Michael Turner v. Robert Lupulio (2011)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE # 104

The defendant, Robert Lupulio, seeks to strike count two of the plaintiff's complaint dated September 24, 2010, and the corresponding prayer for relief.   He contends that the plaintiff has failed to sufficiently allege facts to support claims for common-law recklessness and/or statutory recklessness.   The plaintiff objects on the grounds that the plaintiff's claims are sufficiently pled.   For the reasons set forth below, the court grants the motion to strike.

I

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff filed a writ, summons and complaint on September 24, 2010, naming the defendant, Robert Lupulio.   The first count of the complaint is a claim for negligence, and the second count alleges a claim of recklessness.   The count appears to allege both common-law recklessness and statutory recklessness.   On or about February 14, 2011, the defendant moved to strike count two of the complaint, which motion was accompanied by a memorandum of law.

The plaintiff's complaint alleges that he was operating a motor vehicle on I–95 in Milford, Connecticut, on November 3, 2008, when he was struck in the rear of his car by a car operated by the defendant.   Count one alleges that the defendant was negligent in a number of ways, including, following too closely to the plaintiff's vehicle in violation of General Statutes § 14–240, operating his vehicle at an unreasonable rate of speed in violation of General Statutes § 14–218a, operating his vehicle with inadequate brakes, failing keep his vehicle under proper control, failing to keep a proper lookout, failing to apply his brakes in time to avoid a collision, and being inattentive in his operation of his motor vehicle.

Count two, sounding in recklessness, alleges that the defendant was reckless in operating his motor vehicle in that the accident was a direct and proximate result of the willful, wanton and reckless conduct of the defendant in an number of ways, including, consciously disregarding the rules of the road, operating his vehicle in excess speed for road conditions in disregard for the safety of other drivers, knowingly operating his vehicle in violation of General Statutes § 14–222, with “full knowledge that doing so put other drivers ․ in danger,” operating his vehicle in violation of General Statutes § 14–240, putting the plaintiff in direct risk of danger, driving recklessly having “due regard for road width, traffic volume, intersections, highway use and weather conditions;  acting without regard for the safety of the plaintiff, operating his vehicle “in an unsafe manner for his own benefit,” and “consciously and willfully [diverting] his attention from the roadway” with the knowledge that doing so put the plaintiff in danger.¹

In the plaintiff's prayers for relief, he claims “punitive damages” and “double or treble damages pursuant to § 14–295” against the defendant.   The defendant moves to strike count two of the complaint and the respective sections of the prayer for relief.   The defendant contends that the plaintiff has failed to specifically plead allegations that give rise to the claims for common-law recklessness and statutory recklessness.

II

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint to state a claim upon which relief can be granted.”  (Citations omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alvers, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “A motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court.”   (Citations omitted;  internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Citations omitted;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Citations omitted;  internal quotation marks omitted.)  Asylum Hill Problem Solving Revitalization Ass'n v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).

The defendant argues that the motion to strike should be granted as to count two because the allegations of recklessness in the complaint are the same as the allegations alleged for the claim of negligence in count one.   In particular, the defendant argues that the plaintiff has failed to sufficiently identify any facts that would support a claim for recklessness.

“In determining the legal sufficiency of the recklessness counts, the question is not the similarity of the test to that in the negligence count.   Rather the question is whether the recklessness counts can stand on their own as sounding in recklessness.”   Kelly v. Miller, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 08 5008707 (August 28, 2008).

General Statutes § 14–295 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.” ²

The appellate courts have not decided what degree of specificity is required in pleading recklessness under § 14–295 and, thus, a division of opinion has occurred amongst the judges of the superior court.   See e.g., Flores v. Viveros–Velazquez, Superior Court, judicial district of Windham at Putnam, Docket No. 063971 (November 21, 2000).   There are two lines of cases, the first representing the minority view, which holds that a plaintiff must not only plead a statutory violation as set forth in § 14–295, but also facts that would support a claim of reckless conduct at common-law.³  “Relying on the usual rules of pleading, these courts generally reason that a plaintiff who is alleging recklessness must allege specific facts that informs both the court and the defendant what conduct is relied upon.”   Robbins v. Gondek, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 07–6000285 (March 18, 2008).

The second line of cases, referred to as the majority view, distinguishes between pleading common-law recklessness and statutory recklessness, thus holding that a plaintiff need only plead the required language in § 14–295, that is, that the defendant violated one or more of the enumerated statutory provisions named therein, and that violation was a substantial factor in causing the plaintiff's injuries.⁴  This court has previously addressed the pleading standard for a statutory recklessness claim in the context of a motion to strike and adopted the majority view.  “The majority view is based on both an analysis of the legislative history as well as a review of the statutory language of § 14–295 itself.   These cases conclude that as long as the general requirements of the statute are met, such pleading is enough to survive a motion to strike and to state a cause of action under § 14–295.”   Ferens v. Brown, Superior Court, judicial district of New Britain, Docket No. CV 00–509116 (October 11, 2001).   After a careful review of both lines of cases, this court agrees that the plain meaning of statutory language in § 14–295 requires only that a plaintiff plead a violation of one or more of the enumerated statutes named therein, and that such violation was a substantial factor in causing the plaintiff's injuries.

The present case is distinguishable from the court's prior findings.   The essential allegations of the second count in the plaintiff's complaint in this case are that the defendant drove his car in violation of § 14–222.   However, he fails to allege that he engaged in any reckless conduct under § 14–295 or that the violation was a substantial factor in causing the plaintiff's injuries.   As pled, this count, sounding in statutory recklessness, is legally insufficient as is the accompanying claim for multiple damages.

Although the second count may be legally sufficient under a claim for common-law recklessness;  See, Craig v. Driscoll, 262 Conn. 312, 342–43, 813 A.2d 1008 (2003), where the Supreme Court held that 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;  there is no allegation that the “reckless conduct” was a substantial factor in the plaintiff's injuries.   The better practice would be to separate the counts for common-law recklessness and statutory recklessness.⁵

III

CONCLUSION

Accordingly, the motion to strike is granted.

Swienton, J.

FOOTNOTES

FN1. There are no allegations set forth in count two that the defendant violated General Statutes § 14–295..  FN1. There are no allegations set forth in count two that the defendant violated General Statutes § 14–295.

FN2. The allegations in the complaint that relate to this statute are violations of § 14–222..  FN2. The allegations in the complaint that relate to this statute are violations of § 14–222.

FN3. See McGuire–Kelley v. Sciuto, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 99–428860 (October 1, 1999);  Chatterton v. Infinity Insurance Co., Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 98–064615 (October 1, 1999);  Nocera v. Besso, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 98–086777 (September 29, 1999);  Reed v. Sesta, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 98–5777273 (June 19, 1998)..  FN3. See McGuire–Kelley v. Sciuto, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 99–428860 (October 1, 1999);  Chatterton v. Infinity Insurance Co., Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 98–064615 (October 1, 1999);  Nocera v. Besso, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 98–086777 (September 29, 1999);  Reed v. Sesta, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 98–5777273 (June 19, 1998).

FN4. See Kelly v. Miller, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 08–5008707 (August 28, 2008);  Sony v. Arselli, Superior Court, judicial district of Fairfield, Docket No. CV 01–0386408 (May 14, 2002);  Woolums v. Deveny, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01–454434 (November 7, 2001);  Donahue v. Thomas, Superior Court, judicial district of Waterbury, Docket No. CV 01–161182 (February 28, 2001);  Plimpton v. Amerada Hess Corp., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 99–0169861 (September 27, 1999);  Nelson–Hlebogiannis v. Lee, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 98–0167571 (May 17, 1999);  Carta v. Cohn, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98–0262531..  FN4. See Kelly v. Miller, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 08–5008707 (August 28, 2008);  Sony v. Arselli, Superior Court, judicial district of Fairfield, Docket No. CV 01–0386408 (May 14, 2002);  Woolums v. Deveny, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01–454434 (November 7, 2001);  Donahue v. Thomas, Superior Court, judicial district of Waterbury, Docket No. CV 01–161182 (February 28, 2001);  Plimpton v. Amerada Hess Corp., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 99–0169861 (September 27, 1999);  Nelson–Hlebogiannis v. Lee, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 98–0167571 (May 17, 1999);  Carta v. Cohn, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98–0262531.

FN5. A plaintiff is entitled to maintain an action for statutory recklessness and common-law recklessness simultaneously.   See Matthiessen v. Vanech, 266 Conn. 822, 830–35, 836 A.2d 394 (2003)..  FN5. A plaintiff is entitled to maintain an action for statutory recklessness and common-law recklessness simultaneously.   See Matthiessen v. Vanech, 266 Conn. 822, 830–35, 836 A.2d 394 (2003).

Swienton, Cynthia K., J.