new cause of action allowing for non-economic damages to be awarded in cases where a beloved animal is killed or injured through the intentional or negligent act of another.2 As pointed out in the plaintiff's supplemental brief, Illinois and Tennessee have already done so. For this court to construe the term ‘related to’ to extend to other than another human being would be in derogation of its fidelity to the principles which limit its authority. ‘A trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent.’ ” Carcaldi v. McKenzie, supra, Superior Court, Docket No. CV-13-6013956-S (April 24, 2014, Roraback, J.), quoting Potvin v. Lincoln Service and Equipment Co., 298 Conn. 620, 650, 6 A.3d 60 (2010).
*4 For the foregoing reasons, the defendants’ motion to strike3 is granted as to the entirety of Count Two and those paragraphs of Count One and Count Three that claim emotional distress.4
All Citations
Not Reported in Atl. Rptr., 2023 WL 370990
Footnotes
1 Connecticut courts have not recognized a cause of action for negligent infliction of emotional distress based solely on damage to property. See, e.g., Blue v. Renassance Alliance., Superior Court, judicial district of New Haven at Meriden, Docket No. CV-05-4001949-S (May 12, 2006, Shluger, J.) (court held that “Connecticut courts do not recognize a cause of action for negligent infliction of emotional distress based solely on damage to property.” See also, Costello v. Yale New Haven Health Services Corp., Superior Court, Judicial District of Fairfield at Bridgeport, Docket No. CV-13-6032324-S (December 13, 2013, Sommer, J.), aff'd, 161 Conn. App. 600, 128 A.3d 607 (2015); Burke v. Boatworks, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-04-4001838 (July 26, 2005, Jennings, J.); Williams v. Feely, Superior Court, judicial district of New London, Docket No. CV-05-5000295-S (October 2, 2006, Hurley J.T.R) (42 Conn. L. Rptr. 168).
2 See, e.g., Commission on Human Rights & Opportunities v. Edge Fitness, 342 Conn. 25, 43, 268 A.3d 630 (2022) (recognizing “the legislature ... as the policy-making branch of our government”).
3 The reasoning set forth by the court for counts one and two is equally applicable to count three, which alleges emotional damages based in recklessness.
4 Connecticut Practice Book § 10-45, “Stricken Pleading Part of Another Cause or Defense”, provides the general rule regarding a court's judicial authority in granting or striking “the whole or any portion of any pleading or count” within a motion to strike. A split of authority exists among Connecticut Superior Court's when deciding whether portions of a single claim within a complaint may be stricken via a motion to strike. A majority of Superior Courts are in favor of a partially striking a single count but in order to do so, a court must first determine “if the motion to strike is procedurally proper.” Adipietro v. Kedersha, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. FBT-CV-18-6073040-S (November 21, 2018, Stewart, J.) (67 Conn. L. Rptr.786). “If the motion to strike has merit as to certain allegations of the complaint [...] the proper course for the court is to strike those allegations only [....]” (Emphasis added.) Cook v. Stender, Superior Court, judicial district of Middlesex, Docket No. CV-04-0104110-S (December 22, 2004, Silbert, J.) (38 Conn. L. Rptr. 439, 440). See Krayeski v. Greenwich Hospital, Superior Court, judicial district of Stamford-Norwalk, Docket No. FST-CV-14-6022177-S (November 24, 2015, Povodator, J.) (61 Conn. L. Rptr. 420) (the court held “that it had been improper to strike an entire count when the relevant count included legally-sufficient allegations as to at least some of the defendants” ... “[t]hus, notwithstanding the complaint/count nomenclature, a motion to strike can be addressed to a portion of a count, so long as it is a portion that articulates a distinct cause of action.” (Emphasis added.).