Elisa F. Esses v. Deborah E. Stein et al. (2010)

MEMORANDUM OF DECISION MOTION TO STRIKE # 107

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff filed a writ, summons, and complaint dated June 2, 2010 naming as defendants, Deborah E. Stein and David Stein.   The complaint is in three counts.   The first count is a claim of negligence.   The second count alleges a claim of recklessness.   The third count alleges the family car doctrine.   The plaintiff's complaint alleges that on July 25, 2008 as she was travelling on Newfield Avenue in the City of Stamford, the defendant, Deborah E. Stein, while travelling on Newfield Avenue crossed over the center line and struck the motor vehicle of the plaintiff.   On August 5, 2010, the defendant filed a motion to strike count two of the complaint.   The plaintiff filed a memorandum in opposition to the motion to strike on August 18, 2010.   The motion was assigned for short calendar on August 23, 2010 and only counsel for the plaintiff appeared to argue.

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 recklessness in the complaint are the same as the allegations alleged for the claim of negligence in count one.   In particular, the defendants argue that without additional factual allegations related specifically to the elements of recklessness the claim in count two does not plead a cause of action.   The defendants have argued that this court should follow the minority view in holding that the claim of recklessness requires more than satisfying the elements of General Statute § 14-295.

In viewing the allegations in the complaint, the plaintiff has alleged various acts in support of her claim of negligence on the part of the defendant.   However, in the second count, the plaintiff has incorporated the allegations in count one and has supplemented the allegations with additional claims including specifically the necessary claims for a violation of General Statutes § 14-295.   Count two alleges a statutory cause of action pursuant to C.G.S. § 14-295.   The defendants allege that the plaintiff has not sufficiently pled as to this count.  General Statutes § 14-295 provides:  “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, or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property.”   A review of the allegations in count two does not support the defendants' argument.

Unlike the cases cited by the defendant in support of the minority view, the plaintiff has set forth a factual background for this cause of action other than adding the word “reckless” before the recitation of the facts supporting the claim of recklessness or simply adding the statutory violations.   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 plaintiffs have included additional allegations in count two, consisting of the allegation that the defendant was “reading while driving and/or driving while operating her cellular phone.”   The plaintiff also alleges in accordance with General Statute § 14-295 that the defendant violated §§ 14-242, 14-230 and 14-222 of the motor vehicle laws.   These statutory violations inform the defendant of the conduct that the plaintiff contends is reckless.   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 of negligence and recklessness, the court notes that there are some similarities.   However, count two provides an adequate basis to inform the defendant of the claims of recklessness which involve conduct of violation of several motor vehicle laws as well as the specific allegation that the defendant was engaged in activities that may rise to the level of recklessness.   Therefore, the motion to strike count two and the prayer for relief of double or treble damages is denied.

THE COURT

Brazzel-Massaro, J.

Brazzel-Massaro, Barbara, J.