Amber Cansler et al. v. Gisela Zigmunds (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 101

This case arises out of a motor vehicle accident.   The defendant, Gisela Zigmunds, has filed a motion to strike the third and fourth counts of the complaint of the plaintiffs, Amber Cansler and Austin Collins.  “The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike ․” Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993).   “The role of the trial court [in ruling on a motion to strike] [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).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

In their complaint, the plaintiffs allege that on August 20, 2009, the defendant, while driving her automobile, caused a crash into a vehicle being operated by Cansler, in which Collins was a passenger.   In the first and second counts, the plaintiffs set forth claims of negligence against the defendant.   In the third and fourth counts, the plaintiffs incorporate the factual allegations of the first and second counts but attempt to set forth a claim of recklessness by alleging that the defendant “with reckless disregard operated her motor vehicle in violation of [General Statutes §§ 14–218a and 14–222], and such [violations were] a substantial factor” in causing the plaintiffs' injuries.   In all other respects, the third and fourth counts incorporate the factual allegations of the first and second counts.   The defendant has filed a motion to strike on the ground that the allegations are legally insufficient to state a claim upon which relief can be granted for reckless conduct.   This court agrees.

“Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent.”  (Internal quotation marks omitted.)  Bishop v. Kelly, 206 Conn. 608, 614–15, 539 A.2d 108 (1988).   The mere labeling of previously alleged negligent conduct as “reckless” is an insufficient allegation.   See Angiolillo v. Buckmiller, 102 Conn.App. 697, 705, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007);  Brown v. Branford, 12 Conn.App. 106, 110, 529 A.2d 743 (1987);  Steigerwald v. U.S. Surgical Corp., Superior Court, judicial district of Fairfield, Docket No. CV 93 0300787 (August 2, 1993, Spear, J.).

A number of decisions of the superior court have determined that such pleading is also required under General Statutes § 14–295.¹  See Parelow v. Mullane, Superior Court, judicial district of Middlesex, Docket No. CV 09 5006796 (October 20, 2009, Bear, J.);   Kotowski v. Lambert, Superior Court, judicial district of New Britain, Docket No. CV 08 5006434 (July 23, 2008, Gilligan, J.);   Potyra v. Bosse, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 08 5002674 (June 24, 2008, Sferrazza, J.).   This court agrees with the rationale of these decisions.

Based upon a careful review of the complaint, the arguments of the parties and a review of the case law, this court concludes that the plaintiffs have not alleged sufficient facts to state causes of action for recklessness.   Accordingly, the defendant's motion to strike the third and fourth counts of the complaint is granted.

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. Section 14–295 provides for double or treble damages for personal injury or property damage resulting from certain traffic violations..  FN1. Section 14–295 provides for double or treble damages for personal injury or property damage resulting from certain traffic violations.

Fischer, Jack W., J.