Opinion
No. LLI CV 106003593S
May 20, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE #101-SHORT CALENDAR MAY 9, 2011
The issue before the court is whether to grant the defendants' motion to strike count four and the prayers for relief as to the third, fourth and fifth counts of the plaintiff's complaint. The Court holds the motion to strike is (1) granted as to count four alleging negligent entrustment; (2) granted, by agreement, as to the claims for relief in counts four and five; and (3) denied as to the claim for relief in count three.
I FACTS
On November 24, 2010, the plaintiff, Kimberly Morin, filed a four-count complaint against the defendants, James Machrone and Sheila Riiska, as a result of injuries the plaintiff sustained after being struck by a motor vehicle. The complaint alleges that the plaintiff was walking on a sidewalk when Machrone, while operating a vehicle, proceeded out of a private driveway and collided with the plaintiff. The complaint further alleges that Machrone was the operator of the vehicle owned by Riiska and that Machrone was operating the vehicle with the authority and permission of Riiska. Counts one and two allege negligence against both defendants. Count three alleges recklessness against Machrone and count four alleges negligent entrustment against Riiska. On December 20, 2010, the defendants filed the present motion to strike (#101) count four and the claims for relief as to the third, fourth and fifth counts of the complaint. On January 28, 2011, the plaintiff filed an objection to the motion to strike and the defendants filed a reply memorandum on January 31, 2011. The matter was heard on the May 9, 2011 short calendar.
II DISCUSSION
A. Motion to Strike Standard
"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 court takes] the facts to be those alleged in the complaint that has been stricken and we construe 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 . . . [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 . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).
B. Count Four: Negligent Entrustment
The defendants move to strike count four of the complaint, alleging negligent entrustment, on the ground that the plaintiff has failed to plead the essential elements of the cause of action. Specifically, the defendants argue that the plaintiff failed to allege facts that Riiska knew or should have known that Machrone would operate the vehicle in an incompetent manner. Moreover, the defendants contend that the plaintiff failed to allege that it was that same incompetence which caused the plaintiff's injuries. According to the defendants, liability for negligent entrustment does not attach to the owner of a borrowed car simply because the owner permitted another person to operate the vehicle. Nor does it follow that because an accident occurred the operator was incompetent. The defendants argue that count four is legally insufficient because it is devoid of facts suggesting that Machrone had any incompetencies or dangerous propensities before the accident or that Riiska had actual or constructive knowledge of these propensities.
The plaintiff objects arguing that she has pleaded almost the exact same language in her complaint as suggested in Connecticut's case law. In reply, the defendants contend that count four is only boilerplate language, absent from which are facts on which the claim is premised, namely that Machrone was incompetent, Riiska had reason to know of the incompetence and that it was Machrone's incompetence that led to the plaintiff's injury.
"The elements of a claim for negligent entrustment are well established. The essential elements of the tort of negligent entrustment of an automobile [are] that the entrustor knows or ought reasonably to know that one to whom he entrusts it is so incompetent to operate it upon the highways that the former ought to reasonably anticipate the likelihood of injury to others by reason of that incompetence, and such incompetence does result in injury . . . Liability cannot be imposed on a defendant under a theory of negligent entrustment simply because the defendant permitted another person to operate the motor vehicle . . . Liability can only be imposed if (1) there is actual or constructive knowledge that the person to whom the automobile is loaned is incompetent to operate the motor vehicle and (2) the injury resulted from that incompetence . . . The Greeley court, and its progeny, recognized that a principal feature of a cause of action for negligent entrustment is the knowledge of the entrustor with respect to the dangerous propensities and incompetency of the entrustee." (Internal quotation marks omitted.) Kaminsky v. Scoopo, Superior Court, judicial district of New Haven, Docket No. CV 08 6002084 (July 30, 2008, Bellis, J.) ( 46 Conn. L. Rptr. 82); see Greeley v. Cunningham, 116 Conn. 515, 520, 165 A. 678 (1933).
In the present case, the plaintiff alleges that Riiska "is liable for injury resulting from the operation of an automobile she loaned to the defendant driver James Machrone when she knew or ought reasonably to have known that James Machrone, to whom she entrusted her vehicle was incompetent to operate said vehicle by reason of inexperience and/or reckless behavior and the defendant owner should have reasonably anticipated the likelihood that in its operation injury would be done to others." The plaintiff then incorporates paragraphs six through twelve of the third count, alleging that Machrone was reckless on the day of the accident.
"The Greeley court, and its progeny, recognized that a principal feature of a cause of action for negligent entrustment is the knowledge of the entrustor with respect to the dangerous propensities and incompetency of the entrustee." Kaminsky v. Scoopo, supra, 46 Conn. L. Rptr. 82; see Greeley v. Cunningham, supra, 116 Conn. 520. In Kaminsky v. Scoopo, supra, 46 Conn. L. Rptr. 82, the court granted a motion to strike a negligent entrustment claim under circumstances very similar to the present case. In Kaminsky, the complaint alleged that "the defendant operator was not a responsible and safe driver . . . as herein alleged, referring to the alleged negligence of the defendant operator on [the day of the accident.] The plaintiff further alleges in the complaint that the defendant owner knew or should have known of the defendant operator's irresponsible and unsafe driving and that he negligently entrusted a motor vehicle to her." Id. In granting the motion to strike, the court explained that "[a]dmittedly, this is a close call. There is no specific allegation in the complaint suggesting a past history of incompetent driving or other dangerous propensities on the part of the defendant operator, nor is such a history necessarily implied from the allegations contained in the complaint. Instead, the allegations, even viewed in a light most favorable to the plaintiff, are that the defendant owner knew or should have known of the defendant operator's irresponsible and unsafe driving [on the day of the accident] — without alleging that the defendant operator had dangerous propensities or any incompetencies before that date. The alleged negligence of the defendant driver on [the day of the accident] is not the determinative factor in an action for negligent entrustment. Instead, the proper focus is on whether the entrustor was negligent in entrusting a vehicle to an incompetent driver. Here, the allegations of the complaint fall short." Id.; see Barlasz v. Baraby, Superior Court, judicial district of New Britain, Docket No. CV 10 6007297 (April 8, 2011, Young, J.) (motion to strike negligent entrustment claim granted where the complaint lacked allegations of actual or constructive knowledge of incompetencies or that the plaintiff's injuries resulted from that incompetence).
While the plaintiff in the present case may have a cause of action for negligent entrustment, she has not pleaded it sufficiently. The plaintiff has not alleged specific facts showing that Machrone had a past history of incompetencies or other dangerous propensities, that Riiska had any actual or constructive notice of these incompetencies or propensities, or that Machrone's incompetence resulted in the plaintiff's injuries. Therefore, the motion to strike count four is granted.
C. Claims for Relief
The defendants move to strike the claims for relief as to counts three, four and five. The plaintiff does not object to the claims for relief as to counts four and five being stricken.
The prayer for relief as to count three seeks double or treble damages pursuant to General Statutes § 14-295. The defendants move to strike the prayer for relief on the ground that the plaintiff has not alleged facts which trigger the relief sought. The defendants argue that count three, which alleges recklessness, does not allege that Machrone violated one of the nine specific statutes — one of the enumerated rules of the road. According to the defendants, the plaintiff alleges a violation of General Statutes § 14-222, which is one of the rules of the road, but that statue is inapplicable here because the accident occurred on a private driveway, not the road. Moreover, the defendants contend that the plaintiff does not allege that the operation of the vehicle in violation of General Statutes § 14-222 was deliberate or with reckless disregard or that the operation was a substantial factor in causing her injuries.
Under General Statutes § 14-222(a), "[n]o person shall operate any motor vehicle upon any public highway of the state, or any road of any specially chartered municipal association or of any district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or in any parking area for ten cars or more or upon any private road on which a speed limit has been established in accordance with the provisions of section 14-218a or upon any school property recklessly, having regard to the width, traffic and use of such highway, road, school property or parking area, the intersection of streets and the weather conditions. The operation of a motor vehicle upon any such highway, road or parking area for ten cars or more at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle, or the operation, downgrade, upon any highway, of any motor vehicle with a commercial registration with the clutch or gears disengaged, or the operation knowingly of a motor vehicle with defective mechanism, shall constitute a violation of the provisions of this section. The operation of a motor vehicle upon any such highway, road or parking area for ten cars or more at a rate of speed greater than eighty-five miles per hour shall constitute a violation of the provisions of this section."
The plaintiff objects arguing that she specifically alleged that the defendant was driving recklessly in violation of General Statutes § 14-222 and that she also draws the causal connection between the defendant's reckless conduct and her injuries. According to the plaintiff, the complaint alleges that Machrone was acting "recklessly" and that such an allegation encompasses the elements of reckless disregard and deliberateness. Finally, the plaintiff argues that General Statutes § 14-222 is applicable because the plaintiff was walking as a pedestrian on a city sidewalk and was struck by Machrone as he was exiting a private driveway and entering a public road. In reply, the defendants reiterate their argument that the complaint does not allege that the violation of General Statutes § 14-222 was a "substantial factor" in causing the plaintiff's injuries. Moreover, the defendants argue that the complaint does not actually contain allegations that the plaintiff's injury occurred on public, as opposed to private, property.
"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." General Statutes § 14-295. "There is a split of authority within the Superior Court on the specificity needed to properly allege a claim of statutory recklessness under this statute with some courts taking the position that it suffices to plead the terms of the statute . . . and other courts requiring specific factual allegations to support the requisite degree of recklessness to impose statutory liability . . . In part, this split of authority rests on the assumption that the degree of specificity required to plead a statutory recklessness claim under § 14-295 has not been addressed by the appellate courts . . . It is technically correct that neither the Supreme Court nor the Appellate Court has addressed the pleading requirements for the present version of § 14-295 . . . Nonetheless, there is ample authority addressing the pleading requirements for the predecessors of § 14-295 and the authority leave no doubt both that the complaint clearly state such facts as will bring the case within the provisions of the statute . . . [and] that the claim for relief be specifically based upon the statutory remedy." (Citations omitted; internal quotation marks omitted.) Hopwood v. Sciarretta, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 01 0075934 (July 11, 2002, Lager, J.) ( 32 Conn. L. Rptr. 474, 475); see Leone v. Knighton, 196 Conn. 494, 496, 493 A.2d 887 (1985). "Merely alleging a deliberate or reckless violation of one of the predicate statutes does not suffice to describe the conduct which would entitle a plaintiff to the extraordinary remedy available under § 14-295. To state a cause of action under § 14-295, a plaintiff must allege sufficient facts establishing that the predicate statute was violated with the requisite mental state, that is, deliberately or with reckless disregard, and that such violation was a substantial factor in producing the plaintiff's injury." Hopwood v. Sciarretta, supra, 32 Conn. L. Rptr. 476.
The plaintiff's complaint alleges that Machrone was exiting a private driveway, the plaintiff was a pedestrian walking on the sidewalk, and that Machrone "was driving recklessly in violation of Section 14-222 . . . [and] deliberately and recklessly failed to yield the right-of-way to the pedestrian plaintiff when he was emerging from an alley/driveway, in violation of Section 14-247a . . . resulting in the striking of the pedestrian Plaintiff as she was walking on the sidewalk."
"The driver of a vehicle within a business or residence area, emerging from an alley, driveway or building, shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across any alleyway or driveway, and shall yield the right-of-way to any pedestrian as may be necessary to avoid collision, and upon entering the roadway shall yield the right-of-way to all vehicles approaching on such roadway. Violation of any provision of this section shall be an infraction." General Statutes § 14-247a.
On a motion to strike, the court takes all facts alleged in the light most favorable to sustaining the legal sufficiency of the complaint. The plaintiff expressly invoked General Statutes § 14-295 and the complaint alleges that she was injured because of a violation General Statutes § 14-222, one of the so-called "rules of the road." The factual allegations that Machrone drove recklessly by failing to yield to a pedestrian when emerging from a driveway are minimally sufficient to allege the requisite mental state under General Statutes § 14-295 with respect to General Statutes § 14-222.
The defendants rely on Reardon v. Brown, Superior Court, judicial district of New Haven, Docket No. CV 07 6000950 (April 18, 2008, Robinson, J.) for the proposition that General Statutes § 14-295 does not apply to accidents that occur in private driveways. In Reardon, the court granted a motion to strike where the accident occurred in the driveway of a private residence, finding that the private driveway was not a roadway encompassed in General Statutes § 14-218a and was therefore insufficient to trigger double or treble damages under General Statutes § 14-295. In the present case, the defendants argue that the accident occurred in a private driveway. On a motion to strike, the court is required to take all well-pleaded facts and those facts necessarily implied from the allegations as admitted. The plaintiff alleges that she was walking on the sidewalk when the defendant proceeded out of the driveway and collided with her. From those allegations, it is reasonable to infer that the plaintiff was struck while walking as a pedestrian on a city sidewalk by the defendant as he exited a private driveway and entered a public road. Therefore, the allegations are sufficient to support a claim under General Statutes §§ 14-222 and 14-295.
Finally, the defendants contend that the plaintiff did not allege that Machrone's recklessness was a "substantial factor" in producing the plaintiff's injuries. Although the plaintiff does not use the phrase "substantial factor," the plaintiff does make the necessary causal connection between Machrone's acts and her injuries. The complaint alleges that Machrone was reckless by failing to yield to a pedestrian and alleges that "[a]s a result of [Machrone's] wanton, willful and reckless conduct and deliberate disregard for the operation of his vehicle, the plaintiff has suffered the following serious and painful injuries . . ." Viewing the allegations in the light most favorable to the pleader, the plaintiff has alleged sufficient facts to bring Machrone within the provisions of General Statutes § 14-295. Accordingly, the motion to strike the claim for relief as to count three is hereby denied.