Opinion
HHDCV156060624S
12-14-2015
Dannie Sears v. Cherri Shanika Brooks et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE
Cesar A. Noble, J.
The motion to strike that brings this motor vehicle matter before the court involves a familiar dispute, whether pleadings are sufficient to state a claim for recklessness and trigger the double or treble damages recoverable under General Statutes § 14-295. This court concurs with the position taken by other judges of the Superior Court that allegations sufficient to apprise a defendant of the nature of the claim presented satisfies Connecticut's fact pleading obligation and that a claim under § 14-295 requires only pleading the three elements detailed by that statute.
I
Facts and Procedural History
The plaintiff's complaint alleges that her decedent died as a consequence of a motor vehicle accident in which the vehicle she was operating was struck by a motor vehicle operated by the defendant. The complaint further alleges that the defendant was intoxicated at the time she struck the plaintiff's decedent's vehicle. The defendant moved to strike the second and third paragraphs of the plaintiff's complaint which allege common-law recklessness and liability under § 14-295, respectively. The basis for the motion to strike is the assertion that the counts fail to sufficiently allege facts to support claims for common-law and statutory recklessness.
The complaint names Cherri Shanika Brooks and the Metropolitan Property and Casualty Insurance Company as defendants. The motion to strike was filed by the individual defendant and does not affect the claim presented as to the latter seeking underinsured motorist benefits. Ms. Brooks will be referred to as the defendant in this memorandum.
The plaintiff's complaint, as directed to the defendant, is in three counts with the first sounding in negligence, the second in common-law recklessness, and the third alleging violations of certain motor vehicle statutes which trigger the operation of § 14-295. The first count contains a number of common-law negligence claims and four statutory violations including failure to operate a reasonable distance apart in violation of § 14-240; operating a vehicle with inadequate brakes, thus violating § 14-80; operating a vehicle unreasonably fast and/or while speeding in violation of § § 14-218a and 14-219; and operating a motor vehicle while under the influence of drugs or alcohol in violation of § 14-227a.
The second count, entitled " Common-Law Recklessness, " alleges that the collision and the plaintiff's injuries were caused by the reckless misconduct of the defendant in certain enumerated sub-paragraphs, which are largely verbatim restatements of the statutory allegations contained in the first count with an additional claimed violation of § 53a-63 by virtue of recklessly engaging in conduct which created a risk of serious physical injury to another person. This count also alleges common-law reckless conduct in that the plaintiff is claimed to have traveled excessively fast when she knew or should have known that by doing so she engaged in conduct which threatened the life, limb, and property of other motorists and pedestrians.
The third count, entitled " Damages under Connecticut General Statutes § 14-295, " claims that the defendant " deliberately or with reckless disregard operated her vehicle within the meaning of § 14-295." It realleges verbatim the claimed violations of § § 14-227a, 14-218a, and 14-219, which appear in the first count claiming negligence and adds an additional allegation that the defendant operated her vehicle recklessly in violation of § 14-222.
The defendant correctly observes in her motion that for conduct to rise to the level of recklessness it must involve, as has variously been described, a conscious disregard of a high risk; Brock v. Waldron, 127 Conn. 79, 83-84, 14 A.2d 713 (1940); highly unreasonable conduct which involves an extreme departure from ordinary care where danger is apparent; Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988); and more than mere negligence or gross negligence; Craig v. Driscoll, 262 Conn. 312, 342, 813 A.2d 1003 (2003). The defendant argues that the plaintiff's complaint, specifically the second and third counts, are written with insufficient facts from which a conscious disregard of a high risk may be inferred and are thus subject to being stricken.
The plaintiff counters that the second count did not include all of the negligence allegations and is limited to only those from which reckless conduct may properly be inferred. Finally, she claims that the third count squarely meets the minimum requirements delineated in § 14-295. The court agrees.
II
STANDARD
" A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . ." Practice Book § 10-39(a). " 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.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
III
DISCUSSION
A. Common-Law Recklessness
Practice Book § 10-1 clearly establishes that Connecticut adheres to the rule of fact pleading. " Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . ." Practice Book § 10-1. " Pleadings have an essential purpose in the judicial process . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried . . ." (Internal quotation marks omitted.) Somers v. Chan, 110 Conn.App. 511, 528, 955 A.2d 667 (2008).
This court's decision regarding the sufficiency of the pleadings in the second count is informed by the " essential purpose" of pleadings. The pleadings must articulate sufficiently the nature and factual predicate of a claim such that an opponent is fairly alerted to the claim from which a defense is necessary. Where a pleading does not work a surprise upon an opponent it may be said to have sufficiently pleaded the facts upon which the pleader relies. The defendant's articulation in her motion of what constitutes recklessness and how it differs from negligence is accurate, but confirms that the defendant is indeed aware that a reckless claim is presented against her.
Fifty-seven years ago in Dumond v. Denehy, 145 Conn. 88, 139 A.2d 58 (1958), our Supreme Court stated the often repeated proposition that where a party seeks to plead a reckless claim, " [s]imply using the word 'reckless' or 'recklessness' is not enough. A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made." Dumond v. Denehy, supra, 145 Conn. 91. The Appellate Court rephrased the proposition as " [m]erely using the term 'recklessness' to describe conduct previously alleged as negligence is insufficient as a matter of law." Angiolillo v. Buckmiller, 102 Conn.App. 697, 705, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007), citing Dumond v. Denehy, supra, 145 Conn. 91.
This exact proposition has appeared in approximately 100 Superior Court decisions through August of 2015. See, e.g., Schalla v. Bove, Superior Court, judicial district of New London, Docket No. CV-12-6012695-S (August 3, 2015, Moukawsher, J.) ; Holloway v. Silberberg, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV-89-028643-S (August 22, 1990, Hartmere, J.) .
Mindful of these principles, the court notes that there are significant differences in those pleadings from which both negligence and reckless conduct may be inferred from the factual allegations; those from which only negligence may be inferred, and those which claim recklessness but are devoid of any factual allegations. " Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted." Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003). " [T]here are cases that permit a count of negligence to be incorporated by reference into a reckless count with sufficient specificity to withstand a challenge as to the allegations of recklessness by adding the word deliberate and/or reckless as a conclusionary . . ." (Internal quotation marks omitted.) DiTeresi v. Stamford Health System, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-06-5001340-S, (December 14, 2010, Tierney, J.), on reargument, Docket No. CV-06-5001340-S, (September 2, 2011), and aff'd sub nom., DiTeresi v. Stamford Health System, Inc., 149 Conn.App. 502, 88 A.3d 1280 (2014).
Most, but not all, of the plaintiff's allegations of recklessness in the second count fall into the first category of a pleading that contains factual allegations from which an inference of both negligence and recklessness may be had and leave little doubt as to how she is alleging that the defendant was reckless. The complaint alleges in paragraph 7 that the defendant's conduct was reckless:
a. In that she was operating her motor vehicle under the influence of intoxicating liquor and any drug or both in violation of Section 14-227a . . .
b. In that she was traveling excessively fast under the conditions then and there existing when she knew or should have known that by doing so she engaged in conduct which threatened the life, limb and property of other motorists and pedestrians;
c. In that she operated her vehicle at a rate of speed greater than was reasonable, having regard to the width, traffic and use of the highway, the intersection of streets and the weather conditions in violation of Section 14-218a . . .
d. In that she was operating a motor vehicle recklessly, having regard to the width, traffic and use of the highway, intersection of streets and the weather conditions in violation of Section 14-222 . . .
e. In that she recklessly engaged in conduct which created a risk of serious physical injury to another person in violation of Section 53a-63 . . . and
f. In that she was operating a motor vehicle at a great rate of speed in violation of Section 14-219 . . .
Sub-paragraph (a) alerts the defendant to a claim of reckless by virtue of the operation of a motor vehicle while under the influence of alcohol. To obtain recovery on a claim of recklessness, the plaintiff must prove at trial that the extent to which the defendant was under the influence of alcohol, coupled with the operation of a motor vehicle, constituted conduct which evinced a " conscious disregard of a high risk" or which was highly unreasonable involving an extreme departure from ordinary care where danger is apparent. The defendant is, regardless, on notice of the fact upon which the plaintiff asserts she was reckless, that is, the operation of a motor vehicle while under the influence of alcohol or drugs or both. Sub-paragraphs (b), (c) and (f) all allege speed as a condition, or fact, upon which the defendant's recklessness is postulated. Sub-paragraphs (a), (b), (c) and (f), then, appear to have sufficiently alleged facts which place the defendant on notice of the nature of the claim, recklessness, and its factual predicate, intoxication or speed. The motion to strike is denied as to these allegations.
Sub-paragraphs (d) and (e), however, contain no allegations of any fact other than a conclusory claim that the defendant's conduct was reckless. Because they contain no allegation setting out the conduct that is claimed to be reckless they are stricken. See Dumond v. Denehy, supra, 145 Conn. 91.
B. § 14-295
General Statutes § 14-295 provides in relevant 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." This is far from the first court to remark that there is a split of authority among the Superior Courts as to the pleading requirements which trigger the operation of § 14-295. See, e.g., Mascia v. Brewer, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-95-149293-S, (January 6, 1997, D'Andrea, J.). As was explained in Blanchard v. People to Places, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-15-6026010-S, (July 17, 2015, Roraback, J.), the majority view is that a pleading need only allege the three elements set out in § 14-295: (1) that the defendant acted with deliberate or reckless disregard in the operation of a motor vehicle, (2) in so doing the defendant violated one of the enumerated statutes, and (3) such violation was a substantial factor in causing the plaintiff's injuries. The minority view posits that a claim under § 14-295 should be similar to the standard for a claim under common-law recklessness.
" Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct." (Citations omitted.) Lamb v. Burns, 202 Conn. 158, 168, 520 A.2d 190 (1987). This court finds that § 14-295 clearly and unambiguously sets the minimum threshold for pleading a cause which triggers the doubling or trebling provisions of § 14-295 and adopts the majority view.
The plaintiff has alleged the defendant operated a motor vehicle deliberately or with reckless disregard in four ways, all of which are violations of one of the statutes enumerated in § 14-295 and has further alleged that one or more of the violations were a substantial factor in causing the plaintiff's decedent's injuries and death. The defendant's motion to strike count three is therefore denied.