Stephen Keough et al. v. Dayton Construction et al. (2011)

MEMORANDUM OF DECISION ON THE KHAN DEFENDANTS' MOTION TO STRIKE (# 229)

Introduction

This case involves a fatal collision between a motorcycle and a motor vehicle.   The plaintiff's decedent was the lone occupant and operator of the motorcycle who died of injuries sustained in the collision.   This occurred on September 2, 2007 at approximately 5:30 p.m. while the deceased was riding his motorcycle along Route 25 in the vicinity of the intersection with Tashua Road in the town of Trumbull, Connecticut.   The plaintiffs contend that the area of this intersection at the time of the collision was a Department of Transportation project which included, among other things, the widening of the road and the installation of a traffic light at the intersection.   There are several named defendants, including both the operator and the owner of the motor vehicle that made contact with the motorcycle.   The plaintiff Stephen Keough is the administrator of the estate of the motorcyclist, the late Robert Tassiello (Tassiello).   The plaintiff Deborah Tassiello is Tassiello's mother.   The town of Trumbull itself is a defendant, along with the state of Connecticut, several utility companies and private construction-related companies.   While all of these defendants are alleged to have had some connection to the highway improvement project underway in Trumbull in September 2007, the issue before the court does not involve their potential liability or those aspects of the case.

Now before the court is the defendants' motion to strike filed ¹ pursuant to Connecticut Practice Book § 10–39.   The two movants are the owner of the motor vehicle, Mushtaq Khan (M.Khan) and the car's operator, Zeshan Khan (Z.Khan).  The Khan defendants' motor vehicle allegedly collided with Tassiello's motorcycle.   The Khan defendants move to strike the plaintiffs' claim for statutory damages, which would allow for recovery of double or treble damages.   The Khans argue that the complaint fails to allege sufficient facts to establish the essential elements of reckless conduct on their part.   The plaintiffs object to the motion to strike, and assert that their cause of action for recklessness has been adequately pleaded pursuant to both the statute and common law.   Additionally, the owner of the car, the defendant M. Khan, argues that such double and treble damage claims may not be maintained against him under the family car doctrine, as M. Khan was not operating the car at the time of the fatal collision with Tassiello.   The plaintiffs counter that M. Khan's vicarious liability for statutory recklessness is a question of fact for the jury to resolve.   For the reasons set forth herein, the court resolves it as a question of law.

The court will first summarize the relevant portions of the plaintiffs' complaint.   It will then examine the recklessness allegations in light of the standards applicable to motions to strike, and the substantive law governing such claims.   This will also include the parameters of potential liability of non-operator owners of motor vehicles under the family car doctrine and the statute.

The Complaint

The operative complaint is the second revised complaint dated February 18, 2011.   It totals some thirty-seven counts lodged against all defendants, both individuals (the Khans) and certain corporations.   For purposes of this motion to strike, however, the court need only concern itself with the relevant allegations in the complaint directed against the Khan defendants.   The plaintiffs claim that on the day in question, Tassiello was operating his motorcycle along Rte. 25 nearing the intersection of Tashua Road. Z. Khan was in his car on Tashua Road and was attempting to turn from Tashua Road onto Route 25.   At that time, Khan crossed into Tassiello's lane of travel as Tassiello approached the intersection while traveling down Route 25.   In the resulting collision between Khan's car and Tassiello's motorcycle, Tassiello was forcibly thrown to the ground and severely injured.   These injuries later proved to be fatal.   The plaintiffs allege that the injuries and ultimate death of Tassiello were caused by the carelessness of the defendant Z. Khan.

The statutory damages allegation is set forth in count thirty-six of the complaint.   It claims that Z. Khan operated his motor vehicle in violation of § 14–218a of the General Statutes.   That statute provides that “[n]o person shall operate a motor vehicle upon any public highway of the state ․ at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions.”   The statute also provides for the establishment of defined and posted speed limits on such public highways, but it goes on to state that “[a]ny speed in excess of such limits ․ shall be prima facie evidence that such speed is not reasonable, but the fact that the speed of a vehicle is lower than such limits shall not relieve the operator from the duty to decrease speed when a special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.”   The statute further provides in subsection (c) of § 14–218a that “[a]ny person who operates a motor vehicle at a greater rate of speed than is reasonable ․ shall commit the infraction of traveling unreasonably fast.”

In addition to both a claimed failure to yield the right of way and the unreasonable speed violation summarized above, the complaint sets forth several alternative breaches of the duty of care by the defendant Z. Khan. The plaintiffs allege that Z. Kahn:  (1) failed to keep a proper lookout or be watchful of his surroundings;  (2) pulled out onto Route 25 when he could not fully view the roadway or his vision was impaired;  (3) operated his vehicle at a rate of speed that was faster than reasonable under the circumstances;  (4) failed to keep his vehicle under proper control or otherwise wait for an opening in the traffic on Route 25;  (5) attempted to improperly cross traffic on Route 25;  (6) failed to brake properly or perform evasive maneuvers;  (7) improperly attempted to cross traffic traveling on Route 25;  and (8) made a turn when he knew or should have known that it could not be safely executed under the circumstances.

The plaintiffs also allege that the defendant Z. Khan operated his vehicle in violation of General Statutes § 14–243.   That statute provides that, “[n]o person shall move a vehicle which is stopped, standing or parked unless such movement can be made with reasonable safety and without interfering with other traffic ․” Khan is further alleged to have violated General Statutes § 14–247, which states in relevant part that “[t]he driver of a vehicle about to enter or cross a highway from a private road or driveway shall yield the right-of-way to all vehicles approaching on such highway.”   The plaintiffs contend that both of the Khans are liable for Tassiello's injuries, damages, suffering and loss of life pursuant to both common law and statute.²  The plaintiffs also maintain that because Z. Khan's operation of his motor vehicle was a substantial factor in causing the injuries and death of Tassiello, both the operator Z. Khan, as well as the owner M. Khan are liable to the plaintiff for double or treble damages under § 14–295 of the General Statutes.³

Motion to Strike—Legal Standard

“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.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).  “A motion to strike is the proper procedural vehicle ․ to test whether Connecticut is ready to recognize some newly emerging ground of liability.”   (Internal quotation marks omitted.)   Ortiz v. Waterbury Hospital, Superior Court, judicial district of Waterbury, Docket No. CV 99 154112 (March 9, 2000, Pellegrino, J.) (26 Conn. L. Rptr. 547).

“A motion to strike ․ does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “[The court] construe[s] 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.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117–18, 889 A.2d 810 (2006).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.   Further, our Supreme Court “will not uphold the granting of [a] motion to strike on a ground not alleged in the motion.”  Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).

“In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading].”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., supra, 240 Conn. 580.  “Where the legal grounds for such a motion [to strike] are dependent upon underlying facts not alleged in the ․ pleadings, the [party that filed the motion] must await the evidence which may be adduced at trial, and the motion should be denied.”  (Citations omitted;  internal quotation marks omitted.)  Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).  “It is of no moment that the defendants might prove facts which operate to bar the plaintiff's claim, the sole inquiry at this stage of the pleadings is whether the plaintiff's allegations, if proved, would state a basis for standing ․ [An] argument [that] would require the court to consider facts outside the face of the pleadings ․ would be improper on a motion to strike ․” (Citations omitted.)   Miller v. Insilco Corp., Superior Court, judicial district of New Haven, Docket No. 27 92 67 (May 22, 1990, Schimelman, J.) (1 Conn. L. Rptr. 651).

Discussion

The Khan defendants argue that count thirty-six of the complaint, the plaintiffs' claim for statutory recklessness, merely reiterates the allegations in the thirty-fifth count, which sounds in negligence.   The defendants maintain that the statutory recklessness count should be stricken because it fails to allege any supporting facts to establish the essential elements of reckless conduct.   The defendants acknowledge that there is a split of authority in the Superior Court decisions as to the degree of specificity necessary when pleading a claim of statutory recklessness.   In what has been characterized as the minority view of trial courts, “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.”   Liedke v. Paquette, Superior Court, judicial district of New Britain, Docket No. CV 10 6004043 (August 2, 2010, Swienton, J.).   However, a different standard has been employed by the majority of trial courts that have considered this issue.   According to the majority, “a claim for statutory recklessness is legally sufficient so long as it alleges that the defendant deliberately or with reckless disregard violated one of the statutes enumerated in § 14–295, and further asserts that the violation was a substantial factor in causing the plaintiff's injuries.”  (Internal quotation marks omitted.)   Talareva v. Novakowski, Superior Court, judicial district of New Britain, Docket No. CV 10 6006824 (April 5, 2011, Young, J.).   Under this majority view, “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.”  (Internal quotation marks omitted.)  Id.

Section 14–295 provides in relevant part:  “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 ․ and that such violation was a substantial factor in causing such injury, death or damage to property.”   At a minimum, in order to state a legally sufficient cause of action for recklessness under § 14–295, a plaintiff must allege that the defendant deliberately or recklessly operated a motor vehicle in violation of one of the enumerated statutes and that the violation was a substantial factor in causing the plaintiff's injuries.   Ditillo v. Van Geerdele, Superior Court, judicial district of Waterbury, Docket No. CV 98 0149690 (August 3, 1999, Gill, J.).   The plaintiffs here have done so.   Specifically, in count thirty-five, the plaintiffs allege that the collision was caused by the negligence and carelessness of Z. Kahn. In count thirty-six, they incorporate the allegations of the previous count.   The plaintiffs add that Z. Kahn deliberately or with disregard operated his vehicle in violation of General Statutes § 14–218a, and that such conduct was a substantial factor in causing the injuries and death of Tassiello.

Having considered both the majority and minority views of its colleagues, this trial court finds the reasoning of the majority more persuasive.   This case is only at the pleading stage, and the court finds that General Statutes § 14–295 is satisfied here, as the plaintiffs have pleaded deliberate behavior or recklessness and causation.   Count thirty-six therefore asserts a proper claim for statutory relief.⁴  Taking the facts alleged in the complaint in the light most favorable to sustaining their sufficiency, the Khan defendants' motion to strike to the plaintiffs' recklessness claim on the basis of inadequacy is denied.

The court will now turn to the claim of M. Khan, the defendant owner of the car involved in the fatal collision between Z. Khan and Tassiello.   M. Khan argues that even assuming that the defendant driver Z. Khan is found to have deliberately violated § 14–218a, the unreasonable speed statute, as the owner of the car (but not the operator), M. Khan cannot be held liable pursuant to § 14–295.   The plaintiffs allege in their complaint that Z. Khan was operating the vehicle of M. Khan with his permission and that the vehicle was maintained as a Khan family car.   As to the concept of a family car, and the potential liability in tort of the owner of that car, there is a long line of cases in Connecticut dating back to the earliest days of the automobile.   When a motor vehicle is maintained by the head of a household for the general use and convenience of his family, while the car is being used as a family car, the owner is liable for the negligence of a member of the family having general authority to drive it.  Wolf v. Sulik, 93 Conn. 431, 436, 106 A. 443 (1919).

The defendant M. Khan argues that the liability of the owner of a family car for the tortious acts of the driver does not extend to the double and treble damages provision of § 14–295 for alleged reckless conduct or the deliberate behavior of the driver of the vehicle.   The owner M. Khan argues that he cannot be held vicariously liable under that statute for the deliberate or reckless conduct of the driver Z. Khan, or thus be made to pay double or treble damages for the resulting death of Tassiello.   As with the sufficiency of pleading a cause of action for statutory recklessness under General Statutes § 14–295, there also seems to be a split of authority in the Superior Court as to whether a cause of action under this same statute may lie against the owner of a family car, one whose defendant driver is charged with reckless operation.   Support for the plaintiffs' opposition to M. Khan's motion to strike is found in General Statutes § 52–183.   That statute provides that the owner of a motor vehicle may be liable for the reckless operation of that vehicle if the driver is operating it with the owner's permission.   Pursuant to the terms of a related statute, General Statutes § 52–182, proof of certain familial relationships between the operator and owner of a motor vehicle creates a rebuttable presumption that the owner gave the operator general authority to operate the car.  Cook v. Nye, 9 Conn.App. 221, 226, 518 A.2d 77 (1986).

The plaintiffs allege that M. Khan was the owner of a motor vehicle, one which was maintained as a family car for the use and convenience of members of his family, including the defendant Z. Kahn. They further allege that Z. Kahn was operating the family car with his permission and/or within the scope of his authority.   In Goss v. Wright, Superior Court, judicial district of New Haven, Docket No. CV 05 5001164 (March 15, 2006, Lopez, J.) (40 Conn. L. Rptr. 882, 883), the trial court held that, “[r]eading § 52–183 and § 14–295 together, the court agrees with those decisions which have imposed liability on an owner pursuant to § 14–295, if one of the enumerated statutes is violated ‘with reckless disregard.’ “

In support of M. Khan's motion to strike, the defendant argues that liability for double or treble damages under § 14–295 should not extend to the non-operator vehicle owner here.  “[A]t common law, there is no vicarious liability for punitive damages ․ and ․ under that common-law doctrine, the owner of a motor vehicle is not vicariously liable for punitive damages resulting from the driver's reckless operation of the vehicle.”  (Citations omitted.)   Matthiessen v. Vanech, 266 Conn. 822, 837, 836 A.2d 394 (2003).   That case was a negligence action brought by the named plaintiff, Kathleen Matthiessen, against the defendants, Don and Nicholas Vanech, to recover damages for injuries sustained when the plaintiff's car was struck by a vehicle operated by Don Vanech as a family car and owned by her father, Nicholas Vanech.   The Supreme Court in Matthiessen reversed the trial court's ruling that in enacting General Statutes § 52–183, the legislature had abrogated the common-law rule.   It was error to permit a fact finder to hold the nonoperator owner of a motor vehicle vicariously liable for punitive damages stemming from the driver's reckless operation of that vehicle.

In its opposition to M. Khan's motion to strike, the plaintiffs seek to limit the holding in Matthiessen and its rationale to punitive damages claims only.   However, this court is not persuaded.   In Hronis v. EBO Logistics, LLC, 641 F.Sup.2d 139 (D.Conn.2009), the federal district court in Connecticut surveyed the legal landscape and noted that, “[s]ince Matthiessen, numerous Connecticut Superior Courts have considered whether ․ § 14–295 makes owners or employers vicariously liable for double and treble damages, and the results are mixed ․ [B]y its plain language, § 14–295 applies only to an operator of a vehicle, and not to its nonoperating owner ․ Indeed, § 14–295 by its own terms applies only to vehicles operated by a defendant.”   (Emphasis in original;  citations omitted;  internal quotation marks omitted.)  Id., 140–41.   This conclusion was recently reinforced by Judge Sheldon in one of his last opinions issued as a trial court judge.   Following a comprehensive review of the statutory scheme, he wrote, “[A] non-operator owner of a motor vehicle that is neither leased nor rented may not be held liable for double or treble damages under § 14–295 for another operator's violation of the statute.”   Reis v. Hendel, Superior Court, judicial district of Hartford, Docket No. CV 10 6016353 (Sept. 7, 2011, Sheldon, J.) [52 Conn. L. Rptr. 526].   Similarly, on the issue of vicarious liability for reckless conduct under the family car doctrine, Judge Lager has held that “[t]here is absolutely no expression of legislative intent in § 52–182 that the owner of the family car should have liability identical to that of the operator ․ Moreover at common law there is no vicarious liability for punitive or exemplary damages ․ Since neither the statute nor the common law provides a basis for imposing punitive or exemplary damages on the defendant owner here for the reckless conduct of the defendant operator, the defendant owner cannot be found liable as a matter of law for any alleged recklessness of the defendant operator.”  (Citations omitted.)   Krisak v. Pendagast, Superior Court, judicial district of Fairfield, Docket No. CV 26 3835 (Jun. 21, 1993, Lager, J.) (9 Conn. L. Rptr. 286, 287).

In light of the forgoing, and even taking the facts alleged in the complaint in the light most favorable to sustaining their sufficiency, the court finds that the plaintiffs have failed to state a claim in count thirty-six against Mushtaq Khan upon which relief may be properly granted.   The relief the plaintiffs seek will have to come from the legislature, because the statute by its terms simply does not allow it.   Therefore, the defendants' motion to strike this count is granted, but only as to Mushtaq Khan.

Conclusion

For the reasons stated herein, the defendant Zeshan Khan's motion to strike count thirty-six of the complaint as legally insufficient is DENIED.

The defendant Mushtaq Khan's motion to strike count thirty-six of the complaint as to him is GRANTED, as well as the plaintiffs' claim for relief in the form of double or treble damages as to Mushtaq Khan pursuant thereto.

IT IS SO ORDERED,

Blawie, J.

FOOTNOTES

FN1. At the time of the filing of the parties' briefs and oral argument on this motion, the matter was assigned to the Complex Litigation Docket at Stamford under Docket No. X05 CV09 5012675.   The case has since been reassigned to the Waterbury Complex Litigation Docket, as reflected in the above caption..  FN1. At the time of the filing of the parties' briefs and oral argument on this motion, the matter was assigned to the Complex Litigation Docket at Stamford under Docket No. X05 CV09 5012675.   The case has since been reassigned to the Waterbury Complex Litigation Docket, as reflected in the above caption.

FN2. Section 52–555, Actions for injuries resulting in death, provides as follows:“(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.”.  FN2. Section 52–555, Actions for injuries resulting in death, provides as follows:“(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.”

FN3. Section 14–295, Double or treble damages for personal injury or property damage resulting from certain traffic violations, provides in relevant part as follows:“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 ․ and that such violation was a substantial factor in causing such injury, death or damage to property ․”.  FN3. Section 14–295, Double or treble damages for personal injury or property damage resulting from certain traffic violations, provides in relevant part as follows:“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 ․ and that such violation was a substantial factor in causing such injury, death or damage to property ․”

FN4. Sufficient at least as to the defendant operator Zeshan Khan, as is more fully set forth herein..  FN4. Sufficient at least as to the defendant operator Zeshan Khan, as is more fully set forth herein.

Blawie, John F., J.