Beverly Creed v. The Peachtree Limited Partnership et al. (2010)

MEMORANDUM OF DECISION MOTION TO STRIKE # 132

The defendant filed this motion to strike and memorandum in support of the motion on April 5, 2010, in which they move to strike Count Two of the amended complaint.   Count Two incorporates by reference the allegations 1-16 of the Count One which asserts a negligence theory of recovery.   Count Two adds allegations that the defendant Peachtree had knowledge that if proper fire stops were not installed there was a substantial risk that a fire would spread (para.17) and that “Peachtree acted with reckless disregard of the Plaintiffs' rights in that Peachtree deliberately and knowingly disregarded a substantial risk of harm in one or more of the following ways:  ․” (para.18).   This paragraph then goes on to list the same specific allegations that the plaintiffs depend on to support their negligence theory of recovery.   The defendant claims that these allegations are legally insufficient and therefore Count Two must be stricken.   The plaintiffs assert that Count Two is properly plead.

LAW OF MOTION TO STRIKE

“Whenever any party wishes to contest (1) 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, or (2) the legal sufficiency of any prayer for relief in any such complaint ․ 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 [plaintiff], to determine whether the [plaintiff has] 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).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  “If any facts provable under the express and implied allegations in the plaintiff's 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

I. Count Two:  Common-Law Recklessness as to Peachtree

The defendants argue that the third count does not support a cause of action for common-law recklessness because the plaintiff fails to allege that Peachtree engaged in conduct that went beyond being negligent and that the plaintiff fails to allege facts in the recklessness count that are separate and distinct from those that they rely on in their claim for negligence.   The plaintiffs respond that the facts alleged in the third count are sufficient to support this element of a cause of action for common-law recklessness and that a recklessness cause of action is not deficient merely because the same language is used to allege that a defendant engaged in both reckless and negligent conduct.

“Recklessness is a state of consciousness with reference to the consequences of one's acts ․ It is more than negligence, more than gross negligence ․ The state of mind amounting to recklessness may be inferred from conduct.   But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ It 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).

Construing the complaint in the light most favorable to the plaintiff, the allegations address the defendant's state of mind at the time in question as well as the conduct that gives rise to the cause of action.   The plaintiff alleges sufficient facts to satisfy the reckless conduct element of a cause of action for common-law recklessness;  whether the plaintiff can ultimately prove that Peachtree's conduct rose to the level of recklessness is question for the trier of fact.   Further the complaint in this case alleges that Peachtree “deliberately and knowingly disregarded a substantial risk of harm ․” These allegations are not made in the First Count.

As to the defendants' argument that the second count is deficient because the plaintiff rely on the same conduct in their cause of action for negligence, the Supreme Court has indicated that this fact does not, in and of itself, render a cause of action for recklessness deficient.  Craig v. Driscoll, supra, 262 Conn. 312.   In addressing such an argument, the court explained, “[t]he 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 assertions 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.”  Craig v. Driscoll, supra, 262 Conn. 343.   Thus, the motion to strike is denied with respect to the second count.

The Court

Cosgrove, J.

Cosgrove, Emmet L., J.