Opinion
HHDCV166070761S
04-04-2017
April Holt v. Marc Adams
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Kevin G. Dubay, J.
FACTS
On August 24, 2016, the plaintiff, April Holt, filed a three-count complaint against the defendant, Marc Adams. The complaint alleges the following facts. The defendant invited the plaintiff and her husband to attend a fireworks display on or about July 26, 2014, at 102 Scantic Road in East Windsor, a property owned, possessed, and/or in the defendant's control. On that date, the defendant and/or a guest, member, agent, servant and/or employee of the defendant ignited fireworks that malfunctioned or were placed wrongly or inaccurately. The fireworks traveled horizontally toward the plaintiff and exploded on the right side of her body. The plaintiff sustained serious injuries as a result. These injuries were caused by the defendant's negligence and recklessness in; allowing or promoting an ultrahazardous activity at his premises.
On October 31, 2016, the defendant filed a motion to strike counts two and three of the plaintiff's complaint on the ground that the plaintiff failed to allege legally sufficient facts supporting causes of action sounding in recklessness and strict liability under the doctrine of ultrahazardous activity. On December 19, 2016, the plaintiff filed an amended objection with supporting memorandum of law in opposition and argued that the allegations contained in those counts are legally sufficient. On that date, the defendant filed an objection to the plaintiff's objection to the motion to strike on the ground that the plaintiff failed to timely file its opposition pursuant to Practice Book § 10-40, and argued that the untimely filing was prejudicial to the defendant. The court heard oral argument at short calendar on December 19, 2016. At argument, the defendant raised its objection to the plaintiff's untimely objection. In response, the plaintiff argued that the late filing did not prejudice the defendant and, therefore, the court is permitted to consider the plaintiff's opposition.
The plaintiff filed her original objection on December 16, 2016.
Practice Book § 10-40 provides in relevant part: " (a) Any adverse party shall have thirty days from the filing of the motion to strike to respond to a motion to strike filed pursuant to Section 10-39 by filing and serving in accordance with Sections 10-12 through 10-17 a memorandum of law in opposition." " There remains no direct appellate authority on this issue. Nonetheless, a majority of [Superior Court] decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike . . . Furthermore, our appellate courts have consistently found that [i]n determining whether a motion to strike should be granted, the sole question is whether, if the facts alleged are taken to be true, the allegations provide a cause of action or a defense. (Emphasis added.) County Federal Savings & Loan Assn. v. Eastern Associates, supra, 3 Conn.App. 585." (Citation omitted; emphasis in original; internal quotation marks omitted.) Everbank v. Shine, Superior Court, judicial district of Danbury, Docket No. CV-14-6014362-S, (April 15, 2015, Russo, J.); see also; but see McDuffie v. Schaffer Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV-08-5024230-S, (May 27, 2010, Wilson, J.) (" [s]ome of the decisions in the majority have stressed the absence of an objection from the moving party").
DISCUSSION
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
In the present case, the defendant argues that the plaintiff has failed to allege legally sufficient facts supporting its claim that the defendant was reckless and that the defendant engaged in an ultrahazardous activity. Specifically, the defendant argues the plaintiff merely realleges its negligence count with recklessness language and that fireworks are not an abnormally dangerous or ultrahazardous activity. In response, the plaintiff argues that it has alleged legally sufficient facts supporting its claims because (1) it is sufficient that the plaintiff's negligence and recklessness counts mirror one another and (2) Connecticut courts have found that the promotion and allowance of a fireworks display constitutes an ultrahazardous activity.
The motion to strike counts two and three, as well as the defendant's argument that the plaintiff is barred from recovery, are next addressed in turn.
I. Count Two: Recklessness
" [A] count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff . . . In order to establish that the conduct of a defendant, who was under such a duty, was deliberate, wanton and reckless, the plaintiff must prove . . . the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct that indicates a reckless disregard to the just rights or safety of others or the consequences of the action." (Internal quotation marks omitted.) Reddick v. Guirguis, Superior Court, judicial district of New Haven, Docket No. CV-16-6060645-S, (May 23, 2016, Wilson, J.). " Allegations of recklessness differ from allegations of negligence because reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . [S]uch aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." Id.
" The factual threshold for reckless conduct is high." (Internal quotation marks omitted.) Reddick v. Guirguis, supra, Superior Court, Docket No. CV-16-6060645-S. " Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man." 2 Restatement (Second), Torts § 500, comment g. " [W]illful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Citation omitted; emphasis added; internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 833, 836 A.2d 394 (2003).
In the present case, the plaintiff alleges that the defendant " [knowingly] put the [plaintiff's] safety at risk by allowing illegal fireworks to be ignited in close proximity to the [plaintiff] by himself, his guests, agents, servants and/or employees who had no training in handling or igniting fireworks." Compl., p. 4, 1, 17. The plaintiff alleges that the defendant invited her and her husband to the defendant's property because the defendant was hosting or allowing a firework display at or near the property. Compl., p. 1, ¶ 4. The plaintiff further alleges that the defendant and/or a guest, member, agent, servant and/or employee of the defendant ignited fireworks that malfunctioned and/or were placed wrongly or inaccurately, which resulted in the plaintiff's injuries. Compl., p. 2, ¶ 5-6. The plaintiff does not sufficiently allege common-law recklessness because the plaintiff solely realleges its negligence cause of action and merely adds that the defendant knowingly engaged in conduct in a situation where a high degree of danger was present and that the defendant was engaged in an ultrahazardous activity. These allegations are insufficient to support a claim of recklessness.
II. Count Three: Ultrahazardous Activity
Connecticut appellate authority has yet to address whether illegal fireworks displays constitute an ultrahazardous activity. The Superior Court has addressed the issue on few occasions. See, e.g., Wyatt v. Stafford Springs Enterprises, Inc., Superior Court, judicial district of Hartford, Docket No. CV-13-6039638-S (September 12, 2014, Elgo, J.) (58 Conn.L.Rptr. 945, ) (" the operation of fireworks is plainly an ultrahazardous activity"). " [T]he doctrine [of ultrahazardous activity] has traditionally been applied in cases involving blasting and explosives . . . and has been extended only to pile driving . . . and the storage of explosives . . ." (Internal quotation marks omitted.) Lipka v. DiLungo, Superior Court, judicial district of New Haven, Docket No. CV-407399 (March 8, 2000, Blue, J.) (26 Conn.L.Rptr. 654, ). " The issue of whether an activity is abnormally dangerous . . . is a question of law for a court to decide." Green v. Ensign-Bickford Co., 25 Conn.App. 479, 485, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991).
In Green v. Ensign-Bickford Co., the court " determined that, in Connecticut, the analysis [of whether an activity is abnormally dangerous] is to be made with reference to the six factors identified in" § 520 of the Restatement (Second) of Torts. Lipka v. DiLungo, supra, 26 Conn.L.Rptr. 655, ; see also Green v. Ensign-Bickford Co., supra, 25 Conn.App. at 486. These six factors are: " [I] existence of a high degree of risk of some harm to the person, land or chattels of others; [ii] likelihood that the harm that results from it will be great; [iii] inability to eliminate the risk by the exercise of reasonable care; [iv] extent to which the activity is not a matter of common usage; [v] inappropriateness of the activity to the place where it is carried on; and [vi] extent to which its value to the community is outweighed by its dangerous attributes." Restatement (Second) of Torts, § 520. " [C]omment (f) of § 520 clearly states that all of the factors need not be present for an activity to be considered abnormally dangerous . . . Comment (f) also states, that [a]ny one of [the factors] is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand it is not necessary that each of them be present, especially if others weigh heavily." (Citation omitted; internal quotation marks omitted.) Colangelo v. Bay View Improvement Assn., Superior Court, judicial district of Waterbury, Docket No. CV-13-6018781-S (November 4, 2013, Zemetis, J.) (57 Conn.L.Rptr. 127, 129, ); see also Green v. Ensign-Bickford Co., supra, 25 Conn.App. at 486.
(I) Existence of a High Degree of Risk of Some Harm to Others
" Even jurists opposing the imposition of strict liability with respect to lawful fireworks displays have acknowledged that such displays [pose a high degree of risk of some harm]. See Cadena v. Chicago Fireworks Manufacturing Co., [297 Ill.App.3d 945, 697 N.E.2d 802, 232 Ill.Dec. 60 (Ill.App.Ct.), cert. denied, 181 Ill.2d 568, 706 N.E.2d 495, 235 Ill.Dec. 940 (III. 1998)] . . ." (Citation omitted.) Lipka v. DiLungo, supra, 26 Conn.L.Rptr. 655, . Legal and regulated fireworks displays, however, pose little risk of harm to spectators. See id. (noting regulations intended to reduce degree of risk). " With respect to unlawful [fireworks] displays . . . the degree of risk . . . [is] increased . . . Unless the proper precautions are taken, injury might reasonably be expected to occur." (Citation omitted; emphasis in original.) Id. ; see also Colangelo v. Bay View Improvement Assn., supra, 57 Conn.L.Rptr. 129, (" an unavoidable risk of harm remains even in the case of legal displays of modern fireworks, but the risk of harm inevitably increases with the unlawful or illegal fireworks displays").
In the present case, the plaintiff alleges that the defendant " promoted, allowed and/or permitted illegal fireworks to be ignited on his property despite the risk of serious injury to the plaintiff." (Emphasis added.) Compl., p. 2, ¶ 7(a). The plaintiff further alleges that the fireworks were ignited by persons " who were not properly trained in explosives." Compl., p. 2, 1, ¶ 7(b). These allegations are sufficient to establish that there was a high degree of risk of some harm.
(ii) Likelihood That the Harm That Results From the Activity Will be Great
" Fireworks are capable of causing extremely serious injuries. If they cause harm, the harm is likely to be great." Lipka v. DiLungo, supra, 26 Conn.L.Rptr. 655, . Here, the plaintiff alleges that the defendant promoted the fireworks display on his property " despite the risk of serious injury to the plaintiff." Compl., p. 2, ¶ 7(a). Additionally, the plaintiff alleges that, as a result of the defendant's conduct, the plaintiff suffered various severe injuries, including skin burns and trauma to her right ear, which resulted in sensorineural hearing loss. Compl., p. 2, ¶ 8(a)(b). The plaintiff has sufficiently alleged facts showing that the harm resulting from the illegal fireworks display would be, and was, great.
(iii) Inability to Eliminate the Risk by the Exercise of Reasonable Care
" [General Statutes] § 29-357, is a legislative determination that the risk associated with fireworks displays will be reduced by the exercise of due care. That risk, however, will not be eliminated . . . [P]ersons conducting lawful fireworks displays [are required to] furnish proof of financial responsibility to satisfy claims for damages resulting from such displays . . . [This supports] the conclusion that an unavoidable risk remains even in the case of a lawful fireworks display. [That] risk will inevitably be increased in the case of an unlawful display." (Citations omitted; emphasis in original; internal quotation marks omitted.) Lipka v. DiLungo, supra, 26 Conn.L.Rptr. 655-56, .
General Statutes § 29-357(a) provides in relevant part: " Except as provided in subsection (b) of this section, no person . . . shall . . . use or explode or possess with intent to sell, use or explode any fireworks."
General Statutes § 29-357(b) provides in relevant part: " (b) The Commissioner of Emergency Services and Public Protection shall adopt reasonable regulations, in accordance with chapter 54, for the granting of permits for supervised displays of fireworks . . . sparklers and fountains for special effects by municipalities, fair associations, amusement parks, other organizations or groups of individuals or artisans in pursuit of their trade . Such permit may be issued upon application to said commissioner and after (1) inspection of the site of such display or use by the local fire marshal to determine compliance with the requirements of such regulations, and (2) approval of the chiefs of the police and fire departments, or, if there is no police or fire department, of the first selectman, of the municipality wherein the display is to be held as is provided in this section. No such display shall be handled or fired by any person until such person has been granted a certificate of competency by the Commissioner of Emergency Services and Public Protection . . ." (Emphasis added.)
In the present case, the plaintiff alleges that the fireworks display was illegal and was put on by persons who were not properly trained in doing so. Compl. p. 2, ¶ 7(a) and (b). As the risk of harm is not eliminated by the exercise of reasonable care when a fireworks display is legal; Lipka v. DiLungo, supra, 26 Conn.L.Rptr. 655-56, ; The plaintiff has alleged legally sufficient facts to show that the risk of harm could not be eliminated by the use of reasonable care in regard to this unlawful fireworks display.
(iv) Extent to Which the Activity is Not a Matter of Common Usage
" Illegal fireworks displays are common on the Fourth of July. But this factor is not, in itself, sufficient to eliminate factor (d). Factor (d) is intended to eliminate common lawful activities, such as the operation of automobiles, from the ambit of strict liability . . . It would be anomalous for the law to condone common illegal activity simply because it is common. To take an unhappy modern example, the inherent dangers of controlled substances are not diminished by the fact that the use of such substances is common in some areas. As a matter of public policy, the common usage of an illegal activity should not be considered in determining whether strict liability should apply." (Citation omitted.) Lipka v. DiLungo, supra, 26 Conn.L.Rptr. 656, . In the present case, the plaintiff does not state facts sufficient to address this factor.
(v) Inappropriateness of the Activity to the Place Where it is Carried on
" In General Statutes § 29-357(b) the legislature delegates that the issuance of [fireworks] permits to the State Fire Marshal's Office after the site is inspected and approved by the local fire marshal and approved by both the police and fire chiefs or other controlling local authorities ." (Emphasis in original.) Colangelo v. Bay View Improvement Assn., supra, 57 Conn.L.Rptr. 129, . The plaintiff here alleges that the defendant allowed an illegal fireworks display to be held on his property and that the defendant was unlicensed to utilize the fireworks. Compl., p. 2, ¶ 7(a)(h). The plaintiff alleges legally sufficient facts to support this factor.
(vi) Extent to Which its Value to the Community is Outweighed by its Dangerous Attributes
Finally, " [l]awful fireworks displays have a value to the community that outweighs their dangerous attribute . . . By enacting [General Statutes] § 29-357, however, the legislature has made a determination that the value of unlawful displays is outweighed by their dangerousness. This legislative determination is eminently reasonable." (Citation omitted; emphasis in original.) Lipka v. DiLungo, supra, 26 Conn.L.Rptr. 656, . Here, the plaintiff alleges that the defendant's fireworks display was illegal, and, therefore, the plaintiff sufficiently alleges facts supporting this final factor.
The plaintiff has sufficiently alleged that the defendant hosted an illegal fireworks display and that these allegations are legally sufficient to support the plaintiff's claim that illegal fireworks are an ultrahazardous activity.
III. Spectator v. Participant
The last remaining point of contention is whether the plaintiff is barred from recovering under the doctrine of ultrahazardous activity given that, as the defendant argues, the plaintiff voluntarily participated in the fireworks display, an activity that she knew or should have known was ultrahazardous. The plaintiff contends that she was a spectator and not a participant and, therefore, not barred from recovery.
" The rule of strict liability for engaging in ultrahazardous activities does not apply where the person harmed has reason to know of the risk that makes the activity ultrahazardous and takes part in it or brings himself within the area which will be endangered by its miscarriage . . . In other words, the benefit of strict liability does not run to a person participating in the activity deemed to be ultrahazardous." (Internal quotation marks omitted.) Heaslip v. Mota's Sewer Service, LLC, Superior Court, judicial district of New London, Docket No. CV-5002500-S (October 15, 2007, Hurley, J.T.R.) (44 Conn.L.Rptr. 271, 273) (finding plaintiff barred from recovery where alleged injured by blasting in scope of employment); see also, Treibt v. On Track Karting, Inc., Superior Court, judicial district of Danbury, Docket No. CV-14-6015298-S (February 2, 2015, Truglia, J.) (59 Conn.L.Rptr. 695, 698, ) (plaintiff barred from recovery where participated in go-kart racing).
The present case differs from those in which plaintiffs have been barred from recovery for their participation in an ultrahazardous activity. Here, the plaintiff alleges she and her husband were invited to the defendant's premises to watch a fireworks display. The complaint contains no allegation that the plaintiff participated in igniting any fireworks at all, much less that she ignited the fireworks that caused the injuries she alleges. Furthermore, the plaintiff here is unlike the plaintiff in Wyatt v. Stafford Springs Enterprises, supra, 58 Conn.L.Rptr. 946,, where the court, Elgo, J., found that the plaintiff was a participant in an ultrahazardous activity, and thus, barred from recovery, because he ignited fireworks and was " aware that he was required to take a test and secure a permit before he could legally and safely ignite the fireworks." (Emphasis added.) The plaintiff in Wyatt participated in igniting the fireworks that caused his injuries. Here, the plaintiff was a spectator at the defendant's illegal fireworks display and was not a participant and, accordingly, is not barred from recovery.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion to strike as to count two and denies the motion as to count three.
In the present case, the defendant objected to the court's consideration of the plaintiff's untimely memorandum in opposition by filing a reply to the memorandum as well as at oral argument on December 19, 2016, claiming the untimeliness of the filing prejudices the defendant. The plaintiff, in response, argued that the defendant was not prejudiced by the untimely filing. The court, in its discretion, should consider the merits of the motion to strike and consider the plaintiff's opposition. Although the defendant objected and claimed prejudice, the defendant has failed to articulate how it is prejudiced by the untimely filing.