Erica Talareva v. Paul Novakowski (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

BACKGROUND:

This is an action for damages resulting from a motor vehicle accident which occurred on December 27, 2008.   The plaintiff alleges she was a passenger in a motor vehicle operated by the defendant which collided with a utility pole, injuring the plaintiff.   The amended complaint is in three counts.   Count One alleges statutory and common-law negligence.   The plaintiff claims that Count Two alleges common-law recklessness.¹  Count Three alleges statutory negligence, pursuant to General Statutes § 14–295.

The defendant moves to strike Counts Two and Three as legally insufficient.   The plaintiff objects to the motion.   Both parties presented oral argument on March 7, 2011.

LEGAL STANDARD:

“Whenever any party wishes to contest ․ (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a).  “A motion to strike challenges the legal sufficiency of a pleading ․ and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).

In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] 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).  “We take the facts to be those alleged in the complaint ․ and we construe 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, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder.   In doing so, moreover, we read the allegations broadly ․ rather than narrowly.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).

“All well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted” (internal quotation marks omitted);  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006);  what is necessarily implied [in an allegation] need not be expressly alleged.   (Citation omitted;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).  “Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Citation omitted;  internal quotation marks omitted.)   Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292–93, 842 A.2d 1124 (2004).   However, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).

ANALYSIS:

A plaintiff may plead alternative theories of liability based upon the same facts.  “The plaintiff may claim alternative relief, based upon an alternative construction of the cause of action.”  Practice Book § 10–25.   Here, the plaintiff has asserted one count of statutory and common-law negligence, what she claims is a count of common-law recklessness and one count of statutory recklessness.

I. Count Three

There is a split of opinions in the Superior Court as to the degree of pleading necessary for a claim of statutory recklessness.  “[T]he minority view ․ 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.”   Liedke v. Paquette, Superior Court, judicial district of New Britain, Docket No. CV 10 6004043 (August 2, 2010, Swienton, J.).

Under the majority view, “a claim for statutory recklessness is legally sufficient so long as it alleges that the defendant deliberately or with reckless disregard violated one of the statutes enumerated in § 14–295, and further asserts that the violation was a substantial factor in causing the plaintiff's injuries.”   Chowaniec v. DeLoughery, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 08–5020890S (Feb. 3, 2011, Woods, J.) citing Lindquist v. Smith, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 08 5006579 (November 2, 2009, Ronan, J.T.R.).   Under the majority view, “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.”   Braumann v. Clavette, Superior Court, judicial district of New Haven, Docket No. CV 09 5027558 (April 27, 2010, Wilson, J.).  Id.

This court takes the majority view as to claims of statutory recklessness.   The plaintiff has cited violations of statutes enumerated in § 14–295 and has alleged that the violation of these statutes was a substantial factor in causing her injuries.   The motion to strike Count Three is denied.

II. Count Two

As plainly read, Count Two also asserts statutory recklessness.   The plaintiff asserts that this is a count sounding in common-law recklessness.   If so, the plaintiff's allegations are insufficient.   In Count Two, the plaintiff has merely alleged the same statutory violations asserted in Count Three.   She has failed to assert any reckless conduct on the part of the defendant other than those statutory violations, both of which are repeated in Count Three.

Our Supreme Court has succinctly set forth the elements to be proven in a cause of action sounding in recklessness.  “Recklessness requires a conscious choice of 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.)  Matthiessen v. Vaneck, 266 Conn. 822, 832, 836 A.2d 394 (2003).

The plaintiff has not satisfied the requirement that a complaint utilize language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted.  Craig v. Driscoll, 262 Conn. 312, 342–43, 813 A.2d 1003 (2003).   If common-law recklessness is indeed being asserted in Count Two, this count contains no such allegations to put the defendant on notice as to his state of mind and common-law reckless conduct.

A plaintiff sufficiently pleads a cause of action for common-law recklessness when the plaintiff's allegations address a defendant's state of mind at the time of the incident as well as the conduct that gives rise to the cause of action.   Grant v. Burger King Corp., Superior Court, judicial district of New London at New London, Docket No. CV 08–5007237 (Nov. 23, 2010, Cosgrove, J.).   It is insufficient to merely cite statutory violations and have them suffice for common-law allegations.   The plaintiff must also allege the state of mind of the defendant.  “The rule in this state as to torts is that punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights.”  (Internal quotation marks omitted.)  Whitaker v. Taylor, 99 Conn.App. 719, 730, 916 A.2d 834 (2007).

The plaintiff has failed to assert any allegation as to the defendant's state of mind or any common-law reckless conduct sufficient to maintain a claim of common-law recklessness.   The motion to strike Count Two is granted.

ORDER:

The defendant's motion to strike Count Two is granted.   The defendant's motion to strike Count Three is denied.

Robert E. Young, J.

FOOTNOTES

FN1. 113.00, Memorandum of Law in Support of Plaintiff's Objection to Defendant's Motion to Strike..  FN1. 113.00, Memorandum of Law in Support of Plaintiff's Objection to Defendant's Motion to Strike.

Young, Robert E., J.