Virginia Riggott v. Ronald Candelora (2011)

MEMORANDUM OF DECISION

FACTS

The plaintiff, Virginia Riggott, filed a three-count revised complaint on November 1, 2010, alleging the following.   The defendant, Ronald Candelora, is the owner of an apartment building located at 342 Exchange Street, New Haven.   The plaintiff leased an apartment in that building and was lawfully on the premises on or about February 20, 2010, when a fire occurred in the building.   As a result of the fire, the plaintiff suffered damage and a loss of personal items and suffered great pain, anxiety and emotional distress.   The plaintiff alleges that the fire was caused by the negligence and carelessness of the defendant.

The operative complaint contains three counts in which the plaintiff alleges negligence, breach of contract and a violation of the Connecticut Unfair Trade Practices Act (CUTPA), respectively.   In the first count the plaintiff alleges that the defendant kept the furnace heating system in a dangerous, defective and unsafe manner;  failed to repair the same;  and failed to warn the plaintiff of the dangerous condition.   The plaintiff further alleges that the defendant failed to make a reasonable inspection of the premises to determine whether the furnace heating system was safe.   In count two of the complaint, the plaintiff alleges that the defendant breached a contract, because, pursuant to the plaintiff's lease, the defendant was required to “maintain the unit and premises in accordance with the [Housing Quality Standards]” and he failed to do so.   The third count of the complaint, which is the subject of this motion to strike, incorporates the facts alleged in counts one and two, and claims the defendant's acts were “immoral, oppressive and unscrupulous, and arose in the course of his trade and/or business.”   As such, the plaintiff alleges that the defendant's acts violate the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a.

On November 10, 2010, the defendant filed a motion to strike count three on the grounds that 1) the complaint fails to state a claim because the third count merely incorporates references the simple negligence and breach of contract claims stated in the first and second counts, and 2) the third count fails to allege facts that give rise to aggravating circumstances or satisfy the requirements of the cigarette rule and the facts pleaded by the plaintiff are legally insufficient to support a claim under CUTPA.   The defendant also seeks to strike from the corresponding prayer for relief the claims for punitive damages and attorneys fees.   This motion was supported by a memorandum of law.   The plaintiff filed a memorandum in opposition on November 19,2010, arguing that the allegations contained in the complaint are sufficient to maintain a claim under CUTPA.   The matter was heard at short calendar on November 29, 2010.

DISCUSSION

“A motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court ․ [The court] take[s] the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, [the court] assume[s] the truth of both the specific factual allegations and any facts fairly provable thereunder.   In doing so, moreover, [the court] read[s] the allegations broadly ․ rather than narrowly.”  (Internal quotation marks omitted.)   Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010).

In the present case the defendant argues that count three of the plaintiff's revised complaint is legally insufficient because allegations of mere negligence and simple breach of contract do not amount to a violation of CUTPA.   The defendant contends that the plaintiff has failed to plead allegations that satisfy the so-called “cigarette rule,” which is required to allege a CUTPA violation.   The defendant argues that the plaintiff cannot recast his claims for negligence and breach of contract as CUTPA violations without allegations of substantial aggravating circumstances.   The plaintiff counters that specific allegations regarding the defendant's failure to maintain the heating system are sufficient to allege “immoral, oppressive and unscrupulous” behavior, and therefore count three is legally sufficient.   The plaintiff further argues that the defendant breached her lease, which required the landlord to comply with Housing Quality Standards.   Those standards, the plaintiff argues in her objection to the motion, are outlined in 24 C.F.R. § 982.401, and a violation thereof rises to the level of a CUTPA violation.

General Statutes § 42–110b(a) provides that:  “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”  “It is well settled that in determining whether a practice violates CUTPA [our Supreme Court has] adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, [competitors or other businesspersons].”  (Internal quotation marks omitted.)  Harris v. Bradley Memorial Hospital & Health Center, 296 Conn. 315, 350–51, 994 A.2d 153 (2010).

This analysis begins by noting that our Supreme Court has held that, “as a threshold requirement, private litigants proceeding under CUTPA must demonstrate some nexus with the public interest.”  (Internal quotation marks omitted.)  Conaway v. Prestia, 191 Conn. 484, 492, 464 A.2d 847 (1983).   In the present case, the issue is whether the allegations of negligence and breach of contract demonstrate such a nexus.

With respect to the breach of contract claim, “[a] simple contract breach is not sufficient to establish a violation of CUTPA ․ where a count simply incorporates by reference the breach of contract claim and does not set forth how or in what respect the defendant's activities are either, immoral, unethical, unscrupulous, or offensive to public policy.”  (Internal quotation marks omitted.)   Ranger v. Gianmarco, Superior Court, judicial district of Middlesex, Docket No. CV 08 5004260 (October 7, 2008, Holzberg, J.).

Here, the plaintiff alleges that the defendant breached her lease when he failed to comply with Housing Quality Standards, which are outlined in 24 C.F.R. § 982.401. As a simple breach of contract would not be sufficient to allege a CUTPA violation, the question for the court is whether a violation of Housing Quality Standards regulations is sufficient to demonstrate a nexus with the public interest.   A review of the case law reveals that an allegation of a regulatory violation alone is insufficient to demonstrate a nexus with the public interest such as rises to the level of CUTPA violation.  “While ․ the Connecticut Supreme Court has found CUTPA applicable to landlord-tenant transactions, the only defects the Court has found actionable under CUTPA in that context are those found to offend public policy as embodied in regulatory statutes.”  (Emphasis added.)   Pollio v. Santillo, Superior Court, Docket No. CV 94 0359030 (April 10, 1995, Hodgson, J.), citing, Conaway v. Prestia, 191 Conn. 484, 493, 464 A.2d 847 (1983).   More recently, it has been held that, “although it is permissible to plead a breach of a statutory or regulatory duty as evidence of negligence ․ this court finds no authority for the proposition that pleading such a breach suffices to support a claim for recklessness.”   Theroux–Acampora v. Saint Regis Heath, Superior Court, judicial district of New Haven, Docket No. CV 09 5029129S (June 14, 2010, Lager, J.).   While violations of certain statutes have been found to rise to the level of CUTPA violation, there is no case law to support the claim that a violation of a regulation is more than evidence of mere negligence it is submitted, therefore, that an allegation of a regulatory violation alone does not demonstrate sufficient nexus with the public interest.   The allegations contained in the breach of contract claim, therefore, do not satisfy the threshold test for a CUTPA claim.

The court now turns to the allegations contained in the negligence claim.   When considering whether negligence can rise to the level of a CUTPA violation the court observed that it has been held that, “[a]llegations of negligence alone are insufficient to support a CUTPA claim.”  Assurance Co. of America v. Yakemore, 50 Conn.Sup. 28, 39, 911 A.2d 777 (2006).   See also A–G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 214–17, 579 A.2d 69 (1990);  Thames River Recycling, Inc. v. Gallo, 50 Conn.App. 767, 784–86, 720 A.2d 242 (1998).¹  Further “[i]f a CUTPA claim is based on negligence alone, it must satisfy all three criteria for unfairness adopted in the ‘cigarette rule’ used by the federal trade commission.”   McCarthy v. Jensens, Inc., Superior Court, judicial district of New London, Docket No. CV 535951 (Mar. 12, 1997, Booth, J.) (19 Conn. L. Rptr. 286, 287).

Here, the plaintiff argues that the facts alleged in the present case are analogous to those in St. Amand v. Kromish, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 95051663 (February 18, 1999, Corradino, J.) (24 Conn. L. Rptr. 103) in which the court denied a motion to strike.   That case had a similar factual background in that it also arose out of an apartment fire, and the plaintiff brought claims of negligence, as well as a violation of CUTPA.  Id., 104.   In St. Amand, however, the plaintiff premised their claim on a violation of certain landlord-tenant statutes.  Id., 106 (“[T]he negligence claim is based on a violation of the state statutes imposed on landlords to ensure public safety ․”).  In denying the motion to strike the court ruled that “[t]he so-called ‘cigarette rule’ adopted by our state in Conaway [supra, 191 Conn. 492–93] as its first criteria to determine whether there has been a CUTPA violation permits a consideration of whether a practice without necessarily having been previously considered unlawful offends public policy as it has been established by statutes.”  (Internal quotation marks omitted.)  Id. In the present case, there is no allegation that the defendants have violated any statute.   While the plaintiff references General Statutes §§ 47a–5 and 47a–57 in her objection to the motion to strike, there is no reference to these statutes in the complaint.  “Although the court is required to read the pleadings broadly and in the light most favorable to sustaining the legal sufficiency of the claim, it cannot read additional allegations into the pleading, particularly when the allegation ․ is directly relevant to the plaintiff's purported claim.”  (Citation omitted;  internal quotation marks omitted.)  Pike v. Bugbee, 115 Conn.App. 820, 828 n.5, 974 A.2d 743, cert. granted, 293 Conn. 923, 980 A.2d 912 (2009).   In this case, the court would be required to read additional statutory allegations into the complaint in order to find a reference to landlord-tenant statutes.   It would be too great a leap for the court to do so when there is no reference to the statutes either by name, number or otherwise in the complaint.   As presently stated, these allegations merely allege simple negligence and, thus, fail to demonstrate a sufficient nexus with the public interest it is submitted, therefore, that the claims contained in the negligence count fail to survive the threshold test of a CUTPA claim and are not legally sufficient to allege a CUTPA violation.

Without a nexus with a recognized public interest in either the breach of contract or the negligence counts, the complaint fails to survive the threshold test to allege a CUTPA violation.   The court is left only with allegations of simple negligence and breach of contract, to which the plaintiff has attached the conclusory label of “immoral, unethical, oppressive, or unscrupulous.”   These allegations, taken in the light most favorable to the plaintiff, cannot satisfy the cigarette rule and thus they cannot support a CUTPA claim.   Therefore, the motion to strike is granted.   As the claims for attorneys fees and punitive damages are entirely derivative of the CUTPA claim, they, too, are stricken.

Woods, J.

FOOTNOTES

FN1. But see St. Amand v. Kromish, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 95051663 (February 18, 1999, Corradino, J.) (24 Conn. L. Rptr. 103, 106) (“The courts are divided on whether a simple act of negligence can constitute a CUTPA violation”)..  FN1. But see St. Amand v. Kromish, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 95051663 (February 18, 1999, Corradino, J.) (24 Conn. L. Rptr. 103, 106) (“The courts are divided on whether a simple act of negligence can constitute a CUTPA violation”).

Woods, Glenn A., J.