Opinion
No. CV 03 0520679 S
July 15, 2008
MEMORANDUM OF DECISION ON MOTION TO STRIKE (NO. 111)
The plaintiff has filed a five-count complaint against the defendant, State of Connecticut, alleging (1) Negligence and/or Carelessness, (2) Wilful and Malicious Conduct (3) Premises Liability (4) Nuisance, and (5) Negligence and/or Carelessness. The defendant has moved to strike the second count of the plaintiff's third amended complaint on the ground that Connecticut law does not recognize a common-law cause of action based on wilful negligence.
Thc court (Schuman, J.) granted the defendant's motion to dismiss the nuisance count on January 8, 2007.
Although the fifth count is entitled "Negligence and/or Carelessness," the plaintiff alleges in the body of the fifth count that the defendant acted with wilful negligence.
Background
The plaintiff, Christopher Burgess, was at Sunset Rock State Park in Plainville, Connecticut, on the night of June 10, 1994 with a friend, Richard Piotrowski, who has filed a similar complaint for damages against the defendant arising out of the same incident. The defendant maintains Sunset Rock State Park, which includes a scenic outlook looking west over a cliff. The plaintiff's second amended complaint alleges that the plaintiff and Piotrowski parked their vehicle in a lot available for public parking, walked through a "large hole" in a chain link fence and while in conversation, the plaintiff slipped and fell over the cliff sustaining serious injuries.
Legal Standard for a Motion to Strike
"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). In ruling on a motion to strike, the trial court construes the facts in the complaint in the manner most favorable to sustaining its legal sufficiency. Id. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court] assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, CT Page 11621 moreover, [the court] read[s] the allegations broadly, rather than narrowly." (Citation omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003). Furthermore, "[i]n ruling on a motion to strike, 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).
The Amended Complaint
The fifth count of the plaintiff's second amended complaint alleges that the plaintiff's injuries and losses are the result of the defendant's wilful negligence in that it:
(a) Failed to guard or warn against a dangerous condition, use, structure or activity including, but not limited to, dangerous cliff and a defective fence and the lack of posted markings or warnings;
(b) Failed to provide a safe area for the public to park and enjoy the park in that it was adjacent to a steep cliff;
(c) Failed to adequately light the area surrounding the dangerous cliff;
(d) Failed to adequately manage, supervise and/or maintain the area nearest the cliff allowing trees, bushes and other vegetation to obscure the edge of the cliff, and thereby hide the hazard of the cliff's edge and also obscure the view from the overlook;
(e) Failed to provide sufficient number of employees to safely maintain the park;
(f) Failed to provide adequately trained personnel to safely maintain Sunset Rock, or to provide them with adequate and proper tools and materials;
(g) Erected a six-foot high chain link fence which obscured the scenic view from the overlook and thereafter failed to properly repair the opening in the fence which allowed direct public access to the dangerous cliff edge;
CT Page 11622
(h) Failed to properly repair the opening in the fence and thereby permitting direct public access to the cliff's obscured edge without warning of the dangerous conditions present creating an unreasonable risk of harm;
(i) Failed to properly repair the said condition in the fence;
(j) Failed to properly repair the opening in the fence creating an unreasonable risk of harm;
(k) Failed to act upon the knowledge of repeated vandalism of the fence and its never being intact for more than one week;
(l) Failed to remove areas of vegetation that obscured the cliff's edge in an area near the footpath located between the fence and the cliff's edge or near the cliff's edge.
Discussion
The defendant argues that the fifth count of the plaintiff's amended complaint which alleges "wilful negligence" fails to state a claim upon which relief may be granted because there is no common-law action for wilful negligence in Connecticut. In support of its motion to strike, the defendant relies on Simenauskas v. Connecticut Co., 102 Conn. 676, 129 A. 790 (1925), in which the plaintiff appealed the denial of the plaintiff's request for a charge that the jury might find the defendant guilty of "wilful negligence" and therefore need not consider the question of the plaintiff's contributory negligence. In rejecting the plaintiff's argument, the court stated: "It seems clear that the plaintiff has misconceived our law which distinguishes sharply between an injury negligently inflicted and an injury wilfully inflicted . . . It needs hardly to be stated that a complaint charging a negligent injury is, in its legal sense, a very different thing from one charging a malicious injury . . . In our law, the phrase `wilful negligence' is a contradiction in terms . . ." (Citations omitted, internal quotation marks omitted.) Id., 681.
The defendant further argues that the fifth count in the plaintiff's complaint should be stricken because Connecticut does not recognize different degrees of negligence. In Matthiessen v. Vanech, 766 Conn. 822, 833 n. 10, 836 A.2d 394 (2003), the court observed: "We note, moreover, that gross negligence has never been recognized in this state as a separate basis of liability in the law of torts. We have never recognized degrees of negligence as slight, ordinary, and gross in the law of torts." ["W]e do not recognize a classification of standards of care into slight, ordinary, and gross, or the like, except in certain definite relationships"). (Citations omitted, internal quotation marks omitted.)
The plaintiff counters with the argument that, more recently, the concept of gross and wilful negligence has been recognized in Connecticut. The plaintiff points to Hansen v. Mohegan Fire Co., Inc., Superior Court, judicial district of New London at Norwich, Docket No. 111388 (April 7, 2003, Corradino, J.) (34 Conn. L. Rptr. 479), where the defendant argued that the plaintiff's claim of "gross negligence" was legally insufficient and should be stricken. In rejecting the defendant's argument, the court observed "It is true that there can be no common law claim for gross negligence in our state . . . but that does not mean that giving a separate definition to gross negligence and not regarding it as just some degree of recklessness somehow extends the common law given the fact that the claim is made in the context of a statute." Id. In a thoughtful analysis of the concept of negligence within the context of our common law and statutory law, Judge Corradino concluded that there is a separate concept, created by statute, of gross negligence which is different in kind than willful, wanton, that is reckless conduct. Id.
In the defendant's memorandum in support of its motion, the defendant also cites Hansen and argues that "[a]lthough the lower courts have differed and struggled as to the definition of this term [wilful or wanton negligence], they have been forced to offer some definition of it because it is contained in legislation [§ 52-557b]."
The statute at issue in Hansen was General Statutes § 52-557b, commonly known as the "Good Samaritan statute," which grants immunity from liability to certain medical and other professionals who voluntarily render emergency assistance to persons in need, except liability for acts or omissions "constituting gross, wilful or wanton negligence." In the present case, the plaintiff claims injuries allegedly suffered while on land available to the public for recreation. Like the Good Samaritan statute, § 52-557g also creates limited immunity for landowners who open their land for recreational use without charge, subject to the limitation in § 52-557h that nothing in § 57-557g limits a landowner's liability for " wilful or malicious failure to guard or warn against a dangerous condition, use, structure or activity . . ."
Although our common law may not recognize a cause of action for wilful negligence as the defendant claims, the legislature, by virtue of its enactment of § 52-557h has evidently acknowledged the validity of civil actions based on injury claims resulting from a landowner's wilful failure or neglect, at least within the context of the recreational land use statute. The legislature deliberately used the words "wilful [or malicious] failure to guard or warn" despite the common-law disapproval in Simenauskas of the term "wilful negligence." As the court observed in Hansen, "the legislature must be taken to be aware of the common law . . . but still chose to use the term gross negligence. In other words, the legislature was not extending the common law as such but can be viewed as defining a statutory concept explicitly not based on preexisting common law." (Citation omitted). Hansen v. Mohegan Fire Co., Inc., supra.
The key words chosen by the legislature to carve out an exception to the immunity created under § 52-557g are "wilful or malicious failure" on the part of the landowner. Merriam-Webster's Collegiate Dictionary (10th Ed. 1998) defines "wilful" as "done deliberately." Of particular significance is the legislature's use of the word "failure" in § 52-557h. Webster's defines "failure" as an "omission of occurrence of performance, specifically a failing to perform a duty or expected action." The failure to use reasonable care is an essential element of negligence. "Common-law negligence is the failure to use the degree of care that a reasonably prudent [person] would use in the same circumstances." Lesage v. Hoagland, Superior Court, judicial district of New Haven, Docket No. CV-05-40061585 (Jun. 22, 2007) (Lager).
In Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005), our Supreme Court stressed the importance of public policy considerations, such as loss prevention, in the allocation of responsibility for harm resulting from recreational activities. "[T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . An equally compelling function of the tort system is the prophylactic factor of preventing future harm . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer." (Internal quotation marks omitted.) Id., 327.
In Hanks, the Supreme Court reasoned that if it were to uphold the defendant's exculpatory clause, "[R]ecreational operators would lack the incentive to exercise even slight care, with the public bearing the costs of the resulting injuries. Such a result would be inconsistent with the public policy of this state." Id., 337-38.
Support for the conclusion that public policy reasons need to be given serious consideration in determining the legal sufficiency of a cause of action, even when a finding of legal sufficiency is contrary to our common law, can be found in Keeney v. Old Saybrook, 237 Conn. 135, 676 A.2d 795 (1996). In Keeney, where the defendant invoked the well established defense that a municipality cannot be liable for a nuisance that it did not affirmatively create, our Supreme Court held that within the context of the Environmental Protection Act; General Statutes § 22a-14; a municipality may be liable for a public nuisance that it created by its failure to act: "Without deciding what the law of municipal liability may be in other contexts, in light of the strong public policy manifested by the environmental protection statutes, we conclude that a municipality may be liable for a public nuisance that it intentionally creates through its prolonged and deliberate failure to act to abate that nuisance." (Emphasis added.)
A parallel analysis and result can be found in Cordero v. American Medical Response, Superior Court, judicial district of New Haven, Docket No. CV-02-0458609 (Apr. 23, 2004, Devlin, J.) (36 Conn. L. Rptr. 866), in which the court analyzed the effect of the limited immunity created by the Good Samaritan statute on common-law principles and concluded: "Whether viewed as creating, by implication, a cause of action for gross negligence that does not otherwise exist, or as not abolishing such a cause of action that does exist at common law, the more persuasive view is that a plaintiff confronted with a Good Samaritan Law defense should be allowed to plead gross negligence. This is because the immunity provided by the statute is limited, and a plaintiff should be allowed to claim more than the level of negligence to which the statutory immunity applies. The contrary view would lead to the conclusion that by not providing immunity for gross negligence, the legislature was not providing immunity for a cause of action that did not exist anyway. A statute should not be interpreted in a manner that creates an absurd result." (Citation omitted.)
In Glorioso v. Police Department of the Town of Burlington, 48 Conn.Sup. 10, 826 A.2d 271 (2003) [34 Conn. L. Rptr. 472], where a cause of action based on "gross negligence" was challenged by a motion to strike, the court, (Hodgson, J.), ruled that the plaintiff should have the opportunity to plead gross negligence to overcome the defendant's assertion of statutory immunity. Otherwise, if a plaintiff "pleads only negligence, with the intention of proving that the acts or omissions actually constituted gross, wilful or wanton negligence, the claim is at risk under the immunity provision . . ."
It is fundamental that "the court must use common sense in construing statutes and must assume that a reasonable and rational result was intended by the promulgating legislature." (Internal quotation marks omitted.) State v. Harris, 32 Conn.App. 831, 840, 632 A.2d 50 (1993). Moreover, "[t]here is no question that the legislature may abrogate the common law. The legislature in the exercise of its police power can alter or abolish accepted principles of common-law liability . . ." (Internal quotation marks omitted.) Warner v. Leslie-Elliot Constructors, Inc., 194 Conn. 129, 133, 479 A.2d 231 (1984).
In the present case, the court can conceive of no rationale for making a nuanced distinction between the terms "wilful negligence" and "wilful failure" at least within the context of § 52-557h.
The defendant's motion to strike the fifth count of the plaintiff's complaint is denied.