Opinion
No. CV06 600 00 09
September 26, 2006
MEMORANDUM OF DECISION ON MOTION TO STRIKE
This action sounds in negligence and recklessness. Plaintiff Patricia Chonko seeks damages arising out of a claimed fall-down accident occurring on September 7, 2005 due to the alleged negligence and recklessness of the defendants Kennynick, LLC and Buckhorn Crossing II, LLC. The Complaint alleges that the defendants owned, operated, controlled, possessed and/or maintained premises located at 198 Leavenworth Road, Shelton, Connecticut. She claims that she tripped and fell on a sidewalk, which was allegedly defective and dangerous. She alleges that her fall was caused by the defendants' negligence and recklessness. In the Second Count and Fourth Count of the Complaint, plaintiff alleges that her fall was the result of the defendants' recklessness. In her Prayer for Relief, the plaintiff claims common law punitive damages.
On April 26, 2006, defendants filed a motion to strike the Second and Fourth Counts of the plaintiff's Complaint as well as the claim for punitive damages. Defendants argue that the plaintiff failed to state a legal claim since the plaintiff's specific allegations in the Second Count and Fourth Count are substantially similar to the allegations of negligence in the First Count and Third Count, respectively. Defendants, consequently, move to strike the claim for punitive damages because the allegations in the Second and Fourth Count are legally insufficient to support a claim of reckless conduct and, as follows, a claim for common law punitive damages.
Pursuant to Practice Book § 10-39(a), "[w]henever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." In determining the sufficiency of a pleading challenged by a party's motion to strike, "all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Commissioner of Labor v. CJM Services, Inc., 842 A.2d 1124, 1130 (Conn., 2004). As such, it must be determined whether the facts alleged support a claim of recklessness. "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." Richardson PPA v. Good Shepard Christian Church, No. CV055000217S, 2006 WL 2130411, at *1 (July 17, 2006) ( 41 Conn. L. Rptr. 687). Therefore, the issue is whether the plaintiff alleged facts sufficient in the Second and Fourth Counts to support a claim of recklessness and therefore support a claim of common law punitive damages.
Recklessness is "more than negligence, more than gross negligence . . . there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them." Craig v. Driscoll, 813 A.2d 1003, 1023 (Conn., 2003). Recklessness entails conduct more egregious than a failure to exercise a reasonable degree of watchfulness, requiring a conscious choice of action either "with knowledge of the serious danger to others involved . . . or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent." Matthiessen v. Vanech, 836 A.2d 394, 402 (Conn., 2003).
In order to prevail on a claim of recklessness, the moving party must allege such facts that explicitly distinguish any claim of negligence from recklessness. "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." Brock v. Waldron, 14 A.2d 713, 714 (Conn., 1940). The motion to strike, "admits all facts well pleaded; it does not admit legal conclusions of the truth . . ." Michgachos v. CBS, Inc., 491 A.2d 368, 379 (Conn., 1985).
In the First and Third Counts, plaintiff alleges specific conduct that supports a claim of negligence, whereas, both the Second and Fourth Counts of the plaintiff's Complaint fail to distinguish the conduct amounting to negligence was separate, and more severe, than the conduct alleged to be recklessness. Instead, the complaint states legal conclusions as opposed to demonstrating that the conduct was reckless by anything more than nomenclature. The language used on the First and Second Count are parallel and do not distinguish the negligent from the reckless conduct adequately to support the claim for recklessness. The language used in the Third and Fourth Counts are similarly parallel and therefore the Fourth Count insufficiently pleads the facts required to allege reckless conduct.
Plaintiff also seeks common law punitive damages in her Prayer for Relief. Punitive damages are permitted by Connecticut statute and rarely by the common law. "[E]xemplary damages, as an extraordinary remedy, require delineation within the pleadings of wanton or willful malicious conduct." Manning v. Michael, 452 A.2d 1157, 1163 (Conn., 1982). The plaintiff has not alleged a statutory basis for her claim of punitive damages in the Second and Fourth Counts of the plaintiff's Complaint and instead relies on the common law principles of reckless, wanton, and deliberate behavior to support her claim of common law punitive damages. Therefore, the Plaintiff is not entitled to punitive damages.
Since the plaintiff's complaint fails to allege that the defendant was reckless in his failure to maintain the sidewalk, the plaintiff has failed to plead facts sufficient to state a cause of action. The motion to strike the Second and Fourth Counts is granted.