Opinion
No. CV07-5008853S
February 1, 2008
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE #103
Before the court is the defendants' motion to strike counts five, six, nine, ten, eleven, and twelve of the plaintiffs' complaint.
The plaintiffs, Judith Zwicker and Jeffrey Zwicker, filed this twelve-count action against the defendants, William Sabetta and Federal Express Corp. (Federal Express). In the complaint, the plaintiffs allege that on February 14, 2005, Judith Zwicker was driving in the left northbound lane on Whitney Avenue in Hamden, Connecticut; that Judith Zwicker slowed her vehicle down to allow the vehicle in front of her to make a left hand turn when the Federal Express vehicle being driving by Sabetta, collided with the rear of the plaintiffs' vehicle; and that she has suffered personal injuries as a result of the defendants' negligence and recklessness.
On February 26, 2007, the defendants filed a motion to strike counts five, six, seven, eight, nine, ten, eleven, and twelve of the plaintiffs' complaint. The defendants have submitted a memorandum of law in support of the motion. On March 14, 2007, the plaintiffs filed a memorandum of law in opposition. The matter was heard at short calendar on June 25, 2007.
In the plaintiffs' memorandum of law in opposition to defendants' motion to strike, the plaintiffs withdrew counts seven and eight of the complaint, in light of the Connecticut Supreme Court's holding in Matthiessen v. Vanech, 266 Conn. 822, 843 A.2d 394 (2003).
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). "A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "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." (Emphasis in original; internal quotation marks omitted.) CT Page 2005 Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court construes the complaint "in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006).
Common-Law Recklessness
The defendants move to strike the fifth and sixth counts of the plaintiffs' complaint on the ground that the plaintiffs did not plead factual allegations supporting a claim of common-law recklessness on the part of Sabetta. The defendants argue that the fifth and sixth counts of the plaintiffs' complaint are simply a resuscitation of the plaintiffs' claim of negligence set forth in the first and second counts. Further, the defendants argue that as pleaded, the plaintiffs' allegations do not rise to the level of culpability required for a recklessness claim. The plaintiffs counter that similarity of the allegations pleaded in separate counts is not the sole determination; rather the focus is on the legal sufficiency of the count and that as pleaded, the allegations support a claim of recklessness.
"[W]here the 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." (Citations omitted, internal quotation marks omitted.) Iwanow v. Finnucan, Superior Court, judicial district of New Britain, Docket No. CV 05 5000281 (December 21, 2005, Shapiro, J.); see also Decuir v. Smith, Superior Coup, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 05 4003557 (September 16, 2005, Lewis, J.T.R.); Womack v. Snead, Superior Court, judicial district of Fairfield, Docket No. CV 05 4006433 (September 7, 2005, Fischer, J.).
"In order to establish that the defendants' conduct was . . . reckless, . . . the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] 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." (Internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998).
In count five, the plaintiffs incorporate paragraphs one through eight of count one in negligence and further allege that the collisions were caused by the reckless and wanton misconduct of Sabetta. Notwithstanding the similarity of the first eight paragraphs of allegations in the first count in negligence, the plaintiffs in the fifth count have additionally alleged that Sabetta knew of the substantial risk of harm that existed as a result of Sabetta's conduct, yet proceeded in the face of the potential serious danger; that Sabetta knew the plaintiffs' motor vehicle was ahead of him and that he knew or should have known that his conduct would likely cause a collision; and that Sabetta consciously disregarded this knowledge and instead created a substantial risk of harm to the plaintiffs.
"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). In the present case, the plaintiffs' allegation that Sabetta displayed a conscious awareness of the fact he created a substantial risk to the plaintiffs, is sufficient to advise the court and the defendants that the plaintiffs are pleading a cause of action in recklessness. The fifth count of the plaintiffs' complaint sufficiently alleges common-law recklessness and therefore, the court denies the defendant's motion to strike count five.
In count six, the plaintiffs incorporate the recklessness allegations of count five and couple them with allegations of loss of consortium sustained by Jeffrey Zwicker, as the spouse of Judith Zwicker. "As a derivative cause of action, loss of consortium is dependent on the legal existence of the predicate action . . ." (Internal quotation marks omitted.) Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 62 n. 5, 882 A.2d 1254 (2005). The sixth count as pled alleges a legally sufficient cause of action and accordingly, the defendant's motion to strike count six is denied.
Statutory Recklessness
The defendants next move to strike the ninth and tenth counts of the plaintiffs' complaint on the ground that the plaintiffs have failed to allege specific conduct to support a claim of recklessness that would permit the plaintiffs to recover damages under General Statutes § 14-295. The defendants argue that the plaintiffs' reliance on the same allegations found in their negligence claim to support their recklessness claim, renders the plaintiffs' claim of recklessness insufficient. The plaintiffs counter that in pleading statutory recklessness pursuant to § 14-295, the majority view of trial courts is that a plaintiff need only make general allegations 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 injuries. Having satisfied this pleading requirement, the plaintiffs argue they sufficiently pleaded a claim for statutory recklessness.
While Connecticut's appellate courts have yet to delineate the specific standard required for pleading recklessness under § 14-295, Connecticut's trial courts have been confronted with this issue numerous times. Currently there is a split of authority at the trial court level regarding the requirements for a plaintiff to sufficiently plead statutory recklessness; however, a substantial trend has emerged in recent cases. The majority view maintains 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." (Internal quotation marks omitted.) Wieland v. Sheffer, Superior Court, judicial district of New London, Docket No. 5002675 (September 4, 2007, Hurley, J.T.R.); see also Franco v. Kang, Superior Court, judicial district of New Haven, Docket No. CV 04 4001991 (July 2, 2007, Zoarski, J.T.R.); Gutierrez v. Thienel, Superior Court, judicial district of Windham, Docket No. CV 06 5000914 (May 1, 2007, Martin, J.); Derita v. Loux, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 06 5000788 (October 18, 2006, Robinson, J.).
Section 14-295 provides: "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. The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle."
Conversely, a minority of the trial courts have held that a plaintiff is required to plead specific factual allegations that rise above and beyond the facts that need to be pleaded in a negligence case; that such plaintiffs must set out the conduct that is claimed to be reckless in their complaint, so as to satisfy both the language of § 14-295, as well as the common-law recklessness requirements. Victor v. Williamson, Superior Court, judicial district of Fairfield, Docket No. CV 05 4008786 (July 7, 2006, Owens, J.T.R.); Fitzgerald v. Marcus Dairy, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 082618 (April 2, 2004, Bear, J.).
In count nine, the plaintiffs have incorporated the first eight paragraphs of their first count, alleging negligence, and further detailed three violations within the purview of § 14-295. The plaintiffs also have pleaded that "Sabetta's conduct in operating the Federal Express vehicle deliberately or with reckless disregard caused or was a substantial factor in causing the injuries and damages suffered by the plaintiff and as a result thereof, Judith Zwicker is entitled to recover double or treble damages from Sabetta." Under the majority view, which the court has adopted in the past, regarding pleading statutory recklessness, the court finds that the plaintiffs have sufficiently pleaded a cause of action under § 14-295. Therefore, defendants' motion to strike is denied.
In count ten, the plaintiffs incorporate paragraphs one through eight of the ninth count, incorporate paragraphs eleven through seventeen of the sixth count, alleging common-law recklessness, and further allege that Jeffrey Zwicker is entitled to recover an award of double or treble damages for loss of consortium from Sabetta pursuant to § 14-295. "Our Supreme Court has determined that [t]he term personal injury is broad enough to encompass a claim for injury which is personal to the claimant, although flowing from the physical injury of another. Izzo v. Colonial Penn Ins. Co., 203 Conn. 305, 313, 524 A.2d 641 (1987). A cause of action for loss of consortium does not arise out of a bodily injury to the spouse suffering the loss of consortium; it arises out of the bodily injury to the spouse who can no longer perform the spousal functions. Id., 312. Accordingly, we conclude that a spouse's claim for loss of consortium arising from the physical injury of the other spouse by a third person is a personal injury within the meaning of § 14-295." (Internal quotation marks omitted.) Bebry v. Zanauskas, 81 Conn.App. 586, 593 (2004). Accordingly, the motion to strike count ten is denied because the plaintiffs have sufficiently pleaded a claim for loss of consortium predicated on a claim for recklessness pursuant § 14-295.
CT Page 2009
Vicarious Liability for Statutory Recklessness
The defendants move to strike counts eleven and twelve of the plaintiffs' complaint on the ground that the plaintiffs have failed to allege a claim of vicarious liability on the part of a non-operating owner for the allegedly reckless operation of a motor vehicle. The defendants argue that the Supreme Court in Matthiessen v. Vanech, 266 Conn. 822, 843, 836 A.2d 394 (2003), held that a party cannot be subject to punitive damages, where that party is only vicariously liable for the acts of another, therefore, the plaintiffs' claim that Federal Express is vicariously liable for Sabetta's alleged statutory recklessness is legally insufficient. The plaintiffs counter that the operative caselaw relied upon by the defendants only applies to common-law recklessness, not statutory recklessness pursuant to § 14-295. As such, the plaintiffs argue that § 14-295 does permit owners of vehicles that are not rented or leased to be subject to punitive damages.At issue in Matthiessen was whether General Statutes § 52-183, which establishes the presumption of agency in motor vehicle operation, abrogated the common-law prohibition against awarding punitive damages against parties who have been found to be only vicariously liable for the acts of others. Id. The Matthiessen court rejected that suggestion, stating that "the sole purpose of § 52-183 is to shift the burden of adducing evidence regarding an agency relationship between the owner and the operator of a vehicle from the plaintiff to the defendant." Id., 839. At common law, there is no vicarious liability for punitive damages. An owner of a vehicle cannot be vicariously liable for punitive damages for the reckless operation of the vehicle by the driver. Id., 837.
The plaintiffs argue that despite the holding in Matthiessen, the court did not definitively rule on the issue of whether an owner of a vehicle can be vicariously liable for another operating their vehicle when the cause of action is pleaded pursuant to § 14-295. The plaintiffs contend that since the jury in that case elected not to award the plaintiff punitive damages under § 14-295, this specific issue was not reached by the court. As such, the plaintiffs argue that the Matthiessen holding does not apply to § 14-295 and punitive damages can be assessed for vicarious liability based on § 14-295. While the plaintiffs' position is supported by a small number of superior court judges, a strong trend has developed in favor of applying Matthiessen's broader holding to claims brought under § 14-295, thereby barring the recovery of punitive damages against parties who are only vicariously liable for the acts of others. "[B]y its plain language, § 14-295 applies only to the operator of a vehicle . . ." (Emphasis added; citation omitted.) Faggio v. Brown, Superior Court, judicial district of Middlesex, Docket No. CV 05 4003488 (June 12, 2007, Beach, J.) [43 Conn. L. Rptr. 643]; see also Thomas v. Cassetti, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 95 4003437 (October 13, 2005, Sequino, J.); Lyte v. Kane, Superior Court, judicial district of Ansonia-Milford, Docket No CV 98 063138 (August 25, 1998, Flynn, J.). [23 Conn. L. Rptr. 136] "[T]he 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 . . ." (Emphasis added.) General Statutes § 14-295. The very language of § 14-295 supports the conclusion that punitive damages cannot be assessed against a non-operating owner of a motor vehicle.
Furthermore, the Appellate Court in Stohlts v. Gilkinson, 87 Conn.App. 634, 867 A.2d 860 (2005), addressed the issue of awarding punitive damages predicated solely on vicarious liability. The Appellate Court, in interpreting the Matthiessen holding, stated "[t]his rule makes it improper to award punitive damages against someone who is innocent and, therefore, only liable vicariously." Id., 654. The court further discussed the only exception to this rule as stated in the Restatement (Second) of Torts. "Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, (a) the principal or a managerial agent authorized the doing and the manner of the act, or (b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the principal or a managerial agent of the principal ratified or approved the act." 4 Restatement (Second) Torts, § 909 (1979); Stohlts v. Gilkinson, supra, 654.
In counts eleven and twelve, the plaintiffs have pleaded that pursuant to § 14-295, Federal Express is liable for the statutory recklessness of Sabetta. No allegations have been made, however, that Federal Express deliberately or with reckless disregard operated Sabetta's vehicle. Nor have allegations been pleaded that Federal Express authorized Sabetta's alleged reckless behavior, warranting an exception as discussed in Stohlts. The plaintiffs have failed to allege facts that sustain a legal cause of action and as such, the defendants' motion to strike counts eleven and twelve is granted.
CONCLUSION
For the aforementioned reasons, the defendants' motion to strike is denied as to counts five, six, nine and ten, and granted as to counts eleven and twelve.