Adam Perez v. Abunasar Hoque et al. (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 103

This case arises out of a motor vehicle accident.   The defendants, Abunasar and Nina Hoque, have filed a motion to strike the second count of the complaint of the plaintiff, Adam Perez, as well as the second paragraph of his claim for relief.  “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 his complaint, the plaintiff alleges that on September 3, 2008, Abunasar Hoque made a left turn into the path of the plaintiff's oncoming vehicle causing a collision.   In his first count, the plaintiff sets forth a claim of negligence against the owner and operator defendants.   In his second count, the plaintiff incorporates the factual allegations of the first count but attempts to set forth a claim of recklessness by substituting the word “recklessly” for “negligently” in one paragraph and by adding the words “wilfully and recklessly” to another paragraph.   In all other respects, the second count incorporates the factual allegations of the first count.   The defendants have filed a motion to strike on the ground that the “plaintiff cannot transform a negligence count into a count for [wilful or] wanton misconduct merely by appending a string of adjectives to allegations that clearly 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).   The mere labeling of previously alleged negligent conduct as “reckless” is an insufficient allegation.   See Angiolillo v. Buckmiller, 102 Conn.App. 697, 705, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007);  Brown v. Branford, 12 Conn.App. 106, 110, 529 A.2d 743 (1987);  Steigerwald v. U.S. Surgical Corp., Superior Court, judicial district of Fairfield, Docket No. CV 93 0300787 (August 2, 1993, Spear, J.).

A number of decisions of the superior court have determined that such pleading is also required under General Statutes § 14-295.¹  See Partelow v. Mullane, Superior Court, judicial district of Middlesex, Docket No. CV 09 5006796 (October 20, 2009, Bear, J.);   Kotowski v. Lambert, Superior Court, judicial district of New Britain, Docket No. CV 08 5006434 (July 23, 2008, Gilligan, J.);   Potyra v. Bosse, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 08 5002674 (June 24, 2008, Sferrazza, J.).   This court agrees with the rationale of these decisions.

Based upon a careful review of the complaint, the arguments of the parties and a review of the case law, this court concludes that the plaintiff has not alleged sufficient facts to state a cause of action for recklessness.   Accordingly, the defendants' motion to strike the second count of the complaint, as well as the second paragraph of the claim for relief, is granted.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. Section 14-295 provides for double or treble damages for personal injury or property damage resulting from certain traffic violations..  FN1. Section 14-295 provides for double or treble damages for personal injury or property damage resulting from certain traffic violations.

Fischer, Jack W., J.