Opinion
No. CV 06 6000492
May 24, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #102
FACTS
On December 6, 2006, the plaintiff, Elisa Leigh, filed a two-count complaint against the defendants, John Cook and DJM Construction, Inc. In the complaint, plaintiff alleges that on March 27, 2006, while operating her motor vehicle on I-95 near Exit 42 in West Haven, Cook, operating a motor vehicle owned by DJM Construction, Inc., collided into the rear of her motor vehicle. In count one of the complaint, the plaintiff alleges negligence against the defendants. In count two, the plaintiff alleges statutory recklessness against the defendants and requests, in the prayer for relief, double and treble damages pursuant to General Statutes § 14-295.
On January 9, 2007, Cook filed a motion to strike count two of the plaintiff's complaint and the accompanying prayer for relief on the ground that it is legally insufficient as a matter of law. The defendants filed a memorandum in support of their motion to strike. On January 17, 2007, the plaintiff filed a memorandum in opposition to the defendants' motion to strike. Oral argument was heard on this matter on February 13, 2007.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading" (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 229, 905 A.2d 1165 (2006). "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.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). In addition, "[w]henever any party wishes to contest . . . the legal sufficiency of any prayer for relief in any such complaint that party may do so by filing a motion to strike . . ." Practice Book § 10-39(a). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). In ruling on a motion to strike, the trial court examines 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). When deciding the motion, "the court is limited to the facts alleged in the complaint." (Internal quotations marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
In the memorandum of law in support of his motion to strike, Cook argues that the plaintiff has failed to plead sufficient facts to meet the standard of specificity necessary to allege reckless conduct and thus, has failed to plead a sufficient factual basis to support a claim of double and treble damages under § 14-295. Cook asserts that the plaintiff has alleged the statutory violations that trigger the application of § 14-295, but has failed to provide facts which support the allegations. Cook maintains that none of the facts or conduct alleged in the second count give rise to the level of recklessness.
The plaintiff counters that the allegations of recklessness in count two of the complaint are legally sufficient in that she alleges separate and distinct facts which establish the factual predicate for the claim that Cook deliberately or with reckless disregard operated his motor vehicle. The plaintiff maintains that she has not simply reconstituted the negligence claims as recklessness claims.
Section 14-295, provides in relevant part: "In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, 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, death or damage to property . . ." (Emphasis added.)
"Neither the Supreme Court nor the Appellate Court has yet addressed the pleading requirements for recklessness under § 14-295. As a result, there is a split of authority among the Superior Court judges as to what degree of specificity is required in pleading recklessness." CT Page 7612 Fitzgerald v. Marcus Dairy, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 082618 (April 2, 2004, Bear, J.). "Under the majority view, after pleading specific facts sufficient for an allegation of negligence, a plaintiff need only make general allegations of the elements of recklessness identified in the statute; namely 1) that the defendant deliberately or recklessly violated at least one of nine motor vehicle statutes, and 2) that the violation was a substantial factor in causing the defendant's injury, damage or death." Termini v. Taylor, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 5000171 (November 28, 2005, Taylor, J.) ( 40 Conn. L. Rptr. 424, 425).
"Under the minority view, a plaintiff must plead the specific facts constituting recklessness above and beyond the facts constituting mere negligence." Termini v. Taylor, supra, 40 Conn. L. Rptr. 425. "Our Superior courts have held that the reiteration of facts previously asserted to support a cause of action in negligence, without more, cannot be transformed into a claim of reckless misconduct [by mere] nomenclature." (Internal quotation marks omitted.) Ortiz v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 99 0153955 (March 30, 2001, Doherty, J.). "[T]he plaintiff must plead particularized, facts that when taken as true would show that the defendant acted with reckless disregard. The facts alleged must show that the defendant consciously chose a course of action despite the fact that the defendant did know, or reasonably should have known, that the action posed serious danger to others." Victor v. Williamson, Superior Court, judicial district of Fairfield, Docket No. CV 05 4008786 (July 7, 2006, Owens, J.T.R.). "[S]imply using the word `reckless' with respect to the claimed violation of the statutory provisions set forth in § 14-295 is not enough . . . Specific allegations setting out the conduct that is claimed to be reckless must be made . . ." (Citations omitted; internal quotation marks omitted.) Fitzgerald v. Marcus Dairy, Inc., supra, Superior Court, Docket No. CV 03 082618.
This court finds the minority view to be more persuasive. "[T]he majority view to plead only the bare bones of the statute — would lead to anemic pleading." Kurensky v. Church Hill Enterprises, Superior Court, judicial district of Fairfield, Docket No. CV 02 0390806 (July 16, 2002, Brennan, J.). Practice Book § 10-1, entitled Fact Pleading, provides in relevant part: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . ." "There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on." Brock v. Waldron, CT Page 7613 127 Conn. 79, 81, 14 A.2d 713 (1940). As the court stated in Victor v. Williamson, supra, Superior Court, Docket No. CV 05 4008786: "To allow a plaintiff to simply allege reckless disregard of a statutory provision would enable any negligence claim to be brought as a recklessness claim and thereby make it subject to double and treble damages. The plaintiff would only have to plead that in addition to the defendant's conduct being careless it was also deliberate. This court does not believe it was the legislature's intent when enacting § 14-295, to effectively dissolve any distinction between claims in negligence and recklessness. Therefore [s]imply using the word reckless or recklessness and repeating the allegations of negligence, is not enough . . ." (Internal quotation marks omitted.) Id.
Some other courts that have adopted the minority position are as follows: Belgrave v. Turk, Superior Court, judicial district of Fairfield, Docket No. CV 05 4010135 (February 1, 2007, Owens, J.T.R.); Lussier v. Zarelli, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 5000389 (August 16, 2006, Jennings, J.); Victor v. Williamson, supra, Superior Court, Docket No. CV 05 4008786; Pamela v. Heinzelman, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 4005740 (January 19, 2006, Lewis, J.T.R.); Fitzgerald v. Marcus Dairy, Inc., supra, Superior Court, Docket No. CV 03 082618; Kurensky v. Church Hill Enterprises, Superior Court, judicial district of Fairfield, Docket No. CV 02 0390806 (July 16, 2002, Brennan, J.); McGuire-Kelley v. Sciuto, Superior Court, judicial district of New Haven, Docket No. CV 99 0428860 (October 1, 1999, Devlin, J.); Nocera v. Besso, Superior Court, judicial district of Middlesex, Docket No. CV 98 0086777 (September 29, 1999, Gordon, J.); Chatterton v. Infinity Ins. Co., Superior Court; judicial district of Ansonia-Milford, Docket No. CV 98 0064615 (October 1, 1999, Arnold, J.); Kelly v. Stone, Superior Court, judicial district of Fairfield, Docket No. CV 97 344231 (January 9, 1998, Maiocco, J.); Bravo v. Watson, Superior Court, judicial district of Waterbury, Docket No. 01.29692 (March 13, 1996, McDonald, J.); and Murray v. Krupa, Superior Court, judicial district of New London at Norwich, Docket No. 107223 (October 2, 1995, Teller, J.).
In the present case, in the first count of the complaint, the plaintiff alleges that Cook was negligent in one or more of the following ways: (a) failing to keep a reasonable and proper lookout and to pay attention as to where he was going; (b) failing to apply brakes in time to avoid the collision, despite having the opportunity and obligation to do so; (c) violating General Statutes § 14-240 by traveling too closely; (d) violating § 14-218a by traveling unreasonably fast and at a rate of speed greater than was reasonable regarding the width, traffic, use of the highway, and construction activities; (e) violating General Statutes § 14-236 by attempting an unsafe lane change; (f) failing to steer vehicle to left or right to avoid the collision, despite having the opportunity and obligation to do so; (g) violating § 14-232 by not providing sufficient space between the two motor vehicles; (h) failing to use sense and faculties to avoid collision and keep motor vehicle under control.
In the second count of the complaint, the plaintiff alleges that Cook was reckless in the following ways: (a) violating § 14-218a by traveling unreasonably fast for conditions, traffic, use of the highway and construction activities; and (b) violating General Statutes § 14-222 by taking his eyes off the road and traffic in front of him while operating a heavy construction vehicle and/or by not keeping a proper lookout while approaching a construction zone.
It is evident that the factual allegations of recklessness contained in count two, paragraph seven, subparts (a) and (b), are nearly identical to the factual allegations of negligence in count one, paragraph eight, subparts (a), (d) and (f). In count two, the plaintiff has alleged that Cook was reckless in traveling too fast and failing to keep a proper look out, just as she has alleged in count one. The plaintiff argues that she has not simply reconstituted the negligence claim because she has alleged that Cook failed to keep a proper lookout while operating a construction vehicle as they were approaching a construction zone. Nonetheless, the basic alleged reckless acts are the same and the court fails to see what difference an allegation that they were approaching a construction zone would make. Thus, the plaintiff has failed to plead specific facts constituting recklessness above and beyond the facts constituting negligence.
Furthermore, count two of the plaintiff's complaint is simply devoid of particularized factual allegations that show that the defendant had the requisite state of mind to support an allegation that he acted in reckless disregard of the plaintiff's person. The facts alleged simply do not show that Cook consciously chose a course of action despite the fact that he knew, or reasonably should have known, that the action posed serious danger to others. Instead, the plaintiff has merely inserted the phrase, "deliberately or with reckless disregard," and cited to two of the trigger statutes set out in § 14-295, namely, § 14-218a and § 14-222, to support a claim for double or treble damages.
This case is very similar to Palmer v. Scofield, Superior Court, judicial district of Fairfield, Docket No. CV 06 5003265 (September 26, 2006, Owens, J.T.R.). In Palmer, the court held that because the plaintiff merely alleged that the defendant violated § 14-218a, § 14-230 and § 14-222, in support of his recklessness claim, without alleging any facts as to the defendant's conduct that suggested recklessness, the allegations were insufficient. The court stated: "Because the plaintiff fails to allege specific conduct to support a claim of recklessness and further fails to allege any facts that support that such conduct was a substantial factor in the plaintiff's injury required by . . . § 14-295, the plaintiff is not entitled to double or treble damages." Id.
In conclusion, count two of the plaintiff's complaint is stricken, as it is insufficient as a matter of law to support a claim for statutory recklessness. "[The] plaintiff's failure to allege recklessness results in failure to adequately invoke § 14-295." Belgrave v. Turk, Superior Court, judicial district of Fairfield, Docket No. CV 05 4010135 (February 1, 2007, Owens, J.T.R.). Thus, the plaintiff's request for double and treble damages in the prayer for relief is also stricken, as these damages are not recoverable pursuant to a negligence claim. See News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 538, 862 A.2d 837 (2004), aff'd, 276 Conn. 310, 885 A.2d 758 (2005) ("punitive damages cannot be awarded in tort cases unless the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights"). Cook's motion to strike the plaintiff's complaint is granted.
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