Opinion
No. DBD CV-10-6003574-S
May 11, 2011
RULING ON MOTION TO STRIKE (#134.00)
On June 3, 2010, the plaintiff, Christa Rotolo, commenced this action against the defendant, David Cowin Jr. This case arises from an accident on the premises of the defendant Ridgefield Fitness Center. The plaintiff alleges that the defendant acted negligently and carelessly when he grabbed and manipulated the squat bar during the plaintiff's weight lifting workout. Because the defendant grabbed only the right side of the bar, all of the weight shifted to the plaintiff's left shoulder causing personal injuries including a spiral fracture of her left humerus as well as a torn rotator cuff. On March 21, 2011, Cowin filed an amended answer with three defenses, the third of which invokes the sudden emergency doctrine. The defendant alleges that he touched the squat bar only after the plaintiff requested his assistance; that an emergency existed; that the emergency was not of his making; and that when confronted with such emergency, he acted as a reasonable person would have. On April 19, 2011, the plaintiff moved to strike the third special defense.
"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). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation mark omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 705, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). "The emergency doctrine modifies the standard of reasonable conduct ordinarily expected of reasonable men and women by allowing the occurrence of a sudden or unexpected event to be taken into account as one of the circumstances determining what conduct is reasonable. Prosser, Torts (4th Ed. 1971) § 33, pp. 168-69. Restatement (Second), 1 Torts § 296 (1966). In an emergency not due to his own negligence, one is not relieved of all obligations to exercise care but is required to exercise the care of an ordinarily prudent person acting in such an emergency . . . Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 312, 268 A.2d 639 (1970). A person faced by such an emergency has some leeway when deciding rapidly between alternative courses of action. (Citations omitted; internal quotation marks omitted.) Oberempt v. Egri, 176 Conn. 652, 656, 410 A.2d 482 (1979)." Abramova v. Huang, Superior Court, judicial district of New Haven, Docket No: CV 04 4001197 (September 12, 2005, Tanzer, J.) [ 39 Conn. L. Rptr. 918].
The majority position in the Superior Court is that in the context of a personal injury action, the special defense of sudden emergency should be pleaded as a denial and not as a special defense. For cases in which the court found that sudden emergency could not be pleaded as a special defense, see Pinsker v. Fleming, Superior Court, judicial district of Fairfield, Docket No. CV 01 0382908 (April 12, 2002, Gallagher, J.) ( 31 Conn. L. Rptr. 675); Mazza v. Alcock, Superior Court, judicial district of Fairfield, Docket No. CV 95 0320421 (June 17, 1996, Grogins, J.) ( 17 Conn. L. Rptr. 221); Gold v. American Economy Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 95 0380475 (April 26, 1996, Freedman, J.) ( 16 Conn. L. Rptr. 641); Abramova v. Huang, Superior Court, judicial district of New Haven, Docket No. CV 04 4001197 (September 12, 2005, Tanzer, J.) ( 39 Conn. L. Rptr. 918); Pagoni v. Kreider, Superior Court, judicial district of Waterbury, Docket No. CV 05 4004373 (November 1, 2005, Matasavage, J.).
The court finds the majority view to be persuasive, because, as stated in Pinsker v. Fleming, supra, 31 Conn. L. Rptr. 676: [N]egligence has long been defined as the failure to use that degree of care for the protection of another that the ordinarily reasonably careful and prudent person would use under like circumstances. Brown v. Branford, 12 Conn.App. 106, 108, 529 A.2d 743 (1987). The emergency doctrine modifies the standard of reasonable conduct ordinarily expected of reasonable men and women by allowing the occurrence of a sudden or unexpected event to be taken into account as one of the circumstances determining what conduct is reasonable. Oberempt v. Egri, supra, 176 Conn. 656. Accordingly, the special defense of sudden emergency should be pleaded as a simple denial." (Internal quotation marks omitted.) Abramova v. Huang, Superior Court, judicial district of New Haven, Docket No: CV 044001197 (September 12, 2005, Tanzer, J.).
For the foregoing reasons, the plaintiff's motion to strike the third special defense is hereby GRANTED.