Opinion
No. CV 07 5012580S
May 5, 2008
MEMORANDUM OF DECISION AS TO DEFENDANT'S MOTION TO STRIKE
The defendant has filed a Motion to Strike (#117) count four of the plaintiff's Second Amended Complaint. The plaintiff has filed an Objection (#119).
The plaintiff filed a Second Amended Complaint dated February 15, 2008. The allegations in the complaint are that the plaintiff rented a residence from the defendant under a written lease dated June 23, 2006. The plaintiff claims that the lease was illegal in that it violated the zoning regulations of the Town of Trumbull and there was not a Certificate of Occupancy for the rental property. The plaintiff fell as she was walking across the lawn of the property. The plaintiff is claiming in Counts One, Two, and Three, negligence and in Count Four a CUTPA violation.
The defendant has filed a Motion to Strike the Fourth Count of the complaint arguing that the plaintiff has failed to allege sufficient cause of action, for which relief can be granted, namely that (1) CUTPA in not applicable to the alleged conduct, plaintiff has failed to allege an ascertainable loss and that the alleged conduct is not unfair or deceptive; (2) that the defendant's actions fail to conform with the "Cigarette Rule" and (3) that more than allegations of mere negligence are necessary to support a claim under CUTPA.
The plaintiff objects.
DISCUSSION OF THE LAW
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, 36, 522 A.2d 1235 (1987).
The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986).
A motion to strike is an appropriate means of presenting to the court legal issues at the onset of litigation. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).
AS TO COUNT FOUR — VIOLATION OF CUTPA
The defendant moves to strike count four on the grounds that the plaintiff has failed to allege sufficient causes of action upon which relief may be granted, that CUTPA is not applicable to the alleged conduct. It also argues that the plaintiff fails to properly allege an ascertainable loss, and the alleged conduct was not unfair or deceptive, required elements of a CUTPA claim.
The plaintiff counters that she sufficiently alleges that the defendant's conduct was committed in the course of its trade or commerce because the defendant and the plaintiff entered into a residential lease for the renting of property, thereby making it a commercial transaction. She also counters that she has properly alleged an ascertainable loss.
"The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce, and whether a practice is unfair depends upon the finding of a violation of an identifiable public policy . . . CUTPA, by its own terms, applies to a broad spectrum of commercial activity. The operative provision of the act, [General Statutes] § 42-110b(a), states merely that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Trade or commerce, in turn, is broadly defined as the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value in this state. General Statutes § 42-110a(4). The entire act is remedial in character . . . and must be liberally construed in favor of those whom the legislature intended to benefit." (Citations omitted; internal quotation marks omitted.) Willow Springs Condominium Assn., Inc v. Seventh BRT Development Corp., 245 Conn. 1, 42, 717 A.2d 77 (1998).
Although our Supreme Court has not specifically enumerated what constitutes trade or commerce, it has stated that "a consumer relationship is not a prerequisite to having standing to assert a CUTPA violation." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 643, 804 A.2d 180 (2002). It has also stated, however, that "it strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any trade or commerce." (Internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 88, 793 A.2d 1048 (2002). In addition, while "our Supreme Court has frequently stated that unjustified consumer injury is the hallmark of a CUTPA violation . . . it has done so in the context of trade, rather than personal injuries." (Citation omitted; internal quotation marks omitted.) Simms v. Candela, 45 Conn.Sup. 267, 270, 711 A.2d 778, 21 Conn. L. Rptr. 479 (1998). Furthermore, in interpreting the CUTPA's definition of trade or commerce, albeit in a medical malpractice context, the court has focused on the alleged conduct's "entrepreneurial or business aspect." Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 32-33, 699 A.2d 964 (1997).
The Superior Courts are split on whether "trade or commerce" refers to the defendant's primary business. No appellate court has ruled on this issue. For discussions that have held that the conduct must be in the defendant's primary business, see Cornerstone Realty, Inc. v. Dresser Rand Co., 993 F.Sup. 107, 113 (D.Conn. 1998) (sale of contaminated property was not defendant's primary business); Brandewiede v. Emery Worldwide, 890 F.Sup. 79, 81 (D.Conn. 1994) (leasing aircraft was merely incidental to primary business of overnight freight delivery); Marten Transport Ltd. v. MacDermid, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 00 0160172 (March 26, 2001) ( 29 Conn. L. Rptr. 433); NY-CONN Corp. v. Southbury Diagnostic Imaging Center, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 99 015863, (October 24, 2000) ( 28 Conn. L. Rptr. 521).
For decisions that have held that any trade or commerce will suffice, see Feen v. Benefit Plan Administrators, Inc., Superior Court, judicial district of New Haven, Docket No. CV 97 0406726 (September 7, 2000) ( 28 Conn. L. Rptr. 137); Cizynski v. Tartantino, Superior Court, judicial district of Stamford, Docket No. CV 95 0147496S (July 19, 1996) ( 17 Conn. L. Rptr. 191).
The plaintiff relies on Simms v. Canela, supra, for her argument that a landlord tenant relationship gives rise to a CUTPA claim. In that case the court denied a motion to strike on the ground that a tenant may plead a violation of CUTPA for personal injuries sustained as a result of the landlord's negligence. The violation complained of in Simms, was "the absence of a gutter in an apartment house resulting in a dangerous condition. While this may indeed be an act of negligence (and a violation of the Landlord and Tenant Act), it also implicates the entrepreneurial aspect of the landlord's business. Renting an apartment building without adequate gutters may be financially advantageous to the landlord and increase his (or her) margin of profit. Conforming to the requirements of the Landlord and Tenant Act costs money. Public policy nevertheless requires landlords to expend such money. When they do not, CUTPA is properly invoked." Id., 273.
The Simms court further explained that this, "does not mean that every slip and fall by a tenant can be turned into a CUTPA violation. If a landlord negligently drops a banana peel on the steps and a tenant falls as a result, the landlord may well be liable in negligence, but there would be no CUTPA violation. The failure to make a structural repair required by the state habitability statutes is, however, different." (Citations omitted.) Id. For example, "although unskillful surgery cannot form the basis of a CUTPA violation, medical malpractice based on the adequacy of staffing, training, equipment or support personnel can still result in a legally sufficient CUTPA claim. In that case the person sued has enhanced his economic condition by failing to make the expenditures that public policy demands." Id.
Thus, Simms, relied on by the plaintiff in support of her argument that she has, in fact, alleged an unfair trade practice, is distinguishable from the present case because in Simms, the plaintiff was the tenant of the premises on which he sustained his injuries, and his injuries were caused by the noncompliance of the landlord with putting gutter on the apartment building. See Pinette v. McLaughlin, 96 Conn.App. 769, 901 A.2d 1269 (2006).
Moreover, the plaintiff in the present case has failed to allege sufficient facts to demonstrate how the violations were the actual cause of the injury, she was walking over the lawn when she fell. Thus, even broadly construing the facts as alleged, the court is unable to ascertain that the plaintiff's injuries would have been avoided had there been total compliance with the Health Code. See Suarez v. Sordo, 43 Conn.App. 756, 773, 685 A.2d 1144, cert. denied, 240 Conn. 906, 688 A.2d 334 (1996) (finding no CUTPA violation because "the plaintiff failed to show that he suffered harm `as a result of' the alleged [housing code] violation"). See Duncan v. Peh I, LLP, Superior Court, judicial district of Hartford at Hartford, Docket No CV 02-0817088S (April 1, 2003, Booth, J.), 34 Conn. L. Rptr. 572.
In the present case, the complaint makes no allegation that the defendant is anything but a property owner who is renting out one property that he owns, therefore, even reading the complaint in a light most favorable to the plaintiff, the court can not find that the leasing of the property was the defendant primary business.
Therefore, the court grants the defendant's motion to strike count four of the complaint because, even under the most favorable construction of CUTPA, CUTPA does not apply to the defendant.