Summary
In Nordling v. Harris, 1996 Ct. Sup. 5281, August 7, 1996, (Levin, J.), the plaintiff wife, in a loss of consortium claims in her husband's criminal negligence suit, claimed damages due to her chronic fatigue syndrome.
Summary of this case from Wainwright v. WainwrightOpinion
No. 329660
August 7, 1996
MEMORANDUM FILED AUGUST 7, 1996
The plaintiffs, Paul F. Nordling and Debra Lamont Nordling, have filed a four count amended complaint against the defendants, Leah K. Harris, Elrac, Inc. (Elrac) and Enterprise Rent-A-Car Co. (Enterprise). They allege negligence against Harris, liability pursuant to General Statutes § 14-154a against Elrac and Enterprise, and loss of consortium on behalf of Debra Lamont Nordling against Harris in count three, and Elrac and Enterprise in count four.
The plaintiffs allege that on January 25, 1994, Paul Nordling, while operating his motor vehicle, was stopped and waiting to make a left turn from the westbound lane of the Post Road East in Westport, Connecticut, when his vehicle was struck in the rear by a vehicle operated by Harris, causing him to sustain injuries. They further allege that Harris was operating the vehicle as lessee, pursuant to a rental agreement between the defendants. The plaintiffs also allege that Debra Lamont Nordling is married to Paul Nordling, and that as a result of Paul Nordling's injuries she has been deprived of consortium and has suffered chronic fatigue syndrome.
On June 14, 1996, Elrac and Enterprise have filed a motion to strike paragraphs fifteen through eighteen of count four of the plaintiffs' complaint on the ground that a claim of chronic fatigue syndrome is not a proper element of a loss of consortium claim. On the same date, Harris also filed a motion to strike paragraphs twelve through fifteen of the third count of the plaintiffs complaint on the same ground.
"`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." In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff.' (Citations omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988)." Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992). "`This includes the facts necessarily implied and fairly provable under the allegations . . . It does not include, however, the legal conclusions or opinions stated in the complaint . . . Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 111, 585 A.2d 1263 (1991); see Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980). If facts provable in the complaint would support a cause of action, the motion to strike must be denied. Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 550-51, 324 A.2d 919 (1973).' (Internal quotation marks omitted.) Westport Bank Trust Co. v. Corcoran, Mallin Aresco, 221 Conn. 490, 495-96, 605 A.2d 862 (1992)." S.M.S. Textile v. Brown, Jacobson, Tillinghast, Lahan and King, P.C., 32 Conn. App. 786, 796, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982): Mora v. Aetna Life Casualty Ins. Co., 13 Conn. App. 208, 211, 535 A.2d 390 (1988)." Novametrix Medical Systems v. BOC Group, Inc., supra, 224 Conn. 215.
Under prior case law and earlier versions of the Practice Book, it was generally improper to demur to a paragraph of a complaint unless the paragraph purported to state a separate cause of action. See, e.g., Northrop v. Clinton, 14 Conn. Sup. 28, 31 (1946): Practice Book, 1951 § 96. Since 1978, however, the Practice Book has not contained such a constraint. See Practice Book § 152(1). In any event, the issue has not been raised by the plaintiff.
The defendants maintain that certain paragraphs in counts three and four containing allegations that Debra Nordling has suffered chronic fatigue syndrome are not recoverable under a cause of action in loss of consortium. The plaintiffs argue that Debra Nordlings chronic fatigue syndrome has arisen as a consequence of her husband's bodily injury and, therefore, is recoverable under an action for loss of consortium.
"The term `consortium' is usually defined as encompassing the services of the wife, the financial support of the husband, and the variety of intangible relations which exist between spouses living together in marriage. Prosser, Torts (4th Ed. 1971) § 124, pp. 881-82. These intangible elements are generally described in terms of `affection, society, companionship and sexual relations.' Comment, `The Action for Loss of Consortium in New Mexico,' 2 N.Mex.L.Rev. 107, 108 (1972). These intangibles have also been defined as the `constellation of companionship, dependence, reliance, affection, sharing and aid which are legally recognizable, protected rights arising out of the civil contract of marriage.' Brown v. Kistleman, 177 Ind. 692, 98 N.E. 631 (1912); Lippman, `The Breakdown of Consortium,' 30 Colum.L.Rev. 651 (1930); Pound, `Individual Interests in the Domestic Relations,' 14 Mich.L.Rev. 177 (1916); Holbrook, `The Change in the Meaning of Consortium,' 22 Mich.L.Rev. 1 (1923)." Hopson v. St. Mary's Hospital, 176 Conn. 485, 487, 408 A.2d 260 (1979). "A cause of action for loss of consortium does not arise out of a bodily injury to the spouse suffering the loss of consortium; it arises out of the bodily injury to the spouse who can no longer perform the spousal functions. Hopson v. St. Mary's Hospital, supra, 494; United Services Auto Assn. v. Warner, supra, 964; Thompson v. Grange Ins. Assn., 34 Wash. App. 151, 161-62, 660 P.2d 307 (1983)." (Emphasis added.) Izzo v. Colonial Penn. Ins. Co., 203 Conn. 305, 312, 524 A.2d 641 (1987). Furthermore, "[l]oss of consortium, although a separate cause of action, is not truly independent, but rather derivative and inextricably attached to the claim of the injured spouse." Id.
Chronic fatigue syndrome has been defined as a condition of unknown cause whose chief symptom is a debilitating weakness with no improvement after bed rest. The syndrome also involves psychiatric factors, including depression. See Mende v. Collins, Superior Court, judicial district of New London at Norwich, No. FA-87-0088175 (1991). Since emotional distress or mental anguish is a type of personal injury; cf. Kilduff v. Adams, Inc., 219 Conn. 314, 337-38, 593 A.2d 478 (1991); the plaintiffs' allegations in the paragraphs sought to be stricken focus on injuries suffered to the Debra Nordling, not the loss arising out of the spouse who allegedly can no longer perform spousal functions. To hold otherwise would improperly expand the parameters of a claim for loss of consortium and would undermine substantive rules of law circumscribing the conditions under which recovery may be had for emotional distress. See, e.g., Clohessy v. Bachelor, 237 Conn. 31, 51-56 (1996) (conditions for recovery for bystander emotional distress); DeLaurentis v. New Haven, 220 Conn. 225, 266-67, 597 A.2d 807 (1991) (conditions for recovery for intentional infliction of emotional distress); Morris v. Hartford Courant Co., 200 Conn. 676, 683-84, 513 A.2d 66 (1986) (conditions for recovery for unintentionally-caused emotional distress).
Curiously, of the six cases in which chronic fatigue syndrome has been mentioned, all have been actions seeking a dissolution of marriage and four have arisen in the judicial district of Fairfield. See Fabian v. Craig, Superior Court, judicial district of Waterbury, No. FA94-0121935 (1995): Kelly v. Kelly, Superior Court, judicial district of Fairfield, No. 280457 (1992): Michel v. Michel, Superior Court, judicial district of Fairfield, No. FA 279503 (1992): Anastasiou v. Anastasiou, Superior Court, judicial district of Fairfield, No. FA89-0264843, 4 CONN. L. RPTR. 576 (1991) Mende v. Collins, supra: Michel v. Michel, Superior Court, judicial district of Fairfield, No. CT Page 5284-A FA91-0279503 (1991).
As our supreme court has aptly observed in holding that there is no action for emotional distress caused by observing the consequences of medical malpractice: "While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the rippling of waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree." Maloney v. Conroy, 208 Conn. 392, 401-02, 545 A.2d 1059 (1988), quoting Tobin v. Grossman, 24 N.Y.2d 609, 619, 249 N.E.2d 419, 301 N.Y.S.2d 554 (1969).
The motions to strike are granted.
LEVIN, J.