Opinion
No. MMX-CV-08-5003942-S
April 20, 2009
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE (#118)
This memorandum of decision addresses the issues raised though the defendant's Motion to Strike the second though eighth counts of the plaintiff's amended complaint (#118); her Supporting Memorandum of Law (#118.25); the plaintiff's Objection to Motion to Strike (#127); and his supporting memorandum (#127.75). The issues concern the viability of the plaintiff's claims seeking damages for injuries and losses he allegedly sustained when he saw the defendant struck his pet dog, Shadow, with her motor vehicle, causing Shadow to suffer internal organ damage, a severed spinal column, and death. The court has previously denied the defendant's pending motion to strike the second and fourth counts of the amended complaint. For the following reasons the court now denies the remaining aspects of the motion to strike relating to the third, fifth, sixth, seventh and eighth counts of the amended and revised complaint.
I CONSTRUCTION OF THE COMPLAINT
The self-represented plaintiff asserted several causes of action in the Amended and Revised Complaint at issue, which was filed on August 21, 2008 (#116). The first count alleges that the defendant is liable for damage to the plaintiff's personal property, namely, his pet; the second count alleges that the defendant's negligent actions caused his injuries and losses; the third count alleges that the defendant is liable to the plaintiff for negligent infliction of bystander emotional distress; the fourth count alleges the defendant's per se negligence under General Statutes § 14-218a for traveling unreasonably fast; the fifth count alleges the defendant's per se negligence under General Statutes § 14-224(b) for evasion of responsibility in operation of a motor vehicle and § 14-226 for failure to report injury to a dog; the sixth count alleges that the defendant is liable for intentional infliction of emotional distress upon the bystanding plaintiff; the seventh count alleges that the defendant is liable for the violation of General Statutes § 22-351 for the unlawful killing or injuring of an animal companion; and the eighth count again alleges the defendant's per se negligence under § 14-224(b) for evasion of responsibility in operation of a motor vehicle.
The court has adhered to the applicable principles of law in resolving the issues related to the motion to strike. "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). It is axiomatic that in ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). In weighing the merits of the motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006); see also Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "Where the legal grounds for . . . a motion [to strike] are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).
In construing the complaint, the court has remained mindful that "`[i]t is the established policy of the Connecticut courts to be solicitous of pro se litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the pro se party . . . [T]he right of self-representation [however] provides no attendant license not to comply with relevant rules of procedural and substantive law.' (Internal quotation marks omitted.) State v. Van Eck, 69 Conn.App. 482, 493, 795 A.2d 582, cert. denied, 260 Conn. 937, 802 A.2d 92, cert. denied, 261 Conn. 915, 806 A.2d 1057 (2002)." Rowe v. Goulet, 89 Conn.App. 836, 841-42, 875 A.2d 564 (2005).
II MOTION TO STRIKE THE THIRD COUNT
As noted, the third count of the amended complaint, fairly read, sounds generally in negligent infliction of bystander emotional distress. The defendant argues that this claims presented in the third count are legally insufficient because "[u]nder Connecticut law, plaintiff cannot recover for a claim of emotional distress due to the injury to personal property, i.e. his pet dog." (#118.25.) The defendant cites Myers v. Hartford, 84 Conn.App. 395, 402, [ 853 A.2d 621] cert. denied, 271 Conn. 927 [, 859 A.2d 582] (2004) as her basis for moving to strike this count, submitting that case for the proposition that "[i]n Connecticut, `common law has never recognized a right to sue an individual for intentional or negligent infliction of emotional distress resulting from injury to such property as a pet.'" (118.25.) The court declines to adopt the defendant's proposed narrow application of Myers and, accordingly, finds this issue in favor of the plaintiff.
Construing the amended and revised complaint in the manner most favorable to sustaining its legal sufficiency, pursuant to the standards described in Part II, the court concludes that the third count alleges the essential facts requisite to the plaintiff's claim that, as a bystander to the motor vehicle incident at issue, he suffered emotional distress for which the trier of fact may find the defendant to be legally liable. The third count asserts: that the plaintiff and the defendant lived on different ends of two contiguous streets in a residential area of Essex; that the plaintiff observed the defendant traveling in her motor vehicle at an unreasonable rate of speed down the street toward his house; that he observed the defendant swerve to avoid a child walking another dog on the street; he observed her motor vehicle strike his dog; that the impact of the defendant's vehicle with his dog caused a loud thud which was heard by the plaintiff; that the impact propelled the plaintiff's pet down the roadway; that the plaintiff personally observed the injuries being inflicted upon his pet; that the injury to the plaintiff's pet was substantial, and resulted in the pet's death; and that this experience caused the plaintiff to be in shock, horror, and dismay, suffering serious, or severe, emotional injury.
The third count's claim of negligent infliction of bystander emotional distress is clearly based upon the plaintiff's relationship with his pet dog Shadow, not with a human being. As such, the defendant argues, the third count is barred by the principles set forth in Myers v. Hartford, supra, and also because the dog is merely personal property within the meaning of General Statutes § 22-350. The defendant would have the court read Myers as prohibiting in all circumstances a plaintiff's right to recovery for infliction of emotional distress resulting from injury to a pet, whether caused by negligent or intentional conduct. This court does not agree, however, that the rule of Myers precludes a claim for negligent or intentional infliction of emotional distress suffered by a bystander, as this injury supports a claim which is separate and distinct claim from intentional or negligent infliction of emotional distress that arises from a event or experience that the plaintiff has not observed.
General Statutes § 22-350 provides, in pertinent part: "All dogs are deemed to be personal property. License fees paid under the provisions of this chapter shall be in lieu of any tax on any dog." Paragraph 6 of the First Count of the amended complaint, incorporated into other counts, alleges that the plaintiff's dog was "properly . . . licensed, with fees paid . . ." at the time of the incident in question.
The significance of this distinction is made clear by reviewing the facts of Myers and the principles of bystander emotional distress enunciated in Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996). In Myers, the plaintiff brought a cause of action for negligent and intentional infliction of emotional distress against the city of Hartford alleging that city animal control employees mistakenly euthanized her pet dog. The plaintiff did not allege that she was a witness or bystander to the euthanasia procedure, nor that she was in the immediate vicinity of the event when it occurred. She appealed after the trial court had granted a directed verdict, upon "ruling that the defendants were protected by qualified municipal immunity." Myers v. Hartford, supra, 84 Conn.App. 397. The Appellate Court concluded that the plaintiff's claim had to fail on other grounds. Id., 398. Among other things, Myers determined that "by pleading only claims for intentional and negligent infliction of emotional distress, the plaintiff has not set forth a colorable common-law claim against the defendant employees, and the municipality cannot be held liable for indemnification." Id., 402.
Factually, then, Myers did not present a claim that the plaintiff had witnessed the circumstances or events that caused her pet's death; the plaintiff had not alleged that she was a bystander to the euthanasia. Denying the plaintiff's appeal under these specific factual circumstances and in the context of her governmental liability claims, the Myers court further observed that Connecticut's "common law has never recognized a right to sue an individual for intentional or negligent infliction of emotional distress resulting from injury to such property as a pet." Id. Relevant to other factual scenarios, such as the present case, however, the Myers opinion further reminded us that "claims for infliction of emotional distress are unavailable [in many close relationships] . . . except when the bereaved is a bystander." (Emphasis added.) Id., 403. In addition, citing Clohessy v. Bachelor, supra, 237 Conn. 50, the Appellate Court limited its ruling by stating that " when the plaintiff has not witnessed the fatal injury, it would be incongruous to extend [recovery] to emotional distress resulting to a person from the loss of a pet." Myers v. Hartford, supra, 84 Conn.App. 403.
Notwithstanding the conclusion required by the pleadings and posture of that case on appeal, the Myers court expressly acknowledged the status of the emotional relationship a person may have with his or her pet. The Appellate Court stated that "[l]abeling a pet as property fails to describe the emotional value human beings place on companionship that they enjoy with such an animal. Although dogs are considered property; see General Statutes § 22-350; this term inadequately and inaccurately describes the relationship between an individual and his or her pet." (Emphasis added.) Myers v. Hartford, supra, 84 Conn.App. 402. While precluding a general cause of action for intentional or negligent infliction of emotional distress by a municipal agent due to an unwitnessed death of a pet, the Appellate Court clearly recognizes the intrinsic value of the emotional attachment between a pet-owner and his or her living, breathing animal. Thus, Myers did not expressly foreclose a claim of severe emotional distress suffered by a bystanding owner who witnesses the fatal injury to a pet.
In the third count of the complaint under consideration, the plaintiff has alleged not only negligent infliction of emotional distress but also that he incurred the distress as a bystander who had observed the incident in question. Accordingly, the court has considered the implications of Clohessy v. Bachelor, supra, to determine the sufficiency of relevant bystander emotional distress claims. In Clohessy, the Supreme Court opinion explained: "[A] bystander may recover damages for emotional distress under the rule of reasonable foreseeability if the bystander satisfies the following conditions: (1) he or she is closely related to the injury victim, such as the parent or the sibling of the victim; (2) the emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter and before substantial change has occurred in the victim's condition or location; (3) the injury of the victim must be substantial, resulting in his or her death or serious physical injury; and (4) the bystander's emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response." (Emphasis added.) Id., 56.
In the present matter, although the plaintiff makes no claim that his Shadow was his "parent or sibling" insofar as the first Clohessy element is concerned, the complaint impels the inference that he had a close relationship with his pet. In reaching this conclusion, the court has acknowledged that it is useful to consider the Supreme Court's explanation of this element insofar as bystander emotional distress is concerned: "The class of potential plaintiffs should be limited to those who because of their relationship suffer the greatest emotional distress . . . We leave to another day the question of what other relationships may qualify." (Internal quotation marks omitted.) Id., 52. Fulfilling the remainder of the Clohessy bystander emotional distress elements, Paragraph 13 of the third count expressly claims that the plaintiff "was a bystander to the events and circumstances" that led to the dog's death. Paragraph 15 of this count additionally alleges, in part, that "[t]he Plaintiff saw Defendant hurtling down the street at an unreasonable speed, saw the defendant come upon the section of street before his house, swerve to avoid a child walking another dog upon the street, and strike Plaintiff's dog, the pet Companion animal SHADOW." (Emphasis in the original.)
Thus far, our state has not published any appellate authority or legislation prohibiting a litigant's pursuit of a claim for bystander emotional distress which may be suffered by a human being who witnesses the death or injury of a pet, such as Shadow, with whom he or she has a close relationship. On the other hand, in 2007, subsequent to the publication Myers v. Hartford, our legislature took action which expressly emblematized the intrinsic value of "the relationship between an individual and his or her pet" and the role such pets may play within our contemporary family units. Myers v. Hartford, supra, 84 Conn.App. 402-03. Through the "Act Concerning the Protection of Pets in Domestic Violence Cases," the legislature explicitly empowered judges of the Superior Court to issue family protective orders with provisions "necessary to protect any animal owned or kept by the victim including, but not limited to, an order enjoining the defendant from injuring or threatening to injure such animal." (Emphasis added.) Public Acts 2007, No. 07-78, § 1, now codified at General Statutes § 46b-15(b). The only other family relationship for which judges are explicitly empowered to provide protection pursuant to this statute, other than "any animal owned or kept by the applicant" is that of the applicant's dependent children, although relief under § 46b-15(b) may be extended to "other persons as the court sees fit." Id. Thus, while our statutory scheme still classifies domestic dogs, such as Shadow, as property, within the meaning of § 22-350, the legislature has clearly recognized, as did the Appellate court in Myers, that "this term inadequately and inaccurately describes person's emotional attachment to . . . a household pet." Myers v. Hartford, supra, 84 Conn.App. 402-03. Accordingly, the legislature has also acknowledged that a household pet such as Shadow holds with a distinct, identifiable and legally protected place within the human family unit.
Moreover, the legislative history of P.A. 07-78 demonstrates the concern of the legislature that domestic violence victims would not leave their abusers because they felt so strongly about the relationship they held with their pets. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 10, 2007 Sess., p. 3305 ("I think the bill represents an awareness that we are increasingly receiving that the welfare of pets has a great effect on the behavior and in fact, the welfare of humans. Katrina was a good illustration. There were people who did not accept evacuation if some beloved animal had to be left behind. People who were in refugee centers were slower to recover and had a more miserable experience because of the fact that their pets were not with them").
Viewed in the light of this modern legislation, the third count, as pleaded cannot be deemed to have presented an insufficient cause of action merely because it alleges the plaintiff's bystander emotional distress for the injury and death of a pet instead of a human being. Through § 46b-15(b), our state has effectively ratified the Myers language acknowledging that a pet owner places a great deal of emotional attachment on his relationship with his family pet. Therefore, the pet owner holds the status of a foreseeable victim of bystander emotional distress. In the absence of specific authority denying the plaintiff the opportunity to pursue a claim for negligent infliction of bystander emotional distress due to the loss of his legislatively-sanctioned relationship with Shadow, the defendant's motion to strike count three must be denied.
This court is aware of that the trial courts have not agreed whether close relationships such as those of fiancées are sufficient to satisfy the "closely related" element of bystander emotional distress as contemplated by Clohessy v. Bachelor, 237 Conn. 31, 56, 675 A.2d 852 (1996). See, e.g., Yovino v. Big Bubba's BBQ, LLC, 49 Conn.Sup. 555, 896 A.2d 161 (2006) (relationship between an engaged couple is sufficient to support a claim for bystander emotional distress); Biercevicz v. Liberty Mutual Ins. Co., 49 Conn.Sup. 175, 865 A.2d 1267 (2004) [ 38 Conn. L. Rptr. 323] (claim for bystander emotional distress does not extend to a claim made by decedent's fiancée). The court notes that both of the cited trial court decisions predate the implementation of P.A. 07-78 § 1 and its significant expansion of the scope of protection to be provided, in family matters, under General Statute § 46b-15(b).
III MOTION TO STRIKE THE SIXTH COUNT
The defendant has moved to strike the sixth count of the amended and revised complaint for the same reasons stated in opposition to the third count. (#118.25.) Finding the rule of Myers v. Hartford to be inapposite due to factual distinctions, as described in Part II, the court finds this issue in favor of the plaintiff, who has, at least in part, based his allegations upon his status as a bystander to the incident.
The issue of whether the plaintiff's allegations rise to the level of intentional conduct has not been raised by the defendant as a ground for striking this motion, and therefore is not a ground this court can properly consider at this stage of the proceedings. See Part II C, citing Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001) and Cyr v. Brookfield, 153 Conn. 261, 263 216 A.2d 198 (1965).
The sixth count reasserts the allegations of the third count which sound in bystander emotional distress suffered by the plaintiff upon witnessing the death of his dog. Paragraph 29 of the sixth count summarily asserts that the defendant is liable to the plaintiff for "intentional infliction of emotional distress ostensibly in the context of the plaintiff's presence at the time of the occurrence, and his observation of the fatal injuries sustained by his pet. Numerous paragraphs of the sixth count assert the following additional facts as being representative of consciously undertaken, intentional conduct on the part of the defendant: there were two traffic control signals, one marked "Slow-Children" and the second marked "Speed Limit — 25" affixed to a post three houses before the plaintiff's house; the defendant operated her motor vehicle in excess of forty-five miles per hour in this area; the defendant knew that children and dogs were generally to be found on the roadway, which had no sidewalks; at the point where the plaintiff's pet dog was struck, a pedestrian walking another dog was on the immediate roadway; despite this knowledge the defendant operated her motor vehicle at an excessive rate of speed, without keeping a proper lookout for children, dogs, and possible danger. Construing these allegations of the self-represented litigant's complaint in the most favorable light to sustaining its legal sufficiency, the foregoing paragraphs may be read as presenting a cause of action sounding in bystander emotional distress based on what may be characterized as the conscious misconduct or intentional malfeasance of the defendant, leading to the fatal injury of the dog, Shadow, while the plaintiff was a bystander to the incident.
In part, the remainder of the sixth count incorporates allegations of the second count which sound in negligence; of the third count which sounds in negligent infliction of bystander emotional distress; and of the fourth and fifth counts which sound in statutory and general negligence. Separately, however, in Paragraph 28 of the sixth count, the plaintiff offers other grounds upon which he would have the defendant found liable. He states: "in the alternative, the defendant: (a) knew or should have known that emotional distress was a likely result for her conduct; (b) the conduct as described was extreme and outrageous; (c) the defendant's conduct was the proximate cause of the plaintiff's distress; (d) the emotional distress suffered by the plaintiff was severe." These assertions appear to promote the bare elements of a claim for the intentional infliction of emotional distress as contemplated by Tracy v. New Milford Public Schools, 101 Conn.App. 560, 568, 992 A.2d 280 cert. denied, 284 Conn. 910, 931 A.2d 935 (2007). Construing the complaint in the light most favorable to sustaining its legal sufficiency, as it is required to do at this stage of the proceedings, the court is constrained to conclude that the plaintiff has raised two separate causes of action in the sixth count.
Thus, Paragraph 28 of the sixth count sets forth bare allegations of intentional infliction of emotional distress for harm done to a pet under circumstances without express assertion of the plaintiff's bystander status. The court agrees with the defendant that Myers v. Hartford, supra, bars a claim for intentional infliction of emotional distress resulting from the death of a pet, except where the plaintiff is a bystander. This bar to the alternative allegations of Paragraph 28 in the sixth count, however, does not give the court license to strike the entire count. As has been cogently expressed by other trial courts, "Practice Book [§ 10-39] authorizes the striking of a whole complaint or a count thereof . . . [but] does not authorize striking portions of a count." (Emphasis added.) Osberg v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 08 5021879 (February 11, 2009, Holden, J.); Day v. Yale University School of Drama, Superior Court, judicial district of New Haven, Docket No. CV 97 0400876 (March 7, 2000, Licari, J.) ( 26 Conn. L. Rptr. 634, 638). Accordingly, the motion to strike the sixth count must be denied.
In reaching this conclusion, the court recognizes the trial court decisions which have permitted the striking of particular paragraphs within a single count. However, such rulings seem to be issued only in response to a movant's specific request, which implies notice to the adversary and an opportunity for argument in objection to such action. See, e.g., Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, Docket No. CV 06 5007079 (May 21, 2007, Tanzer, J.) [ 43 Conn. L. Rptr. 458]; St. Amand v. Kromish, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 95 051663 (February 18, 1999, Corradino, J.) [ 24 Conn. L. Rptr. 103]; Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) [ 17 Conn. L. Rptr. 296]. In the present case, this remedy is inapposite, as the plaintiff has not specifically requested that Paragraph 28 be stricken from the sixth count, but has attacked that count in its entirety. Accordingly, in the absence of notice to the plaintiff, the court declines to strike a portion of the sixth count.
IV MOTION TO STRIKE THE SECOND, FOURTH, FIFTH, SEVENTH AND EIGHTH COUNTS
The defendant also argues that the all but the first count of the amended complaint should be stricken because the plaintiff "ultimately has one cause of action for which he may recover based on the facts alleged" that is his claim for property to his dog, Shadow, alone. (#118.25.) The defendant bases this aspect of her motion upon the proposition that General Statutes § 22-350 provides the only relief available to a dog owner under the circumstances of this case. Id. Therefore, the defendant argues that any allegations other than those contained in the first count set forth "unnecessary and irrelevant facts" for which the plaintiff cannot lawfully recover. (#118.25.) The court finds this argument to be unpersuasive and, accordingly, finds these remaining issues in favor of the plaintiff.
As noted, the court has previously denied the defendant's motion to strike the second and fourth counts of the amended complaint. As noted in Part II of this memorandum of decision, the court has denied the defendant's motion to strike the third count of the amended complaint; in Part III, the court has denied the motion to strike the sixth count. Insofar as the defendant's arguments remain applicable to the fifth, seventh and eighth counts of the amended complaint, her concerns with irrelevant, repetitious or unnecessary factual allegations in these counts are properly addressed not by a motion to strike, but through a request to revise. "[A] motion to strike is not the proper vehicle for elimination of irrelevant, immaterial or otherwise improper allegations. The proper vehicle would be a request to revise." (Internal quotation marks omitted.) Sabatasso v. Bruno, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4003811 (March 17, 2006, Wiese, J.), citing Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988); Regal Steel, Inc. v. Farmington Ready Mix, Inc., 36 Conn.Sup. 137, 140, 414 A.2d 816 (1980). The court declines, then, to grant this last aspect of the defendant's motion to strike. Furthermore, the defendant's memorandum cites broad principles of the law regarding the calculation of damages as a reason for striking the fifth, seventh, and eighth counts of the amended and revised complaint, although she has not moved to strike the plaintiff's prayer for relief. It is the prayer for relief, however, which, unlike the amended complaint itself, makes specific reference to a claim for, among other things, "exemplary damages and punitive damages . . ." (#116.) See Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998) (claim for relief may be stricken where the relief sought could not be legally awarded). For example, the defendant's memorandum submits that a "plaintiff may receive exemplary damages if the defendant causes the injury to the property wantonly or maliciously." (Internal quotation marks omitted; external citation omitted.) (#118.25.) The memorandum further submits that the "Plaintiff fails to allege that the acts of the defendant are wanton or malicious, therefore, [the] plaintiff is not entitled to exemplary damages." (#118.25.) These assertions thus focus upon the lack of access to a particular measure of monetary damages, rather than the legal insufficiency of the plaintiff's claims as set forth in the fifth, seventh and/or eighth counts. Through this argument, then, the defendant has presented insufficient basis for granting her motion to strike as to any particular cause of action as set out in the separate counts of the plaintiff's complaint. Accordingly, this aspect of the defendant's argument fails to support her motion to strike the fifth, seventh and eighth counts of the amended complaint.
As a result, this court is left with the bald assertion contained in the defendant's memorandum that the fifth, seventh and eighth counts should be stricken because the plaintiff "ultimately has one cause of action for which he may recover based on the facts alleged," because "General Statutes § 22-350 states `all dogs are deemed to be personal property.'" (#118.25.) The court is constrained from considering grounds for striking the self-represented litigant's complaint, other than those arguments raised by the moving defendant. Generally, "grounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001); see also Cyr v. Brookfield, 153 Conn. 261, 263 216 A.2d 198 (1965) (court could not, in passing on the demurrer, consider grounds other than those specified).
In Gazo v. Stamford, the Supreme Court acknowledged that "[although grounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . . where the trial court sustains a motion to strike on erroneous grounds, if another ground is appropriate, the granting of the motion will be upheld. Gazo v. Stamford, supra, 255 Conn. 259. Such other ground must have been brought before the court before it could have been considered, however, as Gazo further limits this opportunity by expressly noting "[o]n course, the alternative ground must have been alleged in the motion to strike in some form." Id., citing Morris v. The Hartford Courant Co., 200 Conn. 676, 682, 513 A.2d 66 (1986).
In Morris, the Supreme Court considered the effect of a court's ruling which granted a motion to strike that, on its face, had failed to distinctly specify the reason for the claimed insufficiency in the complaint. The plaintiff had failed to object to this clearly fatal defect in the motion to strike. Morris v. The Hartford Courant, supra, 200 Conn. 683, n. 5. The Supreme Court sustained the trial court's ruling based on one of the grounds raised by the defendant in the memorandum of law which accompanied its motion to strike; this was not the ground relied upon by the trial court in its decision to grant the motion. Id., 684. Morris notes that the ground upon which the Supreme Court relied "was raised in the defendant's memorandum of law in support of a motion to strike the earlier amended complaint [which was expressly incorporated by reference into the memorandum of law in support of the motion to strike the revised substitute complaint] . . . The trial court was, therefore, apprised of the alternative argument and the plaintiff, by virtue of the attached prior pleading, should have been well aware of the claim." Id., 683 n. 6. Moreover, the court stated: "Despite the fact that the defendant failed to assert a distinct basis for the legal insufficiency of the complaint in its motion to strike, we see no injustice to the plaintiff here, because its inclusion in the supporting memorandum of law provided adequate and sufficient notice to the plaintiff of a potential inadequacy in his complaint . . ." (Emphasis added.) Id., 684. As in Morris, the plaintiff in the present matter has notice only of the defendant's proposed grounds for striking the fifth, seventh and eighth counts of the amended and revised complaint as set forth in the motion to strike and its memorandum. (#118, #118.25.) If this court were to rule on the motion to strike the fifth, seventh and/or eighth counts on any grounds other than those raised by the defendant, it would result in an injustice to the self-represented plaintiff because he has had no notice of any other alleged inadequacies in his complaint. Accordingly the motion to strike the fifth, seventh and eighth counts is denied.
In reaching this determination, the court acknowledges that the defendant has not stated with specificity the basis for any claimed legal insufficiency with regard to the statutory foundation upon which of the fifth, seventh or eighth counts are based. Generally, "Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . ." (Internal quotation marks omitted.) Stuart v. Freiberg, 109 Conn.App. 857, 861, 927 A.2d 343 (2007).
IV CONCLUSION
For the foregoing reasons, the defendant's motion to strike (#118) is DENIED.