Charlene Dutka v. Jeremy Cassady et al. (2011)

MEMORANDUM OF DECISION

The defendant has moved to strike Counts Four (4) and Five (5) of the Plaintiff's Revised Complaint pursuant to Practice Book § 10–39 et seq.   Through oral argument and their respective memoranda, the defendants claim that the fourth and fifth counts of the said complaint are legally insufficient in alleging some degree of recklessness which resulted in monetary loss and severe emotional distress to the plaintiffs.   The Court is relying on Practice Book § 10–25 which allows the plaintiff to plead in the alternative, sounding in both negligence and recklessness.   The allegations involving a dog bite attack on the plaintiff's dog are based on the same basic set of facts.   The claim turns on the level of ferociousness and violence of the defendant's attacking dog which can only be borne out through the evidence.   The allegations contained in counts four (4) and five (5) are not unique or so specific that they do not in some degree overlap the earlier counts of the complaint sounding in negligence only.  Vitale v. Kowal, 101 Conn.App. 691, 698 (2007);  Harley v. Indian Spring Land Co., 123 Conn.App. 800, 831, (2010).   However, the allegations contained in both of these counts are on their face legally sufficient to survive the defendant's Motion To Strike and therefore the defendants' Motion To Strike Counts Four (4) and Five (5) of the said revised complaint is hereby denied.

BY THE COURT,

Roche, J.

Roche, Vincent E., J.