Opinion
No. LLI CV 09 5006007
July 11, 2011
MEMORANDUM OF DECISION
The issue presented by the defendant's motion to strike (#113) is whether the defendant's first and second special defenses are legally insufficient. For the reasons given, the motion must be denied.
I FACTS
On November 29, 2010, the plaintiff, L. Mark Denegre as administrator for the estate of Kollin Denegre, filed a two-count amended complaint against the defendant, Brian Roy, arising out of a collision between two wave-runners resulting in the death of Kollin Denegre. The complaint alleges that on August 7, 2007, Kollin Denegre was operating a Sea Doo Bombardier personal watercraft on Lake Gaston, an inland navigable waterway, in Littleton, North Carolina. On that same date, the defendant was also operating a Sea Doo Bombardier personal watercraft on Lake Gaston. According to the plaintiff, the wave-runner being operated by the defendant struck Kollin Denegre causing Kollin Denegre to sustain severe head and neck trama resulting in his death. Count one of the complaint alleges that the defendant was negligent and/or careless and count two alleges wanton and reckless conduct of the defendant.
Count one alleges that the defendant was negligent and/or careless in that he, inter alia, (1) violated Section 75A-13.3(a1) of the laws of the State of North Carolina in operating his personal watercraft within 100 feet of Kollin Denegre's personal watercraft; (2) violated Section 75A-13.3(e) of the laws of the State of North Carolina in failing to operate said personal watercraft in a reasonable and prudent manner and in engaging in maneuvers that endangered the life and limb of Kollin Denegre, constituting reckless operation of a vessel as provided in Section 75A-10, by: intentionally approaching Kollin Denegre's vessel in order to swerve at the last possible moment to avoid collision; and operating contrary to the "rules of the road" and following too closely to Kollin Denegre's personal watercraft; and (3) violated the following United States Coast Guard "rules of the road" found in Title 33, Part 83 of the Code of Federal Regulations: (i) Rule 5, by failing to maintain a proper look-out; (ii) Rule 6, by failing to proceed at a safe speed so that he could take proper and effective action to avoid collision; (iii) Rule 7, by failing to use all available means appropriate to the prevailing circumstances and conditions to determine if a risk of collision exists; (iv) Rule 8, by failing to take action to avoid collision; (v) Rule 15, by failing to keep out of the way and avoid crossing ahead of Kollin Denegre's vessel; and (vi) Rule 16, by failing to take early and substantial action to keep well clear of Kollin Denegre's vessel.
On April 7, 2011, the defendant filed an answer to the amended complaint, asserting two special defenses. The first special defense alleges that the plaintiff's action is governed by North Carolina law and, as such, is barred in that Kollin Denegre was contributorily negligent. The second special defense alleges that the plaintiff's action is governed by North Carolina law and, as such, is barred in that Kollin Denegre was operating his personal watercraft in a willful, wanton or reckless manner.
On April 25, 2011, the plaintiff filed the present motion to strike the defendant's first and second special defenses on the ground that they are legally insufficient. According to the plaintiff, the action is governed by the laws of admiralty under which contributory negligence is not a complete bar to recovery. The plaintiff also filed a memorandum of law in support of his motion to strike. On June 14, 2011, the defendant filed a memorandum of law in opposition to the motion to strike. The matter was heard on the June 21, 2011 short calendar.
II DISCUSSION A Motion to Strike Standard
"[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.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010). Practice Book § 10-39(a) provides in relevant part: "Whenever any party wishes to contest . . . (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." "In . . . ruling on the . . . motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "[W]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a [p]eading] challenged by a . . . 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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
B Parties' Arguments
The plaintiff moves to strike both of the defendant's special defenses on the ground that they are legally insufficient because the plaintiff's action is governed by the laws of admiralty under which contributory negligence is not a complete bar to recovery. According to the plaintiff, as alleged in his complaint, Lake Gaston is an inland navigable waterway and therefore admiralty law applies to the action. The plaintiff argues that the issue of whether Lake Gaston is a navigable waterway such that admiralty law applies was settled by the Fourth Circuit Court of Appeals in Richards v. Blake Builders Supply, Inc., 528 F.2d 745 (4th Cir. 1975).
In contrast, the defendant argues that the court cannot look beyond the relevant pleadings on a motion to strike. As such, whether Lake Gaston is an inland navigable waterway is a question of fact not proper for resolution on a motion to strike. Moreover, even if Lake Gaston is an inland navigable waterway, the defendant contends that the exercise of admiralty jurisdiction requires that the tort bear a significant relationship to traditional maritime activity. According to the defendant, the court in Price v. Price, 929 F.2d 131 (4th Cir. 1991), identified four factors to be considered in this analysis and each requires a factual finding that is not proper on a motion to strike. Furthermore, the defendant argues that the plaintiff did not seek to invoke admiralty jurisdiction by including an affirmative statement in the complaint identifying the proceeding as an admiralty claim. Finally, the defendant contends that his special defenses are not barred even if admiralty law is applied. According to the defendant, North Carolina continues to recognize contributory negligence as a complete bar to recovery. The plaintiff's wrongful death action is a creature of statute under North Carolina General Statutes § 28A-18-2 and an individual state's wrongful death statute, including the limitations and conditions of the statute, applies to maritime claims arising from incidents that occur within the territorial waters of that state. The parties do not dispute that the incident occurred in North Carolina. Therefore, the defendant contends, North Carolina's common law defense of contributory negligence applies and is a proper special defense.
As for the defendant's second special defense, the defendant argues that it is not one which seeks to assert contributory negligence, contrary to the plaintiff's argument. Rather, the defendant contends that the special defense has been asserted in response to the second count of the plaintiff's amended complaint, which alleges that the accident occurred as a result of the defendant's wanton and reckless conduct. Thus, the second special defense alleges that the plaintiff's claim is barred because of Kollin Denegre's own willful and wanton acts.
C Analysis CT Page 15062
The defendant argues that North Carolina law should apply and its special defenses should not be stricken. The plaintiff, on the other hand, contends that admiralty law applies and the defendant's special defenses are, therefore, legally insufficient. "Whether the action is governed by federal law is contingent upon a number of factors. The determination of the exercise of admiralty jurisdiction . . . does not result in automatic displacement of state law, but its application may be circumscribed in the interest of maritime uniformity . . . Historically, admiralty jurisdiction over torts depended solely upon the locality of the wrong. [I]f the wrong occurred on navigable waters, the action [was] within admiralty jurisdiction, if the wrong occurred on land it [was] not . . . In [ Executive Jet Aviation Inc. v. City of Cleveland, 409 U.S. 249, 253, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972], the Supreme Court modified this purely mechanical application of the locality test and held that the wrong [must also] bear a significant relationship to traditional maritime activity, the nexus test . . . Thus, we now apply a two-part test for determining when a tort action falls within the federal courts admiralty jurisdiction. First, the alleged tort must have occurred on or over navigable waters . . . Second, the activity giving rise to the incidents must bear a sufficient nexus to traditional maritime activity . . . The first prong of the test is known as the `situs.' This prong requires that the court determine if the tort occurred on navigable water." (Citations omitted; internal quotation marks omitted.) Vitale v. Longshore Sailing School, Inc., Superior Court, complex litigation docket at Stamford-Norwalk at Stamford, Docket No. X08 CV 09 5012015 (May 19, 2011, Brazzel-Massaro, J.); see Price v. Price, supra, 929 F.2d 133 ("Admiralty jurisdiction over maritime torts depends on the locus of the tort on navigable waters and its nexus with traditional maritime activity . . . [B]oth criteria of locus and nexus must be satisfied").
"[W]aters are navigable when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. The definition has two disjunctive aspects. The waters are navigable if they are currently being used as a highway of commerce or if they are susceptible of being so used. Waters are susceptible of such use when they are, in their current configuration, capable of commercial navigation." (Citation omitted.) Price v. Price, supra, 929 F.2d 134. "Evidence that a body of water is currently being used for commercial navigation may support the conclusion that it is navigable. However, merely because a body of water is not currently being used for commercial navigation does not require the opposite conclusion, that it is not navigable. Even in the ordinary meaning of the word, navigable is significantly broader and encompasses the notion that a body of water is capable of being navigated. The true test of the navigability of a [body of water] does not depend on the mode by which commerce is, or may be, conducted, nor the difficulties attending navigation . . . The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability . . . rather than the extent and manner of that use." Id., 135.
In the present case, the parties dispute whether the accident took place on "navigable waters." The plaintiff contends that the Fourth Circuit Court of Appeals already determined that Lake Gaston is a navigable waterway in Richards v. Blake Builders Supply, Inc., supra, 528 F.2d 746. The defendant, on the other hand, contends that the motion to strike should be denied because the plaintiff is asking the court to make a factual determination that Lake Gaston is a navigable waterway. In Richards, causes of action based on negligence, breach of warranty and strict liability were filed as a result of an explosion of a pleasure craft boat on Lake Gaston. The Fourth Circuit reversed the decision of a district court dismissing the actions for lack of admiralty jurisdiction. The Fourth Circuit determined that Lake Gaston was a navigable waterway but did not discuss the evidence it used to make that determination, noting only that Lake Gaston is a manmade lake and that "[t]here is nothing to suggest that Lake Gaston, though navigable, supports any substantial commercial activity . . . the vessel involved was a pleasure craft and was being utilized for the pleasure and recreation of its occupants." Richards v. Blake Builders Supply, Inc., supra, 528 F.2d 746-47. In fact, it is unclear whether the parties in Richards disputed the navigability of Lake Gaston. In fact, the court engaged mainly in an analysis regarding the treatment of controversies arising out of the operation of small pleasure craft, as opposed to an analysis as to whether Lake Gaston was a navigable waterway. Id., 748-49.
Richards v. Blake Builders Supply, Inc., supra, 746, is comprised of several appeals to the Fourth Circuit. "[The Virginia Cases] arose out of the explosion of a motorboat while being operated on Lake Gaston . . ."
In his special defenses, the defendant alleges that the plaintiff's action is subject to the laws of North Carolina but the defendant does not specifically allege that Lake Gaston is not a navigable waterway. "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the [subject] pleadings, the [movant] must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004). It is likely that there are additional facts which may be relevant to the court's determination as to whether admiralty jurisdiction applies that are not contained in pleadings, including whether Lake Gaston is currently being used as a highway of commerce or if it is susceptible of being so used. None of these facts are before the court on the present motion to strike.
"Having chosen a motion to strike as the vehicle with which to attack the validity of the allegations, the [plaintiff] must abide by the limited parameters of such a motion. It is elementary, but bears repeating, that the court's ability to decide the merits of this motion at the pleading stage is not the same as when the court rules on the pleadings on a later, more dispositive motion. That includes such matters as summary judgment or a motion to dismiss, because the criteria for judging are different here. It has to do with certain presumptions the court must adhere to in favor of the non-moving party in its ruling. It is not that the allegations are true. It is first and foremost that all of the allegations that the [defendant] is making must be taken as true for purposes of this — or any other — motion to strike. Many of the [plaintiff's] arguments rely on the finding of facts and legal conclusions that lie outside of the [special defenses] . . . and thus are inappropriate for such a motion." The Calibre Fund, LLC v. BDO Seidman, LLP, Superior Court, complex litigation docket at Stamford-Norwalk, Docket No. X05 CV 09 5012119 (October 20, 2010, Blawie, J.). Accordingly, the plaintiff's motion to strike must be denied.