Opinion
No. CV 04 5000055 S
November 30, 2005
MEMORANDUM OF DECISION
Presently before the court is a motion to strike dated March 14, 2005 filed by defendants, Palmer Landing Community, Inc. ("Palmer") and Plaza Realty and Management, Inc. ("Plaza"). In their motion those defendants request the court to strike the first, second and third counts of the plaintiff's complaint. Subsequent to that motion, the plaintiff filed an amended complaint dated June 13, 2005 to add a count directed against Schooner Cove Condominium Association, Inc., an apportionment defendant, cited in by the original defendants. The allegations of the amended complaint against the original defendants are essentially unchanged and the motion to strike has been argued and briefed by the parties as though it were directed against the first three counts of the amended complaint. The court will do likewise.
The amended complaint alleges that the plaintiff's decedent was murdered in her condominium unit at Palmer Landing Condominiums, in Stamford on November 8, 2002. The complaint alleges that defendant, Palmer was a condominium association for owners of units in the condominium, including the unit in which the plaintiff's decedent was murdered. The complaint further alleges that defendant, Plaza, contracted to provide management services, including security, for Palmer. The complaint alleges that there was no sign of forced entry into the decedent's unit and that a suspect, one Shelia Davaloo, has been identified by the Stamford police department, but that she has not been charged with the crime.
In his first count, the plaintiff alleges that defendant, Palmer a) had a duty to provide security to plaintiff's decedent, but failed to do so; b) made false representations to prospective purchasers and tenants, including plaintiff's decedent, that Palmer Landing was a secure "gated community" and c) failed to provide security personnel to staff a guardhouse to the entrance to the condominium.
In his second count, the plaintiff alleges that defendant Plaza had a duty to provide the plaintiff's decedent with security at the condominium unit in which she resided, but failed to do so. In his third count, the plaintiff alleges that the conduct of Palmer in misrepresenting the safety of the condominium constituted an unfair trade practice under the Connecticut Unfair Trade Practices Act, General Statutes § 42-110b et seq. ("CUTPA").
In their motion to strike the defendants claim that neither of the first two counts state a cause of action "in that case law does not support a duty under that facts alleged." In addition defendant Palmer claims that the third count is legally insufficient to state a cause of action under CUTPA in that it does not allege conduct falling within the scope of the act.
The role of a trial court in ruling on a motion to strike is test the legal sufficiency of a pleading. The court must "construe the facts alleged in the complaint in a light most favorable to the pleader." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). The court must examine the complaint to determine whether the plaintiff has stated a legally sufficient cause of action. Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). The trial court is limited to a consideration of the facts alleged in the complaint. A speaking motion to strike, that is one imparting facts outside of the complaint must be denied. Liljedahl Bros, Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).
While consideration of a motion to strike requires that the court accept all well pleaded facts as admitted, the same is not so of legal conclusions and a motion to strike may be granted if a complaint alleges "mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc. 224 Conn. 210, 215, 618 A.2d 25 (1992); Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982); Myra v. Aetna Life Casualty Ins. Co, 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
In their memorandum of law in support of their motion to strike the plaintiff's first two counts, the defendants claim that they had no duty to protect the plaintiff's decedent or to offer her security inside of her condominium unit. They claim that the location where the plaintiff's decedent was killed was outside of the defendants' control and that therefore they cannot be held responsible for "an injury due to a defective premises." In making this claim the defendants ignore the fact that in his complaint the plaintiff alleges that his decedent was murdered because of conditions existing outside of the decedent's unit, specifically, an unmanned guardhouse and otherwise inadequate security.
In support of their motion to strike the first two counts of the amended complaint, the defendants advance two further arguments. First, that they owed no duty of care to the decedent and second, that the murder of the decedent was unforeseeable. The plaintiff has alleged that both defendants had a duty to provide his decedent with adequate security. However, it is unclear from the complaint whether these duties arise from common law or from contractual obligations set forth in condominium documents or in agreements which may have existed between the defendants. The defendants did not request revision of either the original complaint or the amended complaint to clarify the theories of liability set forth in plaintiff's first two counts.
The plaintiff's amended complaint alleges facts from which it might be inferred that the risks of personal injury to the plaintiff's decedent were foreseeable. These allegations include the claims that the condominium is "located less than three miles from several of the highest crime areas in Stamford." and "Much of the violent crime occurring in Stamford in the past fifteen years, during the existence of the Palmer Landing condominiums, has occurred within a three mile radius of the condominiums." In Stewart v. Federated Department Stores, Inc., 234 Conn. 597, 605, 662 A.2d 753 (1995) the Supreme Court recognized a cause of action for inadequate security in a parking garage when there was evidence of a high incidence of violent crime both in the garage and in the immediate vicinity.
When considering a motion to strike the court is limited to the allegations of the complaint and must construe those facts in a manner most favorable to sustaining the pleader's claims. Applying these standards, it is clear that the defendants cannot prevail on their motion to strike either of the first two counts of the complaint. The defendants' motion is founded, not on the inadequacy of the plaintiff's pleadings, but rather on the unlikelihood that the plaintiff will be able to establish the existence of a duty and a causal relationship between a breach of that duty and the misfortune which befell the decedent.
With respect to the third count, defendant Palmer claims that the plaintiff has failed to state a cause of action under CUTPA. General Statutes § 42-110b(a) provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." In determining whether certain acts constitute a violation of this act, Connecticut has adopted "the criteria set out in the cigarette rule by the federal trade commission . . . (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other business persons]." (Internal quotation marks omitted.) Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591, 657 A.2d 212 (1995).
"All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice . . . or a practice amounting to a violation of public policy." (Citations omitted; internal quotation marks omitted.) Cheshire Mortgage Service, Inc. v. Montes, 223 Conn. 80, 106, 612 A.2d 1130 (1992).
Defendant Palmer correctly states that a claim under CUTPA must be pleaded with particularity to allow evaluation of the legal theory upon which the claim is based. Sorisio v. Lenox, Inc., 701 F.Sup. 950, 962 (D.Conn.) aff'd 863 F.2d 195 (2d Cir. 1988); S.M.S. Textile v. Brown, Jacobson, Tillinghast, Lahan and King, P.C., 32 Conn.App. 786, 631 A.2d 340 (1993). In Sorisio, supra. the court held that a CUTPA claim must be pleaded with "a particularized allegation of how the [conduct alleged] constituted a violation of an established concept of unfairness." 701 F. Sup at 963.
In his third count the plaintiff alleges that Palmer has been engaged in trade or commerce in the State of Connecticut and has engaged in the following conduct alleged to constitute unfair trade practices: 1) having an unmanned guard house at the time of the murder; 2) having "nothing to prevent an outsider from parking in the community parking lot and walking into the . . . grounds;" 3) representing "to prospective purchasers and tenants, including [plaintiff's decedent] that the Palmer Landing Condominiums is a secure `gated community'" and; 4) making false representations regarding security. It is further alleged that the murder of the plaintiff's decedent would have been prevented "if there had been adequate security at the Palmer . . . complex." Taken on their face these allegations of false and misleading representations are sufficient to constitute an unfair trade practice. Although it may be doubtful that the plaintiff can prove that Palmer, as a unit owners' association established for the purposes set forth in Chapter 825 of the General Statutes was engaged in trade or commerce, the allegations are sufficient to withstand a motion to strike.
The condominium Act.
For the reasons stated above, the defendants' motion to strike is denied.