Opinion
No. CV 07 5002196
January 25, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE CLAIMS, INTER ALIA OF STATUTORY RECKLESSNESS AND VICARIOUS LIABILITY
On April 9, 2007, the plaintiffs, Keith Otis and Bradford Otis, filed a four-count complaint against the defendants Eileen Montesi, executrix of the estate of Joseph Montesi, and Prohealth Physicians, Inc (Prohealth). The operative complaint is the revised complaint filed on September 27, 2007, and sounds in negligence as to both defendants (count one), statutory recklessness as to both defendants (counts two and three), and common-law recklessness as to the decedent's estate (count four). The present case arises out of a motor vehicle accident. According to the facts alleged in the complaint, the decedent was an employee of Prohealth. On April 7, 2005, the decedent pulled out of a parking lot, and made a left hand turn northbound, crossing oncoming traffic. Keith Otis, the driver of the motor vehicle owned by Bradford Otis, was traveling southbound and was unable to brake in time to avoid hitting the decedent's vehicle. It is the plaintiffs' contention that the decedent saw the oncoming vehicle and failed to yield the right of way, and, as a result, the plaintiffs sustained damages.
The revised complaint adds two additional counts against Prohealth that are not subject to the present motion to strike.
The defendants have filed a motion to strike the second, third and fourth counts of the revised complaint. The plaintiffs have filed a memorandum in opposition. Oral argument on this matter was heard at short calendar on November 13, 2007.
Statutory Recklessness
The second count of the revised complaint incorporates allegations of the first count, sounding in negligence, and alleges statutory recklessness pursuant to General Statutes §§ 14-247 and 14-222(a). In their memorandum of law in support of their motion to strike, the defendants argue that this count must fail for legal insufficiency because the plaintiffs have not specifically alleged conduct that would rise to the level of culpability required for a recklessness claim. The defendants refer to the split of authority regarding the requisite degree of specificity for a recklessness claim, and urge the court to adopt the minority view that requires a greater degree of specificity.
General Statutes § 14-295 provides: "In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, 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 section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property."
As the defendants acknowledge, a division of authority exists at the Superior Court level regarding the degree of specificity required to plead statutory recklessness pursuant to § 14-295. This split was clearly laid out in Derita v. Loux, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 5000788 S (October 18, 2006, Robinson, J.). "The appellate courts have not had occasion to decide what degree of specificity is required in pleading recklessness under General Statutes § 14-295. The Superior Court judges are split on the issue . . . One line of cases, representing the minority view, holds that a plaintiff must plead the specific facts constituting recklessness, above and beyond the facts constituting mere negligence . . . The majority point of view, on the other hand, is that a plaintiff in addition to pleading facts constituting negligence, need only make the general allegations mentioned in § 14-295: that the defendant has deliberately or with reckless disregard violated one of the enumerated statutes, and that the violation was a substantial factor in causing the plaintiff's injuries." Id.; see also Torres v. Jacovino, Superior Court, judicial district of Waterbury, Docket No. 150549 (May 12, 2000, Doherty, J.). "The majority view is based both on an analysis of the legislative history as well as a review of the statutory language of § 14-295 itself." Pickering v. Middlebrook, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0195576 (June 10, 2004, Lewis, J.T.R.)
Applying the majority view to the allegations of count two, this court finds that the plaintiffs have sufficiently pleaded a cause of action for statutory recklessness. The plaintiffs have incorporated the relevant portions of their negligence count and have included additional allegations that the decedent's operation of the vehicle was with "deliberate and reckless disregard" and in violation of General Statutes § 14-222(a), one of the enumerated statutes contained in § 14-295.
In addition to § 14-222, the plaintiffs also allege a violation of § 14-247; however, § 14-247, addressing the requirement to yield the right of way, cannot be the basis for a claim of statutory recklessness as it is not one of the enumerated "trigger statutes" set forth in § 14-295.
Vicarious Liability for Statutory Recklessness
Count three alleges a cause of action for statutory recklessness and imputes liability to Prohealth, as the decedent's employer. The defendants argue that this count is legally insufficient because § 14-295 only applies to vehicles operated by the defendant, and, therefore, Prohealth cannot be held vicariously liable for the allegedly reckless conduct of its employee. In support of this argument, the defendants refer to the common-law principle that one cannot be vicariously liable for punitive damages. In response, the plaintiffs contend that § 14-295 permits the application of multiple statutory damages to all owners except those that lease or rent vehicles. Since the statute does not specifically exempt employers, the plaintiffs maintain that count three is legally sufficient.
The Superior Court remains divided on the issue of whether an employer can be held vicariously liable for the actions of its employee under General Statutes § 14-295. The majority of courts have found allegations asserting vicarious liability for statutory recklessness claims, in an employer-employee context, to be legally sufficient. See, e.g., Commerford v. Beaulieu, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 03 0082216S (June 1, 2004, Robinson, J.); Batchelor v. Veliz, Superior Court, judicial district of Stamford, Docket No. 185583 (March 31, 2003, Lewis, J.); Bostick v. Dvornek, Superior Court, judicial district of Fairfield, Docket No. 383575 (December 13, 2001, Gallagher, J.); Santillo v. Arredono, Superior Court, judicial district of New Haven, Docket No. 442323 (March 21, 2001, Blue, J.) (29 Conn. L. Rptr. 458). The minority line of cases, on the other hand, cite to the common-law restraint on vicarious liability for punitive damages as the basis for the conclusion that § 14-295 cannot be used to assert vicarious liability. See, e.g. Clark v. Gallup, Superior Court, judicial district of Tolland, Docket No. 074117, (June 13, 2001, Sferrazza, J.) (29 Conn. L. Rptr. 655); Little v. Bonesse, Superior Court, judicial district of New Haven, Docket No. 427368 (July 5, 2000, Levin, J.) [27 Conn. L. Rptr. 458].
Applying the majority view to the allegations of count three, results in a finding of a legally sufficient claim of vicarious liability for statutory recklessness.
Common-law Recklessness
The defendants also move to strike count four, sounding in common-law recklessness as to the decedent's estate. In support of this argument, the defendants argue that the count alleges that same facts and statutory violations contained in the negligence count, and, absent additional allegations, is legally insufficient. In response, the plaintiffs maintain that this argument violates Practice Book § 10-41, in that the defendants have failed to set forth a separate specific basis in support of the motion to strike this count.
As a preliminary matter, it should be noted that similarities between the allegations of the negligence and common-law recklessness count are not necessarily grounds for the claim to be stricken. "A cause of action of common-law recklessness may 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 another count sounding in negligence. The similarity of allegations does not necessarily render one cause of action invalid." Helberg v. Mainetti, Superior Court, judicial district of Hartford, Docket No. CV 04 0833878 (December 28, 2005, Keller, J.). "Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted." Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003). "Rather than follow a mechanistic approach . . . it seems more appropriate to examine instead whether the facts that are alleged could, under any set of facts admissible under the pleadings, support a conclusion of recklessness." Helberg v. Mainetti, supra, Superior Court, Docket No. CV 04 0833878.
"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.) Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003). "The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, 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 . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Internal quotation marks omitted.) Craig v. Driscoll, supra, 262 Conn. 342-43.
In count four, the plaintiffs allege that the decedent's actions of "stopping, starting, stopping and then starting again and driving into the path of the [p]laintiff's vehicle leaving no time or room for the [plaintiff] to avoid the crash" was not only a violation of General Statutes § 14-247 and § 14-222(a), but was also "a departure from ordinary care in a situation where a high degree of danger was apparent as to establish common law recklessness." The plaintiffs further allege that the decedent engaged in "the reckless, willful and wanton misconduct . . . in that he recklessly drove his vehicle by willfully disregarding and failing to properly yield the right-of-way to all vehicles approaching on such highway when about to enter or cross the highway from a private road or driveway . . ." Construing the pleadings in the light most favorable to the plaintiffs, as required on a motion to strike, these allegations sufficiently alert the court and opposing counsel that both negligence and reckless conduct are being asserted. Although the counts share a similar factual predicate, this is not a sufficient basis to grant a motion to strike where it is apparent from the complaint that the plaintiffs are alleging both negligence and recklessness.
Conclusion
For the foregoing reasons, the motion to strike is denied.