Nancy Esposito v. Gloria Reid et al. (2011)

Caption Date:

MEMORANDUM OF DECISION RE MOTION TO STRIKE

Preliminary Statement

This action arises out of an automobile accident.   The plaintiff alleges that the defendant Gloria Reid was driving a cab, owned by defendant Casino Cab Company, when she caused the accident and the plaintiff's injuries resulting therefrom.   The complaint sounds in four counts:  (1) negligence as to Reid;  (2) recklessness as to Reid;  (3) vicarious liability for Reid's negligence as to Casino Cab Company;  (4) vicarious liability for Reid's recklessness as to Casino Cab Company.   The defendants filed a motion to strike counts two, three and four.   The plaintiff did not file any opposition to the motion.   For the reasons set forth below, the motion is GRANTED.

Standard of Review

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).

Discussion

Count Two—Recklessness as to Reid

In Craig v. Driscoll, 262 Conn. 312 (2003) the Supreme 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 previously alleged negligent conduct as “reckless” is insufficient.   See Angiolillo v. Buckmiller, 102 Conn.App. 697, 705 (2007).

Count two of the plaintiff's complaint contains a litany of actions by Reid alleged to be “reckless.”   However, the label notwithstanding, the allegations sound in negligence.   Repeatedly, throughout count two, in connection with various allegations, the plaintiff alleges that Reid “failed to act in the manner of a reasonably prudent taxi cab driver under the circumstances.”   Aside from these specific allegations of negligence, the allegations in count two merely reiterate the conduct alleged in the negligence count.

There are simply no factual allegations, even if proven, which would permit a trier of fact to find the requisite state of mind for recklessness.   The motion to strike count two is granted.

Count Three—Vicarious Liability for Reid's Negligence against Casino

The defendant seeks to strike count three on the grounds that the allegations do not include any allegations by which vicarious liability could be imposed against Casino.   Count three incorporates by reference the allegations in count one.   In count one, the plaintiff merely asserts that Casino owned the cab that Reid was driving.   In count three, she asserts “vicarious liability” against Casino “as the owner of the car driven by Reid.” Ownership alone is inadequate to establish a basis for vicarious liability.¹  The plaintiff must allege a cognizable relationship between the driver and the owner which would trigger vicarious liability.²

Count Four—Vicarious Liability for Reid's Recklessness against Casino

Count four purports to assert a claim of vicarious liability against Casino arising out of Reid's recklessness as pled in count two.   Generally, Connecticut does not however recognize vicarious liability for the reckless conduct of others.   See, Matthiessen v. Vaneck, 266 Conn. 822, 837 (2003);  Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 285 (1984);  Maisenbacker v. Society Concordia, 71 Conn. 369, 379–80 (1899).

The motion to strike count four is granted.³

K. DOOLEY, J.

FOOTNOTES

FN1. The family car doctrine does permit a presumption of liability as to a vehicle's owner when the driver is a member of the family.   That statute is not implicated here..  FN1. The family car doctrine does permit a presumption of liability as to a vehicle's owner when the driver is a member of the family.   That statute is not implicated here.

FN2. Paragraph 5 of count two, which is NOT incorporated by reference into count three, appears to assert that Reid was a “professional taxi cab driver” at the time of the incident, as well that the cab she was driving was owned by Casino.   Perhaps an agency or other relationship from which vicarious liability would arise might be inferred from these allegations.   However, even these allegations (on which count four would presumably rely) are woefully vague on the issue..  FN2. Paragraph 5 of count two, which is NOT incorporated by reference into count three, appears to assert that Reid was a “professional taxi cab driver” at the time of the incident, as well that the cab she was driving was owned by Casino.   Perhaps an agency or other relationship from which vicarious liability would arise might be inferred from these allegations.   However, even these allegations (on which count four would presumably rely) are woefully vague on the issue.

FN3. Insofar as the recklessness count is stricken as well, the fourth count fails on this basis as well..  FN3. Insofar as the recklessness count is stricken as well, the fourth count fails on this basis as well.

Dooley, Kari A., J.