Opinion
No. CV-03 0479244 S
November 3, 2003
MEMORANDUM OF DECISION ON MOTION TO STRIKE
In this case the plaintiff was in the process of turning into a driveway when a vehicle operated by the defendant collided with her vehicle causing serious injury. There is a negligence count and a reckless count. The defendant driver has moved to strike the reckless count asserting that sufficient factual allegations are not made to permit such a theory. Also the defendant's employer moves to strike the reckless claim against it arguing that vicarious liability cannot be imposed on it pursuant to § 14-295 for double or treble damages.
The standards to be applied on a motion to strike are well known. Every favorable inference must be given to the complaint subject to such a motion but a court cannot create inferences from facts that are not alleged or base inferences on conclusory allegations.
(1)
For the reasons stated in Robinson v. McWeeney, 16 C.L.R. 514 (1996) this court believes that an employer directly sued for the acts of its agent cannot be held liable for double or treble damages under § 14-295.
(2)
The mere fact that the same facts which are relied upon to establish negligence in a count under that theory are also relied upon to claim recklessness in another count does not bar a recklessness claim if the commonly asserted facts can be in either negligence or recklessness. Adams v. Champagne, 22 C.L.R. 241
On the other hand, referring specifically to the recklessness (§ 14-295) count ". . . the burden rests on the plaintiff to allege a recognizable cause of action and it is not sufficient that a complaint refer to a basis of liability by some distinctive . . . name the complaint is required to set forth facts upon the basis of which, if true, he (she) may be able to establish in law a right to relief." Research Associates Inc. v. New Haven Redevelopment Agency, 157 Conn. 587, 588 (1968). As one trial court has said:
A plaintiff cannot transform a negligence count into a count for willful and wanton misconduct merely by appending a string of adjectives to allegations that sound in negligence. Some additional factual allegations are necessary to alter the nature of conduct complained of from an action for negligence to an action for willful and wanton conduct.
Just v. Aparo, 8 C.S.C.R. 542 (1993) (Higgins, J.).
The foregoing is in line with the observation that in deciding a motion to strike against any claim, including one in recklessness, a conclusory statement in a complaint cannot be relied upon to avoid a motion to strike. Talbot v. Kirkup, 2000 Ct. Sup. 11487 citing Bonamico v. City of Middletown, 47 Conn. App. 758, 763-64 (1998).
The second count alleging recklessness is conclusory in nature. It is alleged that the defendant "continued to ignore traffic rules and to travel at an exorbitant amount of speed despite the fact that he was in a residential neighborhood" (para, second count).
The mere fact that the defendant was operating at a high rate of speed in a residential neighborhood does not make the operation reckless without some factual allegations that indicate that at the time and place of the accident the actual use of the streets by pedestrians or traffic created special dangers for cars traveling over the speed limit or even at high rates of speed. Residential neighborhoods come in a wide variety as to density of population and the nature and amount of vehicular and pedestrian traffic.
The rate of speed is characterized as exorbitant but not further defined in relation to the speed limit and it has been always the law in our state that under some circumstances a high rate of speed may not be negligence. This is true both at common law and where a violation of a statutory speed limit alleged. See Wright, Fitzgerald and Ankerman, Connecticut Law of Torts (3d ed.), § 100, Rapuano v. Oder, 181 Conn. 515, 519-20 (1980), cf. Jury charge in Connecticut Jury Instructions, Wright and Ankerman, Vol. 1, § 74, pp. 142 et seq.
Furthermore, the fact that several common-law and statutory violations are alleged or even that they or some of them may have occurred sequentially does not establish recklessness as opposed to negligence — the foregoing is true in many if not most garden variety negligence claims.
The problem with this count is that it is barren of factual allegations which can permit the court or opposing counsel to ascertain in what way particular specifications of negligence occurred under such circumstances so as to make the defendant's actions reckless. There are no allegations, for example, that the violations and ensuing accident occurred when due to weather conditions or time of day visibility was poor, or that road conditions presented a special hazard, or that at the time of the accident there was heavy traffic at or beyond the intersection or that the nature of the intersection or any curve in the road or ascent or decline in the road limited the defendant's ability to observe a car in the position the plaintiff's car was located. As concerns the sequential violation of a stop sign and reasonable speed requirements there is no allegation concerning the location of the stop sign in relation to the point of impact from which it can be inferred that going through it coupled with a high rate of speed together presented a special hazard and this constituted recklessness. There is no allegation that at the time of going through the stop sign that the defendant had to have seen the plaintiff begin to make her turn into the driveway and despite this drove at a speed making a collision likely.
Finally, the plaintiff in her brief points to the serious injuries which resulted to indicate the high degree of danger presented by the defendant's conduct. But serious injury can result from minor impact or simple negligence while minor injuries can occur despite reckless conduct.
It may not take much to plead the appropriate factual allegations to establish a reckless claim but we are a fact-pleading state and there must be something in the way of facts supporting such a claim alleged in the complaint.
Corradino, J.