Virginia Scalia v. Ryne Townsend et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE, # 116

The defendant, Ryne Townsend, seeks to strike counts two and three of the plaintiff's amended complaint dated September 13, 2010, and the corresponding prayer for relief.   He contends that the plaintiff has failed to sufficiently allege facts to support claims for common-law recklessness and statutory recklessness.   The plaintiff objects on the grounds that (1) the motion is untimely;  (2) it fails to comply with Practice Book § 41 in that it does not specify the reason or reasons for its claim;  (3) it is not accompanied by a memorandum of law;  and (4) the plaintiff's claims are sufficiently pled.   For the reasons set forth below, the court denies the motion to strike because the plaintiff has alleged sufficient facts to support both claims for recklessness.

I

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff filed a writ, summons and complaint on May 24, 2010, naming as defendants, Ryne Townsend, Michael Townsend, Marie Gagnon, and Maynard Gagnon.¹  The first two counts of the original complaint were directed against the defendant, Ryne Townsend;  the first count was a claim for negligence, and the second count alleged a claim of recklessness, pursuant to General Statutes § 14–295.   On or about August 17, 2010, the defendant moved to strike count two in the original complaint, which motion was accompanied by a memorandum of law which addressed the alleged insufficiencies of count two.

On September 13, 2010, the plaintiff requested leave to amend her complaint by adding a third count against the defendant, Ryne Townsend.   Although the defendant did not object to this amendment, on October 26, 2010, he filed a second motion to strike, seeking to strike counts two and three and accompanying prayer for relief, arguing that the plaintiff failed to allege sufficient facts to support the claims for recklessness.²

The plaintiff's amended complaint alleges that she was a passenger in a vehicle being operated by her husband traveling on Scott Swamp Road, Farmington, when the defendant crossed over the double yellow line, and struck the motor vehicle in which the plaintiff was a passenger head-on.   At the time the defendant was operating his motor vehicle, he was under the influence of liquor or drugs.   Count one alleges that the defendant was negligent in a number of ways, including, operating his vehicle at an unreasonable rate of speed, failing keep his vehicle under proper control, failing to keep a proper lookout, failing to apply his brakes in time to avoid a collision, failing to operate his vehicle in the proper lane of traffic, operating the vehicle under the influence of alcohol or drugs, and operating his vehicle in violation of General Statutes § 14–227a.

Count two, sounding in common-law recklessness, alleges that the defendant was reckless in operating his motor vehicle in that the plaintiff's injuries were caused by the defendant because prior to the collision, the defendant “with reckless, willful and/or wanton indifference to the rights of the plaintiff ․ was consuming alcohol despite the fact that he knew or should have known that his consumption of alcohol ․ would create an unreasonable risk of danger.” ¶ 10.   Count three realleges the facts in the first count, and further alleges that the defendant's action constitute a violation of General Statutes § 14–295, in that his violation of §§ 14–222 and 14–227a were with “reckless, willful and/or wanton indifference to the rights of the plaintiff” and were a substantial factor in causing the injuries sustained by the plaintiff.   This count sounds in statutory recklessness.

In the plaintiff's prayers for relief, she claims “treble damages” against the defendant pursuant to General Statutes § 14–295 as to the defendant, Ryne Townsend.   The defendant moves to strike counts two and three of the complaint and the respective sections of the prayer for relief.   The defendant contends that the plaintiff has failed to specifically plead allegations that give rise to the claims for common-law recklessness and statutory recklessness.

II

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.”  (Citations omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alvers, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “A motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court.”   (Citations omitted;  internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Citations omitted;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “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.”  (Citations omitted;  internal quotation marks omitted.)  Asylum Hill Problem Solving Revitalization Ass'n v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).

The defendant argues that the motion to strike should be granted as to counts two and three because the allegations of recklessness in the complaint are the same as the allegations alleged for the claim of negligence in count one.   In particular, the defendant argues that the plaintiff has failed to sufficiently identify any facts that would support a claim for recklessness.   The only substantive difference in the counts pertaining to the claims for recklessness is the addition in count two and three of the words, “reckless, willful and/or wanton indifference,” and in the third count, without additional factual allegations, that the collision was due to the “reckless disregard” in violation of General Statutes § 14–227a and § 14–222.

“In determining the legal sufficiency of the recklessness counts, the question is not the similarity of the test to that in the negligence count.   Rather the question is whether the recklessness counts can stand on their own as sounding in recklessness.”   Kelly v. Miller, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 08 5008707 (August 28, 2008).

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.” ³

The appellate courts have not decided what degree of specificity is required in pleading recklessness under § 14–295 and, thus, a division of opinion has occurred amongst the judges of the superior court.   See e.g., Flores v. Viveros–Velazquez, Superior Court, judicial district of Windham at Putnam, Docket No. 063971 (November 21, 2000).   There are two lines of cases, the first representing the minority view, which 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.⁴  “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.”   Robbins v. Gondek, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 07–6000285 (March 18, 2008).

The second line of cases, referred to as 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 violation was a substantial factor in causing the plaintiff's injuries.⁵  This court has previously addressed the pleading standard for a statutory recklessness claim in the context of a motion to strike and adopted the majority view.  “The majority view is based on both 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.”   Ferens v. Brown, Superior Court, judicial district of New Britain, Docket No. CV 00–509116 (October 11, 2001).   After a careful review of both lines of cases, this court agrees that the plain meaning of statutory language in § 14–295 requires only that a plaintiff plead a violation of one or more of the enumerated statutes named therein, and that such violation was a substantial factor in causing the plaintiff's injuries.

The essential allegations of the third count in the plaintiff's complaint in this case are that when the defendant drove his car in violation of § 14–227a, the defendant engaged in reckless conduct under § 14–295, and that those violations were a substantial factor in causing the plaintiff's injuries.   As pleaded, this count, sounding in statutory recklessness, is legally sufficient as is the accompanying claim for multiple damages.

The second count is also legally sufficient.   In Craig v. Driscoll, 262 Conn. 312, 342–43, 813 A.2d 1008 (2003), the Supreme Court held that although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted.   In the present case, the plaintiff's complaint in count two alleges common-law recklessness, based on the facts that the defendant operated his vehicle under the influence of drugs or alcohol, and that the collision was due to the “willful, wanton, and reckless conduct” of the defendant.   The plaintiff is explicit enough in her pleadings to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted.   A plaintiff is entitled to maintain an action for statutory recklessness and common-law recklessness simultaneously.   See Matthiessen v. Vanech, 266 Conn. 822, 830–35, 836 A.2d 394 (2003).

III

CONCLUSION

Accordingly, the motion to strike is denied.

Swienton, J.

FOOTNOTES

FN1. Reference to “the defendant” in this decision refers to Ryne Townsend only..  FN1. Reference to “the defendant” in this decision refers to Ryne Townsend only.

FN2. Although the defendant did not submit a memorandum of law with his second motion to strike, he incorporated by reference the memorandum of law filed on August 17, 2010, in support of his first motion to strike.   This memorandum of law only addressed the count in the original complaint relative to a claim for statutory recklessness..  FN2. Although the defendant did not submit a memorandum of law with his second motion to strike, he incorporated by reference the memorandum of law filed on August 17, 2010, in support of his first motion to strike.   This memorandum of law only addressed the count in the original complaint relative to a claim for statutory recklessness.

FN3. The allegations in the complaint that relate to this statute are violations of § 14–227a and § 14–222..  FN3. The allegations in the complaint that relate to this statute are violations of § 14–227a and § 14–222.

FN4. See McGuire–Kelley v. Sciuto, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 99–428860 (October 1, 1999);  Chatterton v. Infinity Insurance Co., Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 98–064615 (October 1, 1999);  Nocera v. Besso, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 98–086777 (September 29, 1999);  Reed v. Sesta, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 98–5777273 (June 19, 1998)..  FN4. See McGuire–Kelley v. Sciuto, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 99–428860 (October 1, 1999);  Chatterton v. Infinity Insurance Co., Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 98–064615 (October 1, 1999);  Nocera v. Besso, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 98–086777 (September 29, 1999);  Reed v. Sesta, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 98–5777273 (June 19, 1998).

FN5. See Kelly v. Miller, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 08–5008707 (August 28, 2008);  Sony v. Arselli, Superior Court, judicial district of Fairfield, Docket No. CV 01–0386408 (May 14, 2002);  Woolums v. Deveny, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01–454434 (November 7, 2001);  Donahue v. Thomas, Superior Court, judicial district of Waterbury, Docket No. CV 01–161182 (February 28, 2001);  Plimpton v. Amerada Hess Corp., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 99–0169861 (September 27, 1999);  Nelson–Hlebogiannis v. Lee, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 98–0167571 (May 17, 1999);  Carta v. Cohn, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98–0262531..  FN5. See Kelly v. Miller, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 08–5008707 (August 28, 2008);  Sony v. Arselli, Superior Court, judicial district of Fairfield, Docket No. CV 01–0386408 (May 14, 2002);  Woolums v. Deveny, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01–454434 (November 7, 2001);  Donahue v. Thomas, Superior Court, judicial district of Waterbury, Docket No. CV 01–161182 (February 28, 2001);  Plimpton v. Amerada Hess Corp., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 99–0169861 (September 27, 1999);  Nelson–Hlebogiannis v. Lee, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 98–0167571 (May 17, 1999);  Carta v. Cohn, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98–0262531.

Swienton, Cynthia K., J.