Opinion
No. CV-05 4002669 S
July 26, 2005
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO STRIKE APPORTIONMENT COMPLAINT FILED BY DEFENDANTS
This case arises out of the tragic and horrific death of a two-year-old girl, Tiava Higgs. On September 12, 2003, Tiava Higgs was allegedly sexually assaulted, beaten and murdered by Eric White. Eric White was the husband of defendant Tyeasha White and she, along with defendant Lillie Mae Elder, are alleged to have acted negligently by, among other things, entrusting Tiava Higgs to Eric White.
By filing of an apportionment complaint pursuant to CGS § 52-102b, the defendants joined Eric White as an apportionment defendant, alleging that he was contributorily negligent in the death of Tiava Higgs. The plaintiff seeks to strike the apportionment complaint on the basis that Eric White's conduct was not negligent but was intentional or at the very least reckless and wanton and as such, cannot be the basis of an apportionment claim.
For the reasons set forth below, the motion to strike is DENIED.
Discussion
The role of the trial court in ruling on a motion to strike is test the legal sufficiency of a pleading. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994). The court must "examine the [complaint] construed in favor of the [plaintiff] to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [w]hat is reasonably implied [in an allegation] need not be expressly alleged." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000). CT Page 11090-ds
The court is limited "to a consideration of the facts alleged in the complaint. A speaking motion to strike (one imparting facts outside the pleadings) will not be granted." Doe v. Marseille, 38 Conn.App. 360, 364 (1995), rev'd on other grounds, 236 Conn. 845 (1996). For purposes of the motion to strike, the moving party admits all facts well pleaded. RK Constructors, Inc., supra at 383 n. 2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges "mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).
The Apportionment complaint
Conn. Gen. Stat. § 52-102b provides that a defendant in a negligence action may bring an apportionment complaint against a third person alleged to be contributorily negligent in causing the plaintiff's claimed injuries. An apportionment complaint may only be brought against a person who acted negligently and cannot be used to distribute liability to those who acted recklessly, wantonly or intentionally. CGS § 52-572h(o); Bhinder v. Sun Co., 263 Conn. 358 (2003). Nor can it be used to distribute liability to a product manufacturer on a product liability theory. Id.; Allard v. Liberty Oil Equipment Company, 253 Conn. 787, 800 (2002).
An apportionment complaint cannot defeat a motion to strike by alleging clearly intentional or reckless conduct and recharacterizing it as "negligent." See, Allard, 253 Conn. at 801; Calore v. Town of Stratford, 2001 Ct.Sup. 152 ( Id. Fairfield, Melville, J.) ( 28 Conn. L. Rptr. 653) An apportionment complaint must allege specific acts of negligence and cannot rely upon legal conclusions. Calore, at 156.
The court has been provided with an abundance of evidence that Eric White's conduct was not, nor could ever be considered, negligent. Indeed, Eric White stands convicted of felony murder in the death of Tiava Higgs and is serving a 50-year prison sentence having been so convicted. The information provided paints a picture of a horrible death perpetrated not by accident or by misfeasance, followed by intentional efforts to conceal the deed. But the court cannot consider this evidence in deciding a motion to strike. See Doe v. Marseille, 38 Conn.App. 360, 364 (1995), rev'd on other grounds, 236 Conn. 845 (1996). The court is limited to the pleadings contained within the apportionment complaint and must accept them as true for purposes of the motion. Id.
As drafted, the apportionment complaint adequately alleges specific acts of negligence, which, if supported by the evidence, could result in CT Page 11090-dt apportionment of liability. The complaint alleges, among other things that Eric White: failed to properly supervise the decedent; failed to timely and appropriately seek medical treatment for the decedent; negligently caused injuries to the decedent; failed to take proper precautions to prevent injuries to the decedent; and failed to provide the decedent with a safe environment. While the allegations may strain credulity, it is not for this court, on this motion, to decide the facts of the case.
The plaintiff's memorandum avers: "After reviewing the available information in this case regarding the apportionment defendant's conduct, no reasonable person could reach the conclusion that the apportionment defendant's actions were merely negligent." With this one sentence, the plaintiff acknowledges that she relies upon evidence outside the pleadings and argues what is essentially the standard for summary judgment, not a motion to strike.
The motion to strike is DENIED.
Kari A. Dooley, Judge