Ronald Cirillo et al. v. Southeast Area Transit Authority et al. (2010)

MEMORANDUM OF DECISION MOTION TO STRIKE NO. 112

FACTS

On December 29, 2009, the defendant, Deborah Frappiere,¹ filed this motion to strike and a memorandum in support.   The defendant moves to strike the fifth and tenth counts of the plaintiffs' complaint, which allege causes of action for common-law recklessness.   On March 8, 2010, the plaintiffs, Ronald Cirillo and Robert Vastano, filed an objection to the motion and a memorandum in opposition.   On March 18, 2010, the defendant filed a reply to the plaintiffs' objection.

The plaintiffs allege the following facts in their complaint.   On August 13, 2008, the plaintiffs were passengers in the rear of a handicapped equipped van, which was driven by the defendant.   At that time, Vastano was in a fold-down seat, and Cirillo, who had limited use of his legs, was in a wheelchair.   The defendant was transporting the plaintiffs in Gales Ferry, Connecticut, when the defendant abruptly slowed the vehicle and the rear of the van was struck by a passenger bus.   The plaintiffs were not properly secured in their seats by the defendant, and as a result they suffered numerous injuries.

LAW OF MOTION TO STRIKE

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10-39(a).   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [plaintiffs have] stated a legally sufficient cause of action.”   (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “If any facts provable under the express and implied allegations in the ․ 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).

DISCUSSION

The defendant argues that the fifth and tenth counts should be stricken because the plaintiffs fail to allege any facts from which a reasonable person could conclude that the defendant acted in a reckless manner.   Specifically, the defendant argues that the plaintiffs have “repackaged” their negligence claims as recklessness claims, and that the conduct that the plaintiffs allege fails to rise to the level of recklessness.

In response, the plaintiffs argue that the facts alleged in the fifth and tenth counts are sufficient to support causes of action for recklessness.   Specifically, the plaintiffs argue that they have expressly pleaded that the defendant acted with conscious disregard for the plaintiffs' safety.   Further, the plaintiffs argue that the fact that they rely on the same conduct for the negligence and recklessness claims is not fatal to the recklessness claim, but regardless, their recklessness claims are substantially more detailed than their negligence claims.

This court has considered these arguments and addressed the pleading requirements for common-law recklessness on numerous occasions.   See, e.g., Martin v. Close, Superior Court, judicial district of New London, Docket No. CV 09 6001132 (December 11, 2009, Cosgrove, J.);   McColl v. Senski, Superior Court, judicial district of New London, Docket No. CV 09 5010862 (October 22, 2009, Cosgrove, J.).   Reckless conduct “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.)  Craig v. Driscoll, 262 Conn. 312, 342, 813 A.2d 1003 (2003).  “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.”  Id., 343.

In the present case, the allegations in the fifth and tenth counts address the defendant's state of mind at the time of the accident as well as the conduct that gives rise to the causes of action for common-law recklessness.   The plaintiffs allege that the defendant failed to secure the plaintiffs and abruptly slowed her vehicle when she knew that there were larger vehicles following her.   Additionally, the plaintiffs allege that the defendant engaged in this conduct without regard to their safety.   Accordingly, the plaintiffs have sufficiently stated a claim for common-law recklessness.   Based on the foregoing, the motion to strike is denied.

The Court

Cosgrove, J.

FOOTNOTES

FN1. Deborah Frappiere is one of fifteen defendants who were initially named in this action.   She alone has filed this motion to strike.   Thus, she will be referred to as “the defendant” hereinafter..  FN1. Deborah Frappiere is one of fifteen defendants who were initially named in this action.   She alone has filed this motion to strike.   Thus, she will be referred to as “the defendant” hereinafter.

Cosgrove, Emmet L., J.