Thomas Grieco, Jr. v. Avian H. Morales et al (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

PROCEDURAL HISTORY

The issue is whether the court should grant Morales' motion to strike count two of the plaintiff's complaint.   On November 3, 2009, the plaintiff, Thomas W. Grieco, Jr., filed a two-count complaint against the defendants, Avian H. Morales and Jose L. Sierra.   In count one, which sounds in negligence, the plaintiff alleges that Morales was operating a motor vehicle owned by Sierra on or about October 25, 2007, when he collided in the rear of the plaintiff's vehicle.   As a result, the plaintiff suffered and sustained several severe injuries.   The plaintiff alleges that his injuries and losses were caused by Morales' carelessness and negligence.   Specifically, the plaintiff alleges, inter alia, that Morales was following too close to the rear of his vehicle, in violation of General Statutes § 12-240, and that he was operating his vehicle at an excessive rate of speed without regard for the weather, in violation of General Statutes § 14-218a.   In count two, which sounds in recklessness, the plaintiff incorporates his allegations from count one and also alleges that Morales “deliberately or with reckless disregard operated his motor vehicle at an unreasonable rate of speed having due regard for the weather, width and use of said highway in violation of [General Statutes] § 14-218a,” and that Morales' “deliberate and/or reckless operation of a motor vehicle in violation of [General Statutes] § 14-218a was a substantial factor in causing the injuries, damages and losses” set forth in the complaint.

On January 6, 2010, Morales filed a motion to strike count two of the plaintiff's complaint on the ground that it is legally insufficient.¹  Morales also filed a memorandum of law in support of his motion to strike.   On January 20, 2010, the plaintiff filed an objection and accompanying memorandum of law in opposition to the motion to strike.   This matter was heard at the short calendar on June 28, 2010.

LEGAL 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).  “[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.)   American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   In ruling on a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Id.

In his motion to strike and supporting memorandum, Morales alleges that count two is legally insufficient because “[t]he plaintiff has merely recast his allegations of negligence asserted in the First Count as recklessness in his Second Count without alleging any additional facts that would support a cause of action for recklessness.”   In his memorandum in opposition to the motion to strike, the plaintiff argues that asserting the same conduct for both negligence and recklessness claims is not fatal to the recklessness claim.   Moreover, the plaintiff argues that he is alleging statutory recklessness under § 14-295, and that a majority of Superior Court decisions has held that the plaintiff's complaint need only mirror the specific statutes referenced in § 14-295 in order to survive a motion to strike.

Section 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, 14-219, 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.”  (Emphasis added.)

“Neither the Connecticut Supreme nor Appellate Court has yet had occasion 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 ․ The split of authority arises from the different constructions the courts have placed on the term specifically pleaded.”  (Internal quotation marks omitted.)   McGuire v. Johnson, Superior Court, judicial district of New London, Docket No. CV 09 5012655 (November 4, 2009, Cosgrove, J.).   In the recent decision of Bradley-Webb v. Ambrosini, Superior Court, judicial district of Fairfield, Docket No. CV 09 6005096 (March 24, 2010, Tyma, J.), Judge Tyma analyzed this split of authority, and wrote:  “To meet the pleading requirements of § 14-295 under the majority of Superior Court decisions, the plaintiff need only plead the requirements of § 14-295.   These requirements include that another party has (i) ‘deliberately or with reckless disregard operated a motor vehicle,’ (ii) that the violation occur with respect to 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a and (iii) ‘that such violation was a substantial factor in causing such injury, death or damage to property.’   “ Id. Meanwhile, “[t]he minority view espouses that a plaintiff must make specific allegations of fact supporting a cause of action for recklessness and cannot merely reiterate the facts supporting a negligence cause of action or tract the language of § 14-295.”  Id.

As in Bradley-Webb, the plaintiff's second count in the present matter meets the pleading requirements under the majority view, which this court also adopts.   The plaintiff's second count alleges that Morales “deliberately or with reckless disregard operated his motor vehicle at an unreasonable rate of speed having due regard for the weather, width and use of said roadway,” that such an-operation was in “violation of [§ ]14-218a,” and that this violation “was a substantial factor” in causing the plaintiff's injuries.   As a result, the court denies Morales' motion to strike count two of the plaintiff's complaint.

BY THE COURT,

Roche, J.

FOOTNOTES

FN1. Although one attorney filed an appearance on behalf of both defendants, the motion to strike states that Morales is moving to strike the second count of the plaintiff's complaint.   Thus, this decision refers to Morales' motion to strike..  FN1. Although one attorney filed an appearance on behalf of both defendants, the motion to strike states that Morales is moving to strike the second count of the plaintiff's complaint.   Thus, this decision refers to Morales' motion to strike.

Roche, Vincent E., J.