Ross v. Doe et al

Filing 36

ORDER: Ruling on The Motion to Dismiss (Doc. No. 22 ). Signed by Judge Alvin W. Thompson on 3/4/2013. (Gallagher, Robyn)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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MARTIN ROSS,
:
:
Plaintiff,
:
:
v.
:
:
CITY OF HARTFORD, ROBERT
:
FOGG, JR., and DONALD LINDE, :
:
Defendants.
:
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CASE NO. 3:12CV00141(AWT)

RULING ON THE MOTION TO DISMISS
The defendants, the City of Hartford, Robert Fogg, Jr. and
Donald Linde, have moved to dismiss those portions of the Amended
Complaint that state claims for false arrest or malicious
prosecution and negligent infliction of emotional distress.

The

plaintiff, Martin Ross, states that he is not asserting a claim
for either false arrest or malicious prosecution and therefore
the motion is moot as to those points.

For the reasons set forth

below, the motion to dismiss the claim for negligent infliction
of emotional distress within the Third Count of the Amended
Complaint is being denied.
I.

FACTUAL ALLEGATIONS
“The complaint, which [the court] must accept as true for

purposes of testing its sufficiency, alleges the following
circumstances.”

Monsky v. Moraghan, 127 F.3d 243, 244 (2d Cir.

1997).

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On January 3, 2010, the plaintiff drove from Waterbury to
Hartford to pick up his girlfriend.

They had a verbal

altercation which resulted in her leaving him in Hartford.

At

some point thereafter, the plaintiff was approached by a police
cruiser being driven by defendant Fogg.
the officer.

The plaintiff fled from

After about ten minutes, a second police cruiser,

driven by defendant Linde, intercepted the plaintiff.

The

plaintiff put his hands in the air and stated words to the effect
of "I give up, you got me."

From this point on, the plaintiff

offered no resistence and was fully compliant with orders by the
police officers.

When defendant Fogg arrived and got out of his

cruiser, he violently charged the plaintiff, knocking him to the
ground.

Fogg then sprayed pepper spray in the plaintiff's face

and began to beat him around the face, head, shoulders, back and
legs with his fists and hard blunt objects.
assisted Fogg in beating the plaintiff.

Defendant Linde

The plaintiff lost

consciousness, and when he regained consciousness an ambulance
had arrived.
At the hospital, the plaintiff was treated for head
injuries.

However, before the hospital could treat injuries to

his shoulder, wrist, ring finger and front tooth the officers
instructed hospital employees to cease treatment because the
plaintiff had to be transported to the police station.
There was a hearing the next day before a judge.

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The matter

was continued until early February.

During his time in custody,

the plaintiff received no further medical treatment.

The

plaintiff suffered permanent injury to his head, front tooth and
ring finger.

In addition, he continues to suffer from headaches,

sleeplessness, nightmares, anxiety and mental and emotional
distress.
II.

LEGAL STANDARD
When deciding a motion to dismiss under Rule 12(b)(6), the

court must accept as true all factual allegations in the
complaint and must draw inferences in a light most favorable to
the plaintiff.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Although a complaint “does not need detailed factual allegations,
a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”

Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007), citing Papasan v. Allain, 478 U.S. 265,
286 (1986)(on a motion to dismiss, courts “are not bound to
accept as true a legal conclusion couched as a factual
allegation”).

“Nor does a complaint suffice if it tenders 'naked

assertion[s]' devoid of 'further factual enhancement.'"

Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Twombly, 550 U.S. at
557).

“Factual allegations must be enough to raise a right to

relief above the speculative level, on the assumption that all

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allegations in the complaint are true (even if doubtful in
fact).”

Twombly, 550 U.S. at 555 (citations omitted).

However,

the plaintiff must plead “only enough facts to state a claim to
relief that is plausible on its face.”

Id. at 570.

“The

function of a motion to dismiss is ‘merely to assess the legal
feasibility of the complaint, not to assay the weight of the
evidence which might be offered in support thereof.’”

Mytych v.

May Dept. Store Co., 34 F. Supp. 2d 130, 131 (D. Conn. 1999),
quoting Ryder Energy Distribution v. Merrill Lynch Commodities,
Inc., 748 F.2d 774, 779 (2d Cir. 1984).

“The issue on a motion

to dismiss is not whether the plaintiff will prevail, but whether
the plaintiff is entitled to offer evidence to support his
claims.”

United States v. Yale New Haven Hosp., 727 F. Supp.

784, 786 (D. Conn. 1990) (citing Scheuer, 416 U.S. at 232).
III. DISCUSSION
The defendants argue that the claim in the Third Count for
negligent infliction of emotional distress must be dismissed for
two reasons: first, the complaint was filed outside the statute
of limitations, and second, the complaint makes claims for both
negligent and intentional infliction of emotional distress based
on the same underlying conduct.
A.

Statute of Limitations

Conn. Gen. Stat. § 52-584 imposes a two year statute of
limitations for negligence actions.

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"No action to recover

damages for injury to the person . . . caused by negligence . .
.shall be brought but within two years from the date when the
injury is first sustained or discovered or in the exercise of
reasonable care should have been discovered. . ."
Stat. § 52-584.

Conn. Gen.

The Connecticut Supreme Court has held that, in

determining whether the statute of limitations has expired, the
term injury within Conn. Gen. Stat. § 52-584 is synonymous with
"actionable harm."
(2004).

Tarnowsky v. Socci, 271 Conn. 284, 288

"'Actionable harm' occurs when the plaintiff discovers,

or in the exercise of reasonable care, should have discovered the
essential elements of a cause of action."

Id.

Furthermore, 'actionable harm' may occur when the
plaintiff has knowledge of facts that would have put a
reasonable person on notice of the nature and extent of
an injury, and that the injury was caused by the
negligent conduct of another. In this regard, the harm
complained of need not have reached its fullest
manifestation in order for the limitation period to begin
to run; a party need only have suffered some form of
'actionable harm.' Finally, the determination of when a
plaintiff in the exercise of reasonable care should have
discovered 'actionable harm' is ordinarily a question for
the trier of fact.
Id.
To prevail on a claim of negligent infliction of
distress, the plaintiff is required to prove that "(1)
the defendant's conduct created an unreasonable risk of
causing the plaintiff emotional distress; (2) the
plaintiff's distress was foreseeable; (3) the emotional
distress was severe enough that it might result in
illness or bodily harm; and (4) the defendant's conduct
was the cause of the plaintiff's distress."
Hall v. Bergman, 296 Conn. 169, 182 n. 8 (2010) (quoting Carrol

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v. Allstate Ins. Co., 262 Conn. 433, 444 (2003)).
The defendants argue that the complaint in this action was
filed after the statute of limitations had expired because the
alleged beating occurred on January 3, 2010 and the complaint was
not filed until January 30, 2012.

In order for the limitations

period to begin to run, the plaintiff either must have
discovered, or have been in a position where through the exercise
of reasonable care he should have discovered, each of the
essential elements of a cause of action for negligent infliction
of emotional distress.

One of the elements of the cause of

action is that the emotional distress caused him by the
defendants was so severe that it might result in illness or
bodily harm.

The Amended Complaint alleges that although the

plaintiff received hospital care on January 3, 2010, due to the
conduct of the officers that hospital care was not sufficient to
treat all of his injuries.

The Amended Complaint also alleges

that the plaintiff was in custody until early February 2010 and
did not receive further treatment during the time he was in
custody.

It would be reasonable (1) for the plaintiff not to

have discovered the permanent nature of injuries to his head,
front tooth and ring finger as a result of the conduct of the
officers until he was released in February and received further
medical care, and (2) the plaintiff's emotional distress not to
have occurred until after he learned of the permanent nature of

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his injuries.

Drawing all inferences in the plaintiff's favor,

he may have discovered, or reasonably should have discovered,
that his distress was such that it could result in illness or
bodily harm after January 30, 2010.
B.

Pleading in the Alternative

The defendants rely on Frappier v. City of Waterbury, No.
3:07-CV-1457(WWE), 2008 WL 4980362 (D. Conn. Nov. 20, 2008),

for

the principle that "a plaintiff 'may not prevail on a negligence
claim when she has brought claims of intentional use of excessive
force and intentional infliction of emotional distress.'" (Defs
Mem. at *7-8.)

In Terebesi v. Solomon, the court analyzed a

similar contention:
Their first contention - that Plaintiffs cannot allege
both intentional torts and negligence in the alternative
- is incorrect under Connecticut law. Their reliance on
Betencourt v. Slavin, is misplaced for two reasons: first
Betencourt was decided on summary judgment with a more
fully-developed
factual
record,
and
second,
its
determination was based on New York law, under which
"once intentional offensive conduct has been established,
the actor is liable for assault and not negligence, even
when the physical injuries may have been inflicted
inadvertently." In contrast, under Connecticut law, "a
plaintiff is permitted to advance alternative and even
inconsistent theories of liability against one or more
defendants in a single complaint." Johnson v. Schmitz,
119 F. Supp. 2d 90, 101 (D. Conn. 2000); see also Dreier
v. Upjohn Co., 196 Conn. 242, 245 (1985); accord Hanover
Ins. Co. v. Fireman's Fund Ins. Co., 217 Conn. 340, 346
(1991) (absent a showing of prejudice, inconsistent
pleadings are not prohibited).
Terebesi v. Solomon, Civil No. 3:09cv1436(JBA), 2010 WL 3926108
at *10 (D. Conn. Sept. 30, 2012) (internal citations omitted).

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The court agrees with the analysis in Terebesi.
In addition, "this case is in the early stages and discovery
may support a claim for negligence.

It is well established that

a party may plead in the alternative."

Freckleton v. City of

Hartford, No. 3:11CV798 (WWE), 2012 WL 1565127 at *23 (D. Conn.
May 2, 2012).

The court notes that in American National Fire

Ins. Co. v. Schuss, the Connecticut Supreme Court stated that "it
is axiomatic, in the tort lexicon, that intentional conduct and
negligent conduct, although different only in matter of degree
are separate and mutually exclusive."

221 Conn. 768, 775 (1992).

However, that statement in Schuss did not address the pleading
stage of a case but, rather, findings by a jury.
IV.

CONCLUSION
For the reasons set forth above, the Motion to Dismiss (Doc.

No. 22) is hereby DENIED.
It is so ordered.
Dated this 4th day of March, 2013, at Hartford, Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

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