Frank Onorato v. McDonald's Restaurants of Connecticut, Inc. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 116)

FACTS

On April 15, 2010, the plaintiff, Frank Onorato, filed a three-count amended complaint against the defendant, McDonald's Restaurants of Connecticut, Inc. (McDonald's).  The amended complaint alleges the following facts.   On January 1, 2008, the plaintiff was a business invitee when he exited the defendant's premises and he slipped and fell on the walkway due to an accumulation of snow and ice.   He suffered various injuries as a result.   In counts one through three, respectively, the plaintiff alleges claims against the defendant for negligence, recklessness and violation of the Connecticut Unfair Trade Practices Act (CUTPA).

On May 12, 2011, the defendant filed a motion to strike and a memorandum in support.   The defendant moves to strike counts two and three on the ground that those claims are legally insufficient because the recklessness allegations in count two merely restate the negligence allegations in count one, and count three does not allege specific facts to support a CUTPA claim.   On June 1, 2011, the plaintiff filed a memorandum in opposition.   This matter was heard at short calendar on October 31, 2011.

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.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).  “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.   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, supra, 292 Conn. 120.

I

Count 2:  Recklessness

The defendant argues that the second count does not support a cause of action for common law recklessness because the plaintiff merely reiterates the negligence allegations that he makes in count one.   Furthermore, the defendant argues that the plaintiff has failed to allege with sufficient particularity conduct that is alleged to be reckless or wanton.   In response, the plaintiff argues that count two alleges specific acts that constitute recklessness.

“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 ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.”  (Internal quotation marks omitted.)  Craig v. Driscoll, 262 Conn. 312, 342, 813 A.2d 1003 (2003).  “This court has previously considered and addressed the pleading requirements for common law recklessness.   A plaintiff sufficiently pleads a cause of action for common law recklessness when the plaintiff's allegations address a defendant's state of mind at the time of the incident as well as the conduct that gives rise to the cause of action.”   Grant v. Burger King Corp., Superior Court, judicial district of New London, Docket No. CV 08 5007237 (November 23, 2010, Cosgrove, J.).

In the present case, in paragraphs eight and nine of the second count, the plaintiff alleges that the “the defendant knew of the dangerous and defective slippery conditions of the walkway,” and “[e]ven though the defendant knew of such conditions and knew that the plaintiff and other members of the public and business invitees were continually using such walkway to enter and exit the premises, the defendant ignored such dangerous and defective condition without attempting to remedy it or provide safe ingress and egress from the business premises.”   The allegations address the defendant's state of mind at the time of the accident as well as the conduct that gives rise to the cause of action.   The plaintiff alleges sufficient facts to satisfy the reckless conduct element of a cause of action for common law recklessness;  whether the plaintiff can ultimately prove that the defendant's conduct rose to the level of recklessness is question for the trier of fact.

As to the defendant's argument that the second count is deficient because the plaintiff reiterates the same allegations in his cause of action for negligence, the Supreme Court has indicated that this fact does not, in and of itself render a cause of action for recklessness deficient.  Craig v. Driscoll, supra, 262 Conn. 312.   In addressing such an argument, the court explained, “[t]he defendants are mired in the fact that, aside from the addition of the words ‘willful, wanton and/or reckless actions,’ the plaintiffs' allegations in their reckless counts mirror their assertions in the counts charging the defendants with negligence.   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.”  Craig v. Driscoll, supra, 262 Conn. 343.   Here, the plaintiff used explicit language, including that “the defendant evinced a reckless disregard for human life” and “the defendant knew of the dangerous and defective slippery condition of the walkway,” to inform the court and opposing counsel that reckless misconduct is being asserted in count two.   Consequently, the court denies the motion to strike as to count two and corresponding prayer for relief.

II

Count 3:  CUTPA

The defendant argues that count three does not support a cause of action for a CUTPA violation because count three restates the negligence allegations in count one and then makes the conclusory statement that the defendant's conduct violated CUTPA.   The defendant further argues that count three is legally insufficient because it does not allege the criteria set forth in the cigarette rule.   In response, the plaintiff argues that he properly pled a CUTPA violation because count three incorporates the allegations in count two for recklessness.   Specifically, the plaintiff argues that he alleged that the defendant knew of the unsafe conditions on the walkways outside its business but chose to ignore them, which endangered the public and violated public policy.   The plaintiff argues that the defendant's failure to warn its business invitees of the dangerous walkways constitutes an unfair trade practice under CUTPA.

“It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers [competitors or other businessmen] ․ All three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ․ Thus a violation of CUTPA may be established by showing either an actual deceptive practice ․ or a practice amounting to a violation of public policy.”  (Citations omitted;  internal quotation marks omitted.)  Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350–51, 994 A.2d 153 (2010).  “[T]he first prong [of the cigarette rule], standing alone, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence.”  A–G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 217, 579 A.2d 69 (1990).

“In order to withstand a motion to strike for legal insufficiency, the plaintiff must allege practices or methods of trade by the defendant that can be described as immoral, unethical, oppressive, unscrupulous or offensive to public policy.”   Michaud v. St. Paul's Housing Corp., Superior Court, judicial district of New Britain, Docket No. CV 02 0516320 (March 12, 2003, Bryant, J.).  “If a claim does not set forth how or in what respect the [defendant's] alleged activities are either immoral, unethical, unscrupulous or offensive to public policy ․ [a] motion to strike is granted, because a CUTPA claim requires those allegations.”  (Internal quotation marks omitted.)   GMAC Mortgage, LLC v. Tornheim, Superior Court, judicial district of New London, Docket No. CV 09 6001296 (March 24, 2010, Devine, J.).  “A conclusory statement ․ without further elaboration ․ is not sufficient to fashion a CUTPA claim.”  (Internal quotation marks omitted.)   Princeton Capital Finance Co., LLC v. Webster Bank, Superior Court, judicial district of Hartford, Docket No. CV 99 0590676 (February 4, 2002, Peck, J.) (31 Conn. L. Rptr. 360, 362).

In the present case, count three incorporates by reference the plaintiff's first and second counts for negligence and recklessness, respectively.   The second count for recklessness alleges that “[e]ven though the defendant knew of [the dangerous and defective slippery condition of the walkway] and knew that the plaintiff and other members of the public and business invitees were continually using such walkway to enter and exit the premises, the defendant ignored such dangerous and defective condition without attempting to remedy it or provide safe ingress and egress from the business premises.”  (Amended Complaint, ¶ 9.)   Count three goes on to allege that “[b]y such actions in the course of its business the defendant violated the Connecticut Trade Practices Act, Conn. Gen.Stat. Section 42–110b.”  (Amended Complaint, ¶ 11.)   Here, the plaintiff alleges that the defendant violated CUTPA without setting forth how or in what respect the defendant's alleged activities are either immoral, unethical, unscrupulous or offensive to public policy.   The plaintiff's conclusory statement that the defendant violated CUTPA is not enough to withstand a motion to strike.   Consequently, the court grants the motion to strike as to count three and corresponding prayer for relief.

CONCLUSION

For the foregoing reasons, the court denies the motion to strike as to count two and the corresponding prayer for relief, and grants the motion to strike as to count three and the corresponding prayer for relief.

Cosgrove J.

Cosgrove, Emmet L., J.