Opinion
FBT166058884S
06-29-2017
Roseann Zmarzlak v. Daniel Sanchez
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
Plaintiff has moved to strike various special defenses alleged by defendants in their answer. For the reasons stated below, the motion to strike the special defenses is granted.
Standards for Deciding a Motion to Strike Special Defenses
" 'A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike.' Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001); Practice Book § 10-39(a)(2). 'A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.' . . . Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). 'In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency.' . . . Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015). 'On the other hand, the total absence of any factual allegations specific to the dispute renders [a special defense] legally insufficient.' . . . Smith v. Jackson, Superior Court, judicial district of Waterbury, Docket No. CV-14-6024411-S (August 21, 2015, Roraback, J.) (59 Conn.L.Rptr. 864, ). Finally, 'the trial court is limited to considering the grounds specified in the motion [to strike].' Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980)." Pritser v. Bowman, 2017 WL 811609 at *2 (Conn.Super. 2017) (Bellis, J.).
The Supreme Court discussed the function of a special defense in our system of pleading in Almada v. Wassau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005):
Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . 'The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is under-way.' . . . Whether facts must be specially pleaded [however] depends on the nature of those facts in relation to the contested issues. (Citations omitted.)
" If . . . a party seeks the admission of evidence which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the 'new matter' must be affirmatively pleaded as a special defense." Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 8, 327 A.2d 583 (1973).
Practice Book § 10-2 permits acts to be alleged " according to their legal effect, but in doing so the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove." The requirement of fact pleading is also carried over in Practice Book § 10-50 which states " [f]acts which are consistent with [plaintiff's] . . . statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged." A motion to strike may be granted if only legal conclusions are pled " unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
Justice Robinson, when he was a Judge of the Superior Court, in SNET Information, Inc. v. Prime One/Prime Direct, Inc., 2009 WL 2784642 at *1-2 (Conn.Super. 2009), discussed the two purposes served by a special defense:
The courts have outlined two distinct purposes for a special defense that are to be utilized in determining whether a motion to strike should be granted. " The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." . . . [O]ne of the purposes for a special defense is not to deny the factual allegations, but to demonstrate that in spite of those factual allegations, the plaintiff has no cause of action . . . The other purpose of a special defense is to act as a form of pleadings. As such, the purpose is to make the court and the opposing party aware of the issues to be tried . . . Therefore, in determining whether the special defense should be stricken, the court should first determine if the special defense pleads facts that are consistent with the plaintiff's complaint but, in spite of those facts, still provide a viable reason for not supporting the cause of action. Second, if the special defense pleads alternative facts, the court should determine whether it is nonetheless necessary for the special defense to remain as a way of allowing the court and the opposing party to be aware of the issues to be tried. Should neither of those purposes be met by pleading the special defense, then the motion to strike should be granted. (Citations omitted.)
This case arises from an automobile accident on Interstate 95 in which a tractor trailer truck driven by defendant Daniel Sanchez collided with a motor vehicle in which plaintiff was a passenger. The plaintiff alleged negligence and statutory recklessness against Mr. Sanchez and vicarious liability against defendant KAG Leasing, Inc., the owner of the vehicle, and defendant Petro-Chemical Transport, LLC, Mr. Sanchez' employer.
Defendants drafted their answer using a " kitchen sink" approach to alleging special defenses by raising every conceivable special defense in conclusory fashion, without alleging any subordinate facts, which invited the Court, and presumably plaintiff, to guess at the theory and factual basis for the allegations. This alone would be reason to grant the motion and require defendants to re-plead their special defenses under Practice Book § 10-44. Nevertheless, the Court will examine the sufficiency of each type of special defense alleged by defendants to the various counts of the Complaint.
Compare Research Associates, Inc. v. New Haven Redevelopment Agency, 157 Conn. 587, 588-89, 248 A.2d 927 (1968) (demurrer to complaint for conclusory allegations); Smith v. Furness, 117 Conn. 97, 99, 166 A. 759 (1933) (demurrer to defense for conclusory allegations). See generally 1 Conn.Prac., Super.Ct.Civ. Rules § 10-50 (2016 ed.).
The Special Defenses Alleging Failure to State a Cause of Action Are Stricken
As special defenses to the First, Second, Third and Fourth Counts, defendants allege that each of those counts " fails to state a claim upon which relief can be granted." No subordinate facts are alleged just a bald legal conclusion.
There is a split of authority in the Superior Court as to whether the defense of " failure to state a claim upon which relief may be granted" properly states a special defense where no facts are alleged that would constitute a recognizable special defense. Compare, Samuels v. Dept. of Public Health, 2010 WL 5188490 at *4 (Conn.Super. 2010) (Wilson, J.), and State v. Efficient Lighting Consultants, Inc., 2017 WL 715899, at *2 (Conn.Super. 2017) (Noble, J.) (" [e]ach paragraph of the first special defense pleads with specificity the grounds of insufficiency upon which the defendants rely"), with Bellini v. Patterson Oil Co., 2011 WL 4908860 *4-5 (Conn.Super. 2011) (Roche, J.) (collecting cases). See generally 1 Conn.Prac., Super. Ct. Civ. Rules § 10-50.
The Court grants the motion to strike this defense and adopts the reasoning of Judge Povodador in his recent opinion in Norwalk Medical Center, LLC v. O& G Industries, Inc., 2017 WL 1429811 * (Conn.Super. 2017) , which concluded that such conclusory defense that merely assert the facts alleged by plaintiff are insufficient to state a cause of action serves no purpose in framing issues for trial or disposing of claims otherwise subject to motions to strike or for summary judgment: " creating unnecessary pleading and trial issues is not something that the court is inclined to countenance, when existing rules and procedures afford the defendant with adequate recourse." The Court also agrees with Judge Wilson in Samuels, 2010 WL 5188490 at *4, that, if the defense is based on facts outside the complaint, it was incumbent on defendants to allege specific facts if they wish to attack the sufficiency of the claims by special defense, as was done in Efficient. Lighting, 2017 WL 715899, at *2.
The Special Defenses Alleging that Plaintiff's Injuries Were Not Caused by Defendant Are Stricken
As special defenses to the First, Second, Third and Fourth Counts defendants allege: " [a]ny injuries of Plaintiff were not the result of the actions or inactions of Defendant." No subordinate facts are alleged.
This defense of lack of causation would not require pleading a special defense. In Mulcahy v. Hartell, 140 Conn.App. 444, 452, 59 A.3d 313 (2013), the Appellate Court held: " [e]vidence that an actor other than the defendant was the sole proximate cause of the plaintiff's injuries constitutes a factual scenario 'inconsistent with the plaintiff's allegation that the proximate cause of the injuries to the [plaintiff] . . . was the negligence, whether sole or concurrent, of the defendant.' . . . Therefore, such evidence properly is admitted pursuant to a general denial." Accord, Bernier v. Nat'l Fence Co., 176 Conn. 622, 630, 410 A.2d 1007 (1979).
If defendants wished to raise this issue by special defense, and presumably assume the burden of proof, it was incumbent on them to allege the particular facts on which they rely.
See Wyatt Energy, Inc. v. Motiva Enterprises, LLC, 308 Conn. 719, 735, 66 A.3d 848 (2013). " . . . [T]he party raising a special defense has the burden of proving the facts alleged therein . . . (' [b]y alleging the facts stated in [the special defenses], the defendants assumed the affirmative and had the burden of proving those facts'); . . . (" the burden of proving the special defenses is on the defendant')." Id. (citations omitted). See generally 1 Conn.Prac., Super.Ct.Civ. Rules § 10-50.
The Special Defenses Alleging Lack of Legal Responsibility Are Stricken
As special defenses to the First, Second, Third and Fourth Counts, defendants plead: " [t]he acts complained of . . . were not committed by a person and/or entity for whose conduct Defendants were legally responsible." No subordinate facts are alleged.
This defense of lack of legal responsibility, like the lack of causation defense, may be raised by simple denial and need not be raised by special defense in most cases, see Mulcahy, 140 Conn.App. at 452, but if defendants chose to do so it was incumbent on them to allege subordinate facts that show the person who allegedly committed the acts complained of by plaintiff was not their agent, employee or someone for whom the defendants could be held vicariously liable.
The Special Defenses Alleging Lack of Particularity in the Complaint and Reserving the Right to Assert Future Defenses Are Stricken
As special defenses to the First, Second, Third and Fourth Counts, defendants contend that plaintiff's claims lack " sufficient particularity" so they " reserve their right to assert" any other grounds of defense " once the precise nature of the claims of Plaintiff is ascertained." This is not a defense but mere surplussage that may be stricken as legally insufficient under Practice Book § 10-39(a)(5). If defendants desired a more particular statement of the claims they should have requested revision of the complaint under Practice Book § 10-30(a)(1). If in the course of disclosure defendants discover another ground of defense the proper course is to amend the answer under Practice Book § 10-30.
The Special Defenses Alleging Reduction of Recovery for Plaintiff's Liability Are Stricken
As special defenses to the First, Second, Third and Fourth Counts, defendants allege " [a]ny recovery . . . must be reduced and/or eliminated by the liability of Plaintiff and/or other parties." No subordinate facts are alleged.
This may be an attempt to allege contributory negligence, set off or apportionment, but the Court, and presumably the plaintiff, is left to guess at the nature and basis for this special defense. Contributory negligence and set off must be supported by allegation of subordinate facts. See Practice Book § 10-53 (pleading contributory negligence); Mariculture Products Ltd. v. Certain Lloyds' Underwriter, 84 Conn.App. 688, 704, 854 A.2d 1100 (2004) (pleading set off). Apportionment is not a claim against plaintiff. See C.G.S. § 52-572h.
The Special Defenses Alleging Intervening or Superseding Cause or Unforeseeability Are Stricken
As special defenses to the Second, Third and Fourth Counts, defendants allege that the claims are " barred because the injuries of which Plaintiff complains were the result of one or more intervening or superseding cause or causes and/or were not reasonably foreseeable to Defendants." No subordinate facts are alleged.
Superseding cause is properly raised by special defense and may be viable if properly plead to fit within parameters set by case law. See Sullivan v. Metro North Commuter Railway, 292 Conn. 150, 167, 971 A.2d 676 (2009). No facts were plead here to fit within the doctrine of superseding cause. Lack of foreseeability is also not a proper special defense in most cases but may be raised by denial of the claim. If there are particular facts defendants wish to bring into the case that bear on this defense, they have not plead them.
" We agree . . . [we] specifically limited our abolishment of the doctrine 'to the situation in cases . . . wherein a defendant claims that its tortious conduct is superseded by a subsequent negligent act or there are multiple acts of negligence." We made clear that '[o]ur conclusion does not necessarily affect those cases where the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortious conduct.'" Sullivan, 292 Conn. at 167.
" 'The terms intervening cause and superseding cause have been used interchangeably.' See, e.g., Corey v. Phillips, 126 Conn. 246, 253-56, 10 A.2d 370 (1939). The Restatement of Torts makes clear that the doctrine is properly referred to as superseding cause, and that it embodies within it the concept of an intervening force. 2 Restatement (Second), Torts § § 440 through 453 [1965)." Craig v. Driscoll, 262 Conn. 312, 331 n.16, 813 A.2d 1003 (2003).
The Special Defenses Alleging Comparative Negligence Are Stricken
As special defenses to the Second, Third and Fourth Counts, defendants allege comparative negligence without alleging any subordinate facts.
C.G.S. § 52-572h governs the application of comparative negligence in negligence actions. Practice Book § 10-53 states: " If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant and the defendant shall specify the negligent acts or omissions on which the defendant relies." See also C.G.S. § 52-114. Defendants have not alleged any factual basis for finding that plaintiff was negligent.
The Special Defenses Under C.G.S. § 52-572h Are Stricken
As special defenses to the Second, Third and Fourth Counts, defendants alleged: " [a]ny recovery . . . must be reduced and/or eliminated by operation of" C.G.S. § 52-572h. No subordinate facts are alleged.
This is not a proper special defense. C.G.S. § 52-572h sets forth the means for accomplishing the comparative negligence and apportionment policies embodied in that statute. If this is a duplicative comparative negligence defense it suffers from the same deficiencies addressed above. If it is a backhand reference to apportionment of liability, a special defense is not how apportionment is raised. See C.G.S. § 52-572h.
The Special Defenses Alleging Failure to Mitigate Damages Are Stricken
Mitigation of damages need not be specially pleaded to be asserted as a defense at trial. See Wasko v. Farley, 108 Conn.App. 156, 172, 947 A.2d 978 (2008). If mitigation of damages is plead as a special defense it must be based on allegation of particularized facts to apprise the Court and other parties as to the nature of and basis for the specific defense asserted by defendant. See Fryc v. Waterbury VF, LLC, *2 (Conn.Super. 2015) (Roraback, J.). See generally 1 Conn.Prac., Super.Ct.Civ. Rules § 10-50. Defendants have failed to allege any facts in support of their mitigation of damages special defense which is stricken.
The Special Defenses Alleging Illegal Conduct Are Stricken
As special defenses to the Second, Third and Fourth Counts, defendants have alleged " Plaintiff may not recover . . . to the extent that she was guilty of a violation of law which contributed to cause the injury or damage of which she complains." No subordinate facts are alleged.
Practice Book § 10-50 lists among the mandatory special defenses " illegality not apparent on the face of the pleadings . . ." Practice Book § 10-2 requires allegation of subordinate facts where acts are alleged " according to their legal effect . . ." Practice Book § 10-3 requires a special defense to specially allege a statute by number if an allegation is " grounded on a statute." The bare legal conclusion that plaintiff violated the law without citation to statute or allegation of subordinate facts does not comport with our pleading rules and must be stricken.
The Special Defenses Alleging Unclean Hands, Laches, Waiver and Estoppel Are Stricken
Defendants alleged a grab bag of equitable defenses to each count, again without allegation of any subordinate facts, as follows: " [t]o the extent that said doctrines apply, Plaintiff is barred from recovery . . . by the doctrines of unclean hands, laches, waiver and/or estoppel." No subordinate facts are alleged.
Equitable defenses may not be alleged on a contingent or hypothetical basis and, if alleged, must be supported by subordinate facts that are sufficient to satisfy the elements of the defenses alleged. See e.g., Peoples United Bank v. Jones, 2013 WL 3307215, at *1 (Conn.Super. 2013) (Taylor, J.) (equitable estoppel); Todd M. v. Richard L., 44 Conn.Supp. 527, 541-42, 696 A.2d 1063 (1995) (Foley, J.) (laches); Bascom/Magnotta, Inc. v. Magnotta, 2005 WL 3470649 *1 (Conn.Super. 2005) (Beach, J.) (unclean hands).
Conclusion
The motion to strike defendants' special defenses is granted in its entirety.