Thomas Smith v. James Maynard (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 123)

Facts and Procedural History

This action arises from a motor vehicle accident that occurred on November 27, 2008.   The plaintiff, Thomas Smith, filed a complaint against James and Donna Maynard, the defendants for the purposes of this motion, on August 31, 2010.   The defendants filed a motion to strike counts two and four of the plaintiff's complaint, along with a memorandum in support, on February 22, 2011.   The plaintiff filed his objection and memorandum in opposition on March 1, 2011.   The parties appeared for oral argument at short calendar on March 11, 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).

Count Two:  Statutory Recklessness

As to count two, the defendants argue that the plaintiff's allegations are legally insufficient to support a claim for statutory recklessness, pursuant to General Statutes § 14–295.   That section provides:  “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 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.   The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle.”

In count two, the plaintiff incorporates the allegations contained in count one, in which he claims negligence on the part of James Maynard.   Specifically, in count one, the plaintiff alleges:  “[he] was a passenger in an automobile operated by ․ James Maynard ․ [who] was operating an automobile in a southerly direction on Stone Hill Road, near its intersection with Hell Hollow, in Griswold, Connecticut, when he emerged from a curve and lost control of his automobile, causing a collision into a tree and causing the plaintiff the serious injuries, losses and damages hereinafter set forth ․ The injuries, losses, and damages suffered by the plaintiff ․ were caused by the negligence and carelessness of ․ James Maynard in one or more of the following respects:  he failed to keep his automobile under proper control;  he was inattentive and failed to keep a reasonable and proper lookout;  he drove his automobile at a greater rate of speed than the circumstances warranted;  he drove his vehicle with defective brakes or failed to apply his brakes in time to avoid a collision;  he failed to turn said automobile in time to avoid said collision;  he violated § 14–218(a) ․ he violated § 14–219(a) ․ he violated § 14–222(a) ․ he violated § 14–80h ․ he violated § 14–236 ․ he violated § 14–230.”   In count two, the plaintiff adds:  “Said occurrence was a violation of § 14–295 due to [James Maynard's] reckless disregard and violation of one or more of the following statutes:  14–218a Speeding-traveling unreasonably fast ․ 14–219 Speeding-violation of absolute limit ․ 14–222 Reckless Driving ․ 14–230 Failure to drive in right hand lane ․ Said violation of statute was a substantial factor in causing said injuries and damages.”

The court denies the defendants' motion to strike this count.   In Gudeahn v. Jensen, Superior Court, judicial district of New London, Docket No. CV 09 5013838 (June 25, 2010, Martin, J.), this court stated:  “As this court previously indicated in Ritacco v. Archila, Superior Court, judicial district of New London, Docket No. CV 08 5006526 (December 31, 2008, Martin, J.), ‘there is a split of authority regarding the pleading requirements for a claim of statutory recklessness under § 14–295 ․ [and][t]his court is of the view that a plaintiff [need only] allege that the defendant deliberately or with reckless disregard operated a motor vehicle in violation of any of the statutes enumerated in § 14–295, and that the violation was a substantial factor in causing the plaintiff's injuries.’ “

In count two of his complaint, the plaintiff incorporates some of the allegations contained in count one, but further alleges:  “Said occurrence was a violation of § 14–295 due to [James Maynard's] reckless disregard and violation of one or more of the following statutes:  14–218a Speeding—traveling unreasonably fast ․ 14–219 Speeding—violation of absolute limit ․ 14–222 Reckless Driving ․ 14–230 Failure to drive in right hand lane ․ Said violation of statute was a substantial factor in causing said injuries and damages.”   Construing the plaintiff's claim most favorably to sustaining its legal sufficiency, the court finds that the plaintiff has met the aforementioned standard.

The defendants also move to strike paragraph three of the plaintiff's prayer for relief which seeks double or treble damages pursuant to § 14–295.   “Practice Book ․ § 10–39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded.”  Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).   Because the court denies the defendants' motion to strike count two, it also denies their motion to strike the corresponding claim for damages pursuant to § 14–295.   See Gudeahn v. Jensen, supra, Superior Court, Docket No. CV 09 5013838 (in denying motion to strike statutory recklessness count, defendant's motion to strike corresponding claim for double or treble damages pursuant to § 14–295 was also denied);  Ritacco v. Archila, supra, Superior Court, Docket No. CV 08 5006526 (same).

Count Four:  Negligent Entrustment

As to count four, the defendants contend that the plaintiff's negligent entrustment claim is legally insufficient because it does not allege specific facts that show that Donna Maynard, James Maynard's mother, knew or should have known that James Maynard was an incompetent driver at the time she loaned him the vehicle.   In count four, the plaintiff incorporates the aforementioned allegations contained in count one and also alleges:  “[S]aid vehicle was owned by ․ Donna Maynard, and was being operated by ․ James Maynard, who had the authority to operate said vehicle ․ The injuries, losses, and damages suffered by the plaintiff ․ were caused by the negligence and carelessness of ․ Donna Maynard in one or more of the following respects:  she loaned the vehicle to ․ James Maynard for his use when she knew, or in the existence of due care, should have known, that he was irresponsible, incompetent, reckless and/or too inexperienced to operate a motor vehicle safely and she reasonably should have anticipated ․ the likelihood of injury to others ․”

Connecticut has long recognized the doctrine of negligent entrustment of automobiles.  “An automobile, while capable of doing great injury when not properly operated upon the highways, is not an intrinsically dangerous instrumentality to be classed with ferocious animals or high explosives ․ and liability cannot be imposed upon an owner merely because he entrusts it to another to drive upon the highways.   It is, however, coming to be generally held that the owner may be liable for injury resulting from the operation of an automobile he loans to another, when he knows or ought reasonably to know that the one to whom he entrusts it is so incompetent to operate it, by reason of inexperience or other cause, that the owner ought reasonably to anticipate the likelihood that in its operation injury will be done to others.”  (Citation omitted.)  Greeley v. Cunningham, 116 Conn. 515, 518, 165 A. 678 (1933).   “When the evidence proves that the owner of an automobile knows or ought reasonably to know that one to whom he entrusts it is so incompetent to operate it upon the highways that the former ought reasonably to anticipate the likelihood of injury to others by reason of that incompetence, and such incompetence does result in such injury, a basis of recovery by the person injured is established.   That recovery rests primarily upon the negligence of the owner in entrusting the automobile to the incompetent driver.”  Id., 520.

“Several Superior Court decisions have described the elements of the tort of negligent entrustment as follows:  The essential elements of the tort of negligent entrustment of an automobile [are] that the entrustor knows or ought reasonably to know that one to whom he entrusts it is so incompetent to operate it upon the highways that the former ought to reasonably anticipate the likelihood of injury to others by reason of that incompetence, and such incompetence does result in injury ․ Liability cannot be imposed on a defendant under a theory of negligent entrustment simply because the defendant permitted another person to operate the motor vehicle ․ Liability can only be imposed if (1) there is actual or constructive knowledge that the person to whom the automobile is loaned is incompetent to operate the motor vehicle;  and (2) the injury results from that incompetence.”  (Internal quotation marks omitted.)  Ellis v. Jarmin, Superior Court, judicial district of New London, Docket No. CV 09 5010839 (December 17, 2009, Cosgrove, J.) (49 Conn. L. Rptr. 1, 2).

In Kaminsky v. Scoopo, Superior Court, judicial district of New Haven, Docket No. CV 08 6002084 (July 30, 2008, Bellis, J.) (46 Conn. L. Rptr. 82, 83), a decision of the Superior Court noted:  “The Greeley court, and its progeny, recognized that a principal feature of a cause of action for negligent entrustment is the knowledge of the entrustor with respect to the dangerous propensities and incompetency of the entrustee.”   In Kaminsky, the plaintiff alleged in her complaint that the defendant operator “was not a responsible and safe driver ․ as herein alleged.”   The plaintiff further alleged that the defendant owner knew or should have known of the defendant operator's irresponsible and unsafe driving and that he negligently entrusted a motor vehicle to her.   See id.

In granting the defendant's motion to strike the negligent entrustment count, the Kaminsky court agreed with the defendant that the facts pled did not support a claim for negligent entrustment because the complaint merely made conclusory statements, and failed to plead facts to support a legal theory that the defendant owner had either constructive or actual knowledge that the defendant operator was incompetent to operate a motor vehicle.   See id.

The court reasoned:  “Admittedly, this is a close call.   There is no specific allegation in the complaint suggesting a past history of incompetent driving or other dangerous propensities on the part of the defendant operator, nor is such a history necessarily implied from the allegations contained in the complaint.   Instead, the allegations, even viewed in a light most favorable to the plaintiff, are that the defendant owner knew or should have known of the defendant operator's irresponsible and unsafe driving of [the date of the subject accident] ․ without alleging that the defendant operator had dangerous propensities or any incompetencies before that date.   The alleged negligence of the defendant driver on [the date of the subject accident] is not the determinative factor in an action for negligent entrustment.   Instead, the proper focus is on whether the entrustor was negligent in entrusting a vehicle to an incompetent driver.   Here, the allegations of the complaint fall short.”  Id.

Indeed, decisions of the Superior Court have stricken negligent entrustment claims when the plaintiff has failed to allege specific facts that would place the defendant on notice of the operator's past history of incompetent driving or other dangerous propensities.   See e.g., Dervil v. Perez, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 04 4001545 (September 12, 2005, Lewis, J.T.R.) (granting motion to strike where complaint did not allege any facts suggesting that owner of motor vehicle had actual or constructive knowledge of driver's dangerous propensities);  Chung v. Place Motors, Inc., Superior Court, judicial district of New London, Docket No. 560074 (February 11, 2003, Hurley J.T.R.) (34 Conn. L. Rptr. 140) (granting motion to strike brought against lessor of vehicle where complaint failed to adequately plead facts sufficient to find knowledge of the entrustee's incompetence);  Plimpton v. Amerada Hess Corp., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 99 0169861 (September 27, 1999, Karazin, J.) (granting motion to strike where complaint failed to allege that driver had any dangerous propensities or that defendant had actual or constructive knowledge of any dangerous propensities of driver).

Decisions of the Superior Court have refused to strike claims of negligent entrustment only when the plaintiff has plead specific facts to support a legal theory that the defendant had either constructive or actual knowledge of the driver's incompetence.   See Ellis v. Jarmin, supra, 49 Conn. L. Rptr. 1 (denying motion to strike given injured passenger's specific allegations that rental car company was negligent in entrusting a vehicle to driver because they knew, or should have known, that he was the subject of outstanding criminal warrants, and was therefore likely to flee from the police and cause harm to members of the public);  Whitely v. Sebas, Superior Court, judicial district of Ansonia–Milford, Docket No. 90031783 (August 10, 1990, Hartmere, J.) (2 Conn. L. Rptr. 296) (denying motion to strike negligent entrustment claim where complaint alleged that defendant knew his son was not fit to drive due to his past history of negligent driving).

In the present case, the plaintiff simply alleges that Donna Maynard “loaned the vehicle to ․ James Maynard for his use when she knew, or in the existence of due care, should have known, that he was irresponsible, incompetent, reckless and/or too inexperienced to operate a motor vehicle safely and she reasonably should have anticipated ․ the likelihood of injury to others ․” The plaintiff's complaint fails to allege specific facts that would place Donna Maynard on notice of James Maynard's past history of incompetent driving or other dangerous propensities.   As such, the motion to strike count four is granted.

Conclusion

For all of the foregoing reasons, the defendants' motion to strike count two is hereby denied and their motion to strike count four is hereby granted.

Martin, J.

Martin, Robert A., J.