Opinion
DBDCV186026529S
10-09-2019
Orlando FAJARDO v. Jose Oswaldo MEDINA-GUERRA et al.
UNPUBLISHED OPINION
OPINION
D’Andrea, Robert A., Judge.
The plaintiff, Oswaldo Fajardo ("plaintiff"), has filed a request for leave to amend, pursuant to Practice Book § 10-60 et seq., dated September 6, 2019, along with a memorandum of law in support of said motion. Plaintiff is requesting leave to file an amended complaint, adding two counts, one for common-law recklessness, and one for statutory recklessness, against the defendant operator, Jose Oswaldo Medina-Guerra ("defendant operator"). Both the defendant operator, Jose Oswaldo Medina-Guerra, and defendant, Johana Medina ("defendants"), the owner of the vehicle defendant operator was driving, have filed an objection to plaintiff’s request for leave to amend complaint. The defendants claim that the plaintiff’s amended complaint is time barred by General Statutes § 52-584, as the subject motor vehicle accident occurred on December 14, 2016, and both the common-law recklessness and statutory recklessness allegations do not relate back to the original complaint, as they are new, separate, and distinct causes of action, and are clearly outside of the applicable statute of limitations and should not be permitted. Plaintiff responds that the case law allows the plaintiff to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, which he claims is applicable in this matter.
FACTS
This action stems from a motor vehicle accident which occurred on December 14, 2016. All discovery was completed in this matter, and the case was originally assigned for trial on April 30, 2019. In March 2019, the parties entered into an agreement to arbitrate the case. The case was continued to a second trial date of September 17, 2019. The plaintiff subsequently decided not to proceed with the arbitration, and sought to restore this case to the docket by way of motion dated July 24, 2019. On September 3, 2019 the court granted the plaintiff’s motion to restore the matter to the docket, by agreement of the parties, and counsel for the parties selected a final firm trial date of November 19, 2019. On September 6, 2019, the plaintiff filed a request to amend the complaint, seeking to add two new counts, sounding in common-law recklessness and statutory recklessness against the defendant operator Jose Oswaldo-Medina Guerra. The original complaint was filed on March 20, 2018, and it only alleges a standard negligence complaint.
LEGAL STANDAND
While "[t]he trial court has wide discretion in granting or denying amendments before, during, or after trial." (Internal quotation marks omitted.) Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 799, 945 A.2d 955 (2008) "[I]t is well settled that an amended complaint relates back to and is treated as filed at the time of the original complaint unless it alleges a new cause of action ... Thus, an amendment cannot allege a new cause of action that would be barred by the statute of limitations if filed independently." (Citation omitted; emphasis omitted.) Miller v. Fishman, 102 Conn.App. 286, 298, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008). General Statute § 52-584, states in pertinent part: "No action to recover damages for injury to the person ... caused by negligence, or by reckless or wanton misconduct ... shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ..."
"The question of whether a party’s claim is barred by the statute of limitations is a question of law ..." (Internal quotation marks omitted.) Watts v. Chittenden, 301 Conn. 575, 582, 22 A.3d 1214 (2011). See New Hartford v. Connecticut Resource Recovery Authority, 291 Conn. 433, 483, n.38, 970 A.2d 592 (2009) ("if a party seeks to add new allegations to a complaint and a statute of limitations applicable to those allegations has run since the filing of the complaint, the party must successfully invoke the relation back doctrine before amendment will be permitted"). "[I]n determining whether the relation back doctrine applies to an amended pleading, we inquire whether the amendment expands or amplifies the original facts alleged in support of a cause of action, or whether the amendment presents a new and different factual situation that would require the presentation of different evidence ... This particular focus is guided by the policy reasons underlying the relation back doctrine- namely, ensuring that parties receive fair notice while at the same time allowing parties who have complied with the applicable statute of limitations the benefit of expanding upon existing claims. Our analysis, therefore, necessarily compares the allegations in the original complaint to those in the amended substitute complaint." (Citations omitted; internal quotation marks omitted.) Id., Sherman v. Ronco, 294 Conn. 548, 556-57, 985 A.2d 1042 (2010). "If ... the new theory of liability is not supported by the original factual allegations of the earlier, timely complaint, and would require the presentation of new and different evidence, the amendment does not relate back." Id., 563. "Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 559, 51 A.3d 367 (2012). It is well settled law in Connecticut that "[A] cause of action claiming wanton and reckless misconduct is separate and distinct from a cause of action alleging negligence." (Internal quotation marks omitted.) Bicio v. Brewer, 92 Conn.App. 158, 170, 884 A.2d 12 (2005). See Kostiuk v. Queally, 159 Conn. 91, 94, 267 A.2d 452 (1970) ("negligence and willful and wanton misconduct are separate and distinct causes of action ... There is a wide difference between negligence and a reckless disregard of the rights or safety of others" (citations omitted; internal quotation marks omitted)).
DEFENDANTS’ POSITION
In order to determine whether the new allegations relate back, the court compares the allegations in the original complaint to those in the amended complaint. In the original complaint, which was based on allegations of negligence, no allegations were set forth concerning common-law recklessness or statutory recklessness. The original complaint did not provide notice of a claim of recklessness. To prove the challenged allegations of the amended complaint would require the presentation of new and different evidence as to different issues. As explained in Sherman v. Ronco, supra, 294 Conn. 561, 985 A.2d 1042 (2010) "[t]he mere fact that the new ... allegations arose in connection with [the same event] is not sufficient to bring those allegations within the scope of [the plaintiff’s] original complaint." (Internal quotation marks omitted.) The plaintiff’s new theory of liability is "not supported by the original factual allegations of the earlier, timely complaint, and would require the presentation of new and different evidence, the amendment does not relate back." Id., 563. As the new counts require proof of different elements and different evidence, the new counts do not relate back to the original allegations of negligence in the complaint and is barred by § 52-584’s two-year statute of limitations. See New Hartford v. Connecticut Resource Recovery Authority, supra, 291 Conn. 483, n.38; Palazzo v. Delrose, 91 Conn.App. 222, 227, 880 A.2d 169, cert. denied, 276 Conn. 912, 886 A.2d 426 (2005).
Not only are these amendments being made well after the statute of limitations has expired and all the parties’ depositions have been completed, but they are being made in bad faith, as it was the plaintiff who backed out of the arbitration, and there was no agreement when this matter was restored to the docket to enable additional discovery or open the defendant to additional claims being asserted against him. Moreover, these new, separate, and distinct allegations require a separate burden of proof and facts, and are clearly outside of the applicable statute of limitations and should not be permitted. Therefore, the defendants request that the amended complaint, with the two additional counts of common-law recklessness and statutory recklessness, should not be permitted.
PLAINTIFF’S POSITION
Plaintiff alleges that the "factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties ... The motion to amend is addressed to the trial court’s discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial." Wagner v. Clark Equipment Co., 259 Conn. 114, 128, 788 A.2d 83 (2002). In the instant case, all factors weigh heavily on permitting the plaintiff to amend his complaint. There will be absolutely no delay in moving to trial and no new facts are being asserted, thus there is no unfairness to the defendant.
The count is justified in granting the leave to amend given the conscious disregard for the safety of others that he exhibited on the surveillance video procured by the responding police officers, where he is shown traveling at a terrifyingly high rate of speed in a residential neighborhood with a posted limit of 25 mph. The police report specifically describes defendant operator as driving at a "much higher rate of speed" than other vehicles. The plaintiff alleges that the case law allows the plaintiff to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same. Here, the plaintiff claims there is no new cause of action by only an amplification of the original allegations of speeding. The plaintiff respectfully submits that he should be permitted to amend his complaint to add a count of statutory recklessness and a count of common-law recklessness based upon this information and evidence.
LEGAL ANALYSIS
It is well settled law in Connecticut that "[A] cause of action claiming wanton and reckless misconduct is separate and distinct from a cause of action alleging negligence." (Internal quotation marks omitted.) Bicio v. Brewer, 92 Conn.App. 158, 170, 884 A.2d 12 (2005). See Kostiuk v. Queally, 159 Conn. 91, 94, 267 A.2d 452 (1970) ("negligence and willful and wanton misconduct are separate and distinct causes of action ... There is a wide difference between negligence and a reckless disregard of the rights or safety of others" (citations omitted; internal quotation marks omitted)). A cursory review of the allegation of the plaintiff’s complaint of March 20, 2018 shows a straight forward negligence complaint. The plaintiff alleges that the "collision was caused by the negligence and carelessness of the defendant" operator in one or more of the following ways: he failed to keep his vehicle under proper and reasonable control; he entered the intersection in a unsafe manner; he failed to operate his vehicle in such a manner that would avoid the collision; he failed to stop his vehicle in time to avoid the collision; and he failed to obey the posted speed limit. (Emphasis added.) A plain, simple negligence claim is being alleged.
By contrast, a review of the proposed amended complaint of September 6, 2019 clearly shows something substantially different. In the proposed amended complaint, in count three, the plaintiff alleges that the "violent collision and resulting injuries ... caused by the wanton and reckless disregard" of the defendant in violation of one or more of the following statutes: deliberately drove his vehicle recklessly in violation of General Statutes § 14-222; he was deliberately speeding in violation of General Statutes § 14-219; was deliberately travelling unreasonably fast in violation of General Statutes § 14-218a. (Emphasis added.) In count four of the proposed amended complaint the plaintiff alleges that the defendant: knew and appreciated that there was huge risk to drive at twice the posted speed limit; the defendant ignored these risks and he willfully chose to drive at an unreasonable speed; he knowingly and/or deliberately operated the motor vehicle at a rate of speed much too fast for the traffic and road conditions, when he knew, or should have known, that doing so resulted in an extremely high likelihood of an accident; and deliberately drove on a city street at a high rate of speed when he knew or should have known that doing so resulted in an extremely high likelihood of an accident . (Emphasis added.) The allegations contained in the proposed amended complaint is directly on point with the case law that says that "there is a wide difference between negligence and a reckless disregard of the rights or safety of others," as cited above. Despite the plaintiff’s claim that the case law allows the plaintiff to amplify or expand what has already been alleged in the original complaint, provided the identity of the cause of action remains substantially the same, and that the proposed amended complaint should be permitted, such is clearly not the case when the allegations in the two complaints are compared. It is analogous to claim that a tsunami is just a simple amplification of high tide. As alleged, the two actions are materially and substantially different.
Next, the court must examine "Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 559, 51 A.3d 367 (2012). "[I]t is well settled that an amended complaint relates back to and is treated as filed at the time of the original complaint unless it alleges a new cause of action ... Thus, an amendment cannot allege a new cause of action that would be barred by the statute of limitations if filed independently." (Citation omitted; emphasis omitted.) Miller v. Fishman, 102 Conn.App. 286, 298, 925 A.2d 441 (2007), cert. denied, 285 Conn. 905, 942 A.2d 414 (2008). General Statute § 52-584, states in pertinent part: "No action to recover damages for injury to the person ... caused by negligence, or by reckless or wanton misconduct ... shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered ..."
The collision occurred on December 14, 2016, and the plaintiff’s complaint was filed on March 20, 2018. The plaintiff alleges, in pertinent part, in his memorandum of law in support of the motion for leave to amend complaint dated September 6, 2019 "The count is justified given the conscious disregard for the safety of others that he exhibited on the surveillance video procured by the responding police officers, where he is shown traveling at a terrifyingly high rate of speed in a residential neighborhood with a posted limit of 25 mph. The Danbury Police Crash Report Case #1600080979, page 10 specifically describes defendant Jose Oswaldo Medina-Guerra as driving at a ‘much higher rate of speed’ than other vehicle," thus justifying the amended complaint. Given the date of the accident, the plaintiff must comply with General Statute § 52584, and the two year statute of limitation, unless saving provision of the statute which states "No action ... caused by negligence, or by reckless or wanton misconduct ... shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered. and except that no such action may be brought more than three years from the date of the act or omission complained of ..." applies. (Emphasis added) This is the statute of repose. However, the plaintiff based in his memorandum of law, refers specifically to police report with a case #1600080979, indicating that it is a 2016 police report, clearly in existence at the time of the complaint of March 20, 2018 complaint, and most likely generated shortly after the accident of December 16, 2016. This is not newly discovered so the three-year statute of repose is not applicable, and the two recklessness counts could have, but more importantly, should have been included in the original complaint. Since this police report containing the basis for the recklessness counts was known nearly thirty three months before the filing of the motion for leave to amend the complaint on September 6, 2019, the plaintiff must comply with the two-year statute of limitation in General Statute § 52-584, which he has not done. The defendant is correct that the motion for leave to file amended complaint is time barred by General Statute § 52-584.
CONCLUSION
Based on the foregoing, the motion for leave to amend the complaint is DENIED.