Opinion
CV186019638S
01-22-2019
Diane ZUKOWSKI v. Nicole E. CUNNINGHAM et al.
UNPUBLISHED OPINION
Shaban, J.
PROCEDURAL HISTORY AND FACTS
On August 22, 2018, the plaintiff, Diane Zukowski filed a four-count complaint as to the defendants, Nicole E. Cunningham and Keith F. Cunningham. Counts one and two allege negligence against Nicole E. Cunningham and Keith F. Cunningham, respectively. Counts three and four allege statutory negligence and common-law recklessness, respectively, against Nicole E. Cunningham. More particularly, the complaint alleges that on November 25, 2016, the plaintiff was operating a motor vehicle on Route 63 in Litchfield, Connecticut traveling in a southerly direction near Deming Road. At that location and time, Nicole E. Cunningham was operating a motor vehicle owned by Keith F. Cunningham in a northerly direction on Route 63 when she crossed the center line of the roadway and struck the plaintiff’s motor vehicle, causing the plaintiff’s injuries.
In count three of the complaint, the plaintiff alleges statutory recklessness, pursuant to General Statutes § 14-295, against Nicole E. Cunningham because she operated her motor vehicle with reckless disregard in violation of General Statutes §§ 14-218a, 14-222, and 14-230(a), and such violations were a substantial factor in causing her injuries, losses and damages. In paragraph 2 of the prayer for relief, the plaintiff seeks double or treble damages pursuant to § 14-295. In count four of the complaint, the plaintiff specifically alleges common-law recklessness against Nicole E. Cunningham, in that she exhibited highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. The plaintiff also alleges that Nicole E. Cunningham was reckless when she (a) operated her motor vehicle across the double yellow center line with a conscious awareness and reckless disregard for the safety of others, (b) recklessly failed to drive to the right of the double yellow center line despite actual knowledge it was dangerous to do so, (c) recklessly failed to observe the plaintiff’s motor vehicle on the other side of the double yellow center line, and (d) chose to operate her motor vehicle recklessly.
On August 30, 2018, the defendants filed a motion to strike counts three and four of the complaint and the related prayer for relief on the ground that the allegations in the complaint do not sufficiently allege facts that rise to the level of statutory or common-law recklessness. The motion is accompanied by a memorandum of law. The plaintiff filed a memorandum of law in opposition to the motion to strike on September 28, 2018. The matter was to be heard at short calendar on October 15, 2018, but the parties agreed that the matter could be taken on the papers.
STATEMENT OF LAW
"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 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.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "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).
ANALYSIS
A
Statutory Recklessness
The first issue is whether the plaintiff’s allegations in count three set out a claim for statutory recklessness that allow for double or treble damages pursuant to § 14-295. The defendants’ argue that count three of the complaint, alleging statutory recklessness, should be stricken because the plaintiff does not allege facts sufficient to rise to the level of recklessness beyond negligent conduct and, therefore, paragraph 2 in the prayer for relief should also be stricken from the complaint. In response, the plaintiff argues that count three sufficiently alleges the statutory recklessness requirements because the plaintiff states that Nicole E. Cunningham operated a motor vehicle recklessly, pursuant to three specifically enumerated statutes under § 14-295, and the reckless conduct was a substantial factor in causing the plaintiff’s losses and damages.
Though not cited within the text of the allegations, the plaintiff did parenthetically reference General Statutes § 14-295 as part of her heading to count three. She also referenced it in her prayer for relief. In that pleadings are to be read broadly and realistically, rather than narrow and technically, the court finds the reference to the statute in the context of the allegations to that count to be sufficient to read that count as one based on statutory recklessness. Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 398.
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 ... 14-222 ... section 14-230 ... and that such violation was a substantial factor in causing such injury, death or damage to property."
"There is a split of authority among trial court judges as to the specificity needed to plead a claim under General Statutes § 14-295." Burch v. Oleksak, Superior Court, judicial district of New Britain, Docket No. CV-06-0000019-S (August 8, 2006, Shaban, J.). "One line of cases, representing the minority view, holds that a plaintiff must plead the specific facts constituting recklessness, above and beyond the facts constituting mere negligence ... The majority point of view, on the other hand, is that a plaintiff, in addition to pleading facts constituting negligence, need only make the general allegations mentioned in § 14-295: that the defendant has deliberately or with reckless disregard violated one of the enumerated statutes, and that the violation was a substantial factor in causing the plaintiff’s injuries." (Citations omitted; internal quotation marks omitted.) Donahue v. Lisevick, Superior Court, judicial district of New Britain, Docket No. CV-04-4001051-S (June 27, 2005, Robinson, J.).
Courts adopting the latter view, reason that the language of § 14-295 is unambiguous and "[i]f a further delineation of facts forming the basis of the recklessness claim were necessary, then such an explicit requirement could have been set out in the statute by the legislature." Lombard v. Booth, Superior Court, judicial district of Fairfield, Docket No. CV-01-0383637-S (July 12, 2001, Stevens, J.) . "This court follows the majority view. See Burch v. Oleksak, supra, Superior Court, Docket No. CV-06-0000019-S; Kondracki v. Irrizary, Superior Court, judicial district of New Britain, Docket No. CV-05-5000324-S (November 30, 2005, Shaban, J.); Lewis v. Santiago, Superior Court, judicial district of New Britain, Docket No. CV-05-4005013-S (November 23, 2005, Shaban, J.).
In the present case, in count three of the complaint, the plaintiff alleges that Nicole E. Cunningham was reckless and her reckless conduct was a substantial factor in causing the plaintiff’s injuries. See Compl., Count three, ¶ 6. The plaintiff has met the general requirements of § 14-295 as she alleges language in her complaint that mirrors the language of § 14-295 and provides reference to specifically enumerated statutes. See Jack v. Scanlon, 4 Conn.App. 451, 454, 495 A.2d 1084, cert. dismissed, 197 Conn. 808, 499 A.2d 59 (1985) (determining damages pursuant to § 14-295 is based on violations of one of specifically enumerated statutes in § 14-295); see J.D.C. Enterprises, Inc. v. Sarjac Partners, LLC, 164 Conn.App. 508, 512-13, 137 A.3d 894, cert. denied, 321 Conn. 913, 136 A.3d 1274 (2016) ("The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically ... Although essential allegations may not be supplied by conjecture or remote implication ... the complaint must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient" [internal quotation marks omitted]). The plaintiff specifically alleges that Nicole E. Cunningham operated her motor vehicle "with reckless disregard and in violation of one or more of the following statutes and such violations were a substantial factor in causing the injuries, losses, and damages ..." Compl., Count three, ¶ 6. She references §§ 14-218a, 14-222 and 14-230(a) which are specifically enumerated in § 14-295. See Compl., Count three, ¶ 6(a)-(c). Accordingly, the motion to strike count three of the complaint and the corresponding prayer for relief pursuant to § 14-295 is denied.
B
Common-Law Recklessness
The next issue is whether count four of the complaint sets out a claim for common-law recklessness. The defendants argue that the plaintiff does not allege sufficient facts and merely alleges legal conclusions in count four of the complaint, and that it is not appropriate to simply transform a negligence claim into a recklessness claim without additional facts. In response, the plaintiff argues that count four sufficiently alleges facts that differentiate the negligent behavior alleged with the reckless behavior alleged under common-law recklessness because the plaintiff has done more than simply incorporate and repeat the same allegations from the negligence count and has pleaded more than legal conclusions.
To determine whether a complaint has stated a cause of action sounding in recklessness, the court first looks to the definition of reckless behavior. "[R]eckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ... It is at least clear ... that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003). "Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ... than that which is necessary to make his conduct negligent." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003).
"The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... Wanton misconduct is reckless misconduct ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Internal quotation marks omitted.) Id., 832-33. Recklessness is "a state of consciousness with reference to the consequences of one’s acts ... It is more than negligence, more than gross negligence." (Internal quotation marks omitted.) Id., 832. "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, supra, 262 Conn. 343. "In order to properly plead recklessness, however, the plaintiff need not allege additional distinct and unique facts from her negligence claim-both claims can rely on identical conduct, as long as the alleged conduct meets the standard for recklessness." Golett v. Young, Superior Court, judicial district of New London, Docket No. CV-13-6016366-S (September 26, 2013, Devine, J.).
"[A] brief reference to recklessness, contained within a count which otherwise is clearly limited to ordinary negligence, is [in]sufficient to raise a claim of reckless and wanton misconduct. Simply using the word reckless or recklessness is not enough." (Internal quotation marks omitted.) Matthiessen v. Dombek, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-11-6008291-S (March 23, 2012, Adams, J.T.R.). "Some additional factual allegations are necessary to alter the nature of the conduct complained of from an action for negligence to an action for wilful and wanton conduct ... If the plaintiff merely reiterates the facts from the negligence count and inserts the word reckless, a motion to strike is properly granted ... If, however, the factual allegations in the negligence count are detailed and specific enough to support a claim of recklessness, the motion to strike may be denied ... To state a claim of recklessness ... the [plaintiff] must allege facts demonstrating both egregious conduct and the requisite state of mind." (Internal quotation marks omitted.) Colangelo v. Holgerson, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-07-5004291-S (October 11, 2007, Robinson, J.).
In the present case, the plaintiff alleges that Nicole E. Cunningham was reckless and exhibited an extreme departure from ordinary care when she crossed the double yellow center line and failed to observe the plaintiff’s vehicle. The plaintiff specifically alleges that Nicole E. Cunningham: "(a) consciously decided to operate her motor vehicle across the double yellow center line of Route 63 with conscious awareness of and reckless disregard for the dangerous consequences of driving in such a manner and the safety of others; (b) recklessly failed to drive in the travel lane to the right of the double yellow center line on a heavily traveled public highway despite actual knowledge that it was highly dangerous to operate said vehicle in such a manner; (c) recklessly failed to observe the Plaintiff’s motor vehicle on the other side of the double yellow center line prior to crashing into the Plaintiff’s motor vehicle; (d) chose a course of action she knew or should have known posed a serious danger to the Plaintiff and others by operating her vehicle recklessly." Compl., Count four, ¶ 6. The plaintiff also alleges that Nicole E. Cunningham’s reckless disregard was the cause of the plaintiff’s injuries. See Compl., Count four, ¶ 7.
Count four of the complaint is legally insufficient to state a claim for common-law recklessness because, even though the language is not taken directly from the negligence count, the plaintiff merely adds certain "key" words (e.g., "recklessly") to the count to try to convert negligent actions into reckless actions. The factual allegations in the negligence count are insufficient to support a separate count based on recklessness. The plaintiff has not added any supporting facts that demonstrate that Nicole E. Cunningham engaged in highly unreasonable conduct involving an extreme departure from ordinary care in a situation where a high degree of danger is apparent. She has instead only alleged legal conclusions of the same. See Compl., Count four, ¶ 6; see also Bolmer v. McKulsky, 74 Conn.App. 499, 503-04, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003). In order to support a claim for recklessness, the facts alleged in the complaint need to rise to the level of egregious conduct. See Bolmer v. McKulsky, supra, 503-04. In Bolmer, the court held that evidence showed that the defendant was driving around a sharp turn above the speed limit when he drifted over the center line and hit the plaintiff’s vehicle, and that such conduct was not enough to conclude that the defendant acted recklessly. Id. Further, in Kotowski v. Lambert, Superior Court, judicial district of New Britain, Docket No. CV-08-5006434-S (July 23, 2008, Gilligan, J.), the court found that alleging that the defendant was reaching for an item and took his eyes off the road was insufficient to support a finding of reckless behavior. Simply crossing over a double yellow center line on a highway, without any additional facts, is not egregious behavior. Here, the plaintiff relies on the same facts that are alleged in count one for negligence without really adding any additional facts that would support reckless conduct. These allegations could only be considered reckless if the plaintiff alleges additional supporting facts, such as that the defendant was driving at a high rate of speed, under the influence of drugs or alcohol, or that the defendant took her eyes off of the road. See Pascarella v. Penna, Superior Court, judicial district of New Haven, Docket No. CV-16-6059633-S (March 29, 2016, Lager, J.) (denying motion to strike because alleged that defendant was reckless when operating motor vehicle at high rate of speed and taking her eyes off road); Shaw v. Yahn, Superior Court, judicial district of Litchfield, Docket No. CV-14-6011321-S (March 9, 2015, Danaher, J.) (denying motion to strike where defendant was reckless in driving motor vehicle because he turned his body inside motor vehicle to reach behind front seat while driving in excess of speed limit); Matthiessen v. Dombek, supra, Superior Court, Docket No. CV-11-6008291-S (denying motion to strike where defendant was driving motor vehicle at high rate of speed, crossed double yellow center line, and recklessly failed to observe plaintiff’s vehicle). As the complaint does not allege any facts to support that Nicole E. Cunningham crossing the double yellow center line was an extreme departure from ordinary care, count four is insufficient and cannot support a common-law recklessness cause of action.
There are cases whereby the trial court has denied a motion to strike when the defendant crossed the double yellow center line, but these cases alleged additional facts that rise to the level of egregious conduct. See Rondeau v. Roane, Superior Court, judicial district of Windham, Docket No. CV-12-6005147-S (October 24, 2012, Calmar, J.) (denying motion to strike whereby defendant drove over double yellow line while talking on his cell phone and collided with plaintiff’s motor vehicle); Scalia v. Townsend, Superior Court, judicial district of New Britain, Docket No. CV-10-6005409-S (March 29, 2011, Swienton, J.) (denying motion to strike whereby defendant was under influence of drugs or alcohol when he crossed double yellow center line); McGuire v. Johnson, Superior Court, judicial district of New London, Docket No. CV-09-5012655-S (November 4, 2009, Cosgrove, J.) (denying motion to strike whereby defendant crossed double yellow center line while taking one or both hands off wheel, operated vehicle at unreasonable rate of speed, and took his eyes off road to search for something in his vehicle).
CONCLUSION
For the foregoing reasons, the motion to strike count three of the complaint, and the corresponding prayer for relief, is denied on the ground that the allegations are legally sufficient to support a cause of action for statutory recklessness. The motion to strike count four of the complaint is granted on the ground that the allegations are legally insufficient to support a cause of action for common-law recklessness.