Opinion
No. FST-CV05-2BJ-4003873-S
September 26, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE
In this automobile-pedestrian collision personal injury action the plaintiff has pled his case in two counts. The first count sounds in negligence and alleges: (a) unreasonable speed, (b) reckless operation in violation of Conn. Gen Stat. § 14-218a; reckless operation in violation of Conn. Gen. Stat. § 14-222; (c) failure to exercise due care to avoid collision with a pedestrian and/or failure to give reasonable warning by sounding a horn in violation of Conn. Gen. Stat. § 14-300(d); (d) unreasonable speed; (e) failure to exercise due care to avoid collision with a pedestrian and/or to failure to give a reasonable warning by sounding a horn; (f) failure to keep a lookout; (g) failure to keep motor vehicle under control; (h) failure to apply brakes; and (i) failure to turn left or right to avoid collision. The second count sounds in statutory recklessness under Conn. Gen Stat. § 14-295 and claims that the plaintiff's injuries and losses were caused by the recklessness, deliberate and/or reckless disregard of the defendant in that he: (a) was operating his motor vehicle recklessly in violation of Conn. Gen. Stat. § 14-222; (b) he was operating at an unreasonable rate of speed in violation of Conn. Gen Stat. § 14-218(a); and (c) was operating his motor vehicle at a reckless rate of speed in a parking area where numerous pedestrians were walking. Among the specifications of negligence in the second count, items (a) and (b) are repeated from the first count in negligence, but item (c) is unique to the second count. In the second count the plaintiff further alleges that defendant's alleged reckless acts were substantial factors in causing the alleged injuries to the plaintiff. In his claims for relief the plaintiff seeks money damages and double and treble damages pursuant to § 14-295.
§ 14-295 provides in relevant part: "In any civil action to recover damages resulting from personal injury . . . 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 section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239, or 14-240a and that such violation was a substantial factor in causing such injury . . ."
The defendants have moved to strike the second count of the complaint and the claim for double and treble damages for the reasons that:
1. There is a line of case law which indicates that it is legally insufficient for a plaintiff to allege identical facts in both his recklessness and CT Page 13272-f negligence counts;
2. It is fundamentally unfair to penalize the defendants for a negligence complaint disguised as a recklessness claim; and
3. The legislative intent of the reckless statute [§ 14-295] adopts the common-law recklessness cause of action in that the recklessness claim must be pled specifically.
Discussion
The purpose of a motion to strike is to contest the legal sufficiency of any complaint or any count thereof to state a claim upon which relief can be granted. Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270 (1998). In ruling on a motion to strike the court is limited to the facts alleged in the complaint and the court must construe the facts alleged in the complaint most favorably to the plaintiff. Waters v. Autuori, 236 Conn. 820, 825 (1996), and the court must accept as true the facts alleged in the complaint. Pamela B. v. Ment, 244 Conn. 296, 325 (1998). However, a motion to strike ". . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588 (1997). A party may also use a motion to strike to attack the legal sufficiency of a prayer for relief. Practice Book § 10-39(a)(2). A court may strike a prayer for relief ". . . only if the relief sought could not be legally awarded." Pamela B. v. Ment, supra, 244 Conn. at 325.
In addition to statutory recklessness under § 14-295 Connecticut law has long recognized and still recognizes a common-law cause of action for recklessness. The elements of common-law recklessness, with roots in the Restatement of Torts, were recognized by the Supreme Court in Bishop v. Kelly, 206 Conn. 608 (1988) and incorporated into statutory recklessness as a "judicial gloss" to save § 14-295 from otherwise being held unconstitutional as void for vagueness:
The statute thus incorporates standards that have long been recognized at common law. See, e.g. Kowal v. Hofher, 181 Conn. 355, 361-62, 436 A.2d 1 (1980). Recklessness requires a conscious choice of a course of action with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable CT Page 13272-g man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent. Begley v. Kohl Madden Printing Ink Company, 157 Conn. 445, 450-51, 254 A.2d 907 (1969), quoting 2 Restatement, Torts § 500, comment g. (Internal quotation marks omitted.) Id. at 614-15.
Prior to the merger of common-law recklessness into statutory recklessness under the holding of Bishop v. Kelly there were pleading requirements to validly state a cause of action in recklessness under the common law. In Brown v. Branford, 12 Conn.App. 106 (1987) the Appellate Court ruled that:
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. This case the plaintiff's injection of the words "intentionally and knowingly" failed to constitute additional factual allegations that would alter the nature of the conduct complained of. In the absence of such additional factual allegations, therefore, we construe the plaintiff's first count as sounding in negligence.
Id., at 110
To the same effect is Dumond v. Denehy, 145 Conn. 88 (1952) (". . . simply using the word `reckless' or `recklessness' is not enough. A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made.") Id. At 90-91. See also Brock v. Waldron, 127 Conn. 79, 80 (1940) and Warner v. Leslie Elliott Constructors, Inc., 194 Conn. 129, 138 (1984).
Against this background the issues in this case are whether or not the specific pleading requirements for stating a cause of action in recklessness under the common law now apply in pleading a case of statutory recklessness under § 14-295; and whether or not the plaintiff's second count satisfies the applicable pleading requirement for statutory recklessness. For reasons to be set forth this court holds that the specific pleading requirements for pleading common-law recklessness do not apply to pleading a case of CT Page 13272-h statutory recklessness under § 14-295, and allegations that the defendant deliberately or with reckless disregard operated a motor vehicle in violation of one or more of the motor vehicle statutes enumerated in § 14-295 and that the violation was a substantial factor in producing the plaintiff's injuries are sufficient to state a case of statutory recklessness. The court finds that those requisite allegations in the plaintiff's second count validly plead a case of recklessness under § 14-295, and that, even if the common-law pleading requirements for recklessness were to be applied, the plaintiff's second count would satisfy those requirements as well.
The defendant cites a line of Superior Court decisions from about 1991 to about 1996 holding that a count pleading statutory negligence must contain not only an allegation that one or more of certain motor vehicle statutes enumerated in § 14-295 has been violated, but also allegations of specific facts that would support a claim of reckless conduct at common law. See, e.g. Bravo v. Watson, Superior Court, Judicial District of Waterbury, Docket No. 129692 (March 13, 1996, McDonald, J.), citing Pitka v. Ullrich, Superior Court, Judicial District of New London at New London, Docket No. 53,000 (November 16, 1994, Austin, J.) ( 13 Conn. L. Rptr. 32); Jiminez v. Schell, Superior Court, judicial District of Stamford/Norwalk at Stamford, Docket No. 137265 (November 8, 1994, Lewis, J.); Lezotte v. Hanover Insurance Company, Superior Court, Judicial District of Waterbury, Docket No. 112067 (January 6, 1993, Sylvester, J.) ( 8 Conn. L. Rptr. 199); Varlese v. Beers, Superior Court, judicial district of Waterbury, Docket No. 099755 (April 4, 1991, Sullivan, J.) ( 3 Conn. L. Rptr. 474); and Markham v. Fluery, Superior Court, Judicial District of Waterbury, Docket No. 526775 (April 29, 1994, Leuba, J.) This line of cases further holds that "Where one count of a complaint sounds in negligence and another count attempts to state a cause of action for recklessness by relying on the same fact pattern as the negligence count and simply referring to such conduct as reckless, a cause of action for recklessness has not been sufficiently alleged." Anderson v. Ansaldi, 8 Conn. L. Rptr. 242 (1993) (Berger, J.) The plaintiff, on the other hand cites a CT Page 13272-i line of more than twenty recent Superior Court decisions which hold that a cause of action for recklessness under § 14-295 is adequately pled by allegations that track the statutory language, namely that the defendant, acting deliberately or with reckless disregard, operated a motor vehicle in violation of one or more of the enumerated motor vehicle statutes and that such violation was a substantial factor in causing the plaintiff's injuries. See, e.g. Jennings v. Vega, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV99 0174082 (November 20, 2000, D'Andrea, J.) ( 29 Conn. L. Rptr. 87) quoting Oulette v. Hartford Insurance Co., Superior Court, judicial district of New Britain, Docket No. 496991 (April 12, 2000, Kockay, J.); Estate of Rui H.C. Chung v. Place Motors, Inc., judicial district of New London, Docket No. 560074 (February 11, 2003, Hurley, J.) ( 34 Conn. L. Rptr. 140) (Describing this position as the "majority position" among Superior Court decisions); Bostick v. Dvornek, judicial district of Fairfield at Bridgeport, Docket No. CV01-03835755 (December 13, 2001, Gallagher, J.); Rosa v. Abdelmalak, 2004 WL 2284112, Conn.Super. Docket No., CV04-04132445, (Arnold, J.); Sanon v. Gina Maria Curcio, 2004 WL 2167016, Conn.Super. Docket No. CV03-0195185S (Lewis, J.) (reversing the position taken by Judge Lewis nine years earlier in Jiminez v. Schell, supra); Shea v. Denault, 2004 WL 237910, Conn.Super., Docket No. CV02-0283059S (Tanzer, J.); Nelson-Hleebogiannis v. Lee, Judicial District of Stamford-Norwalk at Stamford, Docket No. 167571 (May 17, 1999, Hiller, J.); Price v. Packer Leasing Corp., Judicial District of New London, Docket No. 538888 (February 19, 1997, Booth, J.); and Cerratini v. Levco Tech, Inc., 2003 WL 21152908, Conn.Super. (Docket No. X08CV030193735, Adams, J.).
This Court finds the latter or so-called "majority" position more persuasive. In deciding whether or not a count of a complaint survives a motion to strike the pleading should be construed broadly and realistically rather than narrowly and technically. Gazo v. Stamford, 255 Conn. 245, 260 (2001). As said by Judge D'Andrea in Jennings v. Vega, supra:
The fact that the recklessness count relies on the CT Page 13272-j same factual allegations as the negligence claim does not, in and of itself, provide [the defendants] with the basis for a motion to strike . . . While the courts require distinct pleading for each cause of action, it has been recognized that the most basic underlying fact will be the same throughout each count [of negligence and recklessness] since both counts are founded upon the same fundamental set of facts . . . If the alleged facts constitute recklessness . . . using the same facts in the negligence count does not prevent them from also being reckless. (Citations omitted; internal quotation marks omitted.)
The Court also rejects the defendants' argument as to the intent of the legislature when it added the words "deliberately or with reckless disregard" to § 14-295. There is no indication that the legislature intended to incorporate the specific fact pleading requirements of the common-law cases into cases of statutory negligence, especially since the statute establishes a "per se" standard for recklessness by violation of certain enumerated motor vehicle statutes which standard was qualified as to the actor's state of mind, but not eliminated, by Bishop v. Kelly, supra. Nor is the Court persuaded by defendants' argument of "fundamental unfairness" which, though facially appealing, is not a recognized standard for granting a motion to strike a pleading which adequately states a cause of action.
Because the Court agrees with the cases holding that allegations which track the statutory language adequately plead a cause of action in recklessness under § 14-295, the defendants' motion to strike is subject to denial on that basis alone. The allegations of Count Two of the plaintiff's complaint track the statutory language. But even if the specific fact pleading requirements for a cause of action in common-law recklessness were to be applied, the Court finds that the allegations of Count Two would be upheld because, as previously noted, the plaintiff has alleged in Count Two, but not in Count One, that the plaintiff ". . . was operating his motor vehicle at a reckless rate of speed in a parking area where numerous pedestrians were walking." (Emphasis added). This additional allegation would satisfy the requirement of ". . . a specific CT Page 13272-k allegation setting out the conduct that is claimed to be reckless or wanton . . ." under such common-law recklessness cases as Dumond v. Denehy, supra.
Because the Court finds that the allegations of Count two are not subject to be stricken, it follows that the motion to strike the prayer for relief seeking double or treble damages under § 14-295 must also be denied.
Order
For the foregoing reasons the defendants' Motion to Strike dated June 2, 2005 (No. 110) is denied and the plaintiff's Objection to Motion to Strike dated June 13, 2005 (No. 112) is sustained.
So ordered.
Alfred J. Jennings, Jr., Judge