Patricia Geraghty v. Hamilton Park Associates (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 106)

Facts and Procedural History

The plaintiff, Patricia Geraghty, was a tenant of the premises located at 281 Hamilton Avenue in Norwich, Connecticut, when she alleges that she fell on poorly illuminated stairs located outside of her apartment.   On November 29, 2010, the plaintiff filed an amended five-count complaint against the defendants, Hamilton Park Associates Limited Partnership and Barkan Management Company, Inc. The complaint alleges that Hamilton Park Associates owns the premises on Hamilton Avenue and that Barkan Management was hired to manage and maintain the premises.   The defendants filed a motion to strike and memorandum in support on January 18, 2011.   In response to the motion to strike, the plaintiff filed a second amended complaint withdrawing a CUTPA claim and a memorandum in opposition to the motion to strike on March 23, 2011.

Discussion

“[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court ․ [The court must] 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.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

The defendants move to strike the second (Breach of warranty of habitability), fourth (CUTPA) and fifth (Recklessness) counts of the plaintiff's complaint.   The plaintiff's March 23, 2011 complaint is now the operative complaint.   The fourth count of the second amended complaint now alleges a violation of the Landlord–Tenant Act, General Statutes § 47a–1 et seq., rather than a violation of the Connecticut Unfair Trade Practices Act. As such, the court deems that the plaintiffs have implicitly consented to the motion to strike the CUTPA count.   The court thus will only address the defendants' arguments in support of their motion to strike counts two and five, which allege breach of the warranty of habitability and recklessness.

Count Two:  Breach of the Warranty of Habitability

Count two, in pertinent part, alleges:  “On or about November 3, 2008, the plaintiff ․ was injured when she fell while walking down the stairs from her apartment, due to the fact that the lights did not illuminate the stairs when it was dark outside, due to an error in resetting the lights after daylight savings time had occurred, along with other defects in the stairway and/or handrails and/or other defects ․ Said injuries and damages were caused because the defendants or their agents, servants, or employees breached the implied warranty of habitability in one or more of the following ways:  Violated Connecticut Building Code (CABO) § 1006.1, in that the means of egress ․ shall be illuminated at all times the building space served by the means of egress is occupied ․ Violated Connecticut Building Code (CABO) § 1006.2, in that the required means of illumination shall be arranged so that the failure of any single lamp does not result in an illumination level of less than 0.2 foot-candle at the floor level ․ Violated Connecticut Building Code (CABO) § 1006.3(5), in that the power supply for means of egress illumination shall normally be provided by the premise's electrical supply ․ Failed to have, and/or failed to maintain, warning signs regarding the dangerous, defective, and/or hazardous condition of said stairs ․ Caused or allowed and permitted the dangerous, defective and/or hazardous condition of the stairs to exist for such a period of time that the defendants knew, or in the exercise of reasonable care, should have known of the existence of the dangerous and defective condition ․ Failed to make reasonable and proper inspections to make sure that the stairs were in a reasonably safe condition ․ Failed to warn the plaintiff of the dangerous condition ․”

The defendants argue that count two is legally insufficient because the plaintiff was injured in a common area, not within the leased premises, and because the defect did not exist at the commencement of her lease.   In addition, the defendants contend that the plaintiff cannot recover for personal injuries based on an alleged breach of the warranty of habitability.

“[A]t common law, there is no implied warranty of habitability given to a tenant, but rather, he takes the premises as he finds them and bears the risk of any defective conditions which are within the area under his exclusive possession and control ․ This rule, however, does not apply to defects which are the result of faulty design or disrepair and which existed at the beginning of the tenancy, were not discoverable by the tenant on reasonable inspection, and were known, either actually or constructively, to the landlord.”  (Internal quotation marks omitted.)  Gore v. People's Savings Bank, 235 Conn. 360, 374, 665 A.2d 1341 (1995).

Amongst Connecticut Superior Court decisions, there is a divergence of opinion as to whether a plaintiff may bring a claim for personal injuries based upon a defendant's breach of the implied warranty of habitability.   While such claims have been consistently permitted in the context of lead paint litigation;  Lovick v. Nigro, Superior Court, lead paint litigation docket at Hartford, Docket No. LPL CV 94 0542473 (February 24, 1997, Lager, J.) (“counts seeking damages for lead poisoning based on breach of the implied warranty of habitability have not been stricken in this state”);  they have not been allowed in other contexts.   See e.g., Caccavella v. Marriott Corp., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 88 0091494 (July 20, 1992, Rush, J.) (7 Conn. L. Rptr. 117).

Notwithstanding this split of authority, “[i]n order to state a claim for breach of an implied warranty of habitability, the complaint must allege, or it must be fairly imputable from the alleged facts, that at the inception of the tenancy the premises contained [a defect] not discoverable by the tenant upon reasonable inspection and known to the defendant landlord either actually or constructively.”  (Emphasis added.)   Akridge v. Nastri, Superior Court, lead paint litigation docket at New Haven, Docket No. LPL CV 01 0451972 (September 5, 2003, Lager, J.) (denying motion to strike implied warranty of habitability count in plaintiff's action to recover damages for exposure to lead paint, noting specifically, that allegations pertaining to the time period after the inception of the tenancy were irrelevant).

The court need not determine whether the defendants' alleged breach of the warranty of habitability permits the plaintiff to recover damages for personal injuries under the circumstances set forth in this case.   The plaintiff's claim is legally insufficient because she fails to allege that the defective condition, the poorly illuminated stairway, was in existence at the inception of her lease.   Rather, she claims that the defect arose as a result of the defendants' failure to reset the lights in the stairway after daylight savings time occurred on or about November 3, 2008.   For this reason, her claim for breach of the implied warranty of habitability is stricken.

Count Five:  Recklessness

Count five, in relevant part, alleges:  “[T]he plaintiff ․ was injured when she fell while walking down the stairs from her apartment, due to the fact that the lights did not illuminate the stairs when it was dark outside, due to an error in resetting the lights after daylight savings time had occurred, along with other defects in the stairway and/or handrails and/or other defects ․ By allowing the defective light condition to occur as described above, the defendant acted with a sinister motive, and/or an intent of wanton or reckless injury and/or evil motive, and/or defendant exhibited a reckless indifference to the interest of others, particularly the plaintiff;  and/or such defiant behavior is unlikely to be attributable to an honest mistake or mere negligence ․ The plaintiff's injuries and damages were caused by the recklessness, wanton and willful misconduct of the defendants in one or more of the following ways ․ Violated Connecticut Building Code (CABO) § 1006.1, in that the means of egress ․ shall be illuminated at all times the building space served by the means of egress is occupied ․ Violated Connecticut Building Code (CABO) § 1006.2, in that the required means of illumination shall be arranged so that the failure of any single lamp does not result in an illumination level of less than 0.2 foot-candle at the floor level ․ Violated Connecticut Building Code (CABO) § 1006.3(5), in that the power supply for means of egress illumination shall normally be provided by the premise's electrical supply ․ Failed to have, and/or failed to maintain, warning signs regarding the dangerous, defective, and/or hazardous condition of said stairs ․ Caused or allowed and permitted the dangerous, defective and/or hazardous condition of the stairs to exist for such a period of time that the defendants knew, or in the exercise of reasonable care, should have known of the existence of the dangerous and defective condition ․ Failed to make reasonable and proper inspections to make sure that the stairs were in a reasonably safe condition ․ Failed to warn the plaintiff of the dangerous condition ․”

The court is satisfied that the plaintiff's fifth count, alleging common-law recklessness, is legally sufficient.   In McGuire v. Johnson, Superior Court, judicial district of New London, Docket No. CV 09 5012655 (November 4, 2009, Cosgrove, J.), this court addressed the defendant's argument that the plaintiff's allegations did not support a cause of action for common-law recklessness because the plaintiff failed to allege that he engaged in conduct that went beyond negligence.   This court stated:  “To determine whether [a] complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior.   Recklessness is a state of consciousness with reference to the consequences of one's acts ․ It is more than negligence, more than gross negligence ․ The state of mind amounting to recklessness may be inferred from conduct.   But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ 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.”  (Citation omitted;  internal quotation marks omitted.)  Id.

Moreover, this court rejected the defendant's argument that the plaintiff's recklessness claim was legally insufficient due to its reliance on the facts alleged in her negligence claim, noting that the Connecticut Supreme Court rejected a similar argument.  “In [Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003) ] the issue was whether the allegations in the plaintiffs' complaint were sufficient to state a cause of action for reckless infliction of emotional distress on a bystander ․ The defendants argued that the allegations were insufficient because the plaintiffs used the same language to allege that the defendants engaged in both negligent and reckless conduct ․ The Supreme Court disagreed, noting that [t]he defendants are mired in the fact that, aside from the addition of the words ‘willful, wanton and/or reckless actions,’ the plaintiffs' allegations in their reckless counts mirror their assertions in the counts charging the defendants with negligence ․ According to the court, a recklessness count could stand, regardless of whether the plaintiff also relied on the allegations for a negligence count, as long as the language that the plaintiff used was sufficient to allege reckless conduct ․ We recognize that the allegations in the counts alleging the negligent and reckless infliction of bystander emotional distress essentially mirror one another.   Rather than adopting the defendants' conclusion that the allegations are not sufficient to state a cause of action for recklessness, however, we suggest that the plaintiffs' allegations of negligence were overinclusive.”   (Citations omitted;  internal quotation marks omitted.)  Id.

In the present case, the plaintiff utilizes sufficiently explicit language to inform both the court and the defendants that reckless misconduct is being asserted in count five.   Although the plaintiff's allegations in her reckless count are nearly identical to her assertions in other counts of the complaint, including count one alleging negligence, the recklessness count must stand because the plaintiff used sufficient language to allege reckless conduct on the part of the defendants.

Conclusion

For all of the foregoing reasons, the defendants' motion to strike is hereby granted as to count two, alleging breach of the implied warranty of habitability, and denied as to count five, alleging common-law recklessness.

Cosgrove, J.

Cosgrove, Emmet L., J.