Sarah Matthiessen v. Anthony Dombek, Jr. (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (103.00)

FACTS

On February 4, 2011, the plaintiff, Sarah H. Matthiessen, commenced this action by service of process on the defendant, Anthony J. Dombek, Jr. In her complaint, the plaintiff alleges the following relevant facts.   On March 3, 2009, the plaintiff was driving a car southbound on Stillson Road near its intersection with September Place in Fairfield.   At that same time, the defendant was driving north on Stillson Road in the opposite direction of the vehicle operated by the plaintiff.   The defendant then drove over the double yellow line into the plaintiff's lane of travel, and his vehicle crashed into the automobile operated by the plaintiff.   As a result of this traffic accident, the plaintiff alleges that she has suffered numerous severe physical injuries.   Accordingly, the plaintiff's three-count complaint alleges claims for negligence (count one), common-law recklessness (count two) and statutory recklessness pursuant to General Statutes § 14–295 (count three).

On April 4, 2011, the defendant filed a motion to strike counts two and three, along with a memorandum of law in support of his motion.   The defendant moves to strike counts two and three on the ground that “[t]he plaintiff fails to state a cause of action ․ in that she fails to allege facts sufficient to take the defendant's conduct beyond that alleged to be merely negligent in her [f]irst [c]ount.”   On September 2, 2011, the plaintiff filed a memorandum of law in opposition to the defendant's motion.   For reasons unknown the motion and opposition languished without being claimed ready.   Finally, the court took this matter on the papers at the March 5, 2012 short calendar.

LEGAL 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).   In a motion to strike, “the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).   Therefore, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)   Batte–Homgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).   Nevertheless, “[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.   When deciding a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

Initially, the court addresses the plaintiff's argument that the motion to strike should be denied because the defendant failed to comply with the requirements of Practice Book § 10–41.   That Practice Book section provides:  “Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”  “Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted ․ Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective ․ and that Practice Book § [10–42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10–41] that the reasons for the claimed pleading deficiency be specified in the motion itself.”   (Internal quotation marks omitted.)  Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).

The face of the defendant's motion states that “[t]he plaintiff fails to state a cause of action in the [s]econd and [t]hird [c]ounts in that she fails to allege facts sufficient to take the defendant's conduct beyond that alleged to be merely negligent in her [f]irst [c]ount.”   In her memorandum of law, the plaintiff argues that the stated grounds do not comply with the mandates of § 10–41 because the defendant actually sets forth six separate arguments as to why counts two and three should be stricken, whereas the motion only lists one ground.   According to the plaintiff, the court should not consider any argument that is not explicitly listed as a ground on the defendant's motion to strike and “[a]s a result, the motion should be denied.”

Although the plaintiff is certainly correct that our rules of practice require that a motion to strike adequately set forth the grounds upon which the movant relies, this motion to strike does list a specific ground.   Specifically, the defendant asserts that counts two and three are legally insufficient because the plaintiff fails to allege enough facts to demonstrate that the defendant's conduct was beyond ordinary negligence.   As counts two and three sound in recklessness, it can be inferred that the defendant means that counts two and three do not set forth legally cognizable recklessness claims.   The precise nature of the defendant's argument is explained in the memorandum of law that accompanies the motion to strike.  “[W]here a motion to strike is supplemented by a memorandum of law adequate to submit to the court the material issue concerning the alleged flaw in the plaintiff's complaint, it will be considered sufficiently specific to comply with Practice Book § 10–41.”   Ambrose v. Golden Rule Ins. Co., Superior Court, judicial district of Danbury, Docket No. CV 07 5003730 (July 28, 2008, Shaban, J.).

This principle is illustrated in Rowe v. Godou, 12 Conn.App. 538, 532 A.2d 978 (1987), rev'd on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988).   In Rowe, the Appellate Court held that “[a] general statement contained in a motion to strike that the complaint does not state a claim upon which relief can be granted is usually insufficient to comply with Practice Book [10–41] ․ Nevertheless, a motion to strike which is unspecific, but which adequately submits the material issue to the court, as is the case here, is sufficient to comply with Practice Book [10–41].   The statement in the defendants' motion to strike that the plaintiff's action was ‘barred by statute’ was arguably unspecific, but did sufficiently apprise the court of the reasons for the claimed insufficiency of the plaintiff's complaint.”  (Citation omitted.)   Id., 541–42.   Although the defendant's motion in the present case could certainly have been drafted with more specific language, it does sufficiently put the plaintiff on notice of the alleged inadequacies in the plaintiff's complaint.   Therefore, the court will consider the merits of the defendant's motion to strike.

The court will first address the defendant's motion to strike count two, which alleges a cause of action for common-law recklessness.   The defendant argues that count two is legally insufficient because the plaintiff only alleges conduct that, at most, would indicate that the defendant acted negligently.   As the same conduct that comprises a negligence count cannot also rise to the level of reckless behavior, the defendant contends that count two must be stricken.   Additionally, the defendant argues that the plaintiff does not plead this count with the required factual specificity.   In response, the plaintiff argues that she alleges enough facts to maintain a claim for common-law recklessness.   The plaintiff notes that she alleges that “the defendant drove his car at an excessive rate of speed given the circumstances then and there existing, with a conscious awareness of and disregard given the circumstances then and there existing, with a conscious awareness of and disregard for the potentially dangerous consequences of driving at an excessive rate of speed and proceeding to recklessly drive his vehicle across the double yellow lines ․” According to the plaintiff, this alleged conduct is sufficient to sustain a common-law recklessness claim.   The plaintiff also argues that under certain circumstances, the same actions that support a negligence claim can also form the basis of a common-law recklessness count.

“To determine whether the plaintiffs' ․ complaint states a cause of action sounding in recklessness, [Connecticut courts] look first to the definitions of wilful, 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.”  (Internal quotation marks omitted.)  Craig v. Driscoll, 262 Conn. 312, 342, 813 A.2d 1003 (2003).   “While [our courts] have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing.   The result is that willful, 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.”  (Internal quotation marks omitted.)  Id., 342–43.

“[A] brief reference to recklessness, contained within a count which otherwise is clearly limited to ordinary negligence, is [in]sufficient to raise a claim of reckless and wanton misconduct.   Simply using the word reckless or recklessness is not enough.”  (Internal quotation marks omitted.)   Ricco v. Brewer, 92 Conn.App. 158, 170–71, 884 A.2d 12 (2005).  “Some additional factual allegations are necessary to alter the nature of the conduct complained of from an action for negligence to an action for wilful and wanton conduct ․ If the plaintiff merely reiterates the facts from the negligence count and inserts the word ‘reckless' a motion to strike is properly granted ․ If, however, the factual allegations in the negligence count are detailed and specific enough to support a claim of recklessness, the motion to strike may be denied ․ To state a claim of recklessness ․ the [plaintiff] must allege facts demonstrating both egregious conduct and the requisite state of mind.”   (Internal quotation marks omitted.)   Colangelo v. Holgerson, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 07 5004291 (October 11, 2007, R. Robinson, J.).

In count two, the plaintiff alleges that the defendant “deliberately or with reckless disregard of the consequences or for the safety of others, drove his car at an excessive rate of speed ․ [and] with a conscious awareness of and disregard for the potentially dangerous consequences of driving at such an excessive rate of speed.”  (Emphasis added.)   Furthermore, the plaintiff alleges that the defendant “recklessly failed to drive in the travel lanes to the right of the double yellow center line” and that the defendant “recklessly failed to observe the plaintiff's ․ vehicle in the roadway ․ “prior to crashing into the plaintiff's automobile.   The plaintiff further alleges that the defendant's conduct was the cause of the plaintiff's injuries.   With these allegations, the plaintiff alleges that the defendant was aware of the potential dangerousness of his conduct.

These allegations are similar to those that this court has previously held to be sufficient to maintain a legally cognizable recklessness count.   For instance, in Constante v. Knapp, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 09 5010730 (January 8, 2010, Adams, J.), the court denied a motion to strike a recklessness count with the following allegations:  “[the] defendant ‘was reckless because despite actual knowledge that entering an intersection which was totally blind from the left hand side would cause an imminent risk that others could suffer bodily harm, the defendant entered such a blind intersection’ and that ‘as a result of such recklessness, the collision occurred with the plaintiff's vehicle.’   “ Similarly, the court denied a motion to strike a recklessness count when the plaintiff alleged that the defendant “abruptly turned the tractor-trailer into the left lane of the highway when the plaintiff's vehicle was already there, and thus when it was obviously unsafe to do so, and when doing so, exposed the plaintiff to imminent risk of serious bodily harm.”   Blighton v. Gaul, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 10 6007630 (October 27, 2011, Adams, J.T.R.).   Given the similarities between the allegations in the present case and those that this court has already deemed to be sufficient in other cases, the court denies the defendant's motion to strike count two.

The court now turns to motion to strike count three, which alleges a statutory recklessness claim pursuant to General Statutes § 14–295.   The defendant argues that in order to state a legally sufficient statutory recklessness claim pursuant to § 14–295, the plaintiff needs to allege sufficient facts to maintain a common-law recklessness cause of action.   Although the defendant recognizes there currently is a split of authority in the Superior Court regarding the requirements for pleading a legally cognizable statutory recklessness claim, the defendant believes that the more stringent standard should be adopted.   Therefore, the defendant contends that § 14–295 simply codifies the standards for recklessness that were already in existence under the common law.   In support of this position, the defendant also argues that “the legislature does not have the authority to effect a sub silentio change in the Practice Book fact pleading requirements.”   The defendant believes that the plaintiff does not allege sufficient facts to satisfy the pleading requirements of a statutory recklessness claim, and, as a result, the defendant argues that count three should be stricken by the court.

In response, the plaintiff argues that a § 14–295 statutory recklessness claim is legally sufficient so long as the plaintiff tracks the relevant statutory language, which only requires that a plaintiff allege that the defendant recklessly violated one of the statutes mentioned in § 14–295 and that such violation was a substantial cause of the plaintiff's injuries.   The plaintiff contends that the appellate cases relied on by the defendant were construing a previous version of the statute and that these holdings are no longer applicable to the current version of § 14–295.   Moreover, the plaintiff states that she alleges sufficient facts to fit within the parameters of § 14–295.   Accordingly, the plaintiff believes that the defendant's motion to strike count three should be denied.

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, 14–219, 14–222, 14–227a, 14–230, 14–234, 14–237, 14–239 or 14–240a, and that such violation was a substantial factor in causing such injury, death or damage to property.”  “There is a split of opinions in the Superior Court as to the degree of pleading necessary for a claim of statutory recklessness.  [T]he minority view ․ holds that 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 ․ The majority of the superior courts find that merely reciting § 14–295 is sufficient ․ Under the majority view, 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 ․ Under the 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.”  (Citations omitted;  internal quotation marks omitted.)   Morey v. Helgens, Superior Court, judicial district of New Haven, Docket No. CV 11 6024529 (December 30, 2011, Young, J.).

This court has previously ruled on this split of authority.   In Starr v. Lopez, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 01 0185811 (November 6, 2001, Adams, J.), the court stated that “[t]he many Superior Court decisions on the issue of the sufficiency of allegations required to seek double or treble damages are split between those which hold that a pleading complying with the minimum requirements of § 14–295 is sufficient and those which require a pleading to allege specific facts showing reckless behavior ․ This court has considered both lines of cases and is persuaded that the language of § 14–295 clearly sets forth what is required to sustain a claim for double or treble damages, and if the stated pleading requirements of that statute are met the pleading is sufficient.”   (Citation omitted.)  Id. Consequently, this court has previously applied the majority rule when considering this issue.

In count three, the plaintiff alleges that the defendant “recklessly operated his motor vehicle in violation of Sections 14–218a, 14–230(a) and/or 14–236 of the Connecticut General [S]tatutes” and that “[t]he violation(s) was/were a substantial factor in causing in the injuries to the plaintiff ․” Therefore, count three satisfies all of the pleading requirements of § 14–295, and the motion to strike this count is denied.

For all of the reasons stated above, the court denies the defendant's motion to strike counts two and three of the plaintiff's complaint.

BY THE COURT

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.