Chad Ferraiuolo v. Richard Nicholson (2009)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 104)

FACTUAL BACKGROUND

In this two-count complaint, which arises out of a motor vehicle accident that allegedly occurred on September 6, 2008 in New Haven, wherein the plaintiff was a passenger in the car driven by the defendant, the plaintiff alleges negligence on the part of the defendant in the first count.   In count two of the complaint the plaintiff re-alleges paragraphs one through four, and six through ten of the first count and then adds an additional paragraph alleging that the defendant was reckless in that he was traveling unreasonably fast in violation of Section 14-218a of the Connecticut General Statutes, in that he was operating the motor vehicle recklessly in violation of Section 14-222 of the Connecticut General Statutes and that he was operating the motor vehicle at a rate of speed greater than what is reasonable having regard to the width, traffic and use of the highway, intersection of streets and weather conditions in violation of Section 14-219.   The plaintiff seeks double and treble damages pursuant to Connecticut General Statutes § 14-295.

The defendant has moved to strike the second count of the plaintiff's complaint and the corresponding prayer for relief on grounds that said count is legally insufficient in that it fails to state a claim of recklessness.

DISCUSSION

“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).  “[T]he court is limited to the facts alleged in the complaint” and “must construe [them] most favorably to the plaintiff.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “[A]ll well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  “Insofar as [a] motion to strike is directed [to] the entire complaint, it must ․ fail if any of the plaintiff's claims are legally sufficient.”  (Internal quotation marks omitted.)  Whelan v. Whelan, 41 Conn.Sup. 519, 520, 588 A.2d 251 [3 Conn. L. Rptr. 135] (1991).  “Where the legal grounds for such a motion are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await evidence which may be adduced at trial, and the motion should be denied.”  Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).

General Statutes § 14-295 states explicitly that “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 ․ or 14-222 ․ and that such violation was a substantial factor in causing such injury, death or damage to property ․” Neither the Connecticut Supreme Court nor the Appellate Court has yet to address the pleading requirements for recklessness under § 14-295.   There has been a split of authority in Superior Court decisions as to what degree of specificity is required in pleading recklessness.   See, Alibrandi v. Romero, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 08 5017380 (November 7, 2008, Bellis, J.).   A slight majority of Superior Court decisions have required that a plaintiff need only plead the general allegations enumerated in § 14-295, namely, that the defendant has deliberately or with reckless disregard violated one of the enumerated statutes, and the violation was a substantial factor in causing the plaintiff's injuries.  Id. Courts taking the majority view have emphasized the plain meaning of § 14-295:  “There does not appear to be any ambiguity in the language of [§ ]14-295 or how it should be applied or construed.   The statute says that in a civil action seeking damages for personal injuries, the trier of fact may award double or treble damages if the plaintiff has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of ․ [one or more motor vehicle statutes delineated in the statute].   If 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 (July 12, 2001, Stevens, J.) [30 Conn. L. Rptr. 78].  “Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct.”  Warkentin v. Burns, 223 Conn. 14, 22, 610 A.2d 1287 (1992).

In contrast, a minority of courts have required that plaintiffs plead the specific conduct that is reckless, above and beyond what must be pleaded for mere negligence.  Alibrandi v. Romero, supra, Superior Court, Docket No. CV 08 5017380.   Courts following the minority view have highlighted the substantive difference between negligence and recklessness.  “Our Superior courts have held that the reiteration of facts previously asserted to support a cause of action in negligence, without more, cannot be transformed into a claim of reckless misconduct [by mere] nomenclature.”  (Internal quotation marks omitted.)   Leigh v. Cook, Superior Court, judicial district of New Haven, Docket No. CV 06 6000492 (May 24, 2007, Holden, J.).  “To allow a plaintiff to simply allege reckless disregard of a statutory provision would enable any negligence claim to be brought as a recklessness claim and thereby make it subject to double and treble damages.   The plaintiff would only have to plead that in addition to the defendant's conduct being careless it was also deliberate.   This court does not believe it was the legislature's intent when enacting § 14-295, to effectively dissolve any distinction between claims in negligence and recklessness.”   Victor v. Williamson, Superior Court, judicial district of Fairfield, Docket No. CV 05 4008786 (July 7, 2006, Owens, J.T.R.).

Courts taking the minority position have also emphasized the importance of fact pleading.  “[T]he majority view-to plead only the bare bones of the statute-would lead to anemic pleading ․ Connecticut remains a fact pleading jurisdiction ․ The majority view would judicially take us to a notice pleading posture.”   Kurensky v. Church Hill Enterprises, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 0390806 (July 16, 2002, Brennan, J.).  “Practice Book § 10-1, titled Fact Pleading, provides in relevant part:  ‘Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies ․’ There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on.”  (Citation omitted.)  Leigh v. Cook, supra, Superior Court, Docket No. CV 06 6000492.  “[T]he plaintiff must plead particularized facts that when taken as true would show that the defendant acted with reckless disregard.   The facts alleged must show that the defendant consciously chose a course of action despite the fact that the defendant did know, or reasonably should have known, that the action posed serious danger to others.”  Victor v. Williamson, supra, Superior Court, Docket No. CV 05 40008786.

This court finds the majority view, which has been the trend in recent years, persuasive.   The language of § 14-295 is unambiguous, and the plaintiff has met the requirements of the statute by alleging that the defendant recklessly operated his vehicle in violation of §§ 14-218a, 14-219, and 14-222, and that such violation caused injuries and losses to the plaintiff.   There is no question that the plaintiff sufficiently pled the necessary causal relationship between the defendant's alleged violation of §§ 14-218a, 14-219 and 14-222, and the plaintiff's injuries and losses, so as to come within the purview of § 14-295.   The plaintiff has therefore adequately invoked the provisions of § 14-295 under the majority view adopted by this court.   Accordingly, the motion to strike the second count of the plaintiff's complaint and the corresponding prayer for relief is denied.

Wilson, J.

Wilson, Robin L., J.