Di Teresi v. Stamford Health System, Inc.

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SANTINA DI TERESI ET AL. v. STAMFORD
HEALTH SYSTEM, INC., ET AL.
(AC 35436)
DiPentima, C. J., and Gruendel and Beach, Js.
Argued February 18—officially released April 15, 2014

(Appeal from Superior Court, judicial district of
Stamford-Norwalk, Tobin, J. [motion to strike]; Hon.
Kevin Tierney, judge trial referee [motions to substitute,
for summary judgment, judgment]; Hon. Frank H.
D’Andrea, Jr., judge trial referee [judgment].)
Richard Lewis, with whom, on the brief, were Ste-
phen A. Finn and Christine D. Salmon, for the appel-
lants (plaintiff Virginia Di Teresi et al.).
Eric J. Stockman, with whom was Corey S. Fitzger-
ald, for the appellees (named defendant et al.).
Opinion

GRUENDEL, J. The plaintiffs, Virginia Di Teresi in
her individual capacity and as executrix of the estate
of her mother, Santina Di Terisi,1 and Emmanuel J. Di
Teresi, executor of the estate of his late mother, appeal
from the summary judgment rendered by the trial court
in favor of the defendant Stamford Health System, Inc.2
On appeal, the plaintiffs claim that the court improperly
concluded that allegations of emotional distress were
insufficient to meet the ascertainable loss requirement
of the Connecticut Unfair Trade Practices Act (CUTPA),
General Statutes § 42-110a et seq. We affirm the judg-
ment of the trial court.
The relevant facts, as previously set forth by this
court, are as follows. ‘‘On March 23, 2004, the named
plaintiff, Santina Di Terisi (Santina), a mostly noncom-
municative ninety-two year old woman suffering from
dementia, advanced Alzheimer’s disease, Parkinson’s
disease, and other ailments, was victimized by a hospital
employee at the defendant Stamford Hospital (hospi-
tal), where she was being treated as a ‘total care patient.’
The assault, perpetrated by a certified nurse’s assistant,
Robert Mayes, occurred at approximately 10 a.m. The
assault was interrupted when a nurse, Latrina Futrell-
Annosier, happened into [Santina’s] hospital room and
discovered the untoward event. Futrell-Annosier,
shocked, retreated from [Santina’s] room after a few
seconds and went to get help. Left alone for a period
of time, Mayes washed [Santina’s] linens and disposed
of her hospital gown, thus eliminating the possibility
of collecting physical evidence from these items. Mayes
was escorted from the hospital at about 11 or 11:30 a.m.
‘‘Santina’s daughter, Virginia Di Teresi (Virginia),
arrived at the hospital at about 2 or 2:30 p.m. . . .
For the next three hours, Virginia sat with her mother.
Unaware that the assault had occurred, Virginia none-
theless noticed that her mother was ‘disturbed, agitated
and restless.’ At about 5 or 5:30 p.m., three hospital
employees came to see Virginia in her mother’s hospital
room, removed her to an office and related to her the
details of what Mayes reportedly had done. At approxi-
mately the same time, hospital employees informed
[Santina’s] primary care physician, Santi Neuberger, of
the assault. . . .
‘‘During the hours between the incident and Virginia’s
being apprised of it, news of the incident made its way
up the hospital’s chain of command. Representatives
from the hospital’s risk management committee, human
resources department and security staff met and dis-
cussed the appropriate response to the alleged assault,
including, specifically, when to contact the Stamford
police. The hospital contacted outside legal counsel,
who advised the hospital to obtain a statement from
Mayes, to report the incident to the police and to con-
duct a rape examination of [Santina].
‘‘Following the advice of its attorneys, the hospital
called Mayes at approximately 3 p.m. and asked him
to return to the hospital. He arrived at about 4 p.m.
and met with the hospital’s head of security and an
employee from human resources, who confronted him
with the nurse’s accusations. Mayes denied the allega-
tions . . . . The Stamford police department was con-
tacted at approximately 4:30 p.m. The hospital
administered a rape kit examination of [Santina] at
approximately 9 p.m.
‘‘Although the basic factual contours of what
occurred on March 23, 2004, are not in dispute, the
parties interpret the hospital’s actions in the hours fol-
lowing the assault quite differently. From Virginia’s per-
spective, the hospital deliberated for an unacceptably
long time before addressing the alleged assault because,
according to Virginia, its ‘primary concern was the nega-
tive impact this assault would have on its reputation
and its potential liability.’ While the hospital considered
only its reputation, Virginia alleged, [Santina] was not
adequately cared for because none of the nurses who
treated her that day were apprised of the assault and
her primary care physician was not contacted until late
in the afternoon. . . . The hospital counters that . . .
investigating an assault of this nature presented ‘an
entirely novel situation.’ As such, the hospital, in its
view, acted deliberately in investigating the claim, in
part to ensure that the rights of Mayes and Futrell-
Annosier were respected.
‘‘On March 22, 2006, Virginia and [Santina] com-
menced this action against the hospital, Stamford
Health System, Inc., and Mayes, asserting nineteen
causes of action . . . .’’ (Footnotes omitted.) Di Teresi
v. Stamford Health System, Inc., 142 Conn. App. 72,
74–78, 63 A.3d 1011 (2013). The defendant thereafter
filed a motion for summary judgment, inter alia, as to
count twelve of the plaintiffs’ complaint, which set forth
the CUTPA claim against the hospital. The court granted
the defendant’s motion for summary judgment, finding
that there was ‘‘no genuine issue of material fact that
any loss of money or property was suffered by nor was
there any personal injury suffered by [Santina]. . . .
[H]er claim of emotional distress as an ascertainable
loss does not meet CUTPA requirements.’’ This
appeal followed.
‘‘[T]he standards governing our review of a trial
court’s decision to grant [or deny] a motion for summary
judgment are well established. Practice Book [§ 17-49]
provides that summary judgment shall be rendered
forthwith if the pleadings, affidavits and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. . . . In deciding a motion
for summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving
party. . . . The party seeking summary judgment has
the burden of showing the absence of any genuine issue
[of] material facts which, under applicable principles
of substantive law, entitle him to a judgment as a matter
of law . . . and the party opposing such a motion must
provide an evidentiary foundation to demonstrate the
existence of a genuine issue of material fact. . . .
Finally, the scope of our review of the trial court’s
decision to grant [or deny] [a] motion for summary
judgment is plenary.’’ (Internal quotation marks omit-
ted.) Santorso v. Bristol Hospital, 308 Conn. 338, 346–
47, 63 A.3d 940 (2013).
The plaintiffs allege that the hospital’s actions vio-
lated CUTPA in that they constituted an unfair practice
in the conduct of trade, business or commerce, and
caused Santina to suffer an ascertainable loss of money
or property. They state that Santina suffered such ascer-
tainable loss when the hospital failed to provide her
with proper medical treatment after she was sexually
assaulted, and when it delayed in reporting the assault
to the police, hospital security, and Santina’s physician
and family. The plaintiffs therefore claim that the court
erred in granting the defendant’s motion for summary
judgment because it improperly concluded that Santi-
na’s allegations of emotional distress were insufficient
to meet the ascertainable loss requirement of CUTPA.
Such conclusion, they argue, is inconsistent with the
definition of ascertainable loss, as adopted by our
Supreme Court. We disagree.
‘‘[T]o prevail on a CUTPA claim, the plaintiff must
prove, pursuant to General Statutes § 42-110b (a), that
the defendant engaged in ‘unfair or deceptive acts or
practices in the conduct of any trade or commerce’ and
that as a result of the use of the act or practice prohib-
ited by § 42-110b (a), the plaintiff suffered an ‘ascertain-
able loss of money or property.’ ’’ (Footnote omitted.)
D’Angelo Development & Construction Corp. v. Cordo-
vano, 121 Conn. App. 165, 181, 995 A.2d 79, cert. denied,
297 Conn. 923, 998 A.2d 167 (2010). ‘‘The ascertainable
loss requirement is a threshold barrier which limits the
class of persons who may bring a CUTPA action seeking
either actual damages or equitable relief. . . . Thus, to
be entitled to any relief under CUTPA, a plaintiff must
first prove that he has suffered an ascertainable loss
due to a CUTPA violation.’’ (Internal quotation marks
omitted.) Artie’s Auto Body, Inc. v. Hartford Fire Ins.
Co., 287 Conn. 208, 217–18, 947 A.2d 320 (2008).
Our Supreme Court has further defined the ascertain-
able loss requirement of CUTPA, stating: ‘‘An ascertain-
able loss is a loss that is capable of being discovered,
observed or established. . . . The term loss necessar-
ily encompasses a broader meaning than the term dam-
age, and has been held synonymous with deprivation,
detriment and injury. . . . To establish an ascertain-
able loss, a plaintiff is not required to prove actual
damages of a specific dollar amount. . . . [A] loss is
ascertainable if it is measurable even though the precise
amount of the loss is not known.’’ (Citations omitted;
internal quotation marks omitted.) Id., 218.
The plaintiffs claim that the definition of ascertain-
able loss, with respect to CUTPA, is construed liberally
such that it includes claims of emotional distress. They
support their position by citing our Supreme Court’s
decision in Hinchliffe v. American Motors Corp., 184
Conn. 607, 614, 440 A.2d 810 (1981), which stated:
‘‘Whenever a consumer has received something other
than what he bargained for, he has suffered a loss of
money or property. That loss is ascertainable if it is
measurable even though the precise amount of the loss
is not known.’’ The court continued that discussion,
however, stating: ‘‘CUTPA is not designed to afford a
remedy for trifles. In one sense the buyer has lost the
purchase price of the item because he parted with his
money reasonably expecting to receive a particular item
or service. When the product fails to measure up, the
consumer has been injured; he has suffered a loss. In
another sense he has lost the benefits of the product
which he was led to believe he had purchased. That
the loss does not consist of a diminution in value is
immaterial, although obviously such diminution would
satisfy the statute.’’ Id.
The plaintiffs’ comparison of the present case to the
discussion by our Supreme Court in Hinchliffe is mis-
guided. In that case, the Supreme Court was discussing
a loss that was measurable. It gave the example: ‘‘To
the consumer who wishes to purchase an energy saving
subcompact [motor vehicle] . . . it is no answer to say
that he should be satisfied with a more valuable gas
guzzler.’’ Id. In that example, there is a clear expectation
of the benefits of that energy saving subcompact and
a loss of monetary value, though the precise amount
may not be known. In contrast, the plaintiffs in the
present case, on behalf of a patient of the hospital,
claim to have a ‘‘reasonable expectation that she would
be safe from harm’’ and that the hospital ‘‘would prop-
erly care for her.’’ This reasonable expectation is not
measurable for purposes of sustaining a CUTPA viola-
tion, nor is the loss of that expectation. Moreover, the
plaintiffs alleged only that the hospital’s ‘‘actions and
inactions constitute discoverable and observable devia-
tions from what [Santina] reasonably expected and was
entitled to as a customer of the hospital.’’ They did
not claim that Santina suffered any actual monetary or
physical loss. The plaintiffs, therefore, failed to provide
an evidentiary foundation to the court in opposing the
defendant’s motion for summary judgment that Santina
had, in fact, suffered a financial loss or a personal injury.
See Santorso v. Bristol Hospital, supra, 308 Conn. 347
(‘‘the party opposing . . . a motion [for summary judg-
ment] must provide an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact’’ [internal quotation marks omitted]). The court,
therefore, properly concluded that there was no genu-
ine issue of material fact as to whether the plaintiffs’
claim of emotional distress constituted an ascertainable
loss for purposes of CUTPA.
This conclusion is also consistent with case law, from
which a clear majority has emerged. Although our
appellate courts have not yet had the opportunity to
address whether emotional distress, by itself, consti-
tutes an ascertainable loss under CUTPA, our Superior
Court has addressed the issue on multiple occasions. As
noted by the court in Builes v. Kashinevsky, Superior
Court, judicial district of Fairfield, Docket No. CV-09-
5022520S (September 15, 2009) (48 Conn. L. Rptr. 538):
‘‘The few Superior Court cases on this issue have deter-
mined that emotional distress or injury is not an ascer-
tainable loss capable of compensation. Printed
Circuits Unlimited, Inc. v. Sensor Switch, Inc., Supe-
rior Court, judicial district of Fairfield, Docket No. CV-
XX-XXXXXXX (October 23, 1996) (Stevens, J.); Ross v.
Company Store, Superior Court, judicial district of
Stamford-Norwalk, Docket No. CV-91-0115710 (October
1, 1991) (Ryan, J.) (6 C.S.C.R. 942) [5 Conn. L. Rptr.
62]; Murphy v. McNamara, 36 Conn. Supp. 183, 195–96,
416 A.2d 170 (1979); Barney v. Downer Funeral Home,
Inc., Superior Court, judicial district of Stamford-Nor-
walk, Docket No. CV-99-0175648 (August 13, 2001)
(Hon. William B. Lewis, judge trial referee); see also
Rees v. Flaherty, Superior Court, judicial district of
Tolland, Docket No. CV-01-0077316 (June 7, 2002)
(Scholl, J.) (32 Conn. L. Rptr. 292, 293) (holding that
claims for emotional distress . . . [are] . . . types of
damages [that] do not appear to come within the mean-
ing of ascertainable loss or actual damages as contem-
plated by the CUTPA statute); Lane v. First Union
National Bank, Superior Court, judicial district of New
Haven, Docket No. CV-01-0446552 (April 19, 2002)
(Thompson, J.) (holding that emotional distress is not
an ascertainable loss under CUTPA); Jaworski v.
Anderson, Superior Court, judicial district of Hartford,
Docket No. CV-94-0537265 (August 7, 2001) (Schuman,
J.) (holding that emotional distress damages are not
available under CUTPA). This view has most recently
been adopted in Deutsche Bank v. Lichtenfels, Superior
Court, judicial district of New Haven, Docket No. CV-
XX-XXXXXXX (June 17, 2009) (Corradino, J.) [48 Conn.
L. Rptr. 133], where the court held that . . . ascertain-
able loss [under CUTPA] . . . does not appear to envis-
age a recovery for emotional distress.’’ (Internal
quotation marks omitted.)3
The Superior Court decisions since Builes, and the
cases cited therein, have continued to hold that emo-
tional distress is not sufficient for purposes of CUTPA.
Deutsche Bank National Trust Co. v. Belizaire, Supe-
rior Court, judicial district of Stamford–Norwalk,
Docket No. CV-06-5002704S (July 13, 2011) (‘‘[t]rial
courts have uniformly dismissed or stricken CUTPA
claims on the basis that emotional distress by itself is
not an ascertainable loss sufficient to support a CUTPA
claim’’); Pratt v. University Accounting Services, LLC,
Superior Court, judicial district of Waterbury, Complex
Litigation Docket, Docket No. CV-10-116011594S
(August 28, 2012) (same); Green-Pinto v. OR & L Facil-
ity Services, LLC, Superior Court, judicial district of
New Haven, Docket No. CV-12-6027983 (December 24,
2012) (same); Wilton Meadows Ltd. Partnership v. Cor-
atolo, Superior Court, judicial district of Stamford-Nor-
walk, Docket No. CV-09-5009680S (July 28, 2010)
(same).
After a full review of the case law and the facts
presented in this case, we conclude that the plaintiffs’
claim of emotional distress does not constitute an ascer-
tainable loss of money or property for purposes of
CUTPA. The court, therefore, did not err in granting
the defendant’s motion for summary judgment.4
The judgment is affirmed. In this opinion the other
judges concurred.
1
Santina Di Teresi passed away during the pendency of the case. There-
after, Virginia Di Teresi and Emmanuel J. Di Teresi, as representatives of
her estate, were substituted as plaintiffs.
2
The defendant Stamford Health System, Inc., is the parent corporation
of the defendant Stamford Hospital. We refer to these entities respectively
as the defendant and the hospital. Robert Mayes also was named as a
defendant, but he is not a party to this appeal.
3
We recognize that some of the older Superior Court decisions predating
Builes have found claims of emotional distress sufficient to meet the ascer-
tainable loss requirements of CUTPA. See, e.g., Doe v. Bradley Memorial
Hospital, Superior Court, judicial district of New Britain, Docket No. CV-
XX-XXXXXXX (July 24, 2003) (summary judgment denied because the ‘‘plaintiff
. . . alleged that the hospital’s act of providing information to the police
did harm the plaintiff in that the hospital’s actions caused substantial injury
to the plaintiff and were immoral, oppressive and unscrupulous’’); Covino
v. Guillory, Superior Court, judicial district of New London, Docket No.
CV-98-0163041S (March 14, 2002) (emotional distress claim sufficient for
CUTPA claim); Roemmele v. Law Offices of John Haymond, Superior Court,
judicial district of New London, Docket No. 547182 (May 4, 1999) (24 Conn. L.
Rptr. 441) (‘‘[t]he plaintiff has alleged facts [of emotional distress] concerning
entrepreneurial or commercial aspects of the defendant’s practice of law
which may constitute a violation of CUTPA’’). We find these decisions to
be in the minority and not persuasive in the present matter.
4
In light of our conclusion, we need not address the defendant’s alternative
argument of collateral estoppel.