Opinion
No. CV 02 0470424 S
June 24, 2003
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE
On October 23, 2002, the plaintiff, Ashley Cappiello, filed a three-count complaint against the defendant, Charles Steeves. Count one sounds in negligence, count two sounds in common law recklessness, while count three sounds in statutory recklessness under General Statutes § 14-295.
In both the second and third counts of the complaint, the plaintiff alleges the following facts. On the night of April 25, 2001, the plaintiff was operating a motor vehicle at an intersection in Branford, Connecticut, when the defendant's vehicle, approaching from the opposite direction, suddenly and without warning entered the plaintiff's lane of travel causing a collision. At the time of the collision, the defendant was recklessly operating his vehicle at an unreasonably high rate of speed while intoxicated.
As a result of the defendant's reckless conduct, the plaintiff alleges to have suffered physical and emotional injuries, to have incurred medical expenses and lost wages and to have had her earning capacity diminished. The plaintiff seeks monetary damages, including double or treble damages pursuant to § 14-295.
On February 3, 2003, the defendant filed a motion to strike the second and third counts of the plaintiff's complaint on the ground that the plaintiff "has failed to sufficiently specify the conduct that is alleged to be reckless in both the common law and statutory recklessness counts." The defendant's motion was accompanied by a memorandum of law. On March 24, 2003, the plaintiff filed a memorandum in opposition.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates Ltd. CT Page 7547-gz Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771, 802 A.2d 44 (2002). "The role of the trial court [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." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Vacco v. Microsoft Corp. 260 Conn. 59, 65, 793 A.2d 1048 (2002).
The defendant argues that both the plaintiff's second count, sounding in common law recklessness, and the plaintiff's third count, sounding in statutory recklessness, should be stricken on the ground that, in these counts, the plaintiff has not specifically articulated conduct that can support their respective recklessness claims. The defendant argues that the plaintiff has taken the factual allegations from the negligence count and "carbon copied" them into the recklessness counts. In neither recklessness count, the defendant argues, is the defendant able to assess "what allegations in the case, besides those generally made in the negligence count, are being relied on to support the cause of action in recklessness." The defendant therefore concludes that both recklessness counts are insufficient and that his motion to strike counts two and three should be granted.
The plaintiff argues in opposition that she has alleged sufficient facts to assert actions for common law and statutory negligence in counts two and three, respectively. The plaintiff argues that by alleging that the defendant drove his vehicle while intoxicated she has sufficiently pleaded willful, wanton and reckless conduct; therefore, the fact that her recklessness counts factually mirror her negligence count does not invalidate her recklessness counts.
Count Two
In Kostiuk v. Queally, 159 Conn. 91, 94, 267 A.2d 452 (1970), the Supreme Court stated that it did not think that "a brief reference to recklessness, contained within a count which otherwise is clearly limited to ordinary negligence, is sufficient to raise a claim of reckless and wanton misconduct. Simply using the word `reckless' or `recklessness' is not enough." (Internal quotation marks omitted.) In Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003), the court stated that "willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . [S]uch aggravated negligence must be more than any mere mistake resulting CT Page 7547-ga from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.
In Craig the court acknowledged that the plaintiff's allegations in their recklessness counts mirrored their allegations in the counts charging the defendants with negligence. Nevertheless, the court held that "[a]lthough there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted." Craig v. Driscoll, supra, 262 Conn. 343. The court found that the plaintiffs' complaint did allege conduct that constituted an extreme departure from ordinary care in a situation that involved a high degree of risk and rather than conclude that the plaintiffs' allegations were not sufficient to state a cause of action for recklessness, the court suggested "that the plaintiff's allegations of negligence were overinclusive." Id., 343 n. 22.
The plaintiff in the present case alleges in paragraph three of count two that "the defendant . . . while intoxicated and driving at an excessive rate of speed, suddenly and without warning entered the plaintiff's lane of travel causing a collision . . ." Paragraph four alleges that the collision was caused by the defendant's reckless, willful and/or wanton misconduct in the violation of a number of motor vehicle statutes, which the plaintiff enumerates. While the plaintiff's allegations in count two mirror his allegations in count one, this court concludes that the language utilized in count two is "explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted." Craig v. Driscoll, supra, 262 Conn. 343. The plaintiff has done more than append a brief reference to recklessness to a negligence count. See Kostiuk v. Queally, supra. Construing the complaint in the light most favorable to the plaintiff, this court finds that the allegation that the defendant operated a motor vehicle on a public highway at an excessive rate of speed while intoxicated is a sufficient allegation of common law recklessness, that is, conduct constituting an extreme departure from ordinary care in a situation that involved a high degree of risk.
Count Three
Section 14-295 states, in relevant part: "In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages, if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in CT Page 7547-gb violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237,14-239, or 14-240a, and that such violation was a substantial factor in causing such injury . . . There is a split of authority in the Superior Court on the issue of the specificity needed to assert a claim of recklessness under General Statutes § 14-295. "One line of cases holds that under [§ 14-295], a plaintiff must plead the specific facts that would constitute recklessness at common law . . . The second line of cases holds that a plaintiff need only allege that the defendant violated an enumerated statute deliberately or with reckless disregard and that such violation was a substantial factor in causing plaintiff's injuries." Collaguazo v. HSU, Superior Court, judicial district of Stamford-Norwalk at Stamford, CV 02 0188861 (December 17, 2002, D'Andrea, J.T.R.).
In the present case the plaintiff has met the requirements for asserting a claim of statutory recklessness as set out in both lines of cases. In count three, the plaintiff alleges that, at the time of the accident, the defendant, in reckless disregard for the safety of others, violated three of the statutes enumerated in § 14-295, specifically §§ 14-218a, 14-222 and 14-227a and that these "violations were a substantial factor in causing the plaintiff . . . injuries and losses." In addition, the plaintiff reintroduces all of the factual allegations that she made in count two, which this court has already determined sufficiently allege an action in common law recklessness.
Section 14-218a provides, in relevant part that "[n]o person shall operate a motor vehicle . . . at a rate of speed greater than is reasonable . . ."
Section 14-222 provides, in relevant part that "[n]o person shall operate any motor vehicle . . . recklessly . . ."
Section 14-227a provides, in relevant part, that "[n]o person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both . . ."
The defendant's motion to strike the second and third counts of the plaintiff's complaint on the ground that the plaintiff has failed to specify sufficiently in both counts the conduct that is alleged to be reckless is therefore denied.
Harper, J.