Kim Mozell et al. v. Maximo Ramos (2011)

MEMORANDUM OF DECISION RE:  MOTION TO STRIKE (# 102)

FACTS

The plaintiffs in this action, Kim Mozell and Myra Burnett, filed a six-count complaint against the defendants, Maximo Ramos and Alamo Financing, LP,¹ on May 19, 2008.   The complaint alleges the following facts.   On June 9, 2006, Mozell was operating a motor vehicle in New Haven, Connecticut.   Burnett was a passenger in that vehicle.   As the plaintiffs proceeded west on Congress Avenue, the defendant, driving a motor vehicle east on Congress Avenue, “at a high rate of speed suddenly crossed over the centerline into the [p]laintiffs' line of travel and collided with great force into their car.”   As a result of the accident, the plaintiffs suffered injuries.

The plaintiffs' complaint is divided into six counts, though not cleanly.   Counts one through three are allegations by Mozell against the defendant, while counts four through six are counts by Burnett against the defendant.   Counts one and four;  two and five;  and three and six, respectively, are substantially similar in that each pair relies on the same facts and law.

Counts one and four allege that the defendant was negligent in the following ways.   He failed to keep his vehicle under proper and reasonable control;  he failed to apply his brakes in time to avoid a collision;  he failed to turn his vehicle to the left or right so as to avoid a collision;  he failed to sound his horn or give any warning of the impending collision;  he operated his vehicle at an unreasonable rate of speed;  he failed to keep a proper and reasonable lookout for other motor vehicles;  he operated his vehicle when it was not equipped with brakes adequate to bring it to a controlled stop within the distance under the conditions;  he was inattentive;  he failed to operate his vehicle in the right hand lane of traffic;  he failed to operate his vehicle as nearly practicable within a single lane of travel;  he moved his vehicle from one lane to another without first ascertaining that such movement could be made with safety;  he turned his vehicle at an intersection when it was not in a proper position to do so;  he failed to signal his intention to turn left;  and he failed to yield the right of way before attempting to turn left.

Counts two and five allege common-law recklessness and allege the following additional facts.   The defendant operated his vehicle recklessly because he saw the plaintiffs' car approaching from the opposite direction and knew that it was unsafe to attempt to turn left in front of the plaintiffs' car, but did so anyhow.

Counts three and six incorporate the allegations of common-law recklessness from counts two and five, and additionally allege that the defendant operated his vehicle in violation of General Statutes §§ 14–218a, 14–230 and 14–222.   As such, counts three and six are attempts by the plaintiff to allege a statutory recklessness claim under General Statutes § 14–295.²  Since counts three and six incorporate the allegations of common-law recklessness from counts two and five, they also include duplicate allegations of common-law recklessness.

On July 28, 2008, the defendant moved to strike counts three and six of the plaintiffs' complaint on the ground that counts three and six do not allege sufficient facts to infer that the defendant acted recklessly.   The defendant filed an accompanying memorandum of law on the same date.   On April 6, 2009, the plaintiffs objected to the defendant's motion to strike and filed an accompanying memorandum of law in opposition.   The court heard oral argument at short calendar on January 18, 2011.

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [plaintiffs have] 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).

A

Statutory Recklessness

The defendant argues that the plaintiffs' third and sixth counts rely on the same factual allegations as the negligence count, but merely adds the conclusory allegation that the defendant's conduct constituted recklessness.   The defendant explains, “it is simply a tautology that adds nothing to the allegations of the [c]omplaint.”   The defendant urges the court to accept “the better and more reasoned line of cases” that hold that a plaintiff is required to allege specific facts to support a theory of recklessness on the part of the defendant in order to state a legally sufficient claim under § 14–295.   The plaintiffs reply that the majority of Superior Court cases hold that if plaintiffs have already pled a negligence count, they need only allege the general allegations contained in § 14–295.

“Neither the Connecticut Supreme nor Appellate Court has yet had occasion to address the pleading requirements for recklessness under § 14–295.   There has been a split of authority in Superior Court decisions as to what degree of specificity is required in pleading recklessness ․ The split of authority arises from the different constructions the courts have placed on the term specifically pleaded.”  (Internal quotation marks omitted.)   Cooke v. Maynard, Superior Court, judicial district of New Haven, Docket No. CV 10 6012259 (September 21, 2010, Wilson, J.).

This court has addressed the issue of the pleading standard under Section 14–295 on four previous occasions.   See Cooke v. Maynard, supra;  Campos v. Coleman, Superior Court, judicial district of New Haven, Docket No. CV 10 6009582 (June 9, 2010, Wilson, J.);   Braumann v. Clavette, Superior Court, judicial district of New Haven, Docket NO CV 09 5031138 (April 27, 2010, Wilson, J.);   Ferraiuolo v. Nicholson, Superior Court, judicial district of New Haven, Docket No. CV 09 50311385 (December 7, 2009, Wilson, J.).   On each occasion, the court sided with the majority and ruled that the plaintiff need only plead the language in § 14–295:  that the defendant violated one or more of the enumerated statutory provisions named therein and that the violation was a substantial factor in causing the plaintiff's injuries.

As this court has previously explained:  “The minority view holds that a plaintiff must not only plead a statutory [violation] as set forth in § 14–295, but also facts that would support a claim of reckless conduct at common law ․ Relying on the usual rules of pleading, these courts generally reason that a plaintiff who is alleging recklessness must allege specific facts that informs both the court and the defendant what conduct is relied upon ․ To permit otherwise, these courts reason, would enable any negligence claim to be brought as a recklessness claim and thereby make it subject to double and treble damages ․ effectively dissolv[ing] any distinction between [the two] claims ․

“The majority view distinguishes between pleading common law recklessness and statutory recklessness, thus holding that a plaintiff need only plead the required language in § 14–295, that is, that the defendant violated one or more of the enumerated statutory provisions named therein, and that the violation was a substantial factor in causing the plaintiff's injuries ․ The majority view is based both on an analysis of the legislative history as well as a review of the statutory language of § 14–295 itself.   These cases conclude that as long as the general requirements of the statute are met, such pleading is enough to survive a motion to strike and to state a cause of action under § 14–295 ․

“There does not appear to be any ambiguity in the language of [§ ]14–295 or how it should be applied or construed.   The statute says that in a civil action seeking damages for personal injuries, the trier of fact may award double or treble damages if the plaintiff has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of ․ [one or more motor vehicle statutes delineated in the statute].   If a further delineation of facts forming the basis of the recklessness claim were necessary, then such an explicit requirement could have been set out in the statute by the legislature ․ Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct ․ This court will therefore continue to apply the majority view ․” (Internal quotation marks omitted.)   Cooke v. Maynard, supra.

In this case, the plaintiffs' complaint tracks the language of § 14–295 in counts three and six, alleging:  “The [d]efendant deliberately or with reckless disregard operated his motor vehicle in violation of Sections 14–218a and/or 14–230 and/or 14–222 ․ and such violation was a substantial factor in causing the [plaintiffs'] injuries and damages as aforesaid.”   The plaintiffs' complaint is therefore legally sufficient under the majority view and the continuing view of this court.   The court therefore denies the defendant's motion to strike counts three and six inasmuch as they allege statutory recklessness claims under § 14–295.

B

Common–Law Recklessness

Since counts three and six of the plaintiffs' complaint incorporate by reference the substantive allegations of counts two and five, they also allege a cause of action for common-law recklessness.   By moving to strike counts three and six on the ground that they are legally insufficient, the defendant has therefore challenged the legal sufficiency of the plaintiffs' common-law recklessness claims.   The plaintiffs reply that their complaint alleges sufficient facts to support a common-law recklessness claim because it includes an allegation that the defendant acted in spite of a known risk.

“[A] count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff ․ In order to establish that the conduct of a defendant, who was under such a duty, was deliberate, wanton and reckless, the plaintiff must prove ․ the existence of a state of consciousness with reference to the consequences of one's acts ․ [Such conduct] is more than negligence, more than gross negligence ․ [I]n 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.”  (Citation omitted;  internal quotation marks omitted.)  Vitale v. Kowal, 101 Conn.App. 691, 698–99, 923 A.2d 778, cert. denied 284 Conn. 904, 931 A.2d 268 (2007).

“Allegations of recklessness differ from allegations of negligence because 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 ․ [S]uch 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.”   (Internal quotation marks omitted.)  Pecan v. Madigan, 97 Conn.App. 617, 622 n.5, 905 A.2d 710 (2006), cert. denied 281 Conn. 919, 918 A.2d 271 (2007).

In this case, in addition to the negligent conduct alleged by the plaintiffs in counts one and four, the plaintiffs also allege additional facts in counts two and five.   In those counts, the plaintiffs allege that the defendant not only drove his vehicle over the center line, but that he did so after seeing the plaintiffs' vehicle approaching in the opposite direction.   In doing so, the plaintiffs allege, the defendant disregarded the danger of attempting to execute a left turn knowing that traffic was approaching in the opposite direction.   Construing those allegations in the light most favorable to the plaintiff, counts three and six state legally sufficient causes of action for common-law recklessness against the defendant.   Therefore, the court denies the defendant's motion to strike counts three and six, inasmuch as they allege claims of common-law recklessness.

CONCLUSION

Accordingly, the court denies the defendant's motion to strike counts three and six in its entirety.   As to the plaintiffs' statutory motor vehicle recklessness claim, the plaintiffs' complaint is legally sufficient because it alleges the language of the statute.   As to the common-law recklessness claim, the plaintiffs' complaint is legally sufficient because it alleges that the defendant was aware of the risk and acted in spite of that risk.

Wilson, J.

FOOTNOTES

FN1. Alamo Financing filed a motion for summary judgment in this case on November 4, 2008.   The court granted that motion on November 11, 2009 and entered a judgment in favor of Alamo Financing on that date.   The case remains pending as against Ramos.   All references to the defendant in this memorandum are references to Ramos..  FN1. Alamo Financing filed a motion for summary judgment in this case on November 4, 2008.   The court granted that motion on November 11, 2009 and entered a judgment in favor of Alamo Financing on that date.   The case remains pending as against Ramos.   All references to the defendant in this memorandum are references to Ramos.

FN2. General Statutes § 14–295 provides:  “In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14–218a, 14–219, 14–222, 14–227a, 14–230, 14–234, 14–237, 14–239 or 14–240a, and that such violation was a substantial factor in causing such injury, death or damage to property.   The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle.”.  FN2. General Statutes § 14–295 provides:  “In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14–218a, 14–219, 14–222, 14–227a, 14–230, 14–234, 14–237, 14–239 or 14–240a, and that such violation was a substantial factor in causing such injury, death or damage to property.   The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle.”

Wilson, Robin L., J.