Sandy Bellino v. Elana Tomkins et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 114

I

FACTS

On January 4, 2011, the plaintiff, Sandy Bellino, filed a second substituted complaint against the defendant, Albertus Magnus College.¹  Count two alleges a violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a, et seq.   The plaintiff alleges that Elana Tomkins failed to stop at a stop sign, entered an intersection and struck the vehicle in which the plaintiff was a passenger.   According to the plaintiff, the stop sign was obscured by the branches of a tree located on the defendant's property.   The plaintiff contends that the defendant caused the tree to overgrow and obscure the stop sign, failed to trim the tree, and failed to notify the city of New Haven or its tree warden about the tree.

On January 18, 2011, the defendant filed the present motion to strike (# 114) along with a supporting memorandum of law.   According to the defendant, count two should be stricken on the ground that it fails to state facts upon which relief can be granted because it does not allege a cause of action for a violation of CUTPA.   Specifically, the defendant contends that there is no consumer or business relationship between the plaintiff and the defendant, the plaintiff has not alleged an unfair or deceptive act or practice of the defendant in the conduct of any trade or commerce, and the plaintiff's allegations do not satisfy the cigarette rule.   On February 16, 2011, the plaintiff filed an objection to the motion to strike.   The defendant filed a reply on February 22, 2011.   The matter was heard on the February 28, 2011 short calendar.

II

DISCUSSIONAMotion to Strike Standard

“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).  “[The court takes] the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ 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.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).

B

CUTPA

General Statutes § 42–110b(a) states that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”   The defendant argues that the plaintiff does not allege a cause of action for a CUTPA violation because there are no allegations of (1) a consumer or business relationship between the plaintiff and the defendant;  (2) an act or practice of the defendant that occurred in the conduct of any trade or commerce;  or (3) an act or practice that satisfies the cigarette rule for determining unfairness.

In contrast, the plaintiff argues that CUTPA does not impose a requirement of a consumer relationship.   Moreover, the plaintiff argues that the complaint alleges that the defendant's act of stimulating the growth of the tree to beautify its campus and make it more appealing to members of the public at the expense of safety to drivers at the intersection constitutes an unfair or deceptive practice.   Furthermore, the plaintiff contends that the defendant was conducting trade or commerce when it, in attempting to attract prospective students, teachers and donors, stimulated the growth of the trees and bushes on its grounds to beautify its physical campus.   Finally, the plaintiff argues that the allegations in the complaint satisfy the cigarette rule.

The defendant replies that its alleged act of stimulating tree growth is not the trade or commerce in which it is engaged and, therefore, cannot form the basis for a CUTPA claim.   Rather, the defendant is an educational institution and that is the trade or commerce in which it is engaged.

“[I]t strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any trade or commerce.”  (Internal quotation marks omitted.)   Vacco v. Microsoft Corp., 260 Conn. 59, 88, 793 A.2d 1048 (2002).  “Although our Supreme Court repeatedly has stated that CUTPA does not impose the requirement of a consumer relationship ․ the court also has indicated that a plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA.”  (Citation omitted;  emphasis in original.)  Pinette v. McLaughlin, 96 Conn.App. 769, 778, 901 A.2d 1269, cert. denied, 280 Conn. 929, 909 A.2d 958 (2006).   Accordingly, a CUTPA plaintiff must allege either a business or consumer relationship with the defendant.   Simply alleging that the defendant is engaged in a business is not sufficient.

In the present case, the plaintiff has failed to allege that she had either a business or consumer relationship with the defendant.   The plaintiff's complaint indicates only that she was a passenger in a car on a public road located near the defendant's property when the car she was in was struck by Tomkins' vehicle, and that the collision occurred because Tomkins ran a stop sign which was obscured by a tree on the defendant's property.   The plaintiff further alleges that the defendant was engaged in the course of its trade or commerce when it grew the tree to too large of a size.   The complaint, however, contains no allegations on the nature of the defendant's trade or business.   In her memorandum in opposition to the motion to strike, the plaintiff argues that the defendant's trade or commerce is its act of attempting to attract prospective students, teachers, and donors.   Even if the court read the complaint to allege that the defendant's trade or commerce is its act of attempting to attract prospective students, teachers, and donors, there are still no allegations of a consumer or business relationship between the plaintiff and the defendant;  the plaintiff does not allege that she, the driver of the car in which she was a passenger, or Tomkins was a prospective student, teacher or donor.

As the plaintiff has failed to allege a consumer or business relationship, she has failed to allege a cause of action under CUTPA.   Thus, it is not necessary to engage in an analysis of the defendant's remaining arguments.   Accordingly, the motion to strike is granted.

BY THE COURT

Richard E. Burke, Judge

FOOTNOTES

FN1. Count one against Elana Raphael Tomkins has been withdrawn.   Count two relates only to Albertus Magnus College..  FN1. Count one against Elana Raphael Tomkins has been withdrawn.   Count two relates only to Albertus Magnus College.

Burke, Richard E., J.