Opinion
No. CV 03 0196389
August 30, 2004
MEMORANDUM OF DECISION
Presently before the court is defendants' L. Thomas Block and Jody Block's motion (#114) to strike the third count of the second revised complaint by the plaintiff, Carolyn S. Wiener, Executrix of the Estate of Ruth T. Seely, deceased, and the corresponding prayer for relief requesting punitive damages. Count three incorporates all the allegations in count two which sounds in negligence, and further alleges that the defendants acted with intentional or reckless and wanton disregard of the rights of the plaintiff's decedent when they authorized the cutting down and removal of several trees located on the plaintiff's decedent's property (the "Seeley Property"). In their motion to strike, the defendants contend that merely repeating the allegations of the negligence count and adding the words intentional and reckless fails to allege facts sufficient to support a claim of recklessness. The plaintiff argues that the complaint alleges facts that go beyond negligence. Specifically, the plaintiff alleges that the defendants knew of and intentionally disregarded the ownership of the trees and location of the property line. The plaintiff also claims that the present motion to strike should be denied pursuant to the law of the case doctrine because a virtually identical motion to strike filed by defendant Shady Tree, Inc. was recently denied.
Shady Tree, Inc. is also named as a defendant, however, the motion now before the court is brought by defendants L. Thomas Block and Jody Block. Any reference to the defendants is solely to L. Thomas Block and Jody Block, unless otherwise indicated.
Pleading #112, a motion to strike count four of the second revised complaint filed by defendant Shady Tree, Inc., was denied by Judge Radcliffe on March 15, 2004.
"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 fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "[A motion to strike] does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Bhinder v. Sun, Co., 263 Conn. 358, 366, 819 A.2d 822 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., Id., 292.
The defendants would have this court focus on the similarity between the allegations in the counts for negligence and recklessness. In a recent decision, however, this court stated that such a similarity is not necessarily fatal to the claim of recklessness. "[W]here allegations of a count of a contested pleading support a cause of action of recklessness, the count sounding in recklessness may well be sufficient to withstand a motion to strike even though the allegations of reckless conduct are also alleged as a basis of negligent conduct in a count sounding in negligence . . . [T]here is no reason why the plaintiff, relying on the same set of facts in negligence counts, cannot set forth in separate counts, causes of action arising out of those same facts alleging recklessness . . . It is frequently urged on [the] Court that the similarity of allegations renders one cause of action (usually, of course, the recklessness one) invalid. But similarity cannot be the sole focus. To so consider would often require a plaintiff to ratchet down the negligence claim in order to render more visible the conceptual space between the counts. Focus must instead primarily rest on the recklessness . . . sufficiency of that count . . . Rather than follow a mechanistic approach . . . it seems more appropriate . . . to examine instead whether the facts that are alleged could under any set of facts admissible under the pleadings, support a conclusion of recklessness." (Internal citation omitted; internal quotation marks omitted.) Drennan v. Geist, Superior Court, judicial district of Middletown, Docket No. CV 99 0089114 (January 29, 2002, Shapiro, J). See also Pickering v. Middlebrook, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0195576 (June 10, 2004, Lewis, J.T.R.). Thus, the appropriate inquiry is whether the facts alleged in count three of the second revised complaint support a conclusion of recklessness. In paragraph five of count three, the plaintiff alleges that " at the request of L. Thomas Block and Jody Block, the Defendant Shady Tree, Inc . . . entered upon the Seely property without permission or license from Mrs. Seely and thence cut down and removed several large trees from the Seely property." (Emphasis added.) Construed in the manner most favorable to sustaining its legal sufficiency, the facts alleged in count three of the second revised complaint are sufficient to support a conclusion that the defendants acted intentionally or with reckless disregard for the rights of the plaintiff's decedent in authorizing defendant Shady Tree, Inc. to enter upon the Seely property and cut down and remove trees. The motion to strike count three of the second revised complaint is, therefore, denied.
"Practice Book . . . § 10-39 . . . allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998). "As a general matter, [p]unitive damages, applying the rule in this state as to torts, are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Internal quotation marks omitted.) Dunn v. Leepson, 79 Conn.App. 366, 371, 830 A.2d 325 (2003). Because the underlying claim for recklessness has not been stricken, and punitive damages may legally be awarded in claims for recklessness, the motion to strike the prayer for relief accompanying count three of the second revised complaint is denied.
In conclusion, the motion to strike count three of the second revised complaint and the corresponding prayer for relief is denied.
So Ordered.
William B. Lewis, Judge