Sokratis Vlantis v. Joseph V. Serino et al. (2011)

MEMORANDUM OF DECISION RE DEFENDANT JOHN ALESSIE'S MOTION TO STRIKE

This personal injury action brought by the plaintiff against several defendants arises out of a multi-vehicle chain reaction accident on the Merritt Parkway.   The defendant, John Alessie, was the operator of the vehicle directly behind the plaintiff's vehicle.   The allegations are that defendant Serino collided with defendant Hemstock, who collided with defendant Alessie, who collided with the plaintiff.   In count five, the plaintiff alleges that the defendant John Alessie was negligent in his operation of his vehicle, in that, among other ways, he operated his vehicle in violation of CGS § 14–218a, and 14–219.   In count six, the plaintiff incorporates the negligence allegations and thereafter asserts a claim of so-called statutory recklessness.   The defendant Alessie moved to strike the recklessness count averring that the plaintiff has failed to sufficiently plead facts to support the cause of action.   For the reasons set forth below, the motion to strike is GRANTED.

Discussion 1

The role of the trial court in ruling on a motion to strike is to test the legal sufficiency of a pleading.  R.K. Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994).   The court must “examine the [complaint] construed in favor of the [plaintiff] to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, [w]hat is reasonably 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 (2000).   Similarly, a motion to strike may be used to challenge the relief sought if the relief sought could not be legally awarded.  Pamela B. v. Ment, 244 Conn. 296 (1998).

For purposes of the motion to strike, the moving party admits all facts well pleaded.  R.K. Constructors, Inc., supra, at 383 n.2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges “mere conclusions of law that are unsupported by the facts alleged.”   Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).

Here, the complaint in count six incorporates the negligence allegations in count five.   It then avers the most minimal of statutory requirements—the allegation that the defendant acted with reckless disregard and recklessly violated CGS § 14–218a, 219 and 222.   He further avers, as required, that such recklessness was a substantial factor in causing his injuries.   The question for this court is whether tracking the language of CGS § 14–295 is adequate, or whether, as is the case with a common-law recklessness count, additional factual allegations from which wanton, willful or reckless conduct can be inferred is necessary.   On this issue, there is a decided split of opinion among the superior court judges.

CGS § 14–295 provides in pertinent part:

In any civil action to recover damages resulting from personal injury ․ 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 ․ and that such violation was a substantial factor in causing such injury or damage to property ․

In Craig v. Driscoll, 262 Conn. 312 (2003) the Court, discussing a common-law cause of action for recklessness, held “[a]lthough 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.”  Id. at 343.  “A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made.”   Dumond v. Denehy, 145 Conn. 88, 91 (1958).

To determine whether the plaintiffs' amended complaint states a cause of action sounding in recklessness, we look first to the definitions of willful, 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 ․ [W]illful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ․ It is at least clear ․ that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.

Craig v. Driscoll, 262 Conn. at 342–43 (Internal quotation marks omitted.)   See also, Bishop v. Kelly, 206 Conn. 608, 614–15, 539 A.2d 108 (1988).   In construing allegations of common-law negligence, the mere labeling of previously alleged negligent conduct as “reckless” is insufficient.   See Angiolillo v. Buckmiller, 102 Conn.App. 697, 705 (2007).

Many superior court decisions hold that the factual specificity necessary to sustain a common-law recklessness count is not necessary to maintain a cause of action under Section 14–295 so long as the statutory language is tracked in the complaint.   See e.g., Chowaniec v. Deloughery, Superior Court, judicial district of New Haven, at New Haven, Dkt. No. CV 08 5020890, (February 3, 2011, Woods, J.);   Lindquist v. Smith, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 08 5006579 (November 2, 2009, Ronan, J.T.R.);   Liedke v. Paquette, Superior Court, judicial district of New Britain, Dkt. No. CV 10 6004043, (August 2, 2010, Swienton, J.).   Others have held that such factual specificity is required under General Statutes § 14–295.   See Cansler v. Zigmunds, Superior Court, judicial district of New Haven at Meriden, Dkt. No. CV 11 6002684 (March 15, 2011, Fischer, J.);   Paris v. Ziobron, Superior Court, judicial district of New Haven at New Haven, Dkt. No. CV 08 5031152 (November 29, 2010, Lager, J.);   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 latter group of these decisions.   The statute does not supplant common-law causes of action for recklessness.   It merely provides for the award of double or treble damages so long as particular pleading requirements are met under circumstances involving the reckless violation of certain statutes.   This court sees no reason to abandon traditional pleading requirements as to the necessary allegations of recklessness distinct from those required by statute in order to receive the increased damages award.   See, Paris v. Ziobron, Superior Court, judicial district of New Haven at New Haven, Dkt. No. CV 08 5031152 (November 29, 2010, Lager, J.), (To state a cause of action under § 14–295, a plaintiff must allege sufficient facts establishing that the predicate statute was violated with the requisite mental state, that is, deliberately or with reckless disregard, and that such violation was a substantial factor in producing the plaintiff's injury).

The motion to strike is granted.

Kari A. Dooley, J.

FOOTNOTES

FN1. The plaintiff does not allege a common-law cause of action for recklessness..  FN1. The plaintiff does not allege a common-law cause of action for recklessness.

Dooley, Kari A., J.