Opinion
No. CV08 501 70 37 S
October 29, 2008
MEMORANDUM OF DECISION
The matter presently before the court arises out of a July 4, 2006 three-car accident. In their complaint dated June 24, 2008, the plaintiff Olga Urena, and her passengers, Solange Cepedes, Sonia Cepedes, and Ansonyl Cepedes allege that they sustained injuries and damages when their vehicle was struck in the rear by a vehicle operated by the defendant, Jose Castillo, which, according to the complaint, was struck in the rear by a vehicle operated by the defendant Mark Deangelis. The complaint is comprised of sixteen counts, alleging negligence in the even-numbered counts and recklessness in the odd-numbered counts.
The summons and the complaint offer two variations on the spelling of Solange, Sonia and Ansonyl's surname; I am using the spelling found on the summons.
On August 26, 2008, the defendant Jose Castillo filed a motion to strike counts one, three, five and seven of the complaint, on the ground that the plaintiffs have failed to allege facts sufficient to support a claim for statutory recklessness. On October 22, 2008, the plaintiffs filed a memorandum of law in opposition. The matter was heard at short calendar on October 27, 2008.
At oral argument, the defendant abandoned his claim that the plaintiffs failed to allege facts sufficient to support a claim for common-law recklessness.
DISCUSSION
"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.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 170, 709 A.2d 558 (1998).
In ruling on a motion to strike, the trial court examines the complaint "construed in favor of the plaintiffs, to determine whether the [pleading party 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). When deciding the motion, "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 his memorandum of law in support of his motion to strike, the defendant argues that the plaintiffs failed to allege specific facts sufficient to support a claim for recklessness, and thus, have failed to plead a sufficient factual basis to support a claim for double and treble damages under § 14-295. The defendant urges the court to follow what appears to be the minority view, which requires that a plaintiff plead specific conduct that is reckless, over and beyond what must be pleaded for mere negligence.
Here, all four plaintiffs have alleged that their injuries were caused by the defendant Jose Castillo's "reckless operation of his vehicle in violation of . . . Connecticut General Statutes § 14-218a . . . Connecticut General Statutes § 14-222 . . . and . . . Connecticut General Statutes § 14-240a, "and that the defendant's reckless or deliberate disregard was a substantial factor in causing the injuries to the plaintiffs. Counts one, three, five, and seven request double or treble damages pursuant to C.G.S. § 14-295, and the prayer for relief seeks double or treble damages.
General Statutes § 14-218a provides in relevant part: (a) No person shall operate a motor vehicle upon any public highway of the state . . . at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions.
The complaint actually refers to C.G.S. § 174-222; this appears to be a scrivener's in error.
General Statutes § 14-222 provides in relevant part: (a) No person shall operate any motor vehicle upon any public highway of the state . . . Recklessly, having regard to the width, traffic and use of such highway . . . the intersection of streets and the weather conditions. The operation of a motor vehicle upon any such highway . . . at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle shall constitute a violation of the provisions of this section.
General Statutes § 14-240 provides in relevant part: No person operating a motor vehicle shall follow another vehicle more closely than is reasonable and prudent, having regard for the speed of such vehicles, the traffic upon the condition of the roadway or highway and weather conditions, with the intent to harass or intimidate the operator of the preceding motor vehicle.
General Statutes § 14-295, which is entitled "Double or treble damages for personal injury or property damage resulting from certain traffic violations," provides in relevant part as follows: "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 . . . 14-222 . . . or 14-240a . . . and that such violation was a substantial factor in causing such injury, death or damage to property . . ."
Neither the Connecticut Supreme nor Appellate Court has yet had occasion to address the pleading requirements for recklessness under § 14-295. There has been a split of authority in Superior Court decisions as to what degree of specificity is required in pleading recklessness. See Franco v. Kang, Superior Court, judicial district of New Haven, Docket No. CV 04 4001991 (July 2, 2007, Zoarski, J.T.R.); Buccitti v. Sudhakar, Superior Court, judicial district of Waterbury, Docket No. CV 07 05004210 (June 20, 2007, Upson, J.); Esposito v. Lydell, Superior Court, judicial district of New Haven, Docket No. CV 06 5004543 (May 22, 2007, Holden, J.). "The split of authority arises from the different constructions the courts have placed on the term `specifically pleaded.'" Pyka v. Popielase, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 50000166 (May 30, 2006, Hartmere, J.).
A slight majority of Superior Court decisions has required that a plaintiff only plead the general allegations enumerated in § 14-295, namely, that the defendant has deliberately or with reckless disregard violated one of the enumerated statutes, and the violation was a substantial factor in causing the plaintiff's injuries. Franco v. Kang, supra, Superior Court, Docket No. CV 04 4001991; see also Benigni v. Regency Transportation, Superior Court, judicial district of New Britain, Docket No. CV 06 5002474 (August 1, 2007, Pittman, J.); Buccitti v. Sudhakar, supra, Superior Court, Docket No. CV 07 05004210; Healey v. Diggens, Superior Court, judicial district of New Britain, Docket No. CV 05 4003668 (October 11, 2006, Robinson, J.); Mugford v. Lee, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001463 (October 2, 2006, Matasavage, J.); Webster v. Bell, Superior Court, judicial district of New London, Docket No. 5000865 (September 22, 2006, Hurley, J.T.R.); Pizarro v. Couture, Superior Court, judicial district of New London, Docket No. 5000374 (September 18, 2006, Hurley, J.T.R.); Carawlanis v. Kaczmarczyk, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 06 5001507 (June 7, 2006, Rodriguez, J.); Shost v. Beeman, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05-4003960 (March 1, 2006, Ronan, J.T.R.); Pyka v. Popielase, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 50000166 (May 30, 2006, Hartmere, J.); Mandeville v. Kulikowski, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4004292 (December 6, 2005, Ronan, J.T.R.); Termini v. Taylor, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 5000171 (November 28, 2005, Taylor, J.) [ 40 Conn. L. Rptr. 424]; Hand v. Moore, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 05 4003873 (September 26, 2005, Jennings, J.) [ 40 Conn. L. Rptr. 83]; Metzler v. Amenta, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 00848205 (June 15, 2004, Robinson, J.); Pickering v. Middlebrook, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 03 0195576 (June 10, 2004, Lewis, J.T.R.); Kaluski v. Izaguire, Superior Court, judicial district of New Haven, Docket No. CV 02 0463055 (July 15, 2002, Robinson-Thomas, J.); Lombard v. Booth, Superior Court, judicial district of Fairfield, Docket No. CV 01 0383637 (July 12, 2001, Stevens, J.) [ 30 Conn. L. Rptr. 78]; Wade v. Vahora, Superior Court, judicial district of Fairfield, Docket No. CV 98 0349630 (September 9, 1998, Skolnick, J.); Owens v. Dandanell, Superior Court, judicial district of Litchfield, CV 96 0070220 (May 13, 1997, Pickett, J.T.R.) [ 19 Conn. L. Rptr. 435]; Price v. Paccar Leasing Corp., Superior Court, judicial district of New London, CV 938888 (February 19, 1997, Booth, J.); Nowitz v. JBH Transport, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 335166 (January 27, 1997, Melville, J.); Castillo v. Caporani, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 329702S (April 12, 1996, Ballen, J.); St. George v. Connecticut Car Rental, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0554923, (February 27, 1996, Spada, J.); Smith v. Mitsubishi Motors, Superior Court, judicial district of New London, Docket No. 535161, (January 17, 1996, Hurley, J.); Besson v. Davis, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 32 70 40 S, (January 5, 1996, Ballen, J.); Bavolacco v. Medalis, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 324479S (September 14, 1995, Ballen, J.); McGuire v. Ferguson, Superior Court, judicial district of Litchfield, Docket No. CV 950068021 (July 31, 1995, Pickett, J.) [ 14 Conn. L. Rptr. 624]; Eldridge v. Steinberg, Superior Court, judicial district of Hartford-New Britain, Docket No. CV95 544939 (February 16, 1995, Wagner, J.); Hoponick v. Bastis, Superior Court, judicial district of Waterbury, Docket No. 118941 (December 9, 1994, Sylvester, J.); Armstrong v. Smith, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 94-0533947S (December 2, 1994, Sheldon, J.) [ 13 Conn. L. Rptr. 120]; Solarzano v. Wilson, Superior Court, judicial district of New Haven, Docket No. 35 68 85 (November 10, 1994, Zoarski, J.); Ogletree v. Brown, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV93 0134778 (July 29, 1994, Lewis, J.) [ 12 Conn. L. Rptr. 272]; Knoblauch v. Atlantic Ventilating, Superior Court, judicial district of Hartford-New Britain, Docket No. CV93-0524505 (October 22, 1993, Corradino, J.) [ 10 Conn. L. Rptr. 275]; Spencer v. King, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV93-0069530S (September 16, 1993, Higgins, J.) [ 10 Conn. L. Rptr. 48].
Courts taking the majority view have emphasized the plain meaning of § 14-295:
"There does not appear to be any ambiguity in the language of [§]14-295 or how it should be applied or construed. The statute says that in a civil action seeking damages for personal injuries, the trier of fact may award double or treble damages if the plaintiff has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of . . . [one or more motor vehicle statutes delineated in the statute] . . . and that such violation was a substantial factor in causing such injury . . . When such an allegation is specifically made, nothing else is required under the statute. If a further delineation of facts forming the basis of the recklessness claim were necessary, then such an explicit requirement could have been set out in the statute by the legislature." Lombard v. Booth, supra, Superior Court, Docket No. CV 01 0383637. "Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct." Warkentin v. Burns, 223 Conn. 14, 22, 610 A.2d 1287 (1992).
Buccitti v. Sudhakar, supra, Superior Court, Docket No. CV 07 05004210. See also Mandeville v. Kulikowski, supra, Superior Court, Docket No. CV 05 4004292 (same); Carawlanis v. Kaczmarczyk, supra, Superior Court, Docket No. CV 06 5001507 ("the majority opinion is supported by the clear language of § 14-295"); Hand v. Moore, supra, Superior Court, Docket No. CV 05 4003873 ("no indication that the legislature intended to incorporate the specific fact pleading requirements of the common-law cases into cases of statutory negligence").
In Armstrong v. Smith, supra, Superior Court, Docket No. 94 0533947, Judge Sheldon clearly and concisely set forth the legislative history of § 14-295. In discussing the fact that the legislature explicitly required any person seeking treble damages to both plead and prove that the defendant acted "deliberately or with reckless disregard," Judge Sheldon made the following salient point:
Plainly, by importing such a standard to Section 14-295, the legislature sought to punish by treble damages only those traditionally regarded by the law as most worthy of punishment. The distinguishing factors about their behavior which makes them worthy of such special sanctions is plainly the deliberation or reckless disregard of others with which they act. By pleading, and thus committing herself to proving, this critical mental element, the plaintiff has pleaded all the law requires to ensure that the statute will be strictly enforced according to its terms.
In contrast, a minority of courts have required that plaintiffs plead the specific conduct that is reckless, above and beyond what must be pleaded for mere negligence. See Leigh v. Cook, Superior Court, judicial district of New Haven, Docket No. CV 06 6000492 (May 24, 2007, Holden, J.); Belgrave v. Turk, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05 4010135 (February 1, 2007, Howard, J.T.R.); Victor v. Williamson, Superior Court, judicial district of Fairfield, Docket No. CV 05 4008786 (July 7, 2006, Owens, J.T.R.); Pamela v. Heinzelman, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 04 4005740 (January 19, 2006, Lewis, J.T.R.).
Courts following the minority view have highlighted the substantive difference between negligence and recklessness. "Our Superior courts have held that the reiteration of facts previously asserted to support a cause of action in negligence, without more, cannot be transformed into a claim of reckless misconduct [by mere] nomenclature." (Internal quotation marks omitted.) Leigh v. Cook, supra, Superior Court, Docket No. CV 06 6000492. "To allow a plaintiff to simply allege reckless disregard of a statutory provision would enable any negligence claim to be brought as a recklessness claim and thereby make it subject to double and treble damages. The plaintiff would only have to plead that in addition to the defendant's conduct being careless it was also deliberate. This court does not believe it was the legislature's intent when enacting § 14-295, to effectively dissolve any distinction between claims in negligence and recklessness." Victor v. Williamson, supra, Superior Court, Docket No. CV 05 4008786.
Other courts adopting the minority approach include: Chatterton v. Infinity Ins. Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV98 0069615 (October 1, 1999, Arnold, J.); Kelly v. Stone, Superior Court, judicial district of Fairfield, Docket No. CV 97 344231 (January 9, 1998, Maiocco, J.); Reed v. Sesta, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 98 0577273 (June 19, 1998, Aurigemma, J.); Bravo v. Watson, Superior Court, judicial district of Waterbury., Docket No. 0129692 (March 13, 1996, McDonald, J.); Collins v. Lull, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 96 058510 (August 9, 1996, Aurigemma, J.); Cavallaro v. Amara, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 96 0557711 (September 26, 1996, Aurigemma, J.); Murray v. Krupa, Superior Court, judicial district of New London, Docket No. 107233 (October 2, 1995, Teller, J.); Babkie v. Kinder, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV94 314016 (June 30, 1995, Maiocco, J.); Fisher v. Irby, Superior Court, judicial district of Fairfield, Docket No. 309622 (February 1, 1994, Ballen, J.); Castrovillari v. Bourse, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 93 0129351 (March 3, 1994, Lewis, J.); Bly v. Katrosar, Superior Court, judicial district of Waterbury, Docket No. 114655 (March 10, 1994, Sylvester, J.); Pitka v. Ullrich, Superior Court, judicial district of New London, Docket No. 530000 (November 15, 1994, Austin, J.) [ 13 Conn. L. Rptr. 32]; Jimenez v. Schell, Superior Court, judicial district of Stamford, Docket No. CV94 0137265 (November 8, 1994, Lewis, J.); Diana Bivens et al. v. Charles Brewster et al., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV93 0308588S (March 22, 1994, Rodriguez, J.); Minervini v. Pierce, Superior Court, judicial district of Waterbury, Docket No. 0111987 (January 22, 1993, Sylvester, J.); Lezotte v. Hanover Insurance Co., Superior Court, judicial district of Waterbury, Docket No. 0112067 (January 6, 1993, Sylvester, J.) [ 8 Conn. L. Rptr. 199]; Comparone v. Cooper, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV92 293125 (August 27, 1992, Lewis, J.) [ 7 Conn. L. Rptr. 262]; Gaudet v. Ziobran, Superior Court, judicial district of Middlesex, Docket No. 61126 (June 10, 1992, Austin, J.) [ 6 Conn. L. Rptr. 862]; and Varlese v. Beers, Superior Court, judicial district of Waterbury, Docket No. 0997551 (April 4, 1991, Sullivan, J.) [ 3 Conn. L. Rptr. 474].
Courts taking the minority position have also emphasized the importance of fact pleading. "[T]he majority view — to plead only the bare bones of the statute — would lead to anemic pleading . . . Connecticut remains a fact pleading jurisdiction . . . The majority view would judicially take us to a notice pleading posture." Kurensky v. Church Hill Enterprises, supra, Superior Court, Docket No. CV 02 0390806. "Practice Book § 10-1, titled Fact Pleading, provides in relevant part: `Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . .' There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on." (Internal quotation marks omitted.) Leigh v. Cook, supra, Superior Court, Docket No. CV 06 6000492. "[T]he plaintiff must plead particularized facts that when taken as true would show that the defendant acted with reckless disregard. The facts alleged must show that the defendant consciously chose a course of action despite the fact that the defendant did know, or reasonably should have known, that the action posed serious danger to others." Victor v. Williamson, supra, Superior Court, Docket No. CV 05 4008786.
Several courts have used both the majority and minority approaches in examining pleadings that allege recklessness under § 14-295. See e.g. Lussier v. Zarelli, Superior Court, Judicial District of Stamford-Norwalk, Docket No. CV 05 5000389 (August 16, 2006, Jennings, J.) ("[The plaintiff] has not alleged that the defendants' violation of the statute was a substantial factor in causing her injuries. Therefore, her claim for recklessness is deficient under the majority view. The plaintiff's allegation of recklessness is also deficient under the minority view which requires her to `plead the specific facts constituting recklessness above and beyond the facts constituting mere negligence'").
In the past, this court has found the majority view, which has also been the trend in recent years, persuasive. See Burr v. Ruggiero, Superior Court, judicial district of New Haven, Docket No. 07 5013127 (June 15, 2008); Chacon v. Fuseini, Superior Court, judicial district of New Haven, Docket No. 07 5009785 (February 28, 2008); Sofiane v. Cardona, Superior Court, judicial district of New Haven, Docket No. 07 50130798 (November 14, 2007). The language of § 14-295 is unambiguous, and the plaintiffs have met the requirements of the statute by alleging that the defendant recklessly operated his motor vehicle in violation of § 14-218a, 14-222, and 14-240a and that such violation caused injuries and losses to the plaintiffs. There is no question that the plaintiffs sufficiently pled the necessary causal relationship between the defendant's violation of § 14-218a, 14-222, and 14-240a and the plaintiffs' injuries and losses, so as to come within the purview of § 14-295. The plaintiffs have therefore adequately invoked the provisions of § 14-295 under the majority view adopted by this court.
Accordingly, the Motion to Strike is denied.