Gina Cohen, Administratrix of Estate of James S. Cohen v. Donald Mills (2011)

RULING RE DEFENDANT'S MOTION TO STRIKE

In this case, the plaintiff alleges that James S. Cohen was struck and killed, while trying to cross a street at night in Thompson, CT, by a car being driven unreasonably fast by the defendant, Donald Mills.   The complaint alleges that while Cohen lay in the middle of the street, defendant unsafely parked on the wrong side of the road with lights on, blinding oncoming traffic.   As a consequence, Cohen was run over by another driver.   The Revised Complaint is in three counts:  the First Count alleges negligence, the Second Count alleges statutory recklessness, the Third Count alleges common-law negligence.   Defendant moves the court to strike Counts Two and Three.   For the following reasons the motion is denied.

I

“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 ․ A motion to strike ․ consequently, requires no factual findings by the trial court ․ We take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․” (Citations omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “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).

While “[a] motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”   Citations omitted;  internal quotation marks omitted.   Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

“[A] motion to strike is essentially a procedural motion that focuses solely on the pleadings ․ It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion.”   (Citations omitted;  internal quotation marks omitted.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).

II

In the Second Count, plaintiff seeks double or treble damages alleging that the defendant deliberately, or with reckless disregard, operated a motor vehicle in violation of General Statutes § 14-218a (traveling unreasonably fast) and § 14-222 (reckless driving) and that such violations were a substantial factor in causing the plaintiff's decedent's injuries and death.   Defendant argues that this is insufficient to state a cause of action for reckless misconduct as is normally required by the common law.   That may be correct.   However, plaintiff has alleged that this claim is pursuant to General Statutes § 14-295.   Revised Complaint, Second Count, para. 13.   Plaintiff has alleged everything that is required by that statute.   Acknowledging that there is a split of authority among the Superior Court decisions on whether more is required, and noting no appellate court decision on point yet, this court has concluded in the past that claims under § 14-295 may be asserted without pleading subordinate, supporting facts of reckless misconduct as long as the allegations otherwise satisfy the provisions of § 14-295.   See Robbins v. Gondeck, Superior Court, judicial district of Tolland, Doc. No. CV 07-600285 (March 18, 2008, Vacchelli, J.).   This court adheres to that position.   The plaintiff's allegations have been reviewed and are found to be sufficient under § 14-295.   Accordingly, the motion to strike the Second Count is denied.

III

In the Third Count, plaintiff seeks punitive damages and attorneys fees for common-law reckless misconduct.   This requires the allegation of subordinate, supporting facts.  Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958);  D. Wright, J. FitzGerald, W. Ankerman, Connecticut Law of Torts (Third Ed., 1991), § 61.   Defendant argues that plaintiff has failed to do so in this count, and that many of the plaintiff's allegations are the same as those alleged in the negligence count.

“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 ․ reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  (Citations omitted;  internal quotation marks omitted.)  Craig v. Driscoll, 262 Conn. 312, 343, 831 A.2d 1003 (2003).

In the Third Count, in addition to incorporating the allegations of negligence and statutory recklessness, plaintiff alleges that the defendant stuck plaintiff's decedent, leaving him in the middle of the street, then parked on the wrong side of the road with lights blinding another driver who drove over plaintiff, and further:

13.  At said time and place, Defendant knew that he was driving at night, in inclement weather, in an area on Route 171 that bordered residential and commercial properties known to be frequented by pedestrians, and in spite of that knowledge, Defendant continued to operate his vehicle at a high rate of speed, when under the circumstances it was obvious that such action posed a great risk of harm to other persons using the highway in front of his vehicle.

14. At said time and place, Defendant knew that other vehicles would be traveling westbound in the westbound lane on Route 171, and in spite of that knowledge, Defendant parked his vehicle, with headlights on, facing eastbound on the westbound land of Route 171, when under the circumstances it was obvious that such action posed a great risk of harm to other persons using the highway in front of his vehicle, and would require those other vehicles to take evasive action to Defendant's vehicle.

15. Defendant's wanton and reckless indifference to the rights and safety of others was a substantial factor in causing James Cohen's injuries and losses as set forth herein.

Revised Complaint, Third Count

These allegations sufficiently allege more than the claim that the defendant was merely negligent.   It alleges that he was a danger to life and limb to all on the road and that he took an extreme departure from ordinary care in a situation where a high degree of danger was apparent.  Craig v. Driscoll, supra, 162 Conn. 343.   That some of the plaintiff's allegations were the same as those alleged in the negligence count is not disqualifying.   There are additional paragraphs in the Third Count setting forth plaintiff's claim of common-law recklessness.   Under such circumstances, plaintiff may properly proceed to the jury on the claim of common-law recklessness.   See Bicio v. Brewer, 92 Conn.App. 158, 171, 884 A.2d 12 (2005).   Accordingly, the motion to strike the Third Count is denied.

IV

For all of the foregoing reasons, the defendant's motion to strike the Second and Third Counts of the plaintiff's Revised Complaint is denied.

THE COURT

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.