Daniel DelBiondo v. Thomas LaGanga et al. (2010)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (# 106)

The defendants, Thomas and Donna Laganga, move to strike the one-count complaint brought by the plaintiff, Daniel DelBiondo, claiming that the complaint is legally insufficient.   The plaintiff objects to the motion, asserting that his claim sufficiently alleges that the defendants owed a duty to him.   The motion to strike is granted.

FACTS

On February 26, 2010, the plaintiff, Daniel DelBiondo, filed a one-count negligence complaint against the defendants, Thomas W. Laganga and Donna B. Laganga.   In his complaint, the plaintiff alleges the following facts.   On or about March 1, 2008, the plaintiff was a passenger in a vehicle operated by Matthew A. Joseph (Joseph) in Torrington, Connecticut.   While going downhill on snow and ice, Joseph lost control of the vehicle, crossed the southbound lane of traffic and “violently collided with a massive concrete block and steel structure supporting a mailbox along the roadway.”   The defendants owned the structure, and the plaintiff alleges that the collision was the result of the defendants' negligence and carelessness in erecting or maintaining an artificial condition that created an unreasonable risk of serious harm.   Specifically, the plaintiff asserts that the unreasonable risk of harm arose from the condition's “massive size, immovable character, elevation and close proximity to the traveled portion of a busy roadway.”   The plaintiff suffered various injuries as a result of the collision, some of which are permanent, as well as lost earnings.   The plaintiff seeks compensatory damages.

The defendants filed a notice of apportionment of liability on April 8, 2010, stating that they intend to claim that Joseph's negligence was the proximate cause of the plaintiff's injuries.   Specifically, they intend to claim that Joseph:  (1) operated his motor vehicle at an unreasonable rate of speed given the traffic, weather and width and use of the highway and the intersection of the streets;  (2) violated General Statutes §§ 14-218(a) and 14-219 by operating his vehicle at an unreasonable rate of speed given the traffic, weather and width and use of the highway and the intersection of the streets;  (3) failed to keep his motor vehicle under reasonable and proper control;  and (4) failed to apply his brakes in sufficient time and in such a fashion so as to permit him to slow or stop his vehicle safely.

On August 9, 2010, the defendants filed the motion to strike that is presently before the court, along with a supporting memorandum of law.   The defendants move to strike the plaintiff's complaint on the ground of legal insufficiency.   On September 14, 2010, the plaintiff filed a memorandum in opposition to the motion to strike.   The matter was heard at the September 20, 2010 short calendar.

DISCUSSION

Practice Book § 10-39 provides:  “(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ 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.”  “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, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (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 their motion to strike, the, defendants argue the plaintiff's complaint is legally insufficient because it lacks an allegation that the vehicle was operated with reasonable care.   Such an allegation is necessary, the defendants argue, because adjacent landowners only owe a legal duty to those traveling with reasonable care.   The defendants argue that without a duty, there is no actionable negligence.   The defendants assert that the duty owed in this case is embodied in § 368 of the Restatement (Second) of Torts, which was adopted by the Connecticut Appellate Court in Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 662, 691 A.2d 1107 (1997), and Soares v. George A. Tomasso Construction Corp., 66 Conn.App. 466, 474, 784 A.2d 1041 (2001).

In his memorandum in opposition to the defendants' motion to strike, the plaintiff argues that the allegations of the complaint are “sufficient to clarify and fix the issues of duty, breach, causation and injury required to prove negligence at trial.”   Specifically, the plaintiff argues:  “The allegations of the complaint are legally sufficient as long as they will support an evidentiary determination that the defendants could reasonably foresee the possibility of [an] accident resulting in duty to the plaintiff.”   Moreover, the plaintiff argues, the cases upon which the defendants rely were all decided in the context of motions for summary judgment, not motions to strike.   Finally, the plaintiff argues, both Pion and Soares involved situations where the conduct of the operators were “so shocking or extreme” that they could be considered “intentional or reckless,” while the present matter involves a mere accident.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so ․ A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act ․ What duty the defendant had, if any, is a question of law ․ The issue of whether the defendant owed the plaintiff a duty of care is an appropriate one for a motion to strike because the question embodies a matter of law to be decided by the court.”  (Citations omitted;  internal quotation marks omitted.)  Bennett v. Connecticut Hospice, Inc., 56 Conn.App. 134, 137, 741 A.2d 349 (1999), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000).  “Where there is no duty, there can be no negligence.”   Hassett v. Palmer, 126 Conn. 468, 473, 12 A.2d 646 (1940).

“The Restatement (Second) of Torts sets forth the duty owed to travelers of public roads by adjacent landowners.  ‘Conditions Dangerous to Travelers on Adjacent Highway.   A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby to persons who (a) are traveling on the highway, or (b) foreseeably deviate from it in the ordinary course of travel’ 2 Restatement (Second), Torts § 368 (1965).”  (Emphasis added.)  Pion v. Southern New England Telephone Co., supra, 44 Conn.App. 657, 662.  “Any duty that [a] defendant may owe ․ is predicated on the vehicle being operated with due care in the ordinary course of travel.”  (Emphasis added.)  Soares v. George A. Tomasso Construction Corp., supra, 66 Conn.App. 466, 474.

Despite the fact that the question before the Appellate Court in Pion was whether the trial court properly granted a motion for summary judgment, the court also articulated the duty owed to travelers of public roads by adjacent landowners.   As previously noted, this duty is embodied in § 368 of the Restatement (Second) of Torts, which specifically states that adjacent landowners owe a duty when there is a risk to others “accidentally brought into contact with such condition while traveling with reasonable care upon the highway ․” (Emphasis added).   The plaintiff in the present matter attempts to distinguish Pion and Soares based on the ground that those cases involve motions for summary judgment, not motions to strike.   While the latter contention is correct, this does not mean that Pion and Soares are irrelevant to the present matter.   On the contrary, Pion and Soares adopt § 368 of the Restatement (Second) of Torts as one standard of duty.   Under the facts alleged in the complaint, this is the same standard that applies to the present matter.

The defendants' motion to strike challenges whether they owed a duty to the plaintiff under the allegations of the complaint, and thus, whether there is an actionable claim for negligence.   Based on the applicable standard of duty, the defendants cannot be liable if a party has not traveled with reasonable care.   The present complaint lacks an allegation as to whether Joseph was operating his vehicle with reasonable care at the time of the accident.   If the plaintiff does not make such a claim, there is no cause of action against the defendants because there is no duty owed.¹  As result, the court concludes that the plaintiff's complaint is legally insufficient because it lacks sufficient allegations under the applicable standard of care.

CONCLUSION

For the foregoing reasons, the defendants' motion to strike the complaint is granted.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. The plaintiff also attempts to distinguish Pion and Soares from the present matter on the ground that the operators in those cases were reckless, while Joseph merely lost control of his vehicle as a result of the weather.   Assuming that this assertion is true, the court can find no reason why the plaintiff would be unable to plead that Joseph was operating with reasonable care..  FN1. The plaintiff also attempts to distinguish Pion and Soares from the present matter on the ground that the operators in those cases were reckless, while Joseph merely lost control of his vehicle as a result of the weather.   Assuming that this assertion is true, the court can find no reason why the plaintiff would be unable to plead that Joseph was operating with reasonable care.

Danaher, John A., J.