Rosemary Idarola, Administratrix of the Estate of John George v. LLC (2011)

FACTS

MEMORANDUM OF DECISION

The plaintiff, Rosemary Idarola, administratrix of the estate of John George, commenced this action on July 21, 2010 by service of process on the defendant, Haven Health Center Soundview, LLC (“Haven Health”).¹  In count one of her two-count amended complaint, dated December 16, 2010, she alleges the following facts.   At all relevant times, the defendant maintained, managed and operated a nursing home facility for special needs residents at 1 Care Lane, West Haven, Connecticut.   On April 11, 2008, the plaintiff's decedent, John George, was admitted to Haven Health as a resident and patient with diagnoses including dementia, coronary artery disease, diabetes and arthritis.   He was admitted for care and continuous monitoring of his ailments, which the defendant represented it could properly and fully manage.

Upon admission to Haven Health, the decedent identified as having a high risk for falling.   On May 13, 2008, however, he was found on the floor next to his bed, confused and hallucinating.   On June 2, 2008, the defendant's agents observed the decedent had an unsteady gait and was provided with a wheelchair.   The next day, he was indicated to have increased confusion.   On June 5, 2008, the decedent was sent from Haven Health to the Hospital of St. Raphael for evaluation of various health ailments.   On June 10, 2008, he was discharged by the Hospital of St. Raphael and readmitted to Haven Health.   The plaintiff alleges that although a nursing readmission narrative regarding the decedent's condition was completed by the defendant's agents on the date of his readmission, a complete nursing admission reassessment should have been but was not completed upon readmission.   As a result, the plaintiff alleges that the defendant failed to adequately assess the decedent's physical status and ability to ambulate and did not implement appropriate measures to ensure his safety.

On June 10, 2008, at approximately 9:00 p.m., the decedent was seated in a wheelchair at or near his nurse's station when he stood and fell.   As a result, he sustained a fractured left hip and struck his head upon the flooring.   The plaintiff alleges that the defendant was negligent in that, inter alia, it failed to appropriately monitor and supervise the decedent's health condition, it failed to evaluate his ability to ambulate, and it failed to adequately assess his health condition and implement safety measures commensurate with his condition upon readmission.

The plaintiff alleges a recklessness cause of action in count two of her amended complaint.   In paragraphs twenty-one to twenty-two of count two,² the plaintiff alleges that the defendant was reckless in that it was fully aware of the decedent's health issues, which required that he be carefully supervised, and that his admission to the hospital was predicated upon his confusion and other dementia-related symptoms.   The plaintiff further alleges that, despite the defendant's knowledge of the decedent's health condition, the defendant willfully elected not to promptly conduct an admission assessment upon readmission and willfully allowed the decedent to walk in a public hallway without ample or effective supervision.

On January 13, 2011, the defendant filed a motion to strike count two of the plaintiff's amended complaint on the ground that it fails to set forth a recklessness cause of action.   The defendant also filed a memorandum of law in support of the motion on the same day.   On February 3, 2011, the plaintiff filed a memorandum in opposition to the motion to strike.   The court heard oral argument on February 14, 2011.

DISCUSSION

“[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).  “We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (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 modern trend ․ is to construe pleadings broadly and realistically, rather than narrowly and technically ․ As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.”  (Internal quotation marks omitted.)  Data–Flow Technologies, LLC v. Harte Nissan, Inc., 111 Conn.App. 118, 132, 958 A.2d 195 (2008).

In their memorandum of law in support of the motion to strike, the defendant argues that count two fails to state a legally sufficient recklessness cause of action.   Specifically, the defendant asserts that count two merely relies upon the same allegations in count one, which sets forth a negligence cause of action, and that count two fails to allege sufficient facts setting forth the conduct which is claimed to be reckless or deliberate “over and above that which is claimed to be negligent.”   The plaintiff counters in her memorandum in opposition to the motion to strike that count two sufficiently sets forth a recklessness cause of action.

“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.”  (Citations omitted;  internal quotation marks omitted.)  Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988).  “There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on.”  (Internal quotation marks omitted.)   Angiolillo v. Buckmiller, 102 Conn.App. 697, 705, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).  “[T]he reiteration of facts previously asserted to support a cause of action in negligence, without more, cannot be transformed into a claim of reckless misconduct [by mere] nomenclature.”  (Internal quotation marks omitted.)   Campos v. Coleman, Superior Court, judicial district of New Haven, Docket No. CV 10 6009582 (June 9, 2010, Wilson, J.)

In Stromberg v. Hamilton Rehabilitation and Healthcare Center, Superior Court, judicial district of Hartford, Docket No. CV 04 0833616 (March 13, 2006, Shortall, J.), the plaintiff, the executor of the decedent's estate, sued a health care center and its alleged owner, operator or joint venturer after the decedent was strangled by the seat belt on her wheelchair.   Counts one and two sounded in negligence and counts three and four sounded in recklessness pursuant to General Statutes § 19a–550.   The defendants moved to strike counts three and four on the ground that, inter alia, they did not set forth legally sufficient claims of recklessness.

The court denied the motion to strike, holding that counts three and four alleged legally sufficient recklessness claims.   Counts three and four included the same thirteen allegations of conduct that were made in counts one and two.   The plaintiff, however, added to each paragraph a claim that the defendants knew the decedent had problems staying in her wheelchair.  “In other words, [the plaintiff alleged that] with knowledge that [the decedent ] had problems staying properly seated in her wheelchair, the defendants failed to provide a safe environment for her ․ failed to train their employees in the proper use of seat belt restraints in the wheelchair ․ and so on ․” (Emphasis added.)  Id. “[C]onduct that is otherwise simply negligent can be transformed into recklessness if the actor knows of the potential risks and ignores them ․ [T]he addition of the allegation of knowledge on the part of the defendants of a potentially dangerous tendency on the part of the decedent when they engaged in their allegedly negligent conduct is enough to state a claim of recklessness in counts three and four.”  Id.

On similar facts, the court in Sandler v. Mercy Community Health, Superior Court, judicial district of Hartford, Docket No. CV 09 6005240 (December 6, 2010, Wagner, J.T.R.) denied the defendant health care facility's motion to strike, emphasizing:  “The defendant's alleged knowledge [of the decedent's increased fall risk], coupled with the failure to implement appropriate protocols, could rise to more than ․ thoughtlessness ․ Instead, it might demonstrate a conscious choice of a course of action with knowledge of facts which would disclose this danger to any reasonable man.”  (Internal quotation marks omitted.)  Id.

In the present case, count two of the plaintiff's amended complaint incorporates by reference paragraphs one through twenty from count one, which sets forth a negligence cause of action.   Count two also, however, includes paragraphs that go above and beyond the facts alleging negligence in count one.   These additional paragraphs state that, although the defendant knew the decedent identified as having a high risk of falling and that his health condition required careful monitoring and supervision, the defendant willfully elected not to conduct an admission assessment of the decedent upon readmission and willfully allowed him to walk in a public hallway without adequate supervision.   As a result, the plaintiff alleges more than a mere failure to exercise reasonable precautions to avoid injury to others.   Therefore, count two of the plaintiff's amended complaint alleges a legally sufficient recklessness cause of action.

CONCLUSION

For the foregoing reasons, the court denies the defendant's motion to strike count two from the amended complaint.

Woods, J.

FOOTNOTES

FN1. The instant action was also filed by the plaintiff against the following entities:  Haven Health Center Care Management, LLC;  Haven Health Care Trust II, LLC;  Haven Eldercare, LLC;  and Raymond S. Termini.   Those entities, however, are not parties to the motion to strike.   In this memorandum, Haven Health Center Soundview, LLC will be referred to as “the defendant.”.  FN1. The instant action was also filed by the plaintiff against the following entities:  Haven Health Center Care Management, LLC;  Haven Health Care Trust II, LLC;  Haven Eldercare, LLC;  and Raymond S. Termini.   Those entities, however, are not parties to the motion to strike.   In this memorandum, Haven Health Center Soundview, LLC will be referred to as “the defendant.”

FN2. The court notes that there are two paragraphs in count two of the plaintiff's amended complaint numbered “twenty-two.”   The first paragraph numbered “twenty-two” includes allegations that, inter alia, the defendant willfully elected not to promptly conduct an admission assessment upon readmission and willfully allowed the decedent to walk in a public hallway without ample or effective supervision..  FN2. The court notes that there are two paragraphs in count two of the plaintiff's amended complaint numbered “twenty-two.”   The first paragraph numbered “twenty-two” includes allegations that, inter alia, the defendant willfully elected not to promptly conduct an admission assessment upon readmission and willfully allowed the decedent to walk in a public hallway without ample or effective supervision.

Woods, Glenn A., J.