Lopez-Morales v. Fourteenth Club

Full title: Jose Lopez-Morales v. Fourteenth Club of Willimantic, Inc

Court: Connecticut Superior Court Judicial District of Windham at Willimantic

Date published: Apr 30, 2007

2007 Ct. Sup. 6302 (Conn. Super. Ct. 2007)

43 CLR 351

Opinion

No. CV-06-5000851 S

April 30, 2007

MEMORANDUM OF DECISION ON MOTION TO STRIKE (#104.00)

JOHN D. BOLAND, JUDGE.

Defendant moves to strike the second count of a two-count complaint.

Plaintiff's first count alleges that on November 14, 2004, he was an invitee on premises owned by and under control of the corporate defendant when he fell and sustained various injuries. Paragraph 6 of that first count claims that the defendant was negligent due to a host of omissions and errors which may be summarized as charging defendant with maintaining a dangerous and defective condition caused by the accumulation of ice and snow.

Rather than incorporating all of the specific details of paragraph 6 of the first count, plaintiff's second count instead incorporates the more general provisions of paragraphs 4 and 5 of the first count, which read in pertinent part:

4) . . . [P]laintiff . . . while in the exercise of due care, exited the premises and was caused to fall by a dangerous and defective condition in the adjacent upper parking area due to an accumulation of ice and snow that had been untreated and was unsafe.

5) Said accumulation of ice and snow formed was known to the defendant or their agents, servants or employees that removal or treatment of the unsafe condition was necessary to render the area or condition safe and/or said condition existed for such time that a reasonable inspection by reasonable persons would reveal that reasonable precautions should be taken to protect visitors entering or leaving the premises. (sic)

To those allegations, he couples a distinct paragraph 6 alleging that defendant was reckless, willful or wanton:

a) in that they knew of the dangerous condition of the accumulation of ice and snow of the parking lot but decided not to correct the condition or make reasonable efforts to insure the safety of patrons because of economic concerns as to the cost of such efforts;

b) in that they failed to inspect or properly monitor the parking areas for unsafe conditions when operating monitors and security was available to insure safety but the defendant chose not to so utilize. (sic)

In essence then, plaintiff claims that a defendant who knowingly determines on the basis of a cost/benefit analysis to allow ice or snow to remain where accumulated, or which fails to properly inspect so as to make that determination in light of all the facts, thereby acts not merely negligently but recklessly, willfully, or wantonly.

Defendant's motion to strike asserts that these allegations do not amount to such an extreme departure from ordinary care so as to support plaintiff's claim. In Craig v. Driscoll, 262 Conn. 312 (2003), at pages 342-43, the Supreme Court summarized historical precedent and concluded that

Recklessness is 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 we have 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 . . . It is at least clear . . . that such 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.

Craig v. Driscoll resolved issues arising from the provision of alcoholic beverages to an intoxicated driver, as did the case of Harrison v. Mcpherson, 2004 Conn.Super. LEXIS 266 (which is cited by both parties in their memoranda concerning the instant motion). Because strong social policy concerns allocating the risk of loss between one injured by the actions of an intoxicated driver and the one who provided the alcohol leading to the intoxication are prominent in both cases, the result they reach does not appear particularly pertinent to the question presented here.

Neither party cited the one case that seems most closely related in its subject matter, which is Zublena v. Carrozzo, 02-CBAR-1190 (2002; Cremins, J.). The decision strikes two counts which alleged that the owners of property on which plaintiff had fallen ". . . were reckless in their described conduct, refused to inspect the premises, . . . and intentionally and wantonly made no provisions for snow and ice removal in spite of the extreme weather conditions and accumulation of ice and snow . . ." The court concluded that the behavior alleged did not constitute highly unreasonable conduct amounting to an extreme departure from ordinary care. The sole substantive addition presented in the case at bar to the allegations outlined in Zublena is the plaintiff's assertion that the defendant's motivation — to avoid the cost of cleaning up the ice and snow buildup — is the determining factor that transmutes a defendant's negligence into the higher order of liability attaching to behavior that is reckless, willful, or wanton.

Dubay v. Irish, 207 Conn. 518 (1988), noted at footnote 8 that "wilful misconduct is intentional misconduct, and wanton misconduct is reckless misconduct, which is the equivalent of wilful misconduct," and cited several earlier rulings to indicate how high a threshold stands before a plaintiff claiming a defendant acted with the culpability denoted by such terms by holding that "[w]ilfull misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse; [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. Not only the action producing the injury but the resulting injury also must be intentional" 207 Conn. 518, 533.

This court does not accept the premise that a decision to avoid costs by tolerating the status quo is ipso facto a reckless decision, such that an injury resulting from it must be practically considered intentional. Every decision preceding alterations to the condition of property, whether arising from ice and snow buildup or correction of any other defect, requires the owner to weigh what is needed, how quickly, at what cost, and what risks may be tolerable until the repairs are made. Presumably, if the allegations of the first count in this case are proven, the conclusion will be reached that defendant erred in its calculations here and is answerable to plaintiff in damages. Such an error in judgment however, standing alone, is not the equivalent of conduct evidencing such an extreme departure from ordinary care as warrants it being characterized as reckless, wanton, or willful. This is not to say that no property owner, at any time, may be accused of recklessness after failing to remove accumulated ice and snow, but merely to say that what plaintiff has alleged in the second count of his complaint is insufficient to do so.

For the foregoing reasons, the motion to strike the second count is hereby granted.