Georgios Vasiliou v. LLC (2012)

MEMORANDUM OF DECISION ON MOTION TO STRIKE NO. 114

On June 14, 2011, the plaintiff, Georgios Vasiliou, filed a seven-count complaint against the defendants, Russian Lady Associates, LLC, d/b/a The Mansion;  Steven Becker;  Robert S. Nolan;  Kevin Cormier;  Jerry Fornarelli and CBS Radiostations, Inc. The complaint contains six negligence counts and a Connecticut Unfair Trade Practices Act (CUTPA) claim.   The allegations in the complaint stem from an incident alleged to have occurred on June 6, 2009, in which the plaintiff was shot and subsequently trampled at The Mansion nightclub.   The defendants have moved to strike count six, the CUTPA claim.

The defendants move to strike count six of the plaintiff's complaint on two alternative grounds.   First, the defendants argue that count six should be struck because the plaintiff failed to mail the Connecticut Attorney General a copy of the complaint as directed by General Statutes § 42–110g(c).¹  Second, the defendants argue that count six should be struck because the allegations in the plaintiff's complaint do not constitute “unfair or deceptive trade practices” as contemplated by CUTPA and the relevant case law.   In reply to the first ground, the plaintiffs argue that failure to comply with General Statutes § 42–110g(c) does not create a jurisdictional defect.   In reply to the second ground, the plaintiffs argue that the conduct alleged does fall under the definition of “unfair or deceptive trade practices” because “[i]t is an unfair trade practice for the defendants to operate a nightclub in which the police are called to their establishment in excess of one hundred times in a year for violent or injurious incidents and for the defendants to fail to take corrective action all the while continuing to invite the public to attend their nightclub as if it was a safe environment.”

“[A] party may challenge the legal sufficiency of an adverse party's claim by filing a motion to strike.”  Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006).  “[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ․” (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).   In ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).

Ground One:  § 42–110g(c)

Courts have held that failure to comply with § 42–110g(c) does not create a jurisdictional defect.   See Radosavljevic v. 175 Realty, LLC, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001303 (October 3, 2006, Owens, J.T.R.) [42 Conn. L. Rptr. 81] and Ciuffi v. Jerolman, Superior Court, judicial district of New Haven, Docket No. CV 01 0449452 (May 16, 2002, Arnold, J.).   The defendants present no authority to the contrary.   This ground is not sufficient to strike the complaint.

Ground Two:  Not unfair or deceptive trade practice.

The plaintiff alleges that the defendants “engaged in unfair methods of competition and unfair or deceptive acts or practices in:  knowing that The Mansion had been the scene of chronic violent criminal activity over the course of their ownership and/or management and yet the defendants failed to take adequate measures to protect members of the public whom they invited to attend their establishment;  that defendants knew that customers were frequently injured on the premises or outside their premises as a result of incidents that occurred on their premises, yet the defendants failed to warn the public that there was a serious risk of injury from attending their nightclub and the defendants failed to institute adequate measures to provide reasonable safety to members of the public whom the defendants invited to attend their establishment.”

Our Supreme Court has stated:  “[General Statutes § ]42–110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.   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 business persons] ․ 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 ․” Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350–51, 994 A.2d 153 (2010).

Here, the issue is:  does failing to warn patrons about, and protect patrons from, the dangers associated with an allegedly notoriously dangerous nightclub yield liability under CUTPA for those parties owning and operating the establishment?   While the defendants offer no authority in support of their argument that the conduct here does not constitute a CUTPA violation, the plaintiff does cite two superior court cases in support of his contention that the allegations in count six are sufficient to support a CUTPA claim.   However, neither case adequately addresses the situation in the instant matter.

In the first case, Reymundo v. Palmer Landing Community, Inc., Superior Court, judicial district of Stamford, Docket No. CV 04 5000055 (November 30, 2005, Tobin, J.), the plaintiff was the administrator of the decedent's estate.   The decedent was murdered in her condominium unit.   The court found that the plaintiff's CUTPA claim was legally sufficient where the defendant condominium association had represented itself as a secure gated community and had made further false representations regarding security.   In contrast, in count six of the present case, the plaintiff has made no allegations that the defendants acted deceptively or made false representations of any kind.

In the second case, Levesque v. Williamsburg Associates, Superior Court, judicial district of Hartford, Docket No. CV 93 0526235 (February 17, 1995, Sheldon, J.), the court found a CUTPA violation where the plaintiff alleged that, in the darkened public stairway in a common area in her apartment building, she fell over a bicycle that the defendant landlord had permitted to remain there.   The court in Levesque relied on our Supreme Court's decision in Conway v. Prestia, 191 Conn. 484, 464 A.2d 847 (1983), for the proposition that the collection of rent from a tenant by a landlord when the rented premises are not maintained in a condition that is safe for human habitation “unquestionably offend[s] the public policy, as embodied by [Connecticut's landlord-tenant] statutes, of insuring minimum standards of housing safety and habitability.”  Id., 493.   It is thus clear that the holding in Levesque turned primarily on the fact that the case arose in the landlord-tenant context, a context that does not exist in the present case.

Here, the defendants cannot fairly be said to have “engaged in unfair methods of competition or unfair or deceptive acts or practices” by failing to take adequate measures to protect patrons from the dangerous incidents that were allegedly commonplace at their establishment.   Owning and managing a notoriously dangerous establishment is not itself an unfair method of competition nor an unfair or deceptive act or practice.   There is no allegation that suggests that the defendants attempted to represent that their establishment was a safe one.   There is no allegation that the defendants attempted to conceal any information regarding safety issues at their establishment.  “[I]t strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any ascertainable harm, caused by any person in the conduct of any trade or commerce.”  Vacco v. Microsoft Corp., 260 Conn. 59, 88, 793 A.2d 1048 (2002).   Although “our Supreme Court has frequently stated that unjustified consumer injury is the hallmark of a CUTPA violation ․ it has done so in the context of trade, rather than personal injuries.”  (Citation omitted;  internal quotation marks omitted.)  Simms v. Candela, 45 Conn.Sup. 267, 270, 711 A.2d 778, 21 Conn. L. Rptr. 479 (1998).   The plaintiff alleges that the plaintiff was injured while attending the defendant's notoriously dangerous establishment—more is required to state a valid claim for a CUTPA violation.

The motion is denied.

Domnarski, J.

FOOTNOTES

FN1. General Statutes § 42–110g(c) provides:  “Upon commencement of any action brought under subsection (a) of this section, the plaintiff shall mail a copy of the complaint to the Attorney General and the Commissioner of Consumer Protection and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the Attorney General and the Commissioner of Consumer Protection.”.  FN1. General Statutes § 42–110g(c) provides:  “Upon commencement of any action brought under subsection (a) of this section, the plaintiff shall mail a copy of the complaint to the Attorney General and the Commissioner of Consumer Protection and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the Attorney General and the Commissioner of Consumer Protection.”

Domnarski, Edward S., J.