Opinion
No. CV07-5003827S
June 13, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE #111
FACTS
On February 13, 2007 the plaintiff, Kimberly Kenneson, filed a six-count complaint alleging negligence, recklessness and assault against the defendants, Carl Rosati and Michael Altman. The plaintiff alleges that while at the Rain CafÉ at Mohegan Sun Casino, the defendants engaged in an altercation which resulted in the plaintiff being pushed to the floor with great force causing her injuries and damages.
On April 9, 2007, the defendant, Rosati, filed a motion to strike count three of the complaint, which sounds in recklessness against him, on the ground that the plaintiff failed to state a cause of action in recklessness. On April 30, 2007, the plaintiff submitted an objection to the motion for summary judgment and an accompanying memorandum of law. The defendant subsequently filed a reply memorandum of law. Oral argument was heard on the short calendar on May 14, 2007.
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). "The role of the trial court [in ruling on a motion to strike is] to examine the [complaint], construed in favor of the plaintiffs, 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, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
The defendant argues that the plaintiff failed to state a cause of action in recklessness because she merely restated the count in negligence and simply substituted the word recklessness for negligence. The defendant argues that this is not enough to allege recklessness and the plaintiff must provide some additional factual allegations to show willful and wanton conduct. The defendant further argues that because the plaintiff has failed to set forth a cause of action in recklessness that she is not entitled to double or treble damages. Additionally, the defendant claims that the plaintiff is not entitled to attorneys fees and interest pursuant to General Statutes § 37-3a because these types of damages do not apply in regular negligence actions.
The plaintiff counters that viewing the pleading in the light most favorable to the nonmovant the allegations are sufficient to permit a finding of recklessness. The plaintiff argues that a count in recklessness does not fail simply because it is based on the same allegations as the negligence count, and further that recklessness can be inferred by the defendant's conduct.
COUNT THREE: RECKLESSNESS
The Supreme Court has "described recklessness as a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in 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 . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . .
"While [the Supreme Court has] attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, 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." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 836 A.2d 394 (2003).
"Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language specific enough to inform the court and opposing counsel that both negligence and reckless conduct are being asserted." Zukauskas v. Scvucka, Superior Court, judicial district of Waterbury, Docket NO. CV 06-5000843 (August 2, 2006, Matasavage, J.) (citing Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003)). "A cause of action of common-law recklessness may be sufficient to withstand a motion to strike even though the allegations of reckless conduct are also alleged as a basis of negligent conduct in another count sounding in negligence. The similarity of allegations does not necessarily render one cause of action invalid." Helberg v. Mainetti, Superior Court, judicial district of Hartford, Docket No. CV 04 0833878 (December 28, 2005, Keller, J.) (denying motion to strike where complaint merely repeated allegations of negligence in recklessness count); see also Iwanow v. Finnucan, Superior Court, judicial district of New Britain, Docket No. CV 05 5000281 (December 21, 2005, Shapiro, J.) (finding "that the plaintiff's claim of recklessness is not destroyed merely because the plaintiff pleaded both negligence and recklessness based upon substantially the same allegations of fact"). "Rather than follow a mechanistic approach . . . it seems more appropriate to examine instead whether the facts that are alleged could, under any set of facts admissible under the pleadings, support a conclusion of recklessness." Helberg v. Mainetti, supra, Superior Court, Docket No. CV 04 0833878.
In the present case, the plaintiff alleges the same facts in the recklessness count as she does in the negligence count. In fact, these counts are nearly identical. Specifically, the plaintiff alleges that the defendants became engaged in a physical alteration and caused the plaintiff to be pushed to the floor with great force and violence. In viewing the pleadings in the light most favorable to the plaintiff, the court finds that one could infer from the allegations that the defendant, Rosati, had a reckless state of mind. One could find that the defendant's conduct in engaging in an altercation in a public cafe was wanton misconduct indicating "a reckless disregard of the just rights or safety of others or of the consequences of the action." Engaging in a physical altercation in a public place certainly presents a "high degree of danger" to others.
Although the plaintiff merely substituted the word recklessness for negligence in the third count, this court finds that the plaintiff alleged sufficient facts to put the court and opposing counsel on notice that both negligence and recklessness are being asserted. Therefore, the defendant's motion to strike is denied as to count three of the plaintiff's complaint.
DAMAGES Double and Treble Damages and Attorneys Fees
Attorneys fees and double and treble damages may be awarded where common-law recklessness is proven. See Mitchell v. Viscount, Superior Court, judicial district of Bridgeport, Docket No. CV 96 333831 (November 26, 1997, Skolnick, J.) Since the court denied the defendant's motion to strike the recklessness count, the motion must also be denied as to the related requests for double or treble damages and attorneys fees.
GENERAL STATUTES § 37-3a
"The trier of fact may award prejudgment interest, as an element of damages, for the detention of money after it becomes payable if equitable considerations deem that such interest is warranted . . . An award of such interest is an equitable determination lying within the trier's sound discretion . . . The determination is one to be made in view of the demands of justice rather than through the application of an arbitrary rule . . . A trial court must make two determinations when awarding compensatory interest under § 37-3a: (1) whether the party against whom interest is sought has wrongfully detained money due the other party; and (2) the date upon which the wrongful detention began in order to determine the time from which interest should be calculated . . . A plaintiff's burden of demonstrating that the retention of money is wrongful requires more than demonstrating that the opposing party detained money when it should not have done so. The fact that an award of such interest is discretionary and subject to equitable considerations, rather than automatic, reflects the reality that not all improper detentions of money are wrongful. (Citation omitted; internal quotation marks omitted.) Smithfield Associates, LLC v. Tolland Bank, 86 Conn.App. 14, 26, 860 A.2d 738 (2004), cert. denied, 273 Conn. 901, 867 A.2d 839 (2005)." Supreme Industries v. Bloomfield, Superior Court, judicial district of Hartford, Docket No. X03 CV 03 4022269 (Mar. 8, 2007, Peck, J.).
In the present case there are no allegations that the defendant wrongfully detained money due to the plaintiff. The motion to strike is granted with respect to the prayer for relief seeking damages pursuant to General Statutes § 37-3a.
CONCLUSION CT Page 10336
Based on the foregoing, the defendant's motion to strike is denied as to the recklessness count because in viewing the pleadings in a light most favorable to the plaintiff, the court finds that the plaintiff has alleged sufficient facts to support a claim of recklessness. The motion is consequently denied as to any prayer for relief for attorneys fees or double or treble damages. The motion is granted as to the prayer for relief requested pursuant to General Statutes § 37-3a.