Opinion
No. CV 06-5007079
May 21, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#105)
The plaintiff, Helen Wright, has filed a one-count complaint alleging negligence by the defendant, 860 Main, LLC. The defendant has moved to strike paragraphs 4(d) and 4(g) of the complaint on the grounds that these paragraphs are legally insufficient and fail to state a claim upon which relief may be granted. The defendant argues that Connecticut does not recognize a duty between a landlord and a third party who was injured by the criminal acts of his tenants. The plaintiff objects to the defendant's motion to strike on the grounds that it is improper to direct a motion to strike at individual sub-paragraphs of the complaint. The plaintiff argues that the proper procedure is for the defendant to file a request to revise petitioning the court to separate the allegations, that are believed to be legally insufficient, into a separate count to which the defendant may properly direct a motion to strike.
The defendant previously filed a request to revise petitioning the court to delete paragraphs 4(d) and 4(g) of the complaint on the grounds that they are legally insufficient. The plaintiff's objection to the request to revise was granted by the court because a motion to strike, rather than a request to revise, is the proper means by which to test the legal insufficiency of the allegations of the complaint. See Guillemette v. Rockville Lodge No. 1359, Superior Court, judicial district of Tolland, Docket No. CV 02 0079083 (January 11, 2005, Scholl, J.) ( 38 Conn. L. Rptr. 513); see also Rees v. Flaherty, Superior Court, judicial district of Tolland, Docket No. CV 01 0077316 (June 7, 2002, Scholl, J.) ( 32 Conn. L. Rptr. 292), cert. denied, 268 Conn. 911, 845 A.2d 412 (2004).
"Although there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense . . . Prior to the 1978 Practice Book revision, a motion to strike . . . individual portions or paragraphs of a count did not lie if the count as a whole stated a cause of action . . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count . . . However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action . . ." (Citations omitted; internal quotation marks omitted.) Trimachi v. Workers' Compensation Commission, Superior Court, judicial district of New Haven, Docket No. CV 97 0403037 (June 14, 2000, Devlin, J.) ( 27 Conn. L. Rptr. 681).
In the complaint, the plaintiff has intermixed two separate causes of action into one count. The plaintiff has combined a claim of negligence under the theory of premises liability with a claim of negligence under the theory that a landlord owes a duty to protect third parties from the criminal conduct of its tenant(s). Under the specific facts of the present case and in the interest of promoting judicial efficiency, this court will address the issues raised in the motion to strike because paragraphs 4(d) and 4(g) attempt to raise a separate and distinct cause of action. See B.M. Property v. Lamar Co., Superior Court, judicial district of Fairfield, Docket No. CV 04 4002309 (August 22, 2006, Hiller, J.) (addressed motion to strike individual paragraphs of a counterclaim because they embodied a cause of action for quiet title); Spaziani v. Overhead Door of Norwich Inc., Superior Court, judicial district of New London, Docket No. 4001712 (March 24, 2006, Hurley J.T.R.) (granted motion to strike single paragraph because it attempted to set forth a separate cause of action); Trimachi v. Workers' Compensation Commission, 27 Conn. L. Rptr. 681 (stating that it is appropriate to make a motion to strike specific paragraphs of the complaint that contain an independent and separate cause of action in order to challenge its legal sufficiency); Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) ( 17 Conn. L. Rptr. 296) (granting motion to strike individual paragraph).
The defendants are moving to strike paragraphs 4(d) and 4(g) of the complaint which attempt to state a cause of action for negligence under the theory that a landlord owes a duty to protect third parties from the criminal conduct of its tenant(s). In Spencer v. Nesto, 46 Conn.Sup. 566, 572, 764 A.2d 224 (2000), the court in addressing the issue of whether a landlord owes a duty to protect third parties from the criminal conduct of his tenants held that "the defendant could not have foreseen that the intentional criminal acts of his tenants would lead to injury of an unknown third party." The Spencer court further held that no special relationship existed between the landlord and the plaintiff, therefore, the court could not "impose a duty on a landlord to have control over a tenant's actions so that he could safeguard the innocent members of the community . . ." (Internal quotation marks omitted.) Id., 573-74. The Spencer court also rejected the plaintiff's argument that the landlord had a duty to "warn the community of his tenant's propensity for violence" as a "theory of liability [that] is tenuous at best." Id., 572. Likewise, the defendant in the present case had no duty to warn third parties of the dangerous nature of its tenant. Furthermore, the plaintiff in the present case offers no legal authority to support its allegation that the defendant landlord had a duty to perform an adequate background check on potential tenants.
The motion to strike paragraphs 4(d) and 4(g) is granted.