Opinion
MMXCV176019097
03-29-2018
Anton RUFFINO v. Linda MOORE
UNPUBLISHED OPINION
OPINION
Aurigemma, J.
The defendant, Linda Moore, has moved to strike Counts Two and Three of the complaint on the grounds that they are legally insufficient to state a cause of action for statutory recklessness (Count Two) and common-law recklessness (Count Three).
Allegations of the Complaint
The First Count of the complaint alleges that the defendant, Linda Moore, was operating a vehicle traveling eastbound on East Main Street in Meriden when suddenly and without warning she drove into the rear of the plaintiff’s vehicle. That count further alleges that the plaintiff’s injuries were caused by the negligence of the defendant in one or more of the following ways:
a. She operated her vehicle at an excessive or unreasonable rate of speed, having due regard for the width, traffic and use of highway, road or parking area the intersection of streets and weather conditions, or in excess of the posted speed limit, in violation of Section 14-218a of the Connecticut General Statutes.
b. She was following too closely to the rear of the vehicle of the Plaintiff and hence, could not stop her vehicle in time to avoid a collision in violation of Section 14-240 of the Connecticut General Statutes.
c. She was inattentive and failed to maintain a proper lookout for other persons lawfully using the highway and particularly for the vehicle of the plaintiff.
d. She failed to turn her vehicle to the left or to the right to avoid the collision, although by a proper and reasonable exercise of his (sic) faculties, she could and should have done so.
e. She failed to apply her brakes in time to avoid a collision although by a proper and reasonable exercise of her faculties, she could and should have done so.
f. She failed to keep her vehicle under a proper and reasonable control.
g. She failed to keep a proper and reasonable lookout for other vehicles upon the highway.
In the Second and Third Counts, the plaintiff alleges that the defendant:
a. [K]nowingly took her eyes and her focus off the road ahead of her and occupied them with something inside her vehicle but continued to operate her vehicle on the roadway even while her vision and attention were completely focused on something inside of the car, causing her to drive blindly, although she knew that such behavior was extremely dangerous and highly likely to result in injury and harm to other motorists on the highway, including Plaintiff Anton Ruffino, all in violation of Connecticut General Statutes § (sic)14-218a, 14-296aa and § 14-222.
b. [C]onsciously engaged in a course of action either with knowledge of the serious danger to others or of facts that would disclose such serious danger to any reasonable man inasmuch as she operated and continued to operate her vehicle on a public roadway while looking down at the floor of the vehicle she was operating and not looking at the roadway ahead of her, all in violation of Connecticut General Statutes § (sic)14-218a, 14-296aa and § 14-222.
Discussion of the Law and Ruling
The purpose of a motion to strike is to contest the legal sufficiency of the allegations of any complaint, or any one or more counts thereof, to state a claim upon which relief can be granted. See P.B. § 10-39(a); Novametrix Medical Services v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992) (internal quotation marks and citations omitted). A motion to strike " admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." Mora v. Aetna Life & Cas. Ins. Co., 13 Conn.App. 208, 21, 535 A.2d 390 (1988) (emphasis omitted). The sole inquiry in reviewing a motion to strike is whether the plaintiff’s allegations, if proved, would state a claim upon which relief could be granted. Doyle v. A & P Realty Corp., 36 Conn.Supp. 126 (1980). " [A] motion to strike ordinarily is an improper method for raising a claim of governmental immunity ... however ... where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike. Doe v. Board of Education, 76 Conn.App. 296, 299 n.6, 819 A.2d 289 (2003); see also Coe v. Board of Education, 301 Conn. 112, 19 A.3d 640 (2011).
The defendant argues that the plaintiff has made no specific allegations of recklessness other than to insert legal conclusions of recklessness. The judges of the Superior Court do not agree as to whether the plaintiff must allege specific facts which constitute reckless conduct or merely use the words " reckless" in order to state a cause of action under Connecticut General Statutes § 14-295.
Some courts have held that a complaint alleging recklessness under § 14-295 need only use the language " deliberately or with reckless disregard," in addition to pleading a violation of one of the predicate statutes, to state a sufficient claim. See, i.e., Wade v. Vahora, (Judicial District of Fairfield and Bridgeport No 349630, September 9, 1998, Skolnick, J.); Owens v. Dandanell, (Judicial District of Litchfield, May 13, 1997, Pickett, J.) ; and Price v. Paccar Leasing Corp, (Judicial District of New London at New London, February 9, 1997, Booth, J.).
Other superior courts have held that a party cannot sustain a claim under § 14-295 by merely appending the words " deliberate" or " reckless" to the same facts that support the negligence count along with one or more of the predicate statutory violations. Hollis v. VanNesse, Superior Court, Judicial District of New Britain, No. HHB-CV-13-6022372-S (February 11, 2014, Gleeson, J.); Capsella v. Laudano, Superior Court, Judicial District of New Haven, No. 05-5005856 (November 7, 2007, Holden, J.) Baldwin v. Blast All, Inc., Superior Court, Judicial District of Ansonia-Milford at Derby, No. 04-4000540 (October 8, 2004, Lager, J.).
The decisions in the second group generally adhere to the appellate authority which dictates that one " cannot transform a negligence count into a count for willful and wanton misconduct merely by appending a string of adjectives to allegation that clearly sound in negligence." See Brown v. Branford, 12 Conn.App. 106, 110, 529 A.2d 743 (1987) (citing Kostiuk v. Queally, 159 Conn. 91, 94, 267 A.2d 452 (1970); Dumond v. Denehy, 145 Conn. 88, 90-91, 139 A.2d 58 (1958) ).
Connecticut General Statutes § 14-295 provides in pertinent part:
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 ...
Emphasis added.
In analyzing § 14-295, the court must consider the words of the court in State v. Ledbetter, 240 Conn. 317, 327, 692 A.2d 713 (1997):
[I]t is axiomatic that the process of statutory interpretation involves a reasoned search for the intention of the legislature ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common-law principles governing the same general subject matter ... Izzo v. Meriden-Wallingford Hospital, 237 Conn. 259, 266, 676 A.2d 857 (1996). (Internal quotation marks omitted.) Stratford v. State Board of Mediation & Arbitration, 239 Conn. 32, 40-41, 681 A.2d 281 (1996).
In Bishop v. Kelly, 206 Conn. 608, 614, 539 A.2d 108 (1988), the court traced § 14-295 and its predecessor statutes back to 1909. The statute analyzed by the court in Bishop was a predecessor of the current § 14-295 which did not include the language " deliberately or with reckless disregard." The court concluded that even without that language the statute incorporated common law which required reckless, deliberate conduct before double or treble damages could be awarded.
The Legislature cannot change pleading requirements set forth in Practice Book § 10-1 and there is no indication that it intended to change pleading requirements when it added the words " deliberately or with reckless disregard" to 14-295. It appears from the legislative history of § 14-295 that the amendment to the statute in 1988, which added those words, was done with an eye to incorporating longstanding common law under which punitive damages were awarded only where conduct of the defendant rose above " ordinary" negligence. See comments of Representative Levin, 31 H.R. Proc., Pt2, 1988 Sess. p. 3688.
This court does not hold that the same factual allegations cannot support a claim for negligence and a claim for recklessness. For example, if a complaint alleged that the defendant’s vehicle struck the rear of the plaintiff’s vehicle while traveling more than 20 miles per hour over the posted speed limit, or after driving on the sidewalk for 50 yards and striking 3 other vehicles, those factual allegations could support a cause of action for negligence and one for recklessness.
In this case, however, the factual allegations underlying the Second and Third Counts do not specifically describe reckless conduct and the plaintiff has added no facts in those counts which do rise to that level. They allege that the plaintiff took her eyes off the road, but fail to allege any time period. An allegation that a driver momentarily takes her eyes off the road to look at the floor of her vehicle alleges nothing more than negligent conduct, regardless of how many pejorative adjectives are used to describe such conduct. Therefore, the motion to strike Counts Two and Three of the complaint is granted.