Erin McColl v. Ronald L. Senski, Sr. Alias et al. (2009)

MEMORANDUM OF DECISION RE MOTION TO REARGUE AND MOTION TO RECONSIDER # 110

The defendants requested that the court reconsider its October 22, 2009 denial of their motion to strike the third count of the complaint.   The third count of the complaint asserts a claim pursuant to C.G.S. § 14-295 (statutory recklessness) against the defendant, Ronald L. Senski, Sr.

In the third count of the plaintiff's amended complaint, the plaintiff alleges in ¶ 5 “the defendant, Ronald L. Senski, Sr., deliberately, or with reckless disregard for the plaintiff, Erin McColl, caused the plaintiff's injuries as stated below, and that he failed to yield the right of way, which the plaintiff was entitled and that despite knowing that conditions were unsafe, he operated his vehicle in a reckless manner and failed to maintain control of his vehicle all in a way in which he knew or should have known was unsafe for the aforementioned conditions.”   In ¶ 7 of the third count, the plaintiff alleges that the actions of Ronald Senski, Sr. were in violation of C.G.S. §§ 14-222 and 14-247.   In ¶ 9 of the third count, the plaintiff alleges that the defendant's violation of C.G.S. § 14-247 was a substantial factor which caused the plaintiff, Erin McColl's, personal injuries and losses as stated below.

The defendant properly notes that the plaintiff base her statutory claim on a violation of § 14-247 as alleged in ¶¶ 7 and 9 of the third count, nor can the plaintiff request damages under § 14-295 for the common-law grounds asserted.

The statutory language of § 14-295 specifically delineates the motor vehicle statutes that may be relied upon and create a factual foundation for the awarding of double or treble damages as allowed by that statute.

While the court agrees that ¶¶ 5, 7 and 9 contain allegations that cannot support the statutory recklessness claim, the court believes that the proper method of raising these issues would have been to file a request to revise the original or the amended complaint in this case.   The court notes that the defendants did file a request to revise, but did not seek any revision of the third count.   As plead, Count three is legally sufficient to support a claim under § 14-295 as the plaintiff has alleged that the violation of § 14-222 was a substantial factor in causing the injuries of which the plaintiff complains.

Finally, at trial, counsel will have the opportunity to request jury instructions that would properly direct the jury's attention to the required findings for any verdict under the Third Count.

For these reasons, the court denies the defendant's request to reargue and for reconsideration.

Cosgrove, J.

Cosgrove, Emmet L., J.