Colleen Cavanaugh et al. v. Michael Truax (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE

This personal injury action brought by three plaintiffs against the defendants arises out of an automobile accident on Route 67.   It is alleged that the defendant Michael Truax struck the vehicle operated by plaintiff Colleen Cavanaugh and in which plaintiffs Rachael and Rebekah Cavanaugh were passengers.   As to each plaintiff, a claim of both negligence and reckless operation are alleged.   The plaintiffs allege both common law and statutory recklessness.   They seek punitive, double and treble damages accordingly.   The defendant filed a motion to strike the six counts sounding in recklessness averring that the plaintiff has failed to sufficiently plead facts to support those causes of action.   For the reasons set forth below, the motion to strike is DENIED.

Discussion

The role of the trial court in ruling on a motion to strike is to test the legal sufficiency of a pleading.  RK Constructors, Inc v. Fusco Corp., 231 Conn. 381, 384 (1994).   The court must “examine the [complaint] construed in favor of the [plaintiff] to determine whether the [pleading party has] stated a legally sufficient cause of action.  (Internal quotation marks omitted.)   Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, [w]hat is reasonably implied [in an allegation] need not be expressly alleged.”  (Citation omitted;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C. 252 Conn. 623, 626 (2000).   Similarly, a motion to strike may be used to challenge the relief sought if the relief sought could not be legally awarded.  Pamela B. v. Ment, 244 Conn. 296 (1998).

For purposes of the motion to strike, the moving party admits all facts well pleaded.  RK Constructors, Inc. supra. at 383 n.2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges “mere conclusions of law that are unsupported by the facts alleged.”   Novametrix Medical Systems, Inc. v. BOC Group, Inc. 224 Conn. 210, 215 (1992).

Simply because a plaintiff relies upon the same or similar factual allegations to support both a negligence claim and a recklessness claim, does not render the recklessness count insufficient.  Craig v. Driscoll, 262 Conn. 312, 341-42 (2003).   In such a situation the court must determine whether the factual allegations are sufficient to support both claims.  Id. If the allegations will only support a negligence cause of action, then necessarily, they will not support a recklessness cause of action.  Brown v. Branford, 12 Conn.App. 106, 110 (1987) (“[a] plaintiff cannot transform a negligence count into a count for willful and wanton misconduct merely by appending a string of adjectives to allegations that clearly sound in negligence”).

In Craig, the court held “[a]lthough 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.”  Id. at 343.  “Rather than conclude that the plaintiffs' allegations were not sufficient to state a cause of action for recklessness, the Craig court suggested that the plaintiffs' allegations of negligence were overinclusive.   Id., 343 n. 22.”  Gutierrez-Lopez v. Diciccio, 2005 Ct.Sup. 9896 (June 10, 2005, Burke, J.).

“A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made.”  Dumond v. Denehy, 145 Conn. 88, 91 (1958).

To determine whether the plaintiffs' amended complaint states a cause of action sounding in recklessness, we look first to the definitions of willful, wanton and reckless behavior.   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 ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ [W]illful, wanton, or 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 ․ It is at least clear ․ that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.

Craig v. Driscoll, 262 Conn. at 342-43 (Internal quotation marks omitted.)

Here, each of the recklessness counts includes by reference the conduct contained in the negligence counts.   In addition, the recklessness counts include allegations that the defendant “operated recklessly, having regard to the width, traffic, and use of the highways, the intersection of streets and the weather conditions and/or at such a rate of speed as to endanger the life of a person other than himself, in violation of Section 14-222.”   The recklessness counts also include an allegation that “although he knew that he was operating his truck on a heavily traveled public highway at a high rate of speed and that it was dangerous to look in a direction other than that in which he was traveling, he consciously decided to look away from the road and at his cell phone, in reckless disregard of the just rights and safety of others or of the consequences of his actions.”   The statutory recklessness claims also identify Sections 218a and 222, as the underlying basis for the recklessness claim, and state, as they must, that the violation of these statutes was either deliberate or done with reckless disregard and was a substantial factor in causing plaintiff's injuries.

Reading the allegations broadly, in a light most favorable to the plaintiff, and taking all allegations as true, each of these counts adequately alleges conduct that a jury could determine was not simply negligent, but also reckless.¹  The defendant has fair notice of the nature of the allegations.²  The motion to strike is denied.

Dated 2-16, 2011.

Kari A. Dooley, Judge

FOOTNOTES

FN1. This conclusion does not depend on which pleading standard from within the split of decisions cited by the defendant is applied.   Under either, the complaint is adequate..  FN1. This conclusion does not depend on which pleading standard from within the split of decisions cited by the defendant is applied.   Under either, the complaint is adequate.

FN2. The language of Section 222, which is incorporated into the complaint, is adequate notice to the general public of that which could expose them to a period of incarceration of up to 30 days.   It would seem consistent for those allegations to be considered sufficient notice to a defendant in a civil action..  FN2. The language of Section 222, which is incorporated into the complaint, is adequate notice to the general public of that which could expose them to a period of incarceration of up to 30 days.   It would seem consistent for those allegations to be considered sufficient notice to a defendant in a civil action.

Dooley, Kari A., J.