Opinion
No. CV 10 6009582
June 9, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#101)
FACTUAL AND PROCEDURAL BACKGROUND
The plaintiffs commenced this action by service of process against the defendants on January 20, 2010. There are four plaintiffs. One is Gregoria Campos, both in her individual capacity and in her capacity as administratrix of the estate of Jose Mauricio Campos, her husband (the decedent). The other three are the Campos' sons: Mauricio Campos, Jose Ernesto Campos and Jose Eduardo Campos. The defendants are Robert Coleman, La Quinta Inn and Suites and LQ Management, LLC. The eight-count complaint alleges the following facts.
On September 15, 2008, the decedent was operating his bicycle in a westerly direction on Westfield Street in West Haven. Coleman, an employee of La Quinta Inn and Suites, was operating a motor vehicle owned by LQ Management, LLC at an excessive speed in a northerly direction on Gilbert Street in West Haven. At the intersection of Westfield Street and Gilbert Street, Coleman struck the decedent. The force of the collision threw the decedent off his bicycle, into the air and onto the pavement. He sustained several severe injuries, including the following: bilateral subdural hematomas of the brain, including a left frontal intra-parenchymal hematoma and a subarachnoid hemorrhage; contusions and lacerations of the brain; diffuse brain swelling; and the need for surgery in the form of a left frontal temporal frontotemporoparietal craniotomy for removal of the subdural hematoma and intra-parenchymal hemorrhage. He also experienced associated pain and suffering from the time of the incident to his death on September 18, 2008.
The following counts comprise the complaint. Count one is against Coleman and sounds in negligence. Count two is against Coleman and sounds in recklessness under General Statutes § 14-295. Count three is against LQ Management, LLC and alleges that LQ Management, LLC is liable as the owner of the motor vehicle operated by Coleman. Count four is against La Quinta Inn and Suites and alleges that La Quinta Inn and Suites is liable because Coleman was operating the motor vehicle in the course and within the scope of his employment. Count five is against all of the defendants and sounds in loss of spousal consortium. Counts six through eight are brought by Mauricio Campos, Jose Eduardo Campos and Jose Ernesto Campos, respectively, and sound in loss of parental consortium.
The defendants filed the present motion to strike counts two, four, six, seven and eight of the complaint and an accompanying memorandum of law on February 24, 2010. The plaintiffs filed an objection to the motion and an accompanying memorandum of law on March 8, 2010. The court heard the matter at short calendar on April 19, 2010. The plaintiffs filed a supplemental memorandum in support of the objection to the motion on April 22, 2010. The defendants in reply filed a supplemental memorandum in support of the motion on April 23, 2010.
DISCUSSION
"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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). A motion to strike therefore "requires no factual findings by the trial court." American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, supra, 292 Conn. 120.
I COUNT TWO: STATUTORY RECKLESSNESS
In the second count of the complaint, the plaintiffs incorporate the first count, and allege that Coleman "acted in a willful, wanton and/or reckless manner in violating the provisions of . . . General Statutes § 14-222" and claim that Coleman is therefore "liable to [them] for double or treble damages in the discretion of the jury pursuant to the provisions of . . . § 14-295." The defendants argue that the court should strike the second count because it is "not legally sufficient." Specifically, the defendants argue that the plaintiffs have not alleged conduct that distinguishes their statutory recklessness claim from their negligence claim. The plaintiffs argue in response, that recklessness is a question of fact and that a negligence claim and a statutory recklessness claim can be based upon the same conduct.
This is how the defendants state the ground for striking the count on the face of the motion. Practice Book § 10-41 provides: "Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency." "Simply stating that" a count "fail[s] to allege any facts that would indicate [that the] defendant is liable to [the plaintiff]" is not enough. Stuart v. Frieberg, 102 Conn.App. 857, 862, 927 A.2d 343 (2007). Failure to comply with Practice Book § 10-41 can make a motion to strike "fatally defective." (Internal quotation marks omitted.) Id., 860. However, the plaintiffs have not objected to the motion on this basis. The court will therefore proceed in considering the motion to strike the second count in the form presented by the defendants. See Bouchard v. People's Bank, 219 Conn. 465, 468 n. 4, 594 A.2d 1 (1991).
This court has previously addressed the standard for a statutory recklessness claim in the context of a motion to strike in Ferraiuolo v. Nicholson, Superior Court, judicial district of New Haven, Docket No. CV 09 5031138 (December 7, 2009, Wilson, J.). This court wrote: "[Section] 14-295 states explicitly that `the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of [ inter alia] Section . . . 14-222 . . . and that such violation was a substantial factor in causing such injury, death or damage to property . . .' Neither the Connecticut Supreme Court nor the Appellate Court has yet to address the pleading requirements for recklessness under § 14-295. There has been a split of authority in Superior Court decisions as to what degree of specificity is required in pleading recklessness. See Alibrandi v. Romero, Superior Court, judicial district of Fairfield, Docket No. CV 08 5017380 (November 7, 2008, Bellis, J.). A slight majority of Superior Court decisions have required that a plaintiff need only plead the general allegations enumerated in § 14-295, namely, that the defendant has deliberately or with reckless disregard violated one of the enumerated statutes, and the violation was a substantial factor in causing the plaintiff's injuries. Id. Courts taking the majority view have emphasized the plain meaning of § 14-295: `There does not appear to be any ambiguity in the language of [§] 14-295 or how it should be applied or construed. The statute says that in a civil action seeking damages for personal injuries, the trier of fact may award double or treble damages if the plaintiff has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of . . . [one or more motor vehicle statutes delineated in the statute]. If a further delineation of facts forming the basis of the recklessness claim were necessary, then such an explicit requirement could have been set out in the statute by the legislature.' Lombard v. Booth, Superior Court, judicial district of Fairfield, Docket No. CV 01 0383637 (July 12, 2001, Stevens, J.) ( 30 Conn. L. Rptr. 78). `Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct.' Warkentin v. Burns, 223 Conn. 14, 22, 610 A.2d 1287 (1992).
"In contrast, a minority of courts have required that plaintiffs plead the specific conduct that is reckless, above and beyond what must be pleaded for mere negligence. Alibrandi v. Romero, supra, Superior Court, Docket No. CV 08 5017380. Courts following the minority view have highlighted the substantive difference between negligence and recklessness. `Our Superior [C]ourts have held that the reiteration of facts previously asserted to support a cause of action in negligence, without more, cannot be transformed into a claim of reckless misconduct [by mere] nomenclature.' (Internal quotation marks omitted.) Leigh v. Cook, Superior Court, judicial district of New Haven, Docket No. CV 06 6000492 (May 24, 2007, Holden, J.). `To allow a plaintiff to simply allege reckless disregard of a statutory provision would enable any negligence claim to be brought as a recklessness claim and thereby make it subject to double and treble damages. The plaintiff would only have to plead that in addition to the defendant's conduct being careless it was also deliberate. This court does not believe it was the legislature's intent when enacting § 14-295, to effectively dissolve any distinction between claims in negligence and recklessness.' Victor v. Williamson, Superior Court, judicial district of Fairfield, Docket No. CV 05 4008786 (July 7, 2006, Owens, J.T.R.).
"Courts taking the minority position have also emphasized the importance of fact pleading. `[T]he majority view — to plead only the bare bones of the statute — would lead to anemic pleading . . . Connecticut remains a fact pleading jurisdiction . . . The majority view would judicially take us to a notice pleading posture.' Kurensky v. Church Hill Enterprises, Superior Court, judicial district of Fairfield, Docket No. CV 02 0390806 (July 16, 2002, Brennan, J.). `Practice Book § 10-1, titled Fact Pleading, provides in relevant part: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . ." There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on.' (Citation omitted.) Leigh v. Cook, supra, Superior Court, Docket No. CV 06 6000492. `[T]he plaintiff must plead particularized facts that when taken as true would show that the defendant acted with reckless disregard. The facts alleged must show that the defendant consciously chose a course of action despite the fact that the defendant did know, or reasonably should have known, that the action posed serious danger to others.' Victor v. Williamson, supra, Superior Court, Docket No. CV 05 40008786.
"This court finds the majority view, which has been the trend in recent years, persuasive. The language of § 14-295 is unambiguous . . ." Ferraiuolo v. Nicholson, supra, Superior Court, Docket No. CV 09 5031138. The language of § 14-295 however, also requires that the plaintiff plead that the reckless conduct at issue was a "substantial factor" in causing death, injury or property damage. There is another split of authority in Superior Court decisions on whether the words "substantial factor" must be used by a plaintiff pleading a statutory recklessness claim. One view is that a plaintiff pleading a statutory recklessness claim does not need to use the words "substantial factor" as long as he or she sufficiently alleges causation. This view was articulated in Chacon v. Fuseini, Superior Court, judicial district of New Haven, Docket No. CV 07 5009785 (February 28, 2008, Bellis, J.): "While the defendant is correct in that the plaintiff did not use the exact phrase `substantial factor,' this court rejects the proposition that formulaic words must be employed in this case where the plaintiff has specifically pled that the defendant recklessly operated his motor vehicle in violation of the triggering statute and that such violation caused the plaintiffs injuries and losses." See also, e.g., Lindor v. Green, Superior Court, judicial district of New London, Docket No. CV 5000420 (August 4, 2006, Hurley, J.T.R.) ( 41 Conn. L. Rptr. 775); Myers v. Ocean Trace Development, Superior Court, judicial district of Fairfield, Docket No. CV 00 0375476 (May 2, 2002, Gallagher, J.).
The other view is that the words "substantial factor" must be used by a plaintiff in order for his or her statutory recklessness claim to survive a motion to strike. See, e.g., Decyk v. Lanquette, Superior Court, judicial district of New Haven, Docket No. CV 05 5000180 (July 28, 2006, Taylor, J.); Carangelo v. Remis, Superior Court, judicial district of New Haven, Docket No. CV 04 4000641 (May 5, 2006, Wiese, J.) ( 41 Conn. L. Rptr. 318); Comparone v. Cooper, Superior Court, judicial district of Fairfield, Docket, No. CV 92 293125 (August 27, 1992, Lewis, J.) ( 7 C.S.C.R. 1108) [ 7 Conn. L. Rptr. 262].
While the court is persuaded by the view set forth in Chacon, it concludes that the plaintiffs' statutory recklessness claim fails to meet either standard. The plaintiffs neither use the words "substantial factor" nor allege that Coleman's recklessness caused the decedent's injuries in the second count of the complaint. By virtue of incorporating the first count into the second count, they allege that Coleman's negligence in "recklessly" operating his vehicle, and therefore violating § 14-222, caused the decedent's injuries. This is nonetheless legally insufficient under the pleading standard established by § 14-295, which requires that a plaintiff allege a causal relationship between the recklessness claimed and the injury suffered. Because the plaintiffs have not fulfilled the "substantial factor" requirement of the statutory recklessness pleading standard, the second count of their complaint is legally insufficient, and the court grants the defendants' motion to strike it.
II COUNT FOUR: RESPONDEAT SUPERIOR LIABILITY
In the fourth count of the complaint, the plaintiffs incorporate the first count and allege that "the defendant, La Quinta, is liable to the plaintiffs for their injuries and damages because of the fact that the defendant, Robert Edward Coleman, was operating the vehicle involved in the course and scope of his employment with La Quinta, at the time of the incident involved." The defendants seek to strike the count under Practice Book § 11-3, which provides that "[t]he exclusive remedy for misjoinder of parties is by motion to strike." They specifically argue that the count is legally insufficient because the court lacks subject matter jurisdiction over an action against "La Quinta Inn and Suites," a nonexistent legal entity. The plaintiffs contend that the defendants must provide evidentiary support in order to argue that La Quinta Inn and Suites is a nonexistent legal entity.
"In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A speaking motion to strike is one improperly importing facts from outside the pleadings." Mercer v. Cosley, 110 Conn.App. 283, 292 n. 7, 955 A.2d 550 (2008). "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).
The ground for the defendant's motion to strike the fourth count depends upon the legal status of La Quinta Inn and Suites,' which is outside the scope of the facts alleged in the complaint. The court therefore concludes that the defendant's motion to strike the count is a "speaking motion" that must be denied. In support, the court looks to Pueshel v. McLean Foundation, Inc., Superior Court, judicial district of Hartford, Docket No. CV 05 4015053 (April 26, 2007, Miller, J.). The plaintiff in Pueshel sued the named defendant and another defendant designated as "McLean." The defendant "McLean" moved to strike the counts of the complaint directed against it on the ground that "`McLean' has no legal existence and cannot be sued." Id. The court entertained the motion only after it granted a request made by "both parties . . . [that] the court . . . consider evidence beyond the allegations of the complaint." Id. See also, e.g., Van Eck v. WNN Corp. v. Lewis, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 94 0141529 (June 21, 1995, Karazin, J.) (denying motion to strike on ground of misjoinder where plaintiff named one individual doing business under three trade names and individual argued that he had never done business under two of those trade names). In the present case, because the defendants rely, without the court's consent, upon facts that are not among the allegations contained in the plaintiffs' pleadings, the court deems their motion to strike the fourth count of the complaint to be improper and accordingly denies it.
III COUNTS SIX THROUGH EIGHT: LOSS OF PARENTAL CONSORTIUM
In the sixth through eighth counts of the complaint, the three minor plaintiffs allege that all of the defendants are liable to them for their loss of their father's consortium. The defendants argue that the court should strike the sixth through eighth counts because the Supreme Court held in Mendillo v. Board of Education of East Haddam, 246 Conn. 456, 717 A.2d 1177 (1998), that loss of parental consortium is not a recognized cause of action in Connecticut. The plaintiffs object to the motion by arguing that there are post- Mendillo Superior Court decisions in which courts have denied motions to strike loss of parental consortium cases because Mendillo was factually distinguishable.
In Mendillo, the named plaintiff alleged that she was "constructively discharged" from her employment with the defendant. Id., 458. The two minor children of the named plaintiff sued the defendant and alleged that they were deprived of their mother's consortium during her constructive discharge and her subsequent unemployment. The court held "that the balance of reasons and public policies tips against the recognition of such a claim." Id., 477. Specifically, the court wrote: "We conclude in the present case that the general rule of limiting the tortfeasor's liability to the person directly harmed should prevail. Although, in light of the minor plaintiffs' arguments, the question is a close one, the balance of policy considerations fails to establish the additional justification necessary to support recognition of a legal duty on the part of a tortfeasor to compensate the children of the person whom the tortfeasor has harmed directly for their loss of consortium with their parent. We reach this conclusion primarily on the basis of: the fact that recognition of the cause of action would require arbitrary limitations; the additional economic burden that recognition would impose on the general public; the uncertainty that recognition would yield significant social benefits; the substantial risk of double recovery; and the weight of judicial authority.
"First, if we were to recognize the claim as asserted by the minor plaintiffs — i.e., limited to loss of parental consortium suffered by minor plaintiffs resulting from serious injury to the parent — we would have to impose arbitrary limitations on the scope of the cause of action in order to avoid the creation of a practically unlimited class of potential plaintiffs. In the constellation of family relationships, there are other formally recognized relationships — e.g., siblings, grandparent and grandchild, and aunt or uncle and nephew or niece — and others, less formally recognized but nonetheless just as real in an emotional sense — e.g., stepsiblings, and stepchild and stepparent — that could well, depending on the case, present equally strong claims of loss of consortium. Similarly, there is nothing in the underlying rationale for recognition of the claim to confine it to minor children. Indeed, the majority of the Michigan Supreme Court specifically declined to `adopt the Court of Appeals limitation to instances of severely injured parents of minor children' . . . There undoubtedly are adult children who suffer a genuine loss of consortium by virtue of their parent's injury. In addition, there is nothing in the rationale of the claim to limit it to cases of "serious" injury to the parent. There are few causes of action that depend for their existence on the extent of damage caused by the tortfeasor . . .
"It is true that we have, in at least one other circumstance, recognized a cause of action with arbitrary limits. In Clohessy [v. Bachelor], we required that the bystander seeking damages for emotional distress satisfy the following four conditions: (1) the bystander must be closely related to the victim; (2) the emotional injury must be the result of the contemporaneous sensory perception of the tortious event or conduct; (3) the victim's injury must be substantial, resulting in death or serious physical injury; and (4) the bystander's emotional injury must be serious. Clohessy v. Bachelor, [ 237 Conn. 31, 56, 675 A.2d 852 (1996)]. The fact that we have imposed arbitrary limits elsewhere, however, is not a persuasive argument for doing so in the present case.
"Courts operating in the quintessential common-law context — that is, when they are asked to recognize a new common-law cause of action — function best, and command the most respect, when their decisions can be defended on grounds of reason and principle. Although courts are, like legislatures, often in the business of drawing lines, how we are expected to draw lines differs significantly from how the legislature is expected to draw lines. Whereas legislatures often must draw arbitrary lines, we are expected to draw lines based on reason and principle, and to rely on arbitrary limits only when the policy reasons are sufficiently persuasive to justify performing such an extraordinary task. Thus, we should be very cautious about recognizing a new cause of action that would require us to impose arbitrary conditions on its scope, and should demand a very strong showing of policy reasons before doing so. In our view, on balance, that showing does not exist here.
"Second, a sound analysis of whether, as a matter of public policy, this jurisdiction should recognize a new cause of action requires some consideration, not only of its benefits to those who will assert it, but its costs to those who will pay for it. It cannot be denied that recognition of this cause of action, although creating considerable value to the families of injured parents, `will impose an added economic burden upon society' . . . Because `every serious injury to a parent would engender a claim for loss of consortium on behalf of each of his or her [minor] children, the expense of settling or litigating such claims would be sizable' . . . Unlike the claim for spousal consortium, which has a natural boundary of a single claim arising out of any tortious transaction, `the right here debated would entail adding as many companion claims as the injured parent had minor children, each such claim entitled to separate appraisal and award. The defendant's burden would be further enlarged if the claims were founded upon injuries to both parents. Magnification of damage awards to a single family derived from a single [incident] might well become a serious problem to a particular defendant as well as in terms of the total cost of such enhanced awards to the insured community as a whole.'" (Citations omitted; emphasis added.) Id., 484-88.
As the Mendillo court noted, the question is a close one, especially in light of the loss suffered by the minor plaintiffs in the present case. The minor plaintiffs in Mendillo temporarily lost their mother's consortium as a result of her constructive discharge and subsequent unemployment. The minor plaintiffs in the present case have permanently lost their father's consortium as a result of his unexpected and violent death. As Justice Berdon wrote in his dissent in Mendillo, "The facts of this case do not set forth the ideal scenario with respect to this cause of action — that is, the plaintiff children in this case sought damages arising out of injuries their mother experienced as a result of an alleged wrongful termination of her employment. To shape our law predicated on a fact pattern that has no appeal not only undermines our jurisprudence, but denigrates the common sense of our juries that appropriately dispose of unwarranted claims." Id., 497 n. 2. Justice Berdon makes valid points in his dissent. Nonetheless, the majority opinion in Mendillo, characterized by its broad scope and its well-crafted public policy analysis, governs all loss of parental consortium claims in Connecticut, including the three made by the minor plaintiffs in the present case. The court therefore concludes that the sixth through eighth counts of the complaint are legally insufficient because they are not legally recognized causes of action in Connecticut and therefore grants the defendants' motion to strike them.
CONCLUSION
Accordingly, for the foregoing reasons, the court grants the defendants' motion to strike counts two, six, seven and eight and denies the motion to strike count four.