Opinion
FBTCV166059479S
03-22-2017
Robbins Eye Center, P.C. v. Commerce Park Associates, Inc. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
Defendants Commerce Park Associates, Inc. (" CPA") and RDR Management, LLC (" RDR") have moved to strike claims brought by plaintiff Robbins Eye Center, P.C. (" REC") alleging common-law recklessness against CPA in the Third Count, alleging violation of the Connecticut Unfair Trade Practices Act (" CUTPA"), C.G.S. § 42-110a et seq., against CPA in the Fourth Count, and alleging a CUTPA violation by RDR in the Fifth Count. For the reasons stated below, the motion is denied.
The Standards for Deciding a Motion to Strike
" 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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). On the other hand, " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
The Third Count States a Recklessness Claim Against CPA.
CPA owns a commercial office complex in Bridgeport known as Commerce Park. For over twenty years Dr. Kim P. Robbins has rented space at Commerce Park for her medical practice incorporated as REC. In addition to medical offices and examination rooms, REC offered a full range of services to eye care patients including an optical shop and a surgical suite for cataract removal, Lasik vision correction and other complex surgical procedures. Since at least 2008, RDR has performed property management services for CPA.
In 2007 Dr. Robbins leased the entire lower floor of the building, where REC's business is located, for the purpose of continuing the patient services described above. REC's use of the space for those purposes was known to CPA. Although REC was not the tenant, it spent approximately $1,500,000 to fit out the space, including the surgical suite, and paid the rent to CPA.
REC alleges that " [u]unbeknownst to Dr. Robbins . . . CPA had not maintained and did not maintain [the building], and was allowing it to fall into a state of substantial and structural repair because . . . CPA simply did not want to spend the funds required to repair" the building.
REC points to three key events which it alleges caused substantial damage to its business and ultimately led to the decision to surrender the space: (1) a flood on September 12, 2013, that was caused by a leaky roof and porous foundation, and exacerbated by faulty sump pumps, that forced REC to suspend operations for a period and resulted in a serious mold problem; (2) periodic toilet flooding in the floor above that resulted in urine and fecal matter dripping into REC's space; and (3) in April 2015, sewage flooded the REC space caused by overflowing sewage lines; upon inspection it was discovered that the sewer lines sagged which led to the sewage back-up into REC'S space; efforts by RDR to repair the sags broke the sewer pipe and raw sewage flooded the REC space, including the operating room. REC alleges that despite tenant complaints CPA failed to make the repairs needed to remedy the deteriorating building. REC alleged that the various incidents manifested a " high degree of danger caused by CPA's conduct . . ." REC alleged " CPA refused to expend the resources necessary to remedy the numerous issues with [the building] and simply did not care if its failure to maintain its building caused injury to those who utilized the building . . ."
CPA argues that these allegations do not constitute reckless misconduct by CPA but merely restated the allegations in the negligence count and added conclusory allegations about CPA's motivations without alleging subordinate facts to show reckless conduct. CPA correctly points out unsupported conclusory allegations and opinions do not suffice to withstand a motion to strike citing Angiolillo v. Buckmiller, 102 Conn.App. 697, 705, 927 A.2d 312 (2007) (" [m]erely using the term 'recklessness' to describe conduct previously alleged as negligence is insufficient as a matter of law"). REC counters by citing three cases in which courts upheld recklessness claims by a tenant against a landlord: Atelier Constantin Popescu, LLC v. JC Corp., 134 Conn.App. 731, 755-56, 49 A.3d 1003 (2012); Long v. Taranto, 2008 WL 5540484 *2 (Conn.Super. 2008), and Roache v. Rogers, 2008 WL 5540484 *2 (Conn.Super. 1999).
In Matthiessen v. Vanech, 266 Conn. 822, 832-33, 836 A.2d 394 (2003), the Supreme Court described the difference between negligent and reckless misconduct:
" 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 . . ." More recently, we have described recklessness as " a state of consciousness with reference to the consequences of one's acts . . ." It is more than negligence, more than gross negligence . . . 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 . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . " While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Citations omitted; emphasis added.)
The Matthiessen Court upheld a jury instruction that stressed the difference between negligence and recklessness: " recklessness is a 'serious or extreme departure from ordinary or reasonable care, ' and requires 'a conscious choice of a course of action involving serious dangers to others, either with knowledge of that serious danger, or with knowledge of facts which a reasonable person would recognize as being a serious danger to others.' . . . 'Negligence is the failure to act prudently or to use ordinary and reasonable care under the circumstances, ' and emphasized that 'No be reckless means a person must recognize that his or her actions or missions involved a risk to others which is substantially greater than that which is necessary to make his or her conduct negligent.'" 266 Conn. at 832-34.
The key difference between negligence and recklessness depends on defendant's state of mind: " [r]ecklessness 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." Rubel v. Wainwright, 86 Conn.App. 728, 740-41, 862 A.2d 863 (2005). " One is guilty of reckless misconduct when knowing or having reason to know of facts which would lead a reasonable [person] to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result . . ." Craig v. Driscoll, 64 Conn.App. 699, 721, 781 A.2d 440 (2001).
In Atelier, 134 Conn.App. at 740-41, fire damaged a commercial structure being fitted out for tenant occupancy. The Appellate Court upheld a finding of recklessness based on the landlord's disregard of a warning that removal of certain ductwork without removal of a ceiling posed a fire hazard, and by instructing the work be done despite the fire hazard, and by leaving the premises after the work was done without further inspection although the landlord's agent had smelled " burnt metal, " which suggested there was a fire. 134 Conn.App. at 753-57.
Some facts alleged here indicate that CPA disregarded warnings about specific hazardous conditions that caused REC's losses, notably the mold report relating mold growth to water seepage from the deteriorating foundation; however, most of the allegations are more general, that CPA was aware of longstanding problems with the roof, foundation, plumbing and sewer pipes, which it disregarded to avoid costly repairs, that later caused the alleged harm to REC.
In Long, 2008 WL 5540484 *2, the court denied a motion to strike a recklessness claim based on the allegation that the landlord negligently attempted to repair a furnace that resulted in carbon monoxide poisoning: " [c]ount two specifically alleges that the defendants knew of and advised the plaintiff of the defective furnace and indicated his intent to repair said furnace. Thereafter, the defendants took it upon themselves to repair the furnace, disregarding the risks that such conduct posed to the plaintiff. Such conduct, the plaintiff alleges, resulted in numerous health and safety code violations. If these facts are taken as proven, then the defendants had knowledge of the defect and the need for compliance. From these allegations, a trier of fact could infer 'such conduct . . . indicates a reckless disregard for the just rights and safety of others . . .'" Id., quoting Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988). The only similar allegation here is that RDR sent its employees, who are not licensed plumbers, to fix the sags in the sewer lines that had backed up and ended up exacerbating the situation by cutting the sewer line which flooded the operating room with raw sewage. There is no allegation that CPA knew about this deployment of RDR's unlicensed employees for this purpose and thus consciously disregarded the risk of having unlicensed persons performing plumbing work. Leaving repairs to be handled by the property manager in and of itself would not be reckless.
In Roache, 2008 WL 5540484 *2-3, a tenant alleged she slipped and fell on water leaking from her ceiling based on a long-standing plumbing problem, which the court concluded also stated a claim for recklessness: " [T]he plaintiff alleges that the defendants were warned of the unsafe and dangerous condition and allowed this condition to exist 'for a long period of time . . .' Also, the plaintiff has pled that the defendants had a duty to maintain the property in a safe condition pursuant to the rental agreement and General Statutes § 47a-7(a).2 As the plaintiff has alleged that the defendants knew or had reason to know that the defective plumbing created a high risk of harm, the plaintiff has alleged sufficient facts to state a claim for recklessness."
Here, taking the allegations as true and construing them favorably for plaintiff, there were several long-standing conditions that CPA is alleged to have known about but consciously failed to remedy to avoid the cost of proper repair: (1) the leaking roof and deteriorated foundation that allowed water infiltration and caused serious mold conditions; (2) recurring plumbing problems on the second floor that caused urine and fecal matter to drip into REC's space; (3) and repeated sewage back-ups that culminated in a broken sewer pipe when unlicensed RDR employees attempted plumbing repairs. CPA is alleged to have been aware of these problems but refused " to properly maintain the [building] and [made a] calculated decision to cut corners on maintenance that was performed . . ." These allegations if proven could constitute reckless misconduct since they evidence conscious disregard of a known risk to others. See Atelier, 134 Conn.App. at 755 (" reckless misconduct . . . is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action"). See also Cruz v. Tosado, 1995 WL 322523 *6 (Conn.Super. 1995) [14 Conn.L.Rptr. 272, ] (landlord's knowledge of lead paint hazard and failure to act constitutes recklessness). Accord, Monsees v. Peta, 2012 WL 1139175 *4-7 (Conn.Super. 2012) [53 Conn.L.Rptr. 742, ] (knowledge of lead paint). The longstanding nature of the problems, the awareness by CPA that repeated failure to repair properly the underlying conditions caused the recurring failures of the systems and carried the known and foreseeable risk of the general harm experienced by REC, all sustain the allegations of reckless conduct.
The motion to strike the common-law recklessness claim against CPA in the Third Count is denied.
The Fourth Count States a CUTPA Claim Against CPA
REC alleges that CPA violated CUTPA by " engaging in unfair/and or deceptive acts or practices in the conduct of real estate leasing" by its intentional and deliberate " neglect of its obligations to maintain [the building] in a tentantable condition, " and collecting rent, when it knew REC " could not possibly operate a medical or surgical practice out of the lower floor of [the building] due to its structurally unsound and dilapidated condition."
CUTPA provides in C.G.S. § 42-110b(a): " [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
A CUTPA claim may be established by proving a statutory violation that expressly invokes the Act, see e.g., Vt. Mut. Ins. Co. v. Fern, 165 Conn.App. 665, 674-76, 140 A.3d 278 (2016), or by proving an unfair or deceptive act in trade or commerce based on the facts and circumstances of the case. See Milford Paintball, LLC v. Wampus Milford Assocs., LLC, 156 Conn.App. 750, 757-58, 115 A.3d 1107 (2015).
In determining whether a particular act or practice violates CUTPA, the Connecticut courts " have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when [an act or] practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends a public policy established by statutes, the common law, or otherwise-whether, in other words, it is within at least the penumbra of some common law, statutory, or otherwise established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessman." Jacobs v. Healey Ford-Subaru, Inc., 231 Conn. 707, 725, 652 A.2d 496 (1995) (citations omitted). " All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy . . ." Id., 725-26, 652 A.2d 496 (citations omitted).
In Milford, 156 Conn.App. at 757-58, the Appellate Court upheld a CUTPA judgment based on a landlord's negligent misrepresentation concerning his intention to perform tenant fit out work before the start of the paintball season. In Vitano, Inc. v. Townline Assoc., 1991 WL 151893 *1-2 (Conn.Super 1991) [4 Conn.L.Rptr. 393, ], a landlord's misrepresentations to tenant about structural repairs were found to violate CUTPA.
Here, plaintiff has alleged no misrepresentations by CPA. The only act alleged against CPA that arguably would implicate a per se violation of CUTPA is the allegation that " rather than engage a licensed plumber to fix [the sewer pipes], CPA and RDR engaged RDR'S own employees, individuals who had neither the training nor experience to attempt to fix the sagging sewer pipes in Plaintiff's surgical center." The licensing statute, C.G.S. § 20-334, applies to the person performing the work for which a license is required, but CUTPA is broad enough to extend to the person who knowingly engaged the unlicensed plumbers in the appropriate case. Other than the vague allegation that CPA " engaged" RDR's employees, however, there are no other allegations linking CPA to the unlicensed plumbing work. To satisfy the " cigarette rule" more must be alleged to show unfair or deceptive conduct by CPA. See Milford, 156 Conn.App. at 757-58. The reckless conduct described above relating to the conscious disregard of risks attendant to the deteriorating roof, foundation, plumbing and sewer systems to avoid repair costs, while collecting rents, posed known safety risks implicating duties of the landlord to provide tenantable space and therefore suffice to allege a CUTPA violation. Although a CUTPA claim may not be based solely on negligence and additional facts need be alleged to state a CUTPA claim, see A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 217, 579 A.2d 69 (1990), reckless behavior may constitute a CUTPA violation without allegation of additional facts. See e.g., Monsees, , 2012 WL 1139175 *8. Compare, Conaway v. Prestia, 191 Conn. 484, 493, 464 A.2d 847 (1993) (CUTPA violation based on landlord-tenant law); Roache, 1999 WL 596235 *5 (failure to maintain the property in a safe and habitable condition); Simms v. Candela, 45 Conn.Supp. 267, 273-76 (1998) (failure to install gutter to save money violated landlord tenant law and stated CUTPA claim). The serious structural problems CPA is alleged to have consciously failed to address are alleged to have rendered the space untenantable, and created health risks that posed a greater risk of potential harm to the public because the space was used as a medical office and surgical suite. Cf. Hartford Hospital v. Dept. Consumer Protection, 2343 Conn. 709, 720, 707 A.2d 713 (1998) (hospitals not exempt from requirement of licensed plumbers because of heightened safety risk to public from faulty plumbing at hospitals). The alleged CUTPA violations resulted in ascertainable loss to REC, which was required to abandon the space that it had fit out at great expense. The motion to strike the CUTPA claim against CPA in the Fourth Count is denied.
The Fifth Count Alleges a CUTPA Claim Against RDR
A property manager may be held liable for its own misconduct. See Atelier, 134 Conn.App. at 756-57. There are allegations that RDR made misrepresentations to REC about the plumbing leaks and repairs, engaged in deceptive conduct relating to the repairs, used unlicensed employees to do plumbing work and engaged in reckless conduct, that would constitute unfair and deceptive acts and practices that violate CUTPA, for the reasons discussed above.
The motion to strike the CUTPA claim against RDR is denied.