Opinion
No. CV10-6001715-S
November 15, 2010
MEMORANDUM OF DECISION RE MOTION TO STRIKE #107
The defendant, American Steak House, LLC, has moved to strike the second count of the complaint of the plaintiff, Zaida Jiminez. "The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike . . ." Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993). "The role of the trial court [in ruling on a motion to strike] [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "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).
In examining the complaint, in the first count, the plaintiff alleges the following facts. The defendant owned property located at 1170 East Main Street in Meriden (the property). On June 8, 2008, the plaintiff entered the property and was sitting at a booth. As she went to get up, she was caught on the bottom of her foot by a detached piece of the booth and fell, causing her serious and painful injuries. "The fall was due to the negligence and carelessness of the [d]efendant."
In particular, the plaintiff alleges that the defendant: (1) knew or should have known that a portion of the booth was detached causing a hazardous condition and yet failed to repair the booth; (2) knew or should have known that a portion of the booth was detached causing a hazardous condition and yet failed to post any warnings; and (3) failed to maintain their booths in a safe manner when they knew or should have known that patrons would be utilizing the booths.
As a result, the plaintiff suffered injuries. In the second count, the plaintiff realleges the previous facts and injuries but alleges that "[t]he [p]laintiff's fall and injury was due to the [wilful], wanton and reckless conduct of the [d]efendant."
In particular, the plaintiff alleges that the defendant: (1) consciously chose not to inspect the premises; (2) made a wilful and conscious decision not to warn customers of the dangerous condition created by the damaged booth due to the burden and/or costs associated with presenting such a warning; and (3) made a wilful and conscious decision not to repair the booth due to the burden and/or costs associated with that repair.
The defendant has moved to strike on the grounds that the "plaintiff cannot transform a negligence count into a count for wilful and wanton misconduct merely by appending a string of adjectives to allegations that clearly sound in negligence." CT Page 22276 Brown v. Branford, 12 Conn.App. 106, 110, 529 A.2d 743 (1987). This court agrees.
"Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it 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." (Internal quotation marks omitted.) Bishop v. Kelly, 206 Conn. 608, 614-15, 539 A.2d 108 (1988).
It is clear that the plaintiff has not alleged sufficient facts to state a cause of action for recklessness and "does not allege conduct by the defendant that involves any highly unreasonable conduct involving an extreme departure from ordinary care." Zublena v. Carrozzo, Superior Court, judicial district of Litchfield, Docket No. CV 01 0084267 (May 20, 2002, Cremins, J.). "This court does not accept the premise that a decision to avoid costs by tolerating the status quo is ipso facto a reckless decision, such that an injury resulting from it must be practically considered intentional." Lopez-Morales v. Fourteenth Club of Willimantic, Inc., Superior Court, judicial district of Windham, Docket No. CV 06 5000851 (April 30, 2007, Roland, J.) ( 43 Conn. L. Rptr. 351, 352-53).
The motion to strike is granted.