Opinion
No. CV 05-4006726 S
August 15, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #108
FACTS
The plaintiff, Robert Generalli, filed a two-count complaint, dated July 13, 2005, against the defendant, Drive-O-Rama, Inc. d/b/a Mill Stores. This action arises out of injuries and losses allegedly sustained as a result of the plaintiff's fall, on August 21, 2003, when the wooden patio chair he was sitting in collapsed. Count one is a claim for breach of Connecticut's Products Liability Statute, General Statutes § 52-572m, et seq., and count two is drafted in common-law negligence.
On April 13, 2006, the defendant filed an answer and five special defenses. On April 19, 2007, the plaintiff filed a motion to strike the defendant's special defenses. On June 8, 2007, the defendant filed a memorandum of law in opposition. The memorandum of law in support of the motion to strike was not filed by the plaintiff until June 11, 2007. The matter was heard on the short calendar on June 19, 2007.
As the defendant filed its memorandum of law in opposition prior to the plaintiff's filing his memorandum of law in support of the motion, the court provided the defendant with time to file a response. However, the defendant did not file any further memorandum.
DISCUSSION
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 718, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002); see Practice Book § 10-50. "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978); see also Connecticut National Bank v. Voog, 233 Conn. 352, 354-55, 659 A.2d 172 (1995). In ruling on a motion to strike, the trial court has an 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).
"Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." (Citations omitted; internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). Consequently, if the allegations contained in the defendant's special defenses are legally insufficient, the motion to strike should be granted. See Doe v. Yale University, 252 Conn. 641, 684, 748 A.2d 834 (2000) (concluding that "the allegations of the defendant's special defenses were legally insufficient and, therefore, that the trial court improperly struck the special defenses); Salzano v. Goulet, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 04 0287567 (September 22, 2005, Shluger, J.) (40 Conn. L. Rptr. 28) ("the proper motion to challenge a failure to plead facts [in a special defense] is a request to revise and not a motion to strike").
The five special defenses alleged by the defendant are: negligence and/or assumption of risk by the plaintiff; negligence and/or fault of a third person; failure to state a claim; alteration or modification by a third party and provisions of § 52-572m, et seq.
Although the plaintiff seeks to strike the special defenses on grounds specific to each of the special defenses, the unifying ground is that the defendant's special defenses fail to set forth any facts to support the claims in violation of Practice Book §§ 10-1 and 10-50. When ruling on a motion to strike, "legal conclusions or opinions stated in the special defense are not deemed admitted, but rather must flow from the subordinate facts provided." County Federal Savings Loan Ass'n v. Eastern Associates, 3 Conn.App. 582, 586, 491 A.2d 401 (1985). Where the challenged special defenses fail to provide any allegations as to the essential elements of the special defenses, those defenses are technically defective. Id.
In the present case, the defendant alleges five special defenses, but does not plead any facts in support of those allegations showing how or why each of the alleged special defenses applies. The special defenses, as pleaded, do not comply with the Practice Book rules because Connecticut is a fact pleading state. See Practice Book § 10-1. Under Practice Book § 10-50, the purpose of a special defense is to plead facts that show that the plaintiff has no cause of action. The defendant's special defenses fail to do this. For the forgoing reasons, the court grants the plaintiff's motion to strike.