Opinion
No. CV 11 6017763
June 2, 2011
MEMORANDUM OF DECISION
FACTS
On February 9, 2011, the plaintiff, Carol Cutler, filed a four-count complaint sounding in negligence and recklessness against the following defendants: Joseph Flynn, Britney Colwell and Joanne Colwell. The plaintiff alleges that on January 14, 2009, she was stopped at a red traffic light. Behind her were two cars: one operated by Britney Colwell and the other operated by the defendant. The defendant's vehicle collided with the rear of Britney Colwell's vehicle, whose vehicle in turn collided with the plaintiff's. The plaintiff alleges that she sustained injuries as a result of the accident and that such injuries were a result of the negligence and/or recklessness of the defendant. Counts one, two and three are against the defendant alleging negligence, common-law recklessness and statutory recklessness, respectively. Count four is against Brittany Colwell and Joanne Colwell alleging negligence.
Joseph Flynn will be referred to as "the defendant."
On March 9, 2011, the defendant filed a motion to strike counts two and three of the complaint, and the prayer for relief alleging double and treble damages, along with a memorandum of law supporting his motion to strike. Subsequently, the plaintiff filed a memorandum in opposition to the defendant's motion to strike. This matter was heard at short calendar on April 4, 2011.
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). This court takes "the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It 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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). Although, "[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." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
The defendant argues in his memorandum of law that the plaintiff has failed to allege any facts in count two that would transform the negligence claim in count one into a cause of action under common-law recklessness. In response, the plaintiff counters that by pleading that the collision was due to the reckless and wanton misconduct of the defendant in nine different ways and that the defendant admitted that he "turned his head away," she has sufficiently alleged facts to allow the trier of fact to find recklessness.
In reviewing the legal sufficiency of count two, the plaintiff is asking the court to rely on an admission which has not been alleged in the complaint but is found in the police report that the plaintiff attaches to the memorandum of law in opposition to the motion to strike. The court may not consider this admission and can base its review only on the allegations and other facts found in the complaint. Faulkner v. United Technologies Corp., supra, 240 Conn. 580.
"To determine whether the plaintiff['s] . . . [complaint] states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior. 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 . . . 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." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003). "[In sum,] [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." (Internal quotation marks omitted.) Vitale v. Kowal, 101 Conn.App. 691, 699, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).
"A plaintiff cannot transform a negligence count into a count for wilful and wanton misconduct merely by appending a string of adjectives to allegations that clearly sound in negligence." Brown v. Branford, 12 Conn.App. 106, 110, 529 A.2d 743 (1987). "Merely using the term `recklessness' to describe conduct previously alleged as negligence is insufficient as a matter of law." Angiolillo v. Buckmiller, 102 Conn.App. 697, 705, 927 A.2d 312 (2007), citing Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958). Nonetheless, "[i]n determining the legal sufficiency of the recklessness [count], the question is not the similarity of the test to that in the negligence count. Rather the question is whether the recklessness [count] can stand on [its] own as sounding in recklessness." (Internal quotation marks omitted.) Scalia v. Townsend, Superior Court, judicial district of New Britain, Docket No. CV 10 6005409 (March 29, 2011, Swienton, J.).
In Scalia, the court found that the allegations of common-law recklessness were sufficient to survive a motion to strike because the complaint alleged "facts that the defendant operated his vehicle under the influence of drugs or alcohol, and that the collision was due to the willful, wanton, and reckless conduct of the defendant." (Internal quotation marks omitted.) Id. Similarly, in Craig v. Driscoll, supra, 262 Conn. 343, our Supreme Court held that a pleading was sufficient to survive a motion to strike because, "the plaintiffs' complaint allege[d] conduct that constitutes an extreme departure from ordinary care in a situation that involves a high degree of danger . . . The allegation of a specific policy to continue to serve alcohol to a particular patron, who is known to have an excessive drinking problem, while that patron already is intoxicated, with the knowledge that that patron would be operating a motor vehicle upon leaving the bar reflects wilful, wanton and reckless conduct sufficient to survive a motion to strike."
In the present case, the complaint alleges in count two that the plaintiff's injuries were caused by the defendant's reckless and wanton misconduct in one or more of the following ways: (a) in that he failed to keep a proper lookout and to pay attention to where he was going; (b) was traveling at an unreasonable rate of speed given the road and weather conditions; (c) failed to sound his horn or give proper warning; (d) that his brakes were defective or inadequate and/or were applied too late; (e) he failed to keep the vehicle under proper control; (f) he failed to turn his vehicle so as to avoid the collision; (g) he violated General Statutes § 14-218a in that he was driving unreasonably fast given the road and weather conditions; (h) he violated General Statutes § 14-222 in that he was driving recklessly with regard to the speed of the vehicle given the road and weather conditions; and (i) he violated General Statutes § 14-240(a) in that he was following too closely. Except for the reference to "recklessness," these facts are the same facts previously alleged in count one that sound in negligence. The plaintiff's mere use of the word "reckless" is not an additional factual allegation that would alter the nature of the conduct complained of. In the absence of such additional factual allegations, the facts alleged do not support a conclusion that the defendant made a conscious choice to do as he did with knowledge of the serious danger such conduct posed to others. Accordingly, it is submitted that the defendant's motion to strike count two should be granted.
Next, the plaintiff alleges in count three that the defendant committed statutory recklessness pursuant to General Statutes § 14-295. The defendant argues that this pleading is legally insufficient because more specific factual allegations are required to allege a cause of action for statutory recklessness to be entitled to an award of double or treble damages. The plaintiff rejoins that although there is a split of authority as to the degree of specificity required in pleading statutory recklessness, the majority of case law supports her position that she need only plead general allegations that the defendant with reckless disregard violated one of the statutes enumerated in § 14-295.
"Section 14-295 provides in relevant part: [i]n any civil action to recover damages 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 violation of [§§ ]14-218a, . . . 14-222 . . . [or] 14-237 . . . and that such violation was a substantial factor in causing such injury, death or damage to property . . . There has been a split of authority in Superior Court decisions as to what degree of specificity is required in pleading recklessness [arising] from the different constructions the courts have placed on the term specifically pleaded . . . [T]he minority view . . . holds that a plaintiff must not only plead a statutory violation as set forth in § 14-295, but also facts that would support a claim of reckless conduct at common-law . . . This court recently addressed the split of authority . . . [and] . . . found the majority view to be persuasive. Under the majority view, a claim for statutory recklessness is legally sufficient so long as it alleges that the defendant deliberately or with reckless disregard violated one of the statutes enumerated in § 14-295, and further asserts that the violation was a substantial factor in causing the plaintiff's injuries . . . [A]s long as the general requirements of the statute are met, such pleading is enough to survive a motion to strike and to state a cause of action under § 14-295." (Citations omitted; internal quotation marks omitted.) Chowaniec v. DeLoughery, Superior Court, judicial district of New Haven, Docket No. CV 085020890 (February 3, 2011, Woods, J.), citing Luciano v. Lopez, Superior Court, judicial district of New Haven, Docket No. CV 10 6013983 (December 16, 2010, Woods, J.).
In the present case, count three alleges that the defendant deliberately or with reckless disregard violated §§ 14-218a, 14-222 and/or 14-240(a) and that such violation(s) was/were a substantial factor in causing the plaintiff's injuries. That is all that is required to be pleaded based on this court's precedent.
With regard to the prayer for relief, "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). In the present case, because the court has denied the motion to strike count three, which is the count upon which the prayer for relief relies, the prayer for relief for double or treble damages is not stricken.
CONCLUSION
The court grants the defendant's motion to strike count two but denies the defendant's motion to strike count three as well as the corresponding prayer for relief.