Opinion
No. FST CV 11-6008362 S
July 29, 2011
MEMORANDUM OF DECISION
This case arises out of injuries which plaintiff, Maria Pera, claims to have sustained on February 23, 2009 when she slipped and fell on ice in a parking lot leased and controlled by defendant, Young Men's Christian Association of Greenwich ("YMCA"). Also named as defendants are The Saint Roch's Church Corporation of Greenwich, the owner of the parking lot leased by the YMCA, and Longo Contracting (sic), a contractor alleged to have undertaken to keep the parking lot free of ice and snow. Maria Pera's husband, Adrian Pera, who asserts a loss of consortium claim, is also a plaintiff.
Presently before the court is a motion to strike filed by the YMCA (#119.00). In that motion the YMCA seeks to strike the fourth count of the plaintiffs' amended complaint dated May 19, 2011. The first count of the amended complaint alleges that the YMCA was negligent: 1) in permitting the parking lot to be covered with ice and snow; 2) in not properly removing ice and snow from the parking lot; 3) in not adequately providing for the removal of ice and snow; 4) in failing to inspect; 5) failing to place abrasive materials on the parking lot; 6) failing to provide adequate warning of the dangerous conditions.
The fourth count of the amended complaint alleges that the YMCA was reckless in consciously choosing not: 1) to inspect the parking lot; or 2) to remove snow from the parking lot; or 3) to sand or salt the parking lot because of the costs of time and/or money associated with such inspections, removals or sanding/salting. The fourth count also alleges that the YMCA refused to put up warning signs although it knew of the hazards associated with weather conditions. There is no explicit claim that the failure to post warning signs was motivated by the defendant's desire to save the costs of time and/or money.
In its motion to strike the YMCA claims that the fourth count of the plaintiffs' amended complaint fails to state a claim for recklessness. The plaintiffs have filed an opposition to the motion to strike claiming that they have adequately pled a claim for common-law negligence. The motion to strike and the opposition thereto were heard on short calendar on July 25, 2011.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). "A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike." Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13 (2001). In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency. Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . It is fundamental that in determining the sufficiency of a complaint challenged by [an opposing party'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.) Violano v. Fernandez, 280 Conn. 310, 318 (2006).
"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 . . . More recently, [the Connecticut 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." (Citations omitted; internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 832-33 (2003). "[N]egligence and wilful and wanton misconduct are separate and distinct causes of action . . . 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." (Internal quotation marks omitted.) Angiolillo v. Buckmiller, 102 Conn.App. 697, 705, cert. denied, 284 Conn. 927, (2007).
In the present case, the plaintiffs allege in count one of their amended complaint that the YMCA was, in essence, negligent in failing to adequately remove the snow and ice in a parking lot that it controlled. In count four, which attempts to state a cause of action in recklessness, the plaintiffs paraphrase most of the allegations of count one and add that the defendant knew that the presence of ice and snow in the parking lot posed a hazard to pedestrians yet consciously chose not to inspect the lot nor to remove the snow and ice due to associated burdens and costs. The issue presented by this motion to strike is whether passive behavior such as the failure to take action to remove snow and ice after a weather event can rise to the level of reckless behavior.
"Merely using the term `recklessness' to describe conduct previously alleged as negligence is insufficient as a matter of law." Angiolillo v. Buckmiller, supra, 102 Conn.App. 705 (affirming a trial court's rendering of summary judgment on a common-law recklessness claim in a wrongful burial case where "[t]he plaintiffs, in the complaint, simply incorporated their allegations of negligence and labeled the conduct recklessness"). "A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made." Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958).
"It is . . . of no legal consequence if identical facts are alleged to support separate causes of action providing allegations are sufficient to support both claims." Long v. Taranto, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 06 5002986 (December 23, 2008, Pavia, J.) "[S]imilarities between the allegations of the negligence and common-law recklessness count are not necessarily grounds for the claim to be stricken. 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." (Internal quotation marks omitted.) Sullivan v. Sullivan, Superior Court, judicial district of Fairfield, Docket No. CV 10 6005919 (September 24, 2010, Gilardi, J.). In Sullivan, the recklessness count incorporated by reference the allegations of a negligence count but added an allegation that "[t]he plaintiff was injured as a result of the defendant's recklessness in that the defendant was aware that opening the bedroom door would cause the closet door to abruptly shut." Id. Judge Gilardi denied the motion to strike the recklessness count. Id.
See also, Alvarado v. Pavani Painting, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 09 5027658 (July 1, 2010, Tobin, J.), in which this court granted a motion to strike a recklessness count, which merely stated that the defendant recklessly violated unspecified state and federal statutes. However, the court observed that "is of the opinion that a plaintiff can describe the same conduct as merely negligent in one count and in the same complaint allege that the same conduct was reckless."
"[S]imilarity [of allegations] cannot be the sole focus. To so consider would often require a plaintiff to ratchet down the negligence claim in order to render more visible the conceptual space between the counts. Focus must instead primarily rest on the recklessness-sufficiency of those counts." Maleski v. Connecticut Light Power Co., Superior Court, judicial district of Waterbury, Docket No. CV 08 5008285 (March 26, 2009, Brunetti, J.). In Maleski, the plaintiff alleged "that the defendants knowingly failed to shut off the power to the portions of the high voltage lines during the periods of time it had agreed to with reckless disregard for the rights and/or safety of the plaintiff, and with conscious knowledge of the fact that the injuries and substantial risk would be posed upon the public including serious personal injury incurred by the plaintiff." Id. In a well considered opinion, Judge Brunetti denied the motion to strike the recklessness count because "[a]n allegation of the defendants' knowledge of a hazard and the failure to take steps to prevent danger is sufficient to state a cause of action in recklessness." Id. Other Connecticut courts have used this reasoning to deny motions to strike recklessness counts. Haley v. Connecticut Light Power, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 059027 (November 9, 1999, Nadeau, J.) (intentional opening of a dam with conscious knowledge that injuries to the public would result); Cruz v. Tosado, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 0531845 (May 22, 1995, Hennessey, J.) ( 14 Conn. L. Rptr. 272, 274-75) (property owner's alleged failure to ensure that children are not exposed to dangerous lead after being notified by an official that the property contained toxic levels of lead paint).
Similarly, in Henderson v. CVS Pharmacy, Superior Court, judicial district of New Haven, Docket No. CV 08 5017128 (July 31, 2008, Cosgrove, J.) ( 46 Conn. L. Rptr. 25, 26), where the plaintiffs alleged that a drugstore provided the wrong prescription medication, the complaint was brought in both negligence and recklessness, among other causes of action. In deciding on the motion to strike the recklessness count, Judge Cosgrove noted that "the plaintiffs have distinguished their allegation by stating that the defendants not only provided the wrong medication and instructions, but also `did nothing to check the accuracy of the medications provided [to the plaintiffs] despite their clear professional responsibility to do so, and the grave danger posed to [the plaintiffs] by virtue of dispensing the wrong medications and instructions.'" Id., 27. Because "[t]he plaintiffs have not merely appended adjectives to their negligence complaint" and because "[t]he plaintiffs' allegations of recklessness are not merely allegations of negligence suffused with legal conclusions," "it [was] apparent that there [were] alleged facts contained within the second count that could allow for a finding that the defendants acted recklessly." Id. This, in turn, led Judge Cosgrove to deny the motion to strike. Id.
However, in Zublena v. Carrozzo, Superior Court, judicial district of Litchfield, Docket No. CV 01 0084267 (May 20, 2002, Cremins, J.), a case with some similarities to the present action, the plaintiff claimed that she was injured due to the accumulation of ice and snow in a parking lot. She alleged "that the defendants had actual notice and knowledge of the condition of the parking lot due to tenants' complaints" but "were reckless in their described conduct, refused to inspect the premises, refused to respond to the tenants' complaints and intentionally and wantonly made no provisions for snow and ice removal in spite of the knowledge that the extreme weather conditions and accumulation of ice and snow made the use of the parking lot hazardous and life and limb threatening to anyone using said parking lot." Zublena v. Carrozzo, supra. The defendants moved to strike for failure to state a cause of action in recklessness. Id. The court granted the motion, ruling that "[t]he plaintiff does not allege conduct by the defendants that involves any highly unreasonable conduct involving an extreme departure from ordinary care." Id.
The Zublena decision was cited in Lopez-Morales v. Fourteenth Club of Willimantic, Inc., Superior Court, judicial district of Windham, Docket No. CV 06 5000851 (April 30, 2007, Boland, J.) ( 43 Conn. L. Rptr. 351, 352), another action for recklessness involving injuries attributed to snow and ice in a parking lot. Count one stated a cause of action in negligence, while in count two of his complaint, the Lopez-Morales plaintiff alleged that the defendant was reckless because "[the defendant] 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." Lopez-Morales v. Fourteenth Club of Willimantic, Inc., supra, 43 Conn. L. Rptr. 352. The court interpreted the core allegation of the second count as a claim "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." Id. The court proceeded to strike the second count, id., 353, reasoning as follows:
"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." Id., 352-53.
In a recent case, a plaintiff alleged that she was injured by a defect in a restaurant booth. Jiminez v. American Steak House, LLC, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 10 6001715 (November 15, 2010, Fischer, J.). In addition to pleading a count of negligence, the plaintiff alleged that the defendant was reckless because it "(1) consciously chose not to inspect the premises; (2) made a wilful and conscious decision not to warn customers of the dangerous condition created by the damaged booth due to the burden and/or costs associated with presenting such a warning; and (3) made a wilful and conscious decision not to repair the booth due to the burden and/or costs associated with that repair." Id. Citing Zublena and Lopez-Morales, the court granted the motion to strike the recklessness count. Id.
Accordingly, while courts in Connecticut have ruled that in certain instances the failure to act can serve as a basis for a recklessness claim, see, e.g., Maleski v. Connecticut Light Power Co., supra, Superior Court, Docket No. CV 08 5008285, they have stricken recklessness counts that merely allege passive behavior such as failure to clear snow and ice.
As explained in the decisions cited above, the plaintiffs' claim that the defendant's alleged passivity was due to the desire to avoid costs does not turn a negligence action into a recklessness action. Therefore, the court concludes that the plaintiffs have not stated a cause of action in recklessness against the YMCA in the fourth count of their amended complaint. Accordingly, the court grants the motion to strike the fourth count.