Carrol v. Allstate Ins. Co. (concurring)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** CARROLL v. ALLSTATE INS. CO. CONCURRENCE BORDEN, J., concurring. I agree with and join the majority opinion. I write separately only to highlight what seems to me to be an anomaly in our law regarding the difference between the conduct element of the twin torts of intentional infliction of emotional distress and negligent infliction of emotional distress. Because this issue was not raised in the trial court or in either party s brief in this court, however; see footnote 13 of the majority opinion; this appeal does not properly present it. I raise it, nonetheless, so that it might be considered in some future case. In order to establish the tort of intentional infliction of emotional distress, the plaintiff must prove that the defendant s conduct was extreme and outrageous. (Internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000); Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). In order to establish the tort of negligent infliction of emotional distress, the plaintiff must prove that the defendant s conduct involved an unreasonable risk of causing emotional distress . . . that . . . might result in illness or bodily harm. (Internal quotation marks omitted.) Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 446, 782 A.2d 87 (2001); Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978). Thus, it seems apparent to me that, with respect to proof of the defendant s tortious conduct, the plaintiff has a more difficult burden when the defendant s state of mind is intentional, rather than negligent. Put another way, where the defendant s state of mind is purposefully to inflict emotional distress on the plaintiff, the plaintiff may not recover unless the defendant s conduct in pursuance of that intent is also extreme and outrageous; but where the defendant did not have such a malevolent state of mind, but merely was negligent, the plaintiff may recover without having to prove that the conduct engaged in by the defendant was extreme and outrageous. This means, it seems to me, that the more culpable the defendant s state of mind, the more difficult the plaintiff s burden of persuasion will be on the conduct element of the tort, and, therefore, the less likely it is that the defendant will be held liable. By contrast, the less culpable the defendant s state of mind, the less difficult the plaintiff s burden of persuasion will be on the conduct element of the tort, and, therefore, the more likely it is that the defendant will be held liable. This result strikes me as anomalous. I do not know how or why our law regarding these two torts has developed as it has. There may be a rational explanation. Perhaps some future case will present us with the opportunity to explore and resolve this apparent anomaly.
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