Parsons v. United Technologies Corp.

BERDON, J.,

concurring in part and dissenting in part. I agree with Justice Norcott’s well reasoned decision that the public policy of this state provides that an employer must provide a reasonably safe workplace for its employees. That public policy is predicated on General Statutes §§ 31-49 and 31-370.1 Indeed, § 31-49, which provides in relevant part that an employer must provide its employees with “a reasonably safe place in which to work,” has its roots in legislation adopted at the turn of this century. See Public Acts 1901, c. 155, § 1 (“[i]t shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work, and fit and competent persons as his colaborers”). Clearly, as Justice Norcott points out, an at-will employee, such as the named plaintiff, Gary F. Parsons (plaintiff), can maintain an action for wrongful discharge resulting from his refusal to subject himself to the danger of an unsafe workplace. I also agree with Justice Norcott that sufficient facts have been alleged in the first count of the plaintiffs complaint to support a cause of action for wrongful discharge.

In my view, sufficient facts were also alleged by the plaintiff in count two to support a cause of action for *100intentional infliction of emotional distress and in count three for negligent infliction of emotional distress.2 It first should be noted that in Morris v. Hartford Courant Co., 200 Conn. 676, 681-82 & n.4, 513 A.2d 66 (1986), this court held that in a wrongful termination action by an at-will employee based upon a violation of public policy, “[t]here is nothing in that doctrine ... to preclude an action for . . . infliction of emotional distress based upon unreasonable conduct of the defendant in the termination process.”

It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, “all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” (Emphasis added.) Amodio v. Cunningham, 182 Conn. 80, 83, 438 A.2d 6 (1980). Indeed, pleadings must be construed “broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Edwards v. Tardif, 240 Conn. 610, 620, 692 A.2d 1266 (1997). The defendant, in order to protect itself from broad based allegations, need only file a request to revise pursuant to § 147 of the rules of practice, in order to compel the plaintiff to amend his pleading for “a more complete or particular statement of the allegations” of the complaint. If the more specific statement had been requested and complied with “the defendants would then have been in a position to move to strike any count of the plaintiffs revised complaint pertaining to [the] respective [liability] for which the plaintiff was unable to allege the necessary prerequisites.” Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988). The named defendant, United Technologies Corporation, Sikorsky Aircraft Division (defendant), failed to do this in this case.

*101It is well settled that, in order to state a claim of intentional infliction of emotional distress, “[i]t 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 plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe.” (Internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986).

The allegations of the second count of the plaintiffs complaint establish a cause of action for intentional infliction of emotional distress. First, the plaintiff alleges that the defendant acted intentionally. Second, the plaintiff alleges that he was discharged because of his refusal to follow the defendant’s order to place himself in a situation of extreme danger, which a trier of fact could find constitutes outrageous conduct on the part of the defendant. Finally, the plaintiff sufficiently alleged that the defendant’s extreme and outrageous conduct caused him to suffer from severe distress — nervous disorder, sleeplessness and profound episodes of anxiety. Accordingly, this court should reverse the trial court’s decision granting the defendant’s motion to strike the second count.

The plaintiff pleaded sufficient facts to establish a cause of action for negligent infliction of emotional distress. In order to state a valid claim for negligent infliction of emotional distress, the plaintiff must plead 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.” Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978).

*102Taking as true the facts set forth in count three, it is clear that the plaintiff has sufficiently alleged a valid claim of unintentional infliction of emotional distress. Specifically, on the basis of the plaintiffs pleadings, the defendant should have realized that terminating the plaintiffs employment two hours after he had expressed his desire not to go to Bahrain, and immediately removing the plaintiff from the building under security escort, involved an unreasonable risk of causing emotional distress and that that distress might result in illness or bodily harm. In my view, these allegations are sufficient to survive a motion to strike and, therefore, this court should reverse the trial court’s decision granting the defendant’s motion to strike the third count.

Accordingly, I concur with respect to part I of Justice Norcott’s opinion, but I disagree with respect to parts II and m.

APPENDIX

“SEVENTH REVISED AMENDED COMPLAINT “FIRST COUNT

“1. The plaintiff, Gary F. Parsons, was employed as an Instructor of Aircraft Maintenance by the defendant, Sikorsky Aircraft Division, from August 29, 1986, to September 18, 1990.

“2. The defendant, Sikorsky Aircraft Division, United Technologies Corporation (hereinafter ‘Sikorsky’), is a Delaware Corporation engaged in the business of manufacturing, distributing and servicing helicopters and other related products.

“3. Robert H. Osborn (hereinafter ‘Osborn’), was at all relevant times an employee of Sikorsky and was at all times acting as an agent of Sikorsky.

*103“4. In September, 1990, Gary F. Parsons, was a member of a Sikorsky project team which had built a nonmilitary helicopter for the Crown Prince of Bahrain.

“5. On September 11, 1990, Osborn assigned Gary F. Parsons to instruct several members of the Bahrain helicopter crew regarding the proper repair and maintenance of the helicopter. Such instruction was to be given in the United States.

“6. The following day, September 12, 1990, Gary F. Parsons was told by Osborn that Mr. Parsons would instead be required to travel to the ‘Headquarters, Bahrain Defense Force,’ a military installation located near the capital city, and the main staging areas for Allied warplanes on the island of Bahrain, on or about September 20, 1990. Mr. Parsons was to give instruction, sleep and eat all his meals at this one installation in order to implement the repair and maintenance program to the Bahrain crew. He was at all times acting within the scope of his employment, both during his transportation to and from the airbase, and while teaching and residing at the airbase facility.

“7. On or about September 13,1990, Gary F. Parsons became aware of a warning issued by the United States Department of State, effective on that date and on all relevant dates subsequent thereto, and provided to Mr. Parsons via telephonic message from the Department of State.

“That warning stated:

“ ‘TRAVEL ADVISORY

United States Department of State Bureau of Consular Affairs Washington, D.C. 20520 Persian Gulf — Warning

“ ‘Persian Gulf (Including Qatar, Bahrain, the United Arab Emirates, and the eastern province of Saudi Arabia) — WARNING.

*104“ ‘This replaces the previous advisory, dated August 7, 1990:

“ ‘Due to the Iraqi military invasion of Kuwait and continuing unstable conditions in the region, the Department of State advises all Americans to defer all non-essential travel to the eastern province of Saudi Arabia, and to Qatar, Bahrain and the United Arab Emirates. The Department is permitting dependents of U.S. government officials to depart the area on a voluntary basis. The Department of State advises other American citizens in the area to consider doing the same. Note that this advisory applies only to the eastern province, not the rest of Saudi Arabia.’

“8. On September 17, 1990, Gary F. Parsons and the defendant Robert H. Osborn met to confirm that the travel warning remained in effect, and to discuss the increased terrorist activities in the proposed area of travel as evidenced by contemporaneous news reports in both the printed and electronic media.

“9. That on September 18, 1990, Gary F. Parsons informed the defendant, via written memo, that due to the threat of imminent danger, and risk to Mr. Parsons’ personal safety, health, and welfare as evidenced in part by the travel warning issued by the State Department, and in part by the crisis in the Persian Gulf region which prevailed at the time, Mr. Parsons refused to travel to Bahrain.

“10. The defendant Sikorsky immediately terminated the employment of Gary F. Parsons when he refused to perform a dangerous, possibly fatal, work assignment.

“11. The defendant and Mr. Parsons did not have an employment contract as between them.

“12. The defendant’s wrongful termination of Mr. Parsons was demonstrably improper and in violation of the State of Connecticut’s public policy requiring an *105employer to exercise reasonable care to provide employees with a reasonably safe place to work. This public policy is demonstrated and enumerated by Connecticut General Statutes § 31-370, Duties of employer and employee, which states: ‘(a) Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees’; and by [General Statutes §] 31-49, Care required of a master for his servant’s safety, which states: ‘It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work. . . .’

“This policy is further demonstrated and enumerated by: [General Statutes §] 16a-100, Declaration of policy (Atomic Energy); [General Statutes §] 29-307a, Hazardous materials; [General Statutes §] 29-390, Factory fire escapes; [General Statutes §] 29-408, Safety measures to be provided; [General Statutes §] 31-10, Safety inspectors; [General Statutes §] 31-24, Hazardous employment; [General Statutes §] 31-38a, Sanitary, lighting and heating facilities for railroad employees; [General Statutes §] 31-40c, Carcinogens used in workplace; [General Statutes §] 31-40g, Substance hazardous to reproductive systems; [General Statutes §] 31-40j et seq., Toxics in workplace; [General Statutes §] 31-40q, Smoking in workplace; [General Statutes §] 31-40t, Employees right to act in case of hazardous conditions; [General Statutes §] 31-45a, Protection of feet; [General Statutes §] 31-46, Safety regulations for workers in building operations; [General Statutes §] 31-51d, Labor commissioner’s powers and duties; [General Statutes §] 31-51x, Drug testing; [General Statutes §] 31-58 (c), ‘Fair wage’ defined; [General Statutes §] 31-371 (b), Regulations; [General Statutes §] 31-372 (f), Adoption of federal and state standards; [General Statutes §] 31-374 (e), Inspections and investigations; [and General Statutes §] 46a-60 (a) *106(20), Hazards to pregnant employees. Mr. Parsons’ expressed desire not to enter the Persian Gulf region at that time was an attempt to further that policy.

“13. As a result of the wrongful termination by the defendant, Mr. Parsons was unemployed for a considerable length of time and, as a result, suffered lost wages.

“14. Also as a result of the wrongful termination the plaintiff secured employment at a rate of pay which was substantially less than what he had earned, and would have earned, at Sikorsky. The plaintiff also suffered the loss of all the benefits (medical, pension, etc.), which the plaintiff would have enjoyed absent the defendant’s wrongful termination.

“15. As a further result of the defendant’s wrongful termination, and in an attempt to mitigate his damages, the plaintiff removed himself and his family from Connecticut, incurring substantial costs and suffering significant financial losses.

“SECOND COUNT

“1-10. Paragraphs 1 through 10 of the FIRST COUNT are hereby incorporated as Paragraphs 1 through 10 of this the SECOND COUNT.

“11. The defendant’s termination of the plaintiff was wrongful in that it violated the public policy of the State of Connecticut requiring an employer to exercise reasonable care to provide employees with a reasonably safe place to work.

“12. The immediate termination of Mr. Parsons by the defendant constituted extreme and/or outrageous conduct in that the defendant knew or should have known that said termination was wrongful.

“13. The extreme and/or outrageous conduct of the defendant in wrongfully terminating the plaintiff was *107conduct which intentionally or recklessly caused Mr. Parsons severe emotional distress.

“14. As a result of the defendant’s wrongful termination of the plaintiff, Mr. Parsons has suffered from nervous disorder, sleeplessness and profound episodes of anxiety.

“THIRD COUNT

“1-10. Paragraphs 1 through 10 of the FIRST COUNT are hereby incorporated as Paragraphs 1 through 10 of this the THIRD COUNT.

“11. The defendant’s termination of the plaintiff was wrongful in that it violated the public policy of the State of Connecticut requiring an employer to exercise reasonable care to provide employees with a reasonably safe place to work.

“12. That as a result of the defendant’s wrongful termination of the plaintiff, Gary F. Parsons did suffer from the unintentional infliction of emotional distress in that the defendant Sikorsky should have realized that terminating the plaintiffs employment two hours after he expressed his desire not to go to Bahrain, and immediately removing the plaintiff from the building under security escort, involved an unreasonable risk of causing emotional distress and that that distress might result in illness or bodily harm.

“13. As a result of the defendant’s conduct surrounding the wrongful termination of the plaintiff, Mr. Parsons has suffered nervous disorder, sleeplessness and profound episodes of anxiety.

“WHEREFORE, the plaintiff claims:

“1. Money damages;

“2. Punitive damages;

*108“3. Attorney’s fees and costs for the bringing of this action; and

“4. All other relief that in equity the court deems proper.

PLAINTIFFS,

GARY F. PARSONS ET AL.”

Even if we did not have a statute setting forth this public policy, I would still conclude that such a public policy exists. See Faulkner v. United Technologies Corp., 240 Conn. 576, 581, 693 A.2d 293 (1997) (in evaluating claims of wrongful discharge, court may consider “whether [the plaintiff] alleged that his dismissal contravened any judicially conceived notion of public policy”). Furthermore, I point out that, although Justice Borden and Chief Justice Callahan dissent on this issue based upon a claim of insufficient factual allegations, they do not dispute the public policy of the state that an employer must furnish a reasonably safe workplace. Moreover, they do not dispute that an at-will employee who is terminated for refusing to work in such an unreasonably unsafe workplace may maintain an action for wrongful discharge.

See the appendix to this concurring and dissenting opinion for the plaintiffs seventh revised amended complaint, the complaint upon which the trial court rendered judgment in favor of the named defendant.