Opinion
CV186077829S
01-18-2019
Catherine MILANO v. ANGELINI ENTERPRISES, INC. et al.
UNPUBLISHED OPINION
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Catherine Milano, in a six-count complaint filed on February 13, 2018, alleges the following facts against the defendants Angelini Enterprises, Inc., N.A.D., LLC, and Dunkin’ Brands, Inc. On May 14, 2017, the plaintiff exited her vehicle that she parked in a parking lot at Dunkin’ Donuts, located at 320 Main Street, East Haven, Connecticut (premises), intending to walk to the front entrance of the premises, when she tripped and fell due to a concrete wheel stop on the ground of the parking space adjacent to the plaintiff’s parking space. One and/or all of the defendants owned and/or controlled the premises, and the plaintiff was permitted and/or invited to enter the premises as a member of the general public.
Counts one, three, and five of the complaint allege that each defendant, respectively, was negligent against the plaintiff, and said counts are not at issue in this motion.
In counts two, four, and six of the complaint, the plaintiff alleges that each defendant, respectively, was reckless as follows: (1) "The defendant ... placed the wheel stop at an angle and created parking spaces at an angle, to create additional space for a drive-through window ... to increase sales without consideration of invitee safety, and ... there were bollards around the building making the wheel stops unnecessary and placed only for the purpose of ensuring angled parking so the drive-through lane was not obstructed, when they knew the angled wheel stops created a dangerous and hazardous condition by projecting toward the driver door of parked vehicles, causing the wheel stop to be hidden from view of individuals exiting their vehicle, yet permitted the defective condition to remain so that they could produce increased sales with the drive through window"; see Compl., Counts 2, 4, 6, ¶ 11; and (2) The plaintiff’s injuries "were due to [one or more of the defendants’] willful, wanton and reckless conduct ... [in that] they knew, or should have known, that the premises was in an extremely dangerous condition, given the wheel stop on the parking lot angled so that it was hidden from drive view, obstructing the parking lot walkway and the high likelihood of serious injury that it posed to business invitees such as the plaintiff, and yet it consciously disregarded that risk and deliberately chose not to do anything about it; [i]n that they knew, or should have known, of the dangerous condition ... and yet it consciously disregarded that risk and deliberately chose not to warn business invitees of the dangerous condition, including the plaintiff; [i]n that they had personnel and/or employees working on the premises and had video surveillance and employees entering and exiting the premises and traveling back and forth through the area where the wheel stops were across the parking spaces and obstructed the parking lot walkway, who were aware and/or saw that the wheel stops were angled and hidden from view of drivers parking in the designated spaces, creating a hazardous and dangerous condition, yet consciously chose not to do anything about it, when they knew or should have known, of the dangerous condition and the serious risk of injury that it posed to business invitees such as the plaintiff; and [that they] [i]ntentionally and with disregard for the safety of others, knew the wheel stops created a dangerous and hazardous condition and the angled position was hidden from view, and knowing the wheel stop position created a significant risk of injury to individuals and the placement and positioning was reckless and placed those who parked at the store at substantial risk of serious injury, they consciously chose to ignore the risks and danger and continued to permit the parking lot to be in a defective and dangerous condition, placing increased sales above safety, knowing such action was irresponsible and/or reckless and without attempting to alter their actions to protect those visiting the premises from harm." See Compl., Counts 2, 4, 6, ¶ 12. As a result of the fall, the plaintiff alleges that she suffered injuries and damages and seeks punitive damages, and attorneys fees.
On April 13, 2018, the defendants filed a motion to strike counts two, four, and six of the plaintiff’s complaint on the ground that the plaintiffs complaint, which alleges the defendants engaged in common-law recklessness, was insufficiently pleaded because the facts pleaded were not of a highly unreasonable nature or egregious, did not involve an extreme departure from ordinary care, and did not place the plaintiff in a situation where a high degree of danger was apparent to support a common-law claim for recklessness. The motion was accompanied by a memorandum of law in support. The plaintiff filed an objection and a memorandum of law in opposition to the motion to strike on June 11, 2018. Oral argument on the motion was heard at short calendar on September 24, 2018.
DISCUSSION
"A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint ... or of any one or more counts thereof, to state a claim upon which relief can be granted ..." Practice Book § 10-39(a). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendants’ motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). "[The court must] construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "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).
In the present case, the court is presented with the issue of whether a fixed object in a parking lot, a concrete wheel stop, constitutes a hazardous and dangerous condition and is an extreme departure from ordinary care and, therefore, is sufficient to support a cause of action for common-law recklessness. The defendants argue that the allegations contained in counts two, four, and six of the plaintiff’s complaint fail to allege sufficient facts to establish a claim for common-law recklessness because simply placing wheel stops in a parking lot alone cannot be deemed reckless, dangerous, unreasonable, or an extreme departure from ordinary care. The plaintiff responds that she has properly pleaded that her injuries were due to the willful, wanton and reckless conduct of one or more of the defendants, that the defendants knew or should have known that the premises was in an extremely dangerous and hazardous condition given the angled wheel stops on the parking lot, that they consciously disregarded the risk and deliberately chose not to do anything about it or to warn the plaintiff or other business invitees, and that they put sales before safety.
"A plaintiff sufficiently pleads a cause of action for common law recklessness when the plaintiff’s allegations address a defendant’s state of mind at the time of the incident as well as the conduct that gives rise to the cause of action." (Internal quotation marks omitted.) Onorato v. McDonald’s Restaurants of Connecticut, Inc., Superior Court, judicial district of New London, Docket No. CV-10-6002673-S (January 4, 2012, Cosgrove, J.). "[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 as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Citation omitted; internal quotation marks omitted.) Vitale v. Kowal, 101 Conn.App. 691, 698-99, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).
"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." (Internal quotation marks omitted.) Pecan v. Madigan, 97 Conn.App. 617, 622 n.5, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007). Recklessness "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, and the actor must recognize that his conduct involves a risk substantially greater ... than that which is necessary to make his conduct negligent." (Emphasis added; internal quotation marks omitted.) Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 45, 492 A.2d 219 (1985).
There does not appear to be any Connecticut case law on point regarding the specific issue of whether a defendant has engaged in recklessness by virtue of the placement of wheel stops in a parking lot. Other jurisdictions, however, have addressed whether wheel stops in parking lots create a hazard or are unreasonably dangerous, and the court finds their holdings instructive and persuasive. In McCoy v. Family Dollar Store of Kentucky, Ltd., 525 S.W.3d 93 (Ky.Ct.App. 2017), the Kentucky Court of Appeals affirmed the trial court’s granting of a motion for summary judgment, holding that a retail store and its landlord were not liable for injuries sustained by a store patron who tripped on a wheel stop and fell in the store’s parking lot. The court concluded: "The wheel stop was not defective or damaged, and it did not create an unreasonably dangerous condition necessitating the need to warn any invitees about, or correct, the condition." Id., 99.
In Bartenfeld v. Chick-fil-A, Inc., 346 Ga.App. 759, 815 S.E.2d 273 (2018), the Georgia Appeals Court noted the well established law in Georgia that "wheel stops and similar static structures are common features of parking lots that should be anticipated by invitees and do not generally constitute hazards." Id., 766. The court also concluded that there was no merit to the assertion that "the wheel stop was hazardous because of its proximity to the drive-through window." Id., 767.
In Giambruno v. Wilbur F. Breslin Development Corp., 56 App.Div.3d 520, 520-21, 867 N.Y.S.2d 202 (2008) the New York Supreme Court, Appellate Division affirmed a trial court’s granting of a motion for summary judgment, holding that a retail store was not liable for injuries sustained by a store patron who tripped on a wheel stop and fell in the store’s parking lot. The court stated: "[A] wheel stop or concrete parking lot divider which is clearly visible presents no unreasonable risk of harm ... [T]he wheel stop over which the plaintiff tripped was not an inherently dangerous condition, and was readily observable to those employing the reasonable use of their senses ..." (Citations omitted; internal quotation marks omitted.) Id., 521.
In the present case, the plaintiff alleges her fall over the wheel stop and resulting injuries and losses "were due to the willful, wanton and reckless conduct" of the defendants in that they "knew, or should have known" that the angled wheel stops on the premises created an extremely "dangerous and hazardous condition," which were placed to increase sales by way of a drive-through window, because the wheel stops were obstructed when the plaintiff and/or another business invitee opened their car door. Moreover, the plaintiff alleges that the defendants "consciously disregarded" the "serious risk of injury" that the wheel stops posed, and the defendants did not do anything about the dangerous condition, nor did they warn the plaintiff of the same. The foregoing allegations, however, merely mirror the allegations made in the negligence counts; see Compl., Counts 1, 3, 5, ¶ 11; and add legal conclusions that such conduct was "willful, wanton and reckless," "extremely dangerous," and that the defendants "consciously disregarded" the "serious risk of injury" that the wheel stops posed. Thus, these allegations fail to sufficiently support a claim for common-law recklessness. Courts have previously held that "[m]erely using the term ‘recklessness’ to describe conduct previously alleged as negligence is insufficient as a matter of law," and the phrase" ‘knew or should have known’ of the dangerous conditions ... [is] language traditionally [connoting] only negligent behavior." (Internal quotation marks omitted.) Durazzo v. Wal-Mart Stores, Inc., Superior Court, judicial district of New Haven, Docket No. CV-14-6050828-S (July 8, 2015, Fischer, J.); see Santorso v. Bristol Hospital, supra, 308 Conn. 349; Bush v. Lametta Construction Co., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-07-5005709-S (January 20, 2009, Adams, J.) (granting motion to strike recklessness count alleging defendant knew or should have known of metal stakes in parking lot but did not remove them or warn anyone because such allegations are more consistent with negligence claims and did not give rise to reckless conduct). Furthermore, "[a] plaintiff cannot transform a negligence count into a count for wilful and wanton misconduct merely by appending a string of adjectives to allegations that clearly sound in negligence ... [The] injection of the words ‘intentionally and knowingly’ ... failed to constitute additional factual allegations that would alter the nature of the conduct complained of." (Citation omitted.) Brown v. Branford, 12 Conn.App. 106, 110, 529 A.2d 743 (1987); see Lopez-Morales v. Fourteenth Club of Willimantic, Inc., Superior Court, judicial district of Windham, Docket No. CV-06-5000851-S (April 30, 2007, Boland, J.) (43 Conn. L. Rptr. 351, 352-53) (granting motion to strike recklessness count alleging defendant knew of snow and ice in parking lot but made no provision for its removal because allegations did not give rise to recklessness); Colasanto v. Rejean Realty, Inc., Superior Court, judicial district of Hartford, Docket No. CV-95-0549643-S (July 18, 1996, Hennessey, J.) (17 Conn. L. Rptr. 189, 189-90) (granting motion to strike recklessness count whereby plaintiff alleged defendant "knew or should have known" steps were unsafe and did not remedy same because merely repeating negligence allegations and adding legal conclusion that conduct was "wanton and reckless" is improper, and no facts supported "highly unreasonable conduct involving an extreme departure from ordinary care").
This court, Wilson, J., has previously held that the factual threshold for reckless conduct is high. See Reddick v. Guirguis, Superior Court, judicial district of New Haven, Docket No. CV-16-6060645-S (May 23, 2016, Wilson, J.). The Reddick case concerned a motor vehicle accident whereby the plaintiff incorporated the negligence allegations into a common-law recklessness count and further alleged that the defendant made a "conscious choice" to drive onto a highway from a stopped position, and "knew, or should have known," that attempting to do so in close proximity to vehicles already on the highway posed a "serious danger to others." (Internal quotation marks omitted.) Id. The court cited to Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 450-51, 254 A.2d 907 (1969), a case where the Supreme Court held that a father was not reckless after he allowed his 12-year-old son, who was riding a bicycle, to hang onto his car and be pulled along as he traveled slowly up a rough and bumpy hill. Begley v. Kohl & Madden Printing Ink Co., supra, 446-51. At one point, the father turned and accelerated the car without warning his son, who fell to the ground and was dragged some distance up the road, causing serious injury. Id., 448-49. The Supreme Court found these facts insufficient to submit the issue of recklessness to the jury. Id., 451. In Reddick, this court stated: "The level of risk involved in pulling a young child on a bicycle in this manner, which was found to be insufficient for recklessness, is surely greater than the level of risk [in the defendant driving his vehicle from a stopped position onto the highway in close proximity to vehicles on the highway and driving past him]. In order to state a claim for recklessness, the conduct must be far more ‘egregious’ than that alleged here." (Internal quotation marks omitted.) Reddick v. Guirguis, supra, Superior Court, Docket No. CV-16-6060645-S. Comparing Begley to the present case, the allegations in Begley are "far more egregious" than those alleged here. Therefore, consistent with Reddick, the allegations contained in counts two, four, and six of the complaint do not sufficiently support a claim for recklessness.
In the plaintiff’s objection to the defendants’ motion to strike, the plaintiff argues that Connecticut courts have held that a complaint will sufficiently plead recklessness by merely alleging reckless indifference to others on the part of the defendant and cites to Seymour v. Carcia, 24 Conn.App. 446, 452, 589 A.2d 7 (1991), aff’d, 221 Conn. 473, 604 A.2d 1304 (1992). Seymour is distinguishable, however, in that there were allegations made that the defendant was intoxicated when the accident occurred, and there is ample case law to support that intoxication is considered an "aggravating factor," and sufficiently supports a common-law recklessness claim. Id., 452-53. The plaintiff also relies on Onorato v. McDonald’s Restaurants of Connecticut, Inc., supra, Superior Court, Docket No. CV-10-6002673-S. Onorato is also distinguishable in that the allegations provide that the defendant "knew" of the dangerous condition, "knew" the public was continually using the walkway, and the defendant "ignored such dangerous and defective condition without attempting to remedy it or provide safe ingress and egress from the business premises." (Internal quotation marks omitted.) Id. These allegations are more definite in tone and do not utilize language that is consistent with negligence allegations. In the present case, unlike Seymour and Onorato, there are no allegations that the wheel stops were designed to injure invitees or that such conduct can be implied by the allegations, there are no "aggravating factors" alleged, and the language utilized is either more consistent with negligence claims or simply legal conclusions. See Santorso v. Bristol Hospital, supra, 308 Conn. 349; Colasanto v. Rejean Realty, Inc., supra, 17 Conn. L. Rptr. 189-90. ---------
Additionally, the plaintiff alleges that the defendants put sales before the safety of invitees by placing the wheel stops in a dangerous way in order to better facilitate the use of the drive-through window. In Lopez-Morales v. Fourteenth Club of Willimantic, Inc., supra, 43 Conn. L. Rptr. 352-53, the court granted a motion to strike a recklessness count alleging the defendant knew of snow and ice in a parking lot, but it made no provision for its removal. The plaintiff alleged that the defendant knowingly determined on the basis of a cost/benefit analysis to allow the ice and snow to remain, and that such action was reckless. Id., 352. The court stated: "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 [of negligence] 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 [of recklessness] is insufficient to do so." (Emphasis omitted.) Id., 352-53. Similar to Lopez, the allegations in the present case that the defendants valued the sales generated from the drive-through window over the safety of their patrons alone is not equivalent to conduct that is an extreme departure from ordinary care.
In the present case, the plaintiff’s allegations merely state that the defendants placed wheel stops and the parking spaces at an angle to create more room for a drive-through window. The plaintiff’s allegations also include statements that her fall over the wheel stop and resulting injuries and losses "were due to the willful, wanton and reckless conduct" of the defendants in that they "knew, or should have known" that the angled wheel stops on the premises created an extremely "dangerous and hazardous condition," and that the defendants "consciously disregarded" the "serious risk of injury" that the wheel stops posed. As previously stated, these are either allegations that sound in negligence or mere legal conclusions. Moreover, like Reddick and Lopez, the allegations in counts two, four and six of the complaint do not provide that the defendants’ actions were of a highly unreasonable nature or egregious, involved an extreme departure from ordinary care, or placed the plaintiff in a situation where a high degree of danger was apparent. See Pecan v. Madigan, supra, 97 Conn.App. 622 n.5.
CONCLUSION
For the foregoing reasons, the defendants’ motion to strike counts two, four, and six of the complaint is granted.