Nicola Dimeo v. Joseph LaRosa (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 103

The defendant, Joseph LaRosa, has moved to strike the second count of the complaint of the plaintiff, Nicola Dimeo.  “The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike ․” Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993).  “The role of the trial court [in ruling on a motion to strike] [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).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

In examining the complaint, in the first count, the plaintiff alleges the following facts.   On September 24, 2009, the plaintiff was attending a golf tournament at the Tunxis Plantation Golf Course located at 87 Town Farm Road in Farmington.   At that time, the defendant began to walk towards the plaintiff with his arms outstretched.   As the defendant approached, the plaintiff concluded that the defendant was going to hug him.   The plaintiff did not want the defendant to touch him, so the plaintiff backed away and told the defendant to stop.   The defendant “negligently and carelessly ignored the [p]laintiff's request to stop, and negligently and carelessly grabbed the [p]laintiff's arms, causing the [p]laintiff to lose his footing and trip, and causing ․ injuries and damages.” ¹  In the second count of his complaint, the plaintiff made the same allegations except that he has substituted “recklessly” for “negligently” and substituted “wanton” for “carelessly.”

The defendant has moved to strike on the ground that the “plaintiff cannot transform a negligence count into a count for willful and wanton misconduct merely by appending a string of adjectives to allegations that sound in negligence.”   This court agrees.

“Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent.”  (Internal quotation marks omitted.)  Bishop v. Kelly, 206 Conn. 608, 614-15, 539 A.2d 108 (1988).

It is clear that the plaintiff has not alleged sufficient facts to state a cause of action for recklessness and “does not allege conduct by the defendant that involves any highly unreasonable conduct involving an extreme departure from ordinary care.”   Zublena v. Carrozzo, Superior Court, judicial district of Litchfield, Docket No. CV 01 0084267 (May 20, 2002, Cremins, J.).   The motion to strike is granted.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. In particular, the plaintiff alleges that the defendant:  (1) disregarded the plaintiff's requests for the defendant to stop advancing towards him and not to touch him;  (2) failed to maintain the plaintiff's personal space;  (3) failed to look out for dangers arising from his actions;  (4) physically moved the plaintiff's body causing the plaintiff to lose his footing;  and (5) failed to exercise reasonable care in controlling his actions..  FN1. In particular, the plaintiff alleges that the defendant:  (1) disregarded the plaintiff's requests for the defendant to stop advancing towards him and not to touch him;  (2) failed to maintain the plaintiff's personal space;  (3) failed to look out for dangers arising from his actions;  (4) physically moved the plaintiff's body causing the plaintiff to lose his footing;  and (5) failed to exercise reasonable care in controlling his actions.

Fischer, Jack W., J.