Joe Arteaga v. Lori Dana (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

Preliminary Statement

This case arises out of an automobile accident which occurred on September 27, 2009.   The plaintiff, Joe Arteaga, filed a three-count complaint against the defendant Lori Dana, in which he alleges negligence, statutory recklessness and common-law recklessness.   The defendant filed a motion to strike the recklessness counts on the grounds that there was an insufficient factual basis pled to support those causes of action.   The plaintiff filed an opposition to the motion to strike.   For the reasons set forth below, the motion to strike is GRANTED.

Discussion

The role of the trial court in ruling on a motion to strike is to test the legal sufficiency of a pleading.  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994).   The court must “examine the [complaint] construed in favor of the [plaintiff] to determine whether the [pleading party has] stated a legally sufficient cause of action.  (Internal quotation marks omitted.)   Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, [w]hat is reasonably implied [in an allegation] need not be expressly alleged.”  (Citation omitted;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000).   Similarly, a motion to strike may be used to challenge the relief sought if the relief sought could not be legally awarded.  Pamela B. v. Ment, 244 Conn. 296 (1998).

For purposes of the motion to strike, the moving party admits all facts well pleaded.  RK Constructors, Inc., supra, at 383 n.2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges “mere conclusions of law that are unsupported by the facts alleged.”   Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).

Count–Two—Common–law recklessness

In count two, the plaintiff first incorporates the allegations regarding the accident contained in count one.   It then avers:  (1) that the defendant knew or should have known that the road in question was a congested divided public highway with two-way traffic which frequently slowed and stopped to make left-hand turns;  (2) that notwithstanding this knowledge, the defendant was traveling at an excessive rate of speed for the traffic conditions existing;  (3) that the defendant failed to attempt any evasive action and intentionally refused to stop behind the plaintiff and attempted to drive around him to the right in the single eastbound lane;  (4) that she operated her vehicle in violation of C.G.S. §§ 14–218, 219 and 222.   Count two also includes the conclusory allegations that the defendant was reckless, willful and wanton in her conduct and that she exhibited a heedless and reckless disregard for the safety of others and willfully ignored the known risks imposed on others by her conduct.

In Craig v. Driscoll, 262 Conn. 312 (2003), the Court, discussing a common-law cause of action for recklessness, held “[a]lthough 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.”  Id., at 343.  “A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made.”  Dumond v. Denehy, 145 Conn. 88, 91 (1958).

To determine whether the plaintiffs' amended complaint states a cause of action sounding in recklessness, we look first to the definitions of willful, 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 ․ [W]illful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ․ It is at least clear ․ that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.

Craig v. Driscoll, 262 Conn. at 342–43 (internal quotation marks omitted).   See also, Bishop v. Kelly, 206 Conn. 608, 614–15, 539 A.2d 108 (1988).   In construing allegations of common-law negligence, the mere labeling of negligent conduct as “reckless” is insufficient.   See Angiolillo v. Buckmiller, 102 Conn.App. 697, 705 (2007).

The allegations in support of the recklessness count do not describe “a situation where a high degree of danger is apparent.”   They do not support or suggest an “extreme departure from ordinary care.”   The acts alleged are clearly acts of negligence, thoughtlessness, inattention, and poor judgment.   The alleged knowledge that Old Gate Lane is a congested public highway, with traffic that often slows or stops to make left-hand turns, does not make Old Gate Lane a significantly more dangerous road than any other on which people travel.   The allegation that the defendant was traveling at an excessive speed for the conditions then and there existing, is a standard negligence allegation.   The failure to take evasive action or the determination to try to pass the plaintiff on the right, are allegations of negligence.   In sum, taking the allegations as true, a jury could not infer the state of mind necessary for a finding of willful, wanton or reckless conduct.   See Craig v. Driscoll, supra, at 342–43.   The motion to strike count two is granted.

Count three—statutory recklessness

Count three of the complaint first incorporates a portion of the allegations regarding the accident as well as the defendant's reckless conduct contained in count two.   It then avers the statutory requirements—that the defendant acted with reckless disregard and recklessly violated C.G.S. § 14–218a, 219 and 222, and that such recklessness was a substantial factor in causing the plaintiff's injuries.   As indicated, aside from simply tracking the statutory language of C.G.S. § 14–295, the plaintiff relies upon the allegations from count two—that the plaintiff knew of the busy nature of the road and its common traffic conditions and that notwithstanding this knowledge she was driving at an excessive rate of speed and failed to take evasive action and intentionally tried to drive around the plaintiff.

This court concurs with those superior court decisions which have held that simply tracking the language of § 14–295 is inadequate to state a claim for statutory recklessness.   See, e.g. Cansler v. Zigmunds, Superior Court, judicial district of New Haven at Meriden, Dkt. No. CV 11 6002684 (March 15, 2011, Fischer, J.);   Paris v. Ziobron, Superior Court, judicial district of New Haven at New Haven, Dkt. No. CV 08 5031152 (November 29, 2010, Lager, J.);   Parelow v. Mullane, Superior Court, judicial district of Middlesex, Docket No. CV 09 5006796 (October 20, 2009, Bear, J.);   Kotowski v. Lambert, Superior Court, judicial district of New Britain, Docket No. CV 08 5006434 (July 23, 2008, Gilligan, J.);   Potyra v. Bosse, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 08 5002674 (June 24, 2008, Sferrazza, J.).

The statute does not supplant common-law causes of action for recklessness.   It merely provides for the award of double or treble damages so long as particular pleading requirements are met under circumstances involving the reckless violation of certain statutes.   This court sees no reason to abandon traditional pleading requirements as to the necessary allegations of recklessness distinct from those required by statute in order to receive the increased damages award.   See, Paris v. Ziobron, Superior Court, judicial district of New Haven at New Haven, Dkt. No. CV 08 5031152 (November 29, 2010, Lager, J.) (To state a cause of action under § 14–295, a plaintiff must allege sufficient facts establishing that the predicate statute was violated with the requisite mental state, that is, deliberately or with reckless disregard, and that such violation was a substantial factor in producing the plaintiff's injury).

As indicated above, the allegations are inadequate to establish the requisite mental state of recklessness.¹

The motion to strike count three is granted.

K. DOOLEY, J.

06/30/11

FOOTNOTES

FN1. In his opposition, the plaintiff indicates that the evidence will establish that this was a “high speed collision.”   The court cannot consider information outside the pleadings when deciding a motion to strike.  “A speaking motion to strike (one imparting facts outside the pleadings) will not be granted.”  Doe v. Marseille, 38 Conn.App. 360, 364 (1995), rev'd on other grounds, 236 Conn 845 (1996)..  FN1. In his opposition, the plaintiff indicates that the evidence will establish that this was a “high speed collision.”   The court cannot consider information outside the pleadings when deciding a motion to strike.  “A speaking motion to strike (one imparting facts outside the pleadings) will not be granted.”  Doe v. Marseille, 38 Conn.App. 360, 364 (1995), rev'd on other grounds, 236 Conn 845 (1996).

Dooley, Kari A., J.