Vivian Snurkowski v. Joseph Zmachinski (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 111)

Facts and Procedural History

This action arises from a two-car collision that occurred on October 16, 2009.   The plaintiff, Vivian Snurkowski, filed an amended three-count complaint on December 14, 2010, against the defendants, Joseph Zmachinski and The William W. Backus Hospital.   The defendants filed a motion to strike counts two and three of the amended complaint, along with a memorandum in support, on January 13, 2011.   The defendants filed an amended memorandum in support of their motion on January 21, 2011.   The plaintiff filed an objection and memorandum in opposition on January 18, 2011.   The defendants filed a reply memorandum on February 16, 2011.   The plaintiff filed a sur-reply on February 24, 2011.   The parties appeared for oral argument at short calendar on March 28, 2011.

Discussion

“Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a).   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).

“In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   The defendants argue that the plaintiff's second and third counts fail to set forth specific allegations describing conduct which would rise to the level of recklessness.

Second Count:  Common–Law Recklessness

In count one of the plaintiff's amended complaint, alleging negligence, the plaintiff claims;  “Defendant Zmachinski so operated the automobile so as to cause a collision with the plaintiff's automobile, resulting in the injuries and losses to the plaintiff as hereinafter set forth ․ The collision was the result of the negligence or carelessness of defendant Zmachinski in one or more of the following ways:  a. He operated his vehicle at a speed greater than was reasonable, having regard to the width, traffic and use of the highway, the intersection of streets and the weather conditions, in violation of Section 14–218(a) of the Connecticut General Statutes;  b. He operated his vehicle in an inattentive manner and without a proper lookout;  c. He failed to keep and operate his vehicle under proper and reasonable control;  d. He operated his motor vehicle when it was not equipped with brakes adequate to control safely its movement and when said brakes were not in good and sufficient working order, in violation of Section 14–80h of the Connecticut General Statutes;  e. He failed to turn his vehicle to the left or to the right so as to avoid the collision, although by a proper and reasonable exercise of his faculties, he could and should have done so;  f. He failed to apply his brakes in time to avoid a collision, although by a proper and reasonable exercise of his faculties, he could and should have done so;  g. He operated her automobile at an unreasonable rate of speed having due regard for the traffic, weather, width and use of the highway;  h. He [failed] to grant the right of way to the plaintiff in violation of C.G.S. § 14–231;  i. He failed to operate his motor vehicle to the right of the center line in violation of C.G.S. § 14–230;  j. He failed to drive in an established lane;  k. He failed to give any signal, by horn or otherwise, of his approach;  l. He entered the northbound lane of Route 12 and operated his motor vehicle in a southerly direction;  m. He failed to grant the plaintiff the right of way.”

In count two, alleging common-law recklessness, the plaintiff claims:  “Defendant Zmachinski, while driving on Route 12 chose to take his eyes off the road while he was adjusting his radio, in disregard of the safety of other motorists on the road including the plaintiff and permitted his car to veer into the oncoming lane of travel, causing a collision with the plaintiff's automobile, and resulting in the injuries and losses to the plaintiff as hereinafter set forth ․ The collision was the result of the reckless or wanton misconduct of defendant Zmachinski in one or more of the following ways:  a. He operated his vehicle at a speed greater than was reasonable, having regard to the width, traffic and use of the highway, the intersection of streets and the weather conditions, in violation of Section 14–218(a) of the Connecticut General Statutes;  b. He operated his vehicle in an inattentive manner and without a proper lookout;  c. He failed to keep and operate his vehicle under proper and reasonable control;  d. He operated his motor vehicle when it was not equipped with brakes adequate to control safely its movement and when said brakes were not in good and sufficient working order, in violation of Section 14–80h of the Connecticut General Statutes;  e. He failed to turn his vehicle to the left or to the right so as to avoid the collision, although by a proper and reasonable exercise of his faculties, he could and should have done so;  f. He failed to apply his brakes in time to avoid a collision, although by a proper and reasonable exercise of his faculties, he could and should have done so;  g. He operated her automobile at an unreasonable rate of speed having due regard for the traffic, weather, width and use of the highway;  h. He [failed] to grant the right of way to the plaintiff in violation of C.G.S. § 14–231;  i. He failed to operate his motor vehicle to the right of the center line in violation of C.G.S. § 14–230;  j. He failed to drive in an established lane;  k. he failed to give any signal, by horn or otherwise, of his approach;  l. He entered the northbound lane of Route 12 and operated his motor vehicle in a southerly direction;  m. He failed to grant the plaintiff the right of way;  n. He operated his vehicle at a speed greater than was reasonable, having regard to the width, traffic and use of the highway, the intersection of streets and the weather conditions, in violation of Section 14–222 of the Connecticut General Statutes;  o. He operated his vehicle without being watchful of the road and oncoming traffic having regard to the width, traffic and use of the highway, the intersection of streets and the weather conditions, in violation of Section 14–222 of the Connecticut General Statutes.”

The court is satisfied that the plaintiff's allegations are legally sufficient as to her claim of common-law recklessness.   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.

In denying the defendant's motion to strike, the court reasoned:  “Construing the revised complaint in the light most favorable to the plaintiff, the allegations address both the defendant's conduct that gives rise to the cause of action and the defendant's state of mind prior to the accident.   The plaintiff alleges that the defendant operated his motor vehicle in a manner that was unsafe for others, that he consciously disregarded the plaintiff's safety, and that he knew or should have known that he was operating the motor vehicle in a manner that was unsafe for others.   Thus, the plaintiff sufficiently alleges that the defendant's conduct and intent rise to the level of recklessness.”  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 allegations of count two differ from the allegations of count one.   In count two, the plaintiff adds the following allegations:  “Defendant Zmachinski, while driving on Route 12 chose to take his eyes off the road while he was adjusting his radio, in disregard of the safety of other motorists on the road including the plaintiff and permitted his car to veer into the oncoming lane of travel, causing a collision with the plaintiff's automobile, and resulting in the injuries and losses to the plaintiff as hereinafter set forth ․ n. He operated his vehicle at a speed greater than was reasonable, having regard to the width, traffic and use of the highway, the intersection of streets and the weather conditions, in violation of Section 14–222 of the Connecticut General Statutes;  o. He operated his vehicle without being watchful of the road and oncoming traffic having regard to the width, traffic and use of the highway, the intersection of streets and the weather conditions, in violation of Section 14–222 of the Connecticut General Statutes.”   In light of this court's decision in McGuire v. Johnson, supra, Superior Court, Docket No. CV 09 5012655, the defendants' motion to strike count two is therefore, denied.

Third Count:  Statutory Recklessness

In count three, alleging statutory recklessness, the plaintiff claims:  “The collision was the result of the reckless disregard for the safety of the plaintiff which reckless disregard was a substantial cause of the collision, in one or more of the following ways:  a. He operated his vehicle at a speed greater than was reasonable, having regard to the width, traffic and use of the highway, the intersection of streets and the weather conditions, in violation of Section 14–218a of the Connecticut General Statutes;  b. He operated his vehicle without being watchful of the road and oncoming traffic having regard to the width, traffic and use of the highway, the intersection of streets and the weather conditions, in violation of Section 14–222 of the Connecticut General Statutes;  c. He failed to operate his motor vehicle to the right side of the road in violation of C.G.S. § 14–230;  d. He operated his vehicle at a speed greater than was reasonable, having regard to the width, traffic and use of the highway, the intersection of streets and the weather conditions, in violation of Section 14–222 of the Connecticut General Statutes.”

The court is similarly satisfied that the plaintiff's allegations are legally sufficient as to her claim of statutory recklessness.   In McGuire v. Johnson, supra, Superior Court, Docket No. CV 09 5012655, this court also addressed the defendant's argument that the plaintiff failed to allege sufficient facts to support a cause of action for statutory recklessness because she failed to allege facts are separate and distinct from those that she relied upon for her negligence claim.   This court disagreed, stating:  “Section 14–295 provides, in relevant part:  ‘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 [General Statutes] 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 ․’ Neither the Connecticut Supreme nor Appellate Court has yet had occasion to address the pleading requirements for recklessness under § 14–295.   There has been a split of authority in Superior Court decisions as to what degree of specificity is required in pleading recklessness ․ The split of authority arises from the different constructions the courts have placed on the term ‘specifically pleaded.’  ․ This court finds persuasive the approach that a plaintiff successfully pleads a cause of action for statutory recklessness if the plaintiff generally alleges that the defendant has deliberately or with reckless disregard violated one of the enumerated statutes in § 14–295, and the violation was a substantial factor in causing the plaintiff's injuries.   This approach is supported by a review of the legislative history of § 14–295 as well as the language of the statute itself.   Although the plaintiff relies on the same facts for the statutory recklessness claim as those she relies on for her negligence claim, the plaintiff sufficiently pleads the general allegations enumerated in § 14–295.   Accordingly, the allegations satisfy the pleading requirements for § 14–295, and the motion to strike ․ is denied.”  (Citations omitted;  internal quotation marks omitted.)  Id.

In the present case, the plaintiff successfully pleads a cause of action for statutory recklessness.   The plaintiff alleges that the defendants, with reckless disregard, violated §§ 14–218a, 14–222 and 14–230 and that their violation of these sections was a substantial factor in causing the collision.   As a result, the defendants' motion to strike count three is denied.

Prayer for Relief

Finally, the defendants contend that proof of a violation of any section enumerated in § 14–295, alone, does not entitle the plaintiff to recover double or treble damages.   In McGuire v. Johnson, supra, Superior Court, Docket No. CV 09 5012655, this court addressed a similar argument.

“Practice Book ․ § 10–39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded ․ Section 14–295 permits an award of double or treble damages in any civil action seeking damages resulting from personal injury, wrongful death or damage to property when the fact finder has determined that the tortfeasor violated one or more of the enumerated provisions of our motor vehicle laws ․ and that the statutory violation was a substantial factor in causing the injury, death or property damage ․ The plaintiff's cause of action for statutory recklessness ․ is legally sufficient, thus the plaintiff is entitled to seek double and treble damages under § 14–295 against the defendant.   The relief sought by the plaintiff could legally be awarded and the motion to strike with respect to the prayer for relief is denied.”  (Citations omitted;  internal quotation marks omitted.)  Id.

For these reasons, the defendants' motion to strike the prayer for relief is also denied.

Conclusion

In sum, the defendants' motion to strike is hereby denied in its entirety.

Cosgrove, J.

Cosgrove, Emmet L., J.