Opinion
No. CV 044001197
September 12, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE #114
The following facts are alleged in the complaint. On January 7, 2003, the plaintiff, Tatiana Abramova, was a passenger in a bus operated by the defendant, Erming Huang. The bus is owned by the defendant, Action Auto Leasing Corporation, and was leased by the defendant, Fung Wah Bus Transportation, Inc. While driving the bus on Interstate 91, Huang collided with another vehicle, which was being operated by the defendant, Craig Grays. That vehicle is owned by the defendant, James Spencer, and was leased by the defendant, U.S Xpress Enterprises, Inc. As a result of the collision, the plaintiff suffered numerous injuries. In the complaint, the plaintiff alleges negligence against all of the defendants.
In the summons, the plaintiff lists this defendant as U.S. Express Leasing, Inc., and in the complaint, the plaintiff refers to this defendant as U.S. Xpress Leasing, Inc. Apparently, the correct name of this party is U.S. Xpress Enterprises, Inc.
Three of the defendants, Grays, Spencer and U.S. Xpress Enterprises, Inc., filed an answer and two special defenses, sudden emergency and unavoidable accident, on January 31, 2005. On April 28, 2005, the plaintiff filed a motion to strike both special defenses on the ground that they are legally insufficient. The plaintiff submitted a memorandum of law in support of the motion. The defendants filed a memorandum of law in opposition to the motion on May 9, 2005, and the plaintiff filed a supplemental brief in support of her motion on May 16, 2005. The court heard oral argument on the motion on May 16, 2005.
These three will be referred to collectively as "the defendants."
"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." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). "A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike . . . 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." (Citations omitted; internal quotation marks omitted.) CT Page 12565 Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001).
In their first special defense, the defendants allege that Huang caused a sudden emergency when he suddenly slowed or stopped his vehicle and pulled in front of the vehicle driven by Grays, who was exercising due care under the existing circumstances. In the second special defense, the defendants allege that this was an unavoidable accident, which was not foreseeable. The defendants further allege that they did not contribute to or create the accident. The plaintiff argues in her memorandum that these special defenses should be stricken because sudden emergency and unavoidable accident must be pleaded as simple denials and cannot be pleaded as special defenses. The defendants counter that they may plead them as special defenses because the rules of practice do not prohibit this procedure. They further assert that "[p]leading them as defenses both highlights the facts favorable to these defendants and explains why these defendants have denied that the collision was caused by their negligence" and that if the defenses are proven at trial, they will defeat the plaintiff's claims. In addition, they maintain that appellate authority supports their assertion that it is proper to plead sudden emergency and unavoidable accident as special defenses.
"The emergency doctrine modifies the standard of reasonable conduct ordinarily expected of reasonable men and women by allowing the occurrence of a sudden or unexpected event to be taken into account as one of the circumstances determining what conduct is reasonable. Prosser, Torts (4th Ed. 1971) § 33, pp. 168-69. Restatement (Second), 1 Torts § 296 (1966). In an emergency not due to his own negligence, one is not relieved of all obligations to exercise care but is required to exercise the care of an ordinarily prudent person acting in such an emergency . . . Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 312, 268 A.2d 639 (1970). A person faced by such an emergency has some leeway when deciding rapidly between alternative courses of action." (Citations omitted; internal quotation marks omitted.) Oberempt v. Egri, 176 Conn. 652, 656, 410 A.2d 482 (1979).
"The facts, though not the mixed conclusions of fact and law, associated with the sudden emergency doctrine are generally consistent with those alleged in the complaint. The doctrine seeks to add a fact — the fact of the emergency — which does not negate facts in the complaint nor show that the plaintiff has no cause of action but, rather, that her cause of action should be judged in light of an emergency . . . The sudden emergency doctrine seeks to place before the trier for his consideration evidence of an extraordinary circumstance. [T]he application of the emergency doctrine does not alter the standard of care to be exercised, but, rather, is a factor to be considered in the evaluation of the [defendants] conduct . . . In a negligence case, it is always competent to place before the trier evidence of the circumstances then and there existing. An emergency is but one of the circumstances shown in evidence which are to be considered by the trier in determining whether an operator exercised due care . . . Nor does the [sudden emergency] doctrine imply that the plaintiff has no cause of action, the sine qua non of a common law special defense. Even if an emergency existed, the plaintiff's cause of action survives, the ultimate question being whether the defendant acted as a reasonable person would have in that circumstance. Mei v. Alterman Transport Lines, Inc., supra, [ 159 Conn. 312]." (Citations omitted; internal quotation marks omitted.) Orifice v. Ducci Electrical, Superior Court, judicial district of Fairfield, Docket No. CV 02 0391326 (April 1, 2003, Levin, J.) ( 34 Conn. L. Rptr. 535).
The majority position in the Superior Court is that in the context of a personal injury action relating to a motor vehicle accident, the special defense of sudden emergency should be pleaded as a denial and not as a special defense. For cases in which the court found that sudden emergency could not be pleaded as a special defense, see Pinsker v. Fleming, Superior Court, judicial district of Fairfield, Docket No. CV 01 0382908 (April 12, 2002, Gallagher, J.) ( 31 Conn. L. Rptr. 675); Mazza v. Alcock, Superior Court, judicial district of Fairfield, Docket No. CV 95 0320421 (June 17, 1996, Grogins, J.) ( 17 Conn. L. Rptr. 221); Gold v. American Economy Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 95 0380475 (April 26, 1996, Freedman, J.) ( 16 Conn. L. Rptr. 641).
The minority view, espoused in O'Dwyer v. Housatonic Area Regional Transit, Inc., Superior Court, judicial district of Danbury, Docket No. CV 96 0322861 (December 3, 1996, Moraghan, J.) and Kiewlen v. Mallison, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 97 0257510 (December 21, 2000, Levine, J.) ( 28 Conn. L. Rptr. 565), is that sudden emergency can be pleaded as a special defense under certain circumstances.
The special defense in O'Dwyer v. Housatonic Area Regional Transit, Inc., supra, Superior Court, Docket No. CV 96 0322861 was a combination of sudden emergency and unavoidable accident.
While O'Dwyer v. Housatonic Area Regional Transit, Inc., supra, Superior Court, Docket No. CV 96 0322861 stands for the proposition that sudden emergency can be pleaded as a special defense, the court found that the defense as pleaded was legally insufficient and granted the motion to strike. The court in Kiewlen v. Mallison, supra, 28 Conn. L. Rptr. 565, adopted the reasoning of O'Dwyer and denied a motion to strike the special defense of sudden emergency.
The court finds the majority view to be more persuasive, because, as stated in Pinsker v. Fleming, supra, 31 Conn. L. Rptr. 676: "[N]egligence has long been defined as the failure to use that degree of care for the protection of another that the ordinarily reasonably careful and prudent person would use under like circumstances. Brown v. Branford, 12 Conn.App. 106, 108, 529 A.2d 743 (1987). The emergency doctrine modifies the standard of reasonable conduct ordinarily expected of reasonable men and women by allowing the occurrence of a sudden or unexpected event to be taken into account as one of the circumstances determining what conduct is reasonable. Oberempt v. Egri, [ supra, 176 Conn. 656]. Accordingly, the special defense of sudden emergency should be pleaded as a simple denial." (Internal quotation marks omitted.)
The defendants in the present case have cited to other Superior Court cases pertaining to what may be pleaded as a special defense and what must be pleaded as a denial. These cases do not, however, deal with the special defense of sudden emergency; therefore, the cases espousing the majority view with regard to this special defense are more persuasive. Furthermore, while the defendants make other arguments in opposition to the motion to strike this special defense of sudden emergency, in light of the court's acceptance of the majority view with regard to this special defense, the court is not swayed by these arguments.
As to the second special defense, an unavoidable accident "is a claim that the accident was caused by the negligence of others, which would be admissible under a denial." Vilayvong v. KLLM, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 96 0332884 (September 26, 1997, Ford, J.). "[F]acts supporting a denial that the defendant's actions were causative is to be raised by a denial not by a special defense . . . Furthermore, [t]he so-called defense of inevitable or unavoidable accident is nothing more than a denial . . . of [the defendant's] negligence, or a contention that [the defendant's] negligence, if any, was not the proximate cause of the injury. Tomczuk v. Alvarez, 184 Conn. 182, 190, 439 A.2d 935 (1981)." (Citation omitted; internal quotation marks omitted.) Mazza v. Alcock, supra, 17 Conn. L. Rptr. 221.
According to the majority view in the Superior Court on this issue, "[t]he impropriety of asserting the inevitable or unavoidable accident doctrine as a special defense is even clearer and more settled than for the doctrine of sudden emergency. The so-called defense of inevitable or unavoidable accident is nothing more than a denial by [a defendant] of his negligence, or a contention that his negligence, if any, was not the proximate cause of the injury . . . It therefore does not satisfy the test for a special defense embodied in Practice Book § 10-50, requiring the pleading of facts consistent with the plaintiff's complaint." (Citation omitted; internal quotation marks omitted.) Orifice v. Ducci Electrical, supra, 34 Conn. L. Rptr. 536.
The Superior Court has granted motions to strike the special defense of unavoidable accident in Vilayvong v. KLLM, Inc., supra, Superior Court, Docket No. CV 960332884; Gold v. American Economy Ins. Co., supra, 16 Conn. L. Rptr. 641; and McCoy v. Vuolo, Superior Court, judicial district of New Haven, Docket No. CV 91 0316972 (April 7, 1995, Hodgson, J.).
Research has revealed that only O'Dwyer v. Housatonic Area Regional Transit, Inc., supra, Superior Court, Docket No. CV 96 0322861 stands for the proposition that unavoidable accident can be alleged as a special defense, and there, the court found the special defense as pleaded to be legally insufficient. Kiewlen v. Mallison, supra, 28 Conn. L. Rptr. 565 dealt with the special defense of sudden emergency, not that of unavoidable accident.
Thus, in the majority of cases, the Superior Court judges have determined that unavoidable accident is not a proper special defense. See id., 535. Again, the defendants cite to other Superior Court cases pertaining to what may be pleaded as special defenses, but these cases do not deal with the special defense of unavoidable accident. Thus, these cases are not as persuasive as the ones espousing the apparent majority view with regard to this special defense. This court finds the majority view persuasive, and adopts it. Furthermore, the court is not persuaded by the defendants' other arguments in opposition to granting the motion to strike the special defense of unavoidable accident.
For the foregoing reasons, the court grants the plaintiff's motion to strike both special defenses.
BY THE COURT
TANZER, JUDGE