Opinion
UWYCV186040292S
10-04-2018
Priscilla CHIARILLO v. Constance DONORFIO
UNPUBLISHED OPINION
Brazzel-Massaro, J.
INTRODUCTION
The plaintiff filed this action by way of writ, summons and complaint dated March 29, 2018. The complaint consists of four counts. The first count is a claim for negligence and contends that on November 15, 2016, the plaintiff was a pedestrian at or near the intersection of Kathern Street in Bristol, Connecticut when she was hit by the defendant’s car as she was in the intersection. The plaintiff claims that the defendant disregarded a stop sign and made a left hand turn and did so crossing the divided highway and colliding with the plaintiff as she was walking across the street by entering the opposite lane of travel. The second count is a claim for common-law recklessness, the third count is a claim for statutory recklessness pursuant to C.G.S. § 14-295 and the fourth count is a claim for underinsured coverage. By way of motion dated May 11, 2018, the defendant seeks to have the court strike counts two and three and the accompanying prayer for relief. The plaintiff has filed a memorandum in opposition dated May 25, 2018.
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). "[T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court should "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
Recklessness requires a conscious choice of a course of action involving a risk substantially greater than that which is necessary for negligent conduct. Scheiman v. Lafayette Bank and Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985). "Reckless misconduct ... is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." Craig v. Driscoll, 262 Conn. 312, 342, 813 A.2d 1003 (2003).
However, even if not different than the facts of the statutory recklessness claim, the decisions set forth in Craig v. Driscoll, Id., 262 Conn. 312 (2003), and Ritchie v. Lewis, Superior Court, judicial district of New Haven, Docket No. CV 07 5015479S, (September 3, 2008, Zoarski, J.), have found that it is irrelevant that the facts in a recklessness count are identical or similar to those in a negligence count. In this action, the plaintiff incorporates the claims in the first count into the claim for common-law recklessness in count two and thereafter re-alleges three specific claims as to the third count for statutory recklessness.
The plaintiff alleges in the first count the following fourteen acts of negligence by the defendant: a. she failed to avoid striking a pedestrian in violation of C.G.S. § 14-300d; b. she failed to sound her horn in violation of § 14-300d; c. she operated her motor vehicle at a rate of speed greater than is reasonable having regard to the width, traffic, and use of the highways, road, or parking area, in the intersection of streets, and weather conditions, in violation of C.G.S. § 14-218(a); d. she turned her motor vehicle upon the roadway when such a turn could not be made with reasonable safety, in violation of C.G.S. § 14-242(a); e. she failed to operate her motor vehicle within the right hand lane, in violation of C.G.S § 14-230(a); f. she failed to stop in obedience to a stop sign, in violation of C.G.S. § 14-301(c); g. she operated her motor vehicle upon a roadway and/or parking area for more than ten cars at such a rate of speed as to endanger the life of a person other than herself, in violation of C.G.S. § 14-222(a); h. she failed to exercise due care to avoid striking a pedestrian; i. she failed to sound her horn or give any other reasonable warning to avoid a collision with a pedestrian; j. she operated her motor vehicle at a rate of speed greater than is reasonable, having regard to the width, traffic, and use of the highways, the intersection of streets, and use of the highways, the intersection of streets, and weather conditions; k. she failed to apply her brakes in time to avoid striking the plaintiff, although by a proper and reasonable exercise of her faculties, she could, and should, have done so; l. she was inattentive in the operation of her motor vehicle; m. she failed to have and keep her motor vehicle under proper and reasonable control; n. she failed to turn her motor vehicle so as to avoid striking the plaintiff, although by a proper and reasonable exercise of her faculties, she could, and should, have done so. Each and every one of these allegations are certainly within the parameters of a claim for negligence. However, the plaintiff argues that they are also allegations that amount to a claim for recklessness. In the second count of common-law recklessness the plaintiff incorporates all of the claims of negligence. However, in the allegation in count three the plaintiff alleges only three of the specific claims, that is, subparagraphs c, e and g which are allegations of statutory violations of C.G.S. Sections 14-218a, 14-301(a) and 14-222(a).
In Ludwicki v. Silwa, No. HHB CV 086001447, 2009 WL 3087252, at *2 (Conn.Super.Ct. 2009, Zemetis, J.) the court recognized that there may be similarities in the conduct, which is questionable in this action, but that the real focus is "whether the facts alleged could under any set of facts admissible under the pleadings support a conclusion of recklessness."
In viewing the extensive facts that are alleged in the first count for negligence, the court notes that the statutory violations alleged are in many instances allegations supportive of common-law recklessness or in some instances statutory recklessness. The plaintiff relies upon the decision of the court in Sofiane v. Cardona, Superior Court, Docket No. CV 075013079, 2007 WL 4239780, (Conn.Sup.Ct., Nov. 14, 2007) for the position that "[A] count sounding in recklessness may well be sufficient to withstand a motion to strike even though the allegations of reckless conduct are also alleged as a basis of negligent conduct in a count sounding in negligence ... There is no reason why the plaintiff, relying on the same set of facts in negligence counts, cannot set forth in separate counts, causes of action arising out of those same facts alleging recklessness." Id. at *6. So too, in this action the plaintiff has provided as part of the allegations in negligence claims of acts which are also consistent with a claim of recklessness. Simply because they are the same allegations does not mean that they may not support more than one cause of action. Likewise, the claim in count 3 of statutory negligence consists of statutory violations which are recognized in C.G.S. § 14-295. The facts plead in this complaint outlining the failure of the defendant to recognize a stop sign and a pedestrian in the intersection are of such a nature in and of themselves that the court cannot say there are insufficient facts to support a cause of action for common-law or statutory recklessness.
The motion to strike counts two and three is denied.