Opinion
No. CV01-0165815S
October 3, 2003
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE
The defendant, JR Auto Service Corp. d/b/a Ray's Transmission (hereinafter "the Employer") has moved to strike the sixth, seventh, fifteenth and sixteenth counts of the second amended complaint of plaintiff Anthony Pirro et al. (hereinafter "the Plaintiffs"). This action arises from a motor vehicle accident that occurred on January 11, 2001, involving automobiles operated by plaintiff Anthony Pirro and defendant Michael Berardi and a parked tractor trailer truck owned by defendant All Freight and parked on the side of the road by defendant Damiane Gaskin.
The plaintiffs are seeking: "money damages; double or treble damages, pursuant to Conn. Gen. Stat. § 14-295; and punitive damages." However, at oral argument, and in their responsive brief objecting to the motion to strike, plaintiffs concede that the defendant Employer may not be held vicariously liable for punitive damages based on the common-law reckless acts of its employee. While conceding that point, the plaintiffs maintain their prayers for double or treble damages pursuant to the provisions of § 14-295.
General Statutes § 14-295, entitled "Double or treble damages for persons injured as a result of certain traffic violations," 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 sections 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."
In its motion to strike, the defendant Employer contends that the plaintiffs do not provide the requisite allegations to state a cause of action for vicarious liability for the reckless acts of its employee, either under statute or under common law. In addition, the Employer asserts that "[a]s for the associated prayer for relief, punitive damages are not available against a principal where, as here, liability is based solely on a theory of respondeat superior or vicarious liability." The Employer further moves to strike the associated prayers for relief to the extent that they seek statutory and punitive damages.
Standard of Review
The function of a motion to strike is to test the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Vacco v. Microsoft Corp., 260 Conn. 59, 65 (2002); Sherwood v. Danbury Hospital, 252 Conn. 193, 213 (2000); Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15 (1992); Ferryman v. Groton, 212 Conn. 138, 142 (1989); Practice Book §§ 10-39. The role of the trial court is to examine the complaint, construed in favor of the pleader, to determine whether the pleader has stated a legally sufficient cause of action. Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772 (2002); ATC Partnership v. Windham, 251 Conn. 597, 603, cert. denied, 530 U.S. 1214 (1999); Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997); Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 232-33, cert. denied, 520 U.S. 1103 (1996).
In adjudicating a motion to strike, the court must construe the facts alleged in the complaint in the manner most favorable to the plaintiff. Vacco v. Microsoft Corp., supra, 260 Conn. 65; Gazo v. Stamford, 255 Conn. 245, 260 (2001); Bohan v. Last, 236 Conn. 670, 675 (1996); Sassone v. Lepore, 226 Conn. 773, 780 (1993); Novametrix Medical Systems, Inc. v. BOC Group, Inc., supra, 224 Conn. 215; Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988). The requirement of favorable construction does not extend, however, to legal opinions or conclusions stated in the complaint, but only to "factual allegations and the facts necessarily implied and fairly provable under the allegations." Forbes v. Ballaro, 31 Conn. App. 235, 239 (1993).
Counts Seven and Sixteen, Vicarious Liability for Common-Law Recklessness
The seventh and sixteenth counts set forth vicarious liability claims against the defendant Employer for damages allegedly caused by the common law reckless acts of defendant Berardi. The seventh count seeks recovery for the personal injuries of plaintiff Anthony Pirro and the sixteenth count seeks recovery for the loss of consortium allegedly suffered by plaintiff Nadeane Pirro.
It is well established law that the common law does not impose punitive or exemplary damages against a principal based solely on a theory of vicarious liability. Maisenbacker v. Society Concordia, 71 Conn. 369, 379-80, 42 A.2d 67 (1899).
The common-law rule results from the reasons for awarding punitive damages, which make it improper ordinarily to award punitive damages against one who himself is personally innocent and therefore liable only vicariously. Under the common law, punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if,
(a) the principal or a managerial agent authorized the doing and the manner of the act, or
(b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or
(c) the agent was employed in a managerial capacity and was acting in the scope of employment, or
(d) the principal or a managerial agent of the principal ratified or approved the act.
(REST 2d TORTS §§ 909. Punitive Damages Against a Principal, Excerpt from page 1349.) None of the above four allegations are pled by the plaintiff in this matter. For the above reasons, the defendant Employer's motion to strike counts seven and sixteen is granted.
Counts Six and Fifteen, Vicarious Liability as to JR Auto and § 14-295 Recklessness
The sixth and fifteenth counts set forth vicarious liability claims against the defendant Employer for damages caused by the § 14-295 reckless acts of its employee, defendant Berardi. The sixth count seeks recovery for the personal injuries of plaintiff Anthony Pirro and the fifteenth count seeks recovery for the loss of consortium allegedly suffered by the plaintiff Nadeane Pirro.
In their motion to strike, the defendants argue that the plaintiffs have failed to allege a sufficient cause of action pursuant to § 14-295, and that there is no vicarious liability under Connecticut law for § 14-295 double or treble damages. In response, the plaintiffs counter that "there is no basis for concluding that an employer may not be held vicariously liable for double or treble damages pursuant to § 14-295 for the reckless statutory violations of the employee's agent." The plaintiffs urge the court to conclude "that the plain language of General Statutes § 14-295, coupled with the remedial social purposes of this statute, expose[s] an owner or master to liability for double or treble damages."
As stated above, at common law no punitive or exemplary damages were assessable against owners for the acts of their agents if the owner's liability was purely vicarious. Maisenbacher v. Society Concordia, 71 Conn. 369, 379 (1899). With respect to vehicles, however, vicarious responsibility for such damages was, at one time, specifically imposed by statute where the driver failed to pay the damages. Levik v. Norton, 51 Conn. 461, 469 (1883). This statute eventually evolved into § 14-295 and § 14-154a, among others, Gionfriddo v. Rent A Car Systems, Inc., 192 Conn. 280, 287, fn. 3 (1984). As noted, during the early nineteenth and twentieth centuries, owners of vehicles were expressly liable for enhanced damages for the egregious operation of their vehicle by their agents if the agents were unable to pay those damages. Id. In 1925, however, this imputed responsibility was eliminated except for owners who leased vehicles. Id. Bissonette v. Pomroy, No. CV 97 0054782 (July 1, 1997), 1997 Ct. Sup. 7222, 19 Conn.L.Rptr. 664 (Sferrazza, J.).
No Connecticut Appellate Court has addressed the issue of whether an employer may be held vicariously liable for statutory damages assessed pursuant to Conn. Gen. Stat. § 14-295. There is a division of opinion amongst the judges of the Superior Court as to whether a plaintiff may recover multiple damages from a defendant owner who is alleged to be vicariously liable for the operator's reckless conduct pursuant to § 14-295. The first line of cases, representing the minority view, holds that §§ 14-295, 52-182 and/or 52-183 do not contain language allowing for an expansion of the common-law restraint on the imposition of multiple damages upon a non-operator owner for the reckless conduct of the defendant operator. See Clark v. Gallup, Superior Court, judicial district of Tolland at Rockville, Docket No. 074117 (June 13, 2001, Sferrazza, J.) ( 29 Conn.L.Rptr. 655); Little v. Bonesse, Superior Court, judicial district of New Haven at New Haven, Docket No. 427368 (July 5, 2000, Levin, J.) ( 27 Conn.L.Rptr. 458); Lyte v. Kane, Superior Court, judicial district of Milford at Milford, Docket No. 063138 (August 25, 1998, Flynn, J.) ( 23 Conn.L.Rptr. 136); Marin v. Plaskawicki, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 313690 (December 8, 1994, Maiocco, J.) ( 13 Conn.L.Rptr. 174). The majority view, on the other hand, holds that multiple damages under § 14-295 may be assessed against the non-operator owner as a result of the defendant operator's violation of one or more of the motor vehicle statutes. See Bostick v. Dvornek, supra, Superior Court, Docket No. 383575; Shields v. Labriola, Superior Court, judicial district of New Britain at New Britain, Docket No. 504276 (November 9, 2001, Kremski, J.) ( 30 Conn.L.Rptr. 697); Santillo v. Arredono, Superior Court, judicial district of New Haven at New Haven, Docket No. 442323 (March 21, 2001, Blue, J.) ( 29 Conn.L.Rptr. 458); McCarthy v. Yantorno, Superior Court, judicial district of Litchfield, Docket No. 78474 (August 18, 1999, Sheedy, J.) ( 25 Conn.L.Rptr. 377); Sullivan v. Skully, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 125823 (March 20, 1998, Espinosa, J.) ( 21 Conn.L.Rptr. 550); Rubbo v. Rubbo, Superior Court, judicial district of Waterbury, Docket No. 130961 (May 22, 1997, Pellegrino, J.) ( 19 Conn.L.Rptr. 547); Prezioso v. Greater Bridgeport Transit Authority, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 333757 (December 24, 1997, Skolnick, J.) ( 21 Conn.L.Rptr. 274); Coman v. Mannix, No. 065645 (Apr. 11, 2002) (Foley, J.) 2002 Ct. Sup. 4790 ( 31 Conn.L.Rptr. 680). "[T]he rule of statutory construction [is] that statutes in derogation of common law `should receive a strict construction and [should not] be extended, modified, repealed or enlarged in . . . scope by the mechanics of construction.'" Williams Ford, Inc. v. Hartford Currant, Co., 232 Conn. 559, 581, 657 A.2d 212 (1995), quoting, Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975). Reading the plain, clear language of the statutes, it is the opinion of this court that § 52-183 does not provide a basis for awarding multiple damages under § 14-295 against the non-operator owner of a vehicle for statutory traffic violations committed by the defendant operator. Moreover, if the legislature had intended the judiciary to impose double or treble damages upon non-operator owners, it would have done so by requiring such action pursuant to § 14-295 and, thus, not holding liable only the "party [that] deliberately or with reckless disregard operated a motor vehicle in violation of [one or more of the enumerated sections], and [where] such violation was a substantial factor in causing . . . injury . . ." (Emphasis added.) General Statutes § 14-295.
In summary, this court is not persuaded by the majority view. This court has no quarrel with the justice of assessing double or treble damages against the active wrongdoer, the defendant Berardi, both as a punishment for his allegedly reckless conduct and in furtherance of the public policy to ensure safe driving conduct. However, the court sees no sound policy reason to impose such a penalty on the defendant Employer, who did not engage in the reckless conduct. For the reasons stated herein, the defendant Employer's motion to strike counts six and fifteen is granted.
Bethany Alvord J.