Cindy R. Joseph v. Sony J. Niquez et al. (2010)

MEMORANDUM OF DECISION MOTION TO STRIKE # 101

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff filed a writ, summons, and complaint dated June 3, 2010, naming as defendants Sony J. Niquez and Della Famiglia, Inc., d/b/a Stamford Taxi and Stamford Taxi, Inc. The defendants filed a motion to strike count two of the complaint alleging a claim for common-law recklessness.   The plaintiff's complaint alleges that on June 24, 2008 she was operating a motor vehicle in Stamford, Connecticut when the defendant Sony J. Niquez struck her car causing her injuries.   The defendants filed the motion to strike on July 15, 2010.   The plaintiff submitted a memorandum in opposition dated August 6, 2010 on August 9, 2010.   The parties appeared at short calendar on August 9, 2010 and argued the motion to strike.

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 moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp. et al, 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).  “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 should “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

The defendants argue that the motion to strike should be granted as to count two because the allegations of common-law recklessness in the second count are the same as the allegations alleged for the claim of negligence in count one.   In particular, the defendants argue that without additional and particular factual allegations related specifically to the elements of recklessness the claim in count two does not properly plead a cause of action.

In viewing the complaint, the plaintiff has set forth in paragraph thirteen of the first count a number of ways describing the basis for the claim of negligence.   Thereafter, in count two, the plaintiff incorporates certain paragraphs from count one that describe the factual background of the action.   However, in paragraph thirteen of count two, the plaintiff alleges in part that:  “․ he abruptly turned his vehicle at a time when it was obviously unsafe to do so and so drove into the side of the plaintiff's oncoming vehicle and when doing so exposed the plaintiff to imminent risk of serious bodily harm.”   The allegation set forth in paragraph thirteen is not simply taking paragraph thirteen of count one and including the word reckless to describe the conduct.   In fact, the paragraph is entirely different and is focused on the action of the unsafe turning as compared to the allegations in count one which are set forth in eleven separate claims involving failure to do certain acts and/or failure to perform acts in a safe manner.   The allegation in this count does not simply add the word reckless as defendant first argued.   A close examination demonstrates that the claim is that the turn was reckless because it was made when it was “obviously unsafe to do so.”  (Emphasis added.)   Unlike the cases cited by the defendant, the plaintiff has set forth a different scenario other than just inserting the work reckless before the recitation of facts supporting the claim of recklessness.   Recklessness requires a conscious choice of a course of action involving a risk substantially greater than that which is necessary for negligent conduct.  Scheiman v Lafayette Bank and Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985).   The plaintiff has included a different allegation in count two as compared to the eleven separate allegations of the negligent conduct.   However, even if not different than the facts of the negligence claim, the decisions set forth in Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), and Ritchie v. Lewis, Superior Court, judicial district of New Haven, Docket No. CV 07 5015479S, (September 3, 2008, Zoarski, J.), have found that it is irrelevant that the facts in a recklessness count are identical to those in a negligence count.   The language of Driscoll clearly establishes this finding when it states:  “The defendants also contend that the Appellate Court improperly determined that the allegations in the plaintiff's complaint were sufficient to state a cause of action for reckless infliction of emotional distress on a bystander.   Essentially, they contend that, because the plaintiffs use the same language to allege negligent and reckless conduct, the allegations are insufficient.   We disagree ․ The defendants are mired in the fact that, aside from the addition of the words “willful, wanton and/or reckless actions,” the plaintiffs' allegations in their reckless counts mirror their assertion in the counts charging the defendants with negligence.   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. at 341-43.  “[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.”   Haley v. Connecticut Light and Power, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV 059027 (November 9, 1999 Nadeau, J.).

After review of the counts, the court finds that although they are similar, they are not the same allegations and there is an issue in recklessness as to whether the defendant “obviously” knew of the unsafe nature of his turn into oncoming traffic.   Therefore, the motion to strike count two is denied.

THE COURT

Brazzel-Massaro, J.

Brazzel-Massaro, Barbara, J.