Opinion
CV156054995S
11-25-2015
Renata Barbieri et al. v. John Yocum et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE #103
Robin L. Wilson, J.
FACTS
On June 2, 2015, the plaintiffs, Renata Barbieri and Richard Barbieri, filed a ten-count complaint against the defendants, John Yocum and Kyle Yocum. In counts five and six of the complaint, the plaintiffs allege the following facts. On September 7, 2013, John Yocum was walking an approximately two-year-old pit bull mix, named Cocoa, in the vicinity of the plaintiffs' residence. As John Yocum approached the plaintiffs' residence, Renata Barbieri engaged in conversation with John Yocum and he entered onto the plaintiffs' front yard with Cocoa. Renata Barbieri asked permission to pet Cocoa to which the defendant replied " yes." As Renata Barbieri bent down to pet Cocoa, Cocoa bit Renata Barbieri on her face and mouth. Prior to the attack on Renata Barbieri, the defendants owned and/or cared for Cocoa for one and a half years and in that time, Cocoa bit at least four other people, two of whom were bitten in the face. The prior bites were the subject of police investigation by the Town of Wallingford Police Department. One month before the attack on Renata Barbieri, the Wallingford Police Department informed the defendants that based on the fact that Cocoa had bitten four other people in past months, Cocoa would bite again.
The remaining counts are not at issue in this motion to strike, but are as follows: counts one and two of the complaint are against the defendants pursuant to General Statutes § 22-357; counts three and four sound in negligence against the defendants; counts seven and eight are brought on behalf of Richard Barbieri for claims of bystander emotional distress; counts nine and ten are brought on behalf of Richard Barbieri for claims of loss of consortium.
The plaintiffs further allege in count five of the complaint the following facts. Renata Barbieri's injuries were caused by John Yocum's recklessness in that he (i) failed to euthanize the dog, (ii) failed to confine the dog or take steps to prevent the dog from coming in contact with the members of the public, and (iii) failed to take measures to prevent the dog from biting others. In addition, John Yocum (i) exposed members of the public to the dog, despite knowing of the prior incidents and the dog's propensity to bite, (ii) allowed Renata Barbieri to pet the dog despite knowing of the prior incidents and the dog's propensity to bite, and (iii) failed to warn Renata Barbieri that the dog would likely attempt to bite her despite knowing of the prior incidents, the dog's propensity to bite, and the probability that the dog would attempt to bite Renata Barbieri.
Moreover, in count six of the complaint the plaintiffs allege that Kyle Yocum (i) failed to instruct others who were involved in the care of the dog to confine the dog, (ii) failed to take measures to prevent the dog from biting, and (iii) failed to warn all others of the dog's propensity to bite and the probability that the dog would bite again. The plaintiffs seek money and punitive damages for injuries sustained.
On June 18, 2015, the defendants filed a motion to strike count five and count six of the plaintiffs' complaint on the ground that the allegations in count five and count six do not rise to the level of reckless conduct and there is no good faith basis for recklessness. In support of their motion to strike, the defendants filed a memorandum of law. On July 17, 2015, the plaintiffs filed an objection to the defendants' motion to strike and a memorandum of law in support. Oral argument was heard on the motion at short calendar on August 3, 2015.
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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [I]t 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 . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " [P]leadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012). Moreover, Practice Book § 10-39 " allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
The defendants argue that the plaintiffs have failed to sufficiently allege a legally cognizable claim of recklessness pursuant to General Statutes § 14-295. Specifically, the defendants assert that the plaintiffs have only recited allegations of negligence, and that the defendants' actions do not rise to the level of consciousness that surpasses negligence or gross negligence. The plaintiffs argue that they allege in count five and count six sufficient facts to establish that the defendants' state of mind, or level of consciousness, in continuing to keep Cocoa and expose others to Cocoa was reckless.
The court notes that § 14-295 does not apply in the present case, as it applies to motor vehicle violations and not to dog bite incidents. Furthermore, it is noted that the plaintiffs allege common-law recklessness in their complaint and that, paragraph 2 of the plaintiffs' prayer for relief requests " punitive damages for recklessness as to Counts 5 and 6." The plaintiffs have not addressed the defendant's reference to § 14-295, however they have argued the legal sufficiency of counts five and six of the complaint based on common-law recklessness.
" Recklessness is 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." (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988). " It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . . Because of the wide difference between negligence and a reckless disregard of the rights or safety of others . . . [m]erely using the term recklessness to describe conduct previously alleged as negligence is insufficient as a matter of law." (Citations omitted; internal quotation marks omitted.) Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, 90-91, 63 A.3d 1011 (2013). " [A] complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on . . . Simply using the word 'reckless' or 'recklessness' is not enough. A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made." Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958).
Further, our Supreme Court has held that " [i]n order to obtain an award of common-law punitive damages, the pleadings must allege and the evidence must be sufficient to allow the trier of fact to find that the defendant exhibited a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Internal quotation marks omitted.) Hylton v. Gunter, 313 Conn. 472, 491-92, 97 A.3d 970 (2014).
Both parties rely extensively on our Appellate Court's decision in Mann v. Regan, 108 Conn.App. 566, 948 A.2d 1075 (2008). In Mann, the plaintiff brought a negligence action to recover damages for injuries she had sustained to her face when she was bitten by a dog owned by the defendant. Id., 568. On appeal, the defendant claimed that the jury reasonably could not have concluded that the dog had vicious propensities or that the defendant was aware of those propensities. The Appellate Court rejected the defendant's claim, stating " [u]nder the common law of this state, it has been held that liability for injuries committed by a vicious animal is grounded in negligence . . . It is the duty of the owner of such an animal, having knowledge of its vicious propensities, to give notice of the propensities or to restrain the animal, and that failure to do so is negligence that makes the owner liable for its consequences." (Citation omitted; internal quotation marks omitted.) Mann v. Regan, supra, 579. The Appellate Court concluded that the evidence demonstrated that the defendant's dog would become upset and growl when people leaned toward him, that the defendant knew that her dog would become upset when people hovered or leaned over him and also that her dog, who was afraid and distrustful of strangers, would bark at strangers. Id., 580-81. In addition, from the testimony of the plaintiff, the jury heard evidence relating to an incident in which the dog previously had bitten the defendant. Id., 581. Therefore, the Appellate Court concluded that there was sufficient evidence to support the jury's verdict on the plaintiff's claim of negligence.
In the present case, the plaintiffs have clearly and specifically set forth facts which, if credited by the finder of fact, would meet the elements of recklessness, as opposed to the standards required for negligent conduct as set forth in counts three and four. Rather, the plaintiffs have alleged specific facts relating to the defendants' state of mind and that the defendants engaged in a course of action with reckless disregard of the rights and safety of others. Specifically, the plaintiffs allege the following in paragraphs 15-19 of counts five and six: that the defendants were in control and custody of Cocoa for approximately one and a half years; that prior to attacking the plaintiff, Cocoa bit at least four individuals, two of whom were bitten in the face; that the prior bites were the subject of police investigation and interviews of the defendants by the Wallingford Police Department; that prior to the attack on the plaintiff, the Wallingford Police Department informed the defendants that based upon the fact that Cocoa had bitten four people in the past months, he would bite again; that the defendants knew of the prior incidents; that the defendants knew of Cocoa's propensity to bite and of the likelihood that Cocoa would bite again.
Such allegations are above and beyond those found in the negligence counts of the complaint and are similar to facts that judges of this court have found sufficient to allege recklessness. See Penney v. Holley, Superior Court, judicial district of Litchfield, Docket No. CV-14-6010281-S (September 15, 2014, Trombley, J.) (58 Conn. L. Rptr. 949) (denying defendants' motion to strike and finding that plaintiff sufficiently pleaded factual predicate that could justify finding of reckless conduct by trier of fact where plaintiff claimed that despite having full knowledge of their pit bull's " vicious propensities and aggressive behaviors, " defendants failed to properly restrain or supervise animal, allowed dog to roam and thereby recklessly disregarded safety of their neighbors); Lemp v. East Granby, Superior Court, judicial district of Hartford, Docket No. 589417 (December 12, 2000, Rubinow, J.) (denying defendants' motion to strike where plaintiffs alleged specific facts that imputed knowledge on part of town dog warden as to dog's vicious propensity for violence and prior attacks on human beings); Hansen v. Maniatty, Superior Court, judicial district of Fairfield, Docket No. 320386 (March 25, 1997, Thim, J.) (19 Conn. L. Rptr. 306) (denying defendant's motion to strike where plaintiff sufficiently alleged conduct from which recklessness may be inferred from defendant's knowledge of prior injuries caused by horse).
Here, the facts alleged in the complaint are well beyond those that have been found sufficient to support a claim of negligence. Indeed, the allegations support that the defendants' acts and/or omissions in this regard placed the plaintiffs in imminent danger of being attacked by Cocoa and constituted an extreme departure from ordinary care. Accordingly, counts five and six of the plaintiffs' complaint are legally sufficient to state a claim of recklessness and thereby justify their claim for punitive damages.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike counts five and six of the complaint, and paragraph 2 of the plaintiffs' prayer for relief is denied.