Yvette Maldonado v. Ralph Fontanez et al. (2011)

MEMORANDUM OF DECISION

FACTS

The plaintiff, Yvette Maldonado, commenced the present action by service of process against the defendants, Ralph Fontanez (Fontanez), Onofrio's Fresh Cut, Inc. (Onofrio's) and Ryder Truck Rental, Inc. (Ryder), on March 19, 2009.¹  The operative version of the complaint was filed on June 24, 2010.   It alleges the following facts.   Fontanez acted within the scope of his employment with Onofrio's at all times relevant to the present action.   On or about February 21, 2008, he drove a truck owned by Ryder and rented by Onofrio's for fruit and produce delivery north on State Highway 125 in or near Hegins Township, Schuylkill County, Pennsylvania.   He was accompanied by Ivelisse Valazquez, the plaintiff's decedent, whom he had invited to be a passenger.²  He drove at a high speed down a hill and around a curve and subsequently lost control of the truck.   The truck rolled over, exiting and reentering the roadway several times.   Valazquez died of injuries that she sustained during the incident.

Eight counts comprise the complaint.   Count one is against all defendants and sounds in negligence.   Count two is against the defendants and sounds in recklessness.   Count three is against Onofrio's and sounds in negligent hiring.   Count four is against Onofrio's and sounds in negligent supervision.   Count five is against all defendants and sounds in negligence pursuant to General Statutes § 52–555, the wrongful death statute.   Count six is against Onofrio's and sounds in violation of General Statutes § 42–110b, the Connecticut Unfair Trade Practices Act (CUTPA).   Count seven is against Ryder and sounds in negligent entrustment.   Finally, count eight is against Ryder and sounds in negligence.

The defendants filed an answer and special defenses in response to the revised complaint on March 2, 2011.   At issue in the present motion are four of the five special defenses.   The first special defense alleges that Valazquez's presence in the truck violated an express policy enforced by Onofrio's, because “she was not to ride in any of [Onofrio]'s trucks during the course of performance of business.”   The second special defense alleges that Valazquez was contributorily negligent because she attempted to exit the truck while it was moving.   The third special defense alleges that Valazquez was contributorily negligent because she was under the influence of cocaine and marijuana at the time of the incident and therefore acted with impaired judgment when she attempted to exit the truck while it was moving.   Finally, the fourth special defense alleges that Valazquez acted recklessly because she attempted to exit the truck while it was moving.³

The plaintiff filed the present motion to strike and a memorandum of law in support thereof on March 22, 2011.   The defendants in turn filed an objection to the motion and a memorandum of law in support thereof on April 8, 2011.   The court heard the matter at short calendar on April 11, 2011.   The matter is scheduled for trial on May 24, 2011.

DISCUSSION

“[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․” (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).  Practice Book § 10–39(a) provides in relevant part:  “Whenever any party wishes to contest ․ (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.”  “In ․ ruling on the ․ motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency.”  Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).  “[W]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It is fundamental that in determining the sufficiency of a [pleading] challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).

“It is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ We are limited ․ to a consideration of the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”   Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).  “Where the legal grounds for ․ a motion [to strike] are dependent upon underlying facts not alleged in the [subject] pleadings, the [movant] must await the evidence which may be adduced at trial, and the motion should be denied.”   (Internal quotation marks omitted.)  Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).

Before the court addresses the parties' substantive arguments, it will begin by addressing the defendants' procedural argument that the present motion should be denied because it is untimely under Practice Book § 10–8, which provides in relevant part:  “Commencing on the return day of the writ, summons and complaint in civil actions, pleadings, including motions and requests addressed to the pleadings, shall first advance within thirty days from the return day, and any subsequent pleadings, motions and requests shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required ․” The defendants note that the first, second and fourth special defenses are identical to the unchallenged second, third and fourth special defenses filed on January 13, 2010, in response to the previously operative version of the complaint, and that more than fifteen days passed between the filing of all four challenged special defenses and the filing of the present motion.⁴

In Pantaleo v. Ravski, Superior Court, judicial district of New Haven, Docket No. CV 92 0326931 (February 14, 1997, Silbert, J.) (19 Conn. L. Rptr. 28, 32), the court was faced with a procedurally analogous situation:  “Preliminarily, it is true, as asserted by the defendants, that this motion to strike the special defenses is untimely, coming a month before trial when virtually identical special defenses were in fact interposed months before in connection with earlier versions of the plaintiff's complaint.   Additionally, the motion was filed slightly more than 15 days after the special defenses were filed, in violation of Practice Book § 114 [now Practice Book § 10–8].   Nevertheless, to assure that all issues are properly framed for trial, the court will address the motion to strike.”

Other trial courts have similarly determined:  “[T]he court, in its discretion, may overlook the fact that a motion to strike is untimely where both parties have submitted arguments on the merits of the motion.”  (Internal quotation marks omitted.)   Kuo v. MIP Lessee, LP, Superior Court, complex litigation docket at Waterbury, Docket No. X10 CV 05 5001409 (March 31, 2008, Scholl, J.) (45 Conn. L. Rptr. 287, 288).   See also Thompson v. Home Depot, U.S.A., Inc., Superior Court, judicial district of New Haven, Docket No. CV 06 5006389 (June 22, 2007, Holden, J.);   Lawrence v. Commodore Commons Condominium Assn., Superior Court, judicial district of Ansonia–Milford, Docket No. CV 98 063281 (September 8, 2000, Curran, J.) (28 Conn. L. Rptr. 56, 57) (citing cases).   The court in the present action is persuaded by the reasoning of Pantaleo and other trial courts that have decided technically untimely motions to strike, especially given that the parties have submitted arguments on the merits of the present motion.   The court will therefore proceed in addressing these arguments.

The plaintiff seeks to strike the defendants' first through fourth special defenses on the specific ground that they “are not recognized special defenses under Connecticut law or Connecticut Practice Book.” ⁵ The first special defense is legally insufficient for two reasons.   First, the Supreme Court held in Kuharski v. Somers Motor Lines, Inc., 132 Conn. 269, 43 A.2d 777 (1945), that a federal regulation prohibiting passengers from riding on commercial vehicles without written permission did not bar the plaintiff from recovering for injuries sustained by the decedent, a passenger in a commercial vehicle involved in a fatal accident.   Second, “there was no employer/employee relationship between the decedent and Onofrio's,” and “Onofrio's took no steps whatsoever to warn the decedent about this alleged ‘policy.’  “ The second through fourth special defenses are also legally insufficient for two reasons.   The first reason is that the special defenses do not meet the requirements contained in Practice Book § 10–50.   The second reason is that the special defenses imply that the plaintiff was not wearing a seat belt at the time of the incident, and General Statutes § 14–100a(c)(3) provides:  “Failure to wear a seat safety belt shall not be considered as contributory negligence nor shall such failure be admissible evidence in any civil action.”

The defendants object to the present motion for the following reasons.   The court should deny the motion with respect to the first special defense because it sufficiently alleges that the plaintiff has no cause of action, despite her alleged facts.   The court should likewise deny the motion with respect to the second, third and fourth special defenses because they are proper under § 10–50.   Furthermore, these special defenses are not subject to § 14–100a(c)(3) for the reason that the operative version of the statute at the time of the incident did not apply to vehicles with gross vehicle weight ratings exceeding 10,000 pounds.

The allegations of the first special defense are consistent with the plaintiff's allegations but nonetheless establish, when taken as admitted and viewed in the light most favorable to the defendants, that Valazquez was a passenger on the truck in violation of an express company policy.   These allegations do not establish, however, the exact content of the policy or its applicability to Valazquez.   In contrast, such information was available to the court in Kuharski v. Somers Motor Lines, Inc., supra, 132 Conn. 276, which cited the federal regulation at issue and then concluded:  “The regulation relied on by the defendant is directed solely against the driver.   It was not being violated by, nor did it cause any disability to sue in, [the decedent] or the plaintiff.”   The facts that the plaintiff relies upon in seeking to strike the first special defense, i.e., the relationship of Valazquez with Onofrio's and the applicability of the policy to Valazquez, are not alleged in either the complaint or the answer and special defenses.   The present motion is therefore a speaking motion with respect to the first special defense, and it is accordingly denied.

Practice Book § 10–50 provides:  “No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue.   Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.   Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own.”   The plaintiff seeks to strike the second, third and fourth special defenses because, inter alia, they “contradict the language of [§ ]10–50 ․ by failing to allege a legal basis for which the Plaintiff would not have a cause of action” and assert a “whole new theory of the case ․ going well beyond the well pleaded allegations of the Complaint.”

The court rejects the plaintiff's argument.  “[T]he list of special defenses in § 10–50 is illustrative rather than exhaustive.”  Kosinski v. Carr, 112 Conn.App. 203, 209 n.6, 962 A.2d 836 (2009).   Furthermore, the second and third special defenses sound in contributory negligence.  Practice Book § 10–53 provides:  “If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant and the defendant shall specify the negligent acts or omissions on which the defendant relies.”   The allegations in the second and third special defenses are consistent with the plaintiff's allegations but nonetheless establish, when taken as admitted and viewed in the light most favorable to the defendants, that Valazquez acted negligently at the time of the incident, such that she contributed to her injuries.   The fourth special defense is likewise proper under § 10–50.  “As several superior courts have indicated, [p]ursuant to Connecticut case law, contributory recklessness constitutes a valid defense.   Contributory recklessness would constitute a defense to an action based on recklessness ․ Wanton, willful or reckless conduct by [a plaintiff] which naturally increased the probability of injury and contributed thereto would be admissible under the pleadings and would constitute a defense to the claim of recklessness.”   (Internal quotation marks omitted.)   Gatling v. Barleycorn, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 09 5013079 (May 6, 2010, Gallagher, J.) [49 Conn. L. Rptr. 793] (citing cases).

Section 14–100a(c)(3) provides:  “Failure to wear a seat safety belt shall not be considered as contributory negligence nor shall such failure be admissible evidence in any civil action.”  “ ‘A review of the text and legislative history of § 14–100a reveals that the purpose of subsection (c)(3) of that section is to prevent a defendant from introducing evidence of a plaintiff's violation of [General Statutes] § 14–100a(c)(1) ⁶ as a defense in a civil action to reduce the plaintiff's damage award ․’ Cicarelli v. Turner, Superior Court, judicial district of New London, Docket No. CV 06 5000551 (November 17, 2006, Hurley, J.T.R.) (42 Conn. L. Rptr. 399, 400).   ‘By making evidence of the failure to wear a safety belt inadmissible, the legislature endorsed a policy that, despite the duty to wear a safety belt, a driver or passenger who was injured (while not wearing a safety belt) through the negligence of another should not have his or her recovery reduced.’   (Internal quotation marks omitted.)   Bonelli v. Giguere, Superior Court, judicial district of Hartford, Docket No. CV 02 0819257 (October 15, 2003, Hale, J.T.R.).”   Landolfi v. Barnett, Superior Court, judicial district of New Haven, Docket No. CV 07 5011334 (April 9, 2008, Cosgrove, J.) (45 Conn. L. Rptr. 325, 326).

The second, third and fourth special defenses all allege that Valazquez's attempt to exit the truck while it was moving “significantly caused and contributed to her injuries, damages and death” and that “[h]ad the decedent remained inside the vehicle (as did the driver of the truck, Ralph Fontanez) she would have sustained only minor injuries.”   Again, what is necessarily implied in an allegation need not be expressly alleged in order for a court to consider it on a motion to strike.  Violano v. Fernandez, supra, 280 Conn. 318.   The court agrees with the plaintiff that these allegations necessarily imply that Valazquez was not wearing a seat belt during the entire duration of the incident, because she was at least partially, if not wholly, outside of the vehicle when she sustained her injuries.   It therefore reads the second and third special defenses to allege that Valazquez's negligent conduct, due to her drug-induced failure to exercise good judgment, included her failure to wear her seat belt or her removal of her seat belt when she attempted to exit the truck.   The court likewise reads the fourth special defense to allege that Valazquez was contributorily reckless because of this conduct.

A special defense that alleges contributory negligence for failure to wear a seat belt is legally insufficient as a matter of law under § 14–100a(c)(3).   See Ferentzy v. Ferentzy, Superior Court, judicial district of Fairfield, Docket No. CV 06 5004948 (May 9, 2008, Frankel, J.);  Partman v. Budget Rent–A–Car of Westchester, Inc., 43 Conn.Sup. 239, 649 A.2d 275 (1994) [12 Conn. L. Rptr. 247].   The issue of whether § 14–100a(c)(3) applies to a special defense alleging contributory recklessness for failure to wear a seat belt, however, appears to be one of first impression.   The court is mindful of the fact that § 14–100a(c)(3) only expressly refers to contributory negligence.   Nonetheless, “[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply.”  (Internal quotation marks omitted.)  Friezo v. Friezo, 281 Conn. 166, 181–82, 914 A.2d 533 (2007).  “The law favors a rational statutory construction and we presume that the legislature intended a sensible result.”  (Internal quotation marks omitted.)  Wiele v. Bd. of Assessment Appeals, 119 Conn.App. 544, 551–52, 988 A.2d 889 (2010).   Allowing a special defense of contributory recklessness, but not contributory negligence, for failure to wear a seat belt to survive a motion to strike based on § 14–100a(c)(3), despite the underlying legislative intent of preventing “a defendant from introducing [such] evidence ․ as a defense in a civil action to reduce the plaintiff's damage award,” would be irrational and insensible.

The defendants' arguments regarding the inapplicability of § 14–100a(c)(3) to the second, third and fourth special defenses are unavailing.   At the time of the incident, the prohibition against basing contributory negligence upon and introducing evidence of seat belt use only applied in situations involving “vehicles with gross vehicle weight rating not exceeding 10,000 pounds.”   General Statutes (Rev. to 2010) § 14–100a(c)(1).⁷  The defendants provide in their memorandum that the gross vehicle weight rating of the truck was 33,000 pounds.   This fact is not alleged, however, in either the complaint or the answer and special defenses.   It therefore cannot be considered by the court in deciding the present motion.

The court also declines to consider the cases relied upon by the defendants for the proposition that exceptions exist to the prohibition in § 14–100a(c)(3) against the introduction of seat belt use evidence.   In Fink v. Fink, Superior Court, judicial district of Hartford, Docket No. CV 0546309 (December 17, 1998, Teller, J.) (23 Conn. L. Rptr. 668), the court held that the prohibition against the introduction of seat belt use evidence did not apply to the minor plaintiffs' negligent supervision causes of action, which were based on, inter alia, the alleged failure of the defendant's decedent to buckle the minor plaintiffs' seat belts, despite her promise to do so to the minor plaintiffs' mother.  Hodges v. Mack Trucks, 474 F.3d 188, 202 (5th Cir.2006), is likewise inapposite;  the court held that an analogous statutory prohibition from Texas against the introduction of seat belt use evidence did not apply when the defendant sought to establish the crashworthiness of the subject vehicle in a “secondary-collision product-liability” action.   The introduction of seat belt use evidence to support a special defense sounding in contributory negligence was not at issue in either action, in contrast to the present action.

For the foregoing reasons, the court denies the plaintiff's motion to strike with respect to the first special defense and grants it with respect to the second, third and fourth special defenses.

Woods, J.

FOOTNOTES

FN1. Because Fontanez and Onofrio's are the only defendants involved in the present motion, the court will refer to them collectively as the defendants hereinafter, except where otherwise noted..  FN1. Because Fontanez and Onofrio's are the only defendants involved in the present motion, the court will refer to them collectively as the defendants hereinafter, except where otherwise noted.

FN2. The plaintiff is the executrix of Valazquez's estate..  FN2. The plaintiff is the executrix of Valazquez's estate.

FN3. The fifth special defense, which is not subject to the present motion, alleges that the plaintiff cannot maintain a CUTPA cause of action for wrongful death damages because § 52–555, the wrongful death statute, provides the only means of recovery for a plaintiff who seeks such damages..  FN3. The fifth special defense, which is not subject to the present motion, alleges that the plaintiff cannot maintain a CUTPA cause of action for wrongful death damages because § 52–555, the wrongful death statute, provides the only means of recovery for a plaintiff who seeks such damages.

FN4. The defendants also argue that the motion with respect to the third special defense, which was first raised in the operative version of the answer, is untimely under Practice Book § 10–61, which provides:  “When any pleading is amended the adverse party may plead thereto within the time provided by Section 10–8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section.”   According to the defendants, the plaintiff should have filed her motion to strike by March 12, 2011, because the operative version of the answer was filed on March 2, 2011.   The ten-day time limit proposed by the defendants, however, would only apply if the plaintiff had filed the present motion in response to the previously operative version of the defendants' answer and special defenses, per the plain and unambiguous language of § 10–61.   She did not;  the present motion is only directed to the currently operative version of the defendants' answer and special defenses..  FN4. The defendants also argue that the motion with respect to the third special defense, which was first raised in the operative version of the answer, is untimely under Practice Book § 10–61, which provides:  “When any pleading is amended the adverse party may plead thereto within the time provided by Section 10–8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section.”   According to the defendants, the plaintiff should have filed her motion to strike by March 12, 2011, because the operative version of the answer was filed on March 2, 2011.   The ten-day time limit proposed by the defendants, however, would only apply if the plaintiff had filed the present motion in response to the previously operative version of the defendants' answer and special defenses, per the plain and unambiguous language of § 10–61.   She did not;  the present motion is only directed to the currently operative version of the defendants' answer and special defenses.

FN5. The court concludes that the second through fourth special defenses are legally insufficient because they are not recognized under General Statutes § 14–100a, for the reasons stated infra.   It therefore need not address the argument made by the defendants during short calendar that the present motion is fatally defective, since it does not state the specific ground on which the plaintiff moves to strike..  FN5. The court concludes that the second through fourth special defenses are legally insufficient because they are not recognized under General Statutes § 14–100a, for the reasons stated infra.   It therefore need not address the argument made by the defendants during short calendar that the present motion is fatally defective, since it does not state the specific ground on which the plaintiff moves to strike.

FN6. Section 14–100a(c)(1) provides in relevant part:  “The operator of and any front seat passenger in any motor vehicle or fire fighting apparatus originally equipped with seat safety belts complying with the provisions of 49 CFR 571.209, as amended from time to time, shall wear such seat safety belt while the vehicle is being operated on any highway ․”.  FN6. Section 14–100a(c)(1) provides in relevant part:  “The operator of and any front seat passenger in any motor vehicle or fire fighting apparatus originally equipped with seat safety belts complying with the provisions of 49 CFR 571.209, as amended from time to time, shall wear such seat safety belt while the vehicle is being operated on any highway ․”

FN7. This subsection was amended by Public Acts 2010, No. 10–110, § 7, which deleted this limitation..  FN7. This subsection was amended by Public Acts 2010, No. 10–110, § 7, which deleted this limitation.

Woods, Glenn A., J.