Cesar Duchetanga v. Kendall Delfini et al. (2012)

MEMORANDUM OF DECISION MOTION TO STRIKE (# 101)

FACTS

The plaintiff commenced this action by service on the defendants on September 26, 2011.   The plaintiff alleges that he sustained injuries in a motor vehicle accident that occurred on or about November 13, 2010, while he was operating a motor vehicle traveling west on Interstate 95 in New Haven, Connecticut.   The plaintiff's complaint is in four counts.   Count one is as to Kendall Delfini, the operator of the vehicle that collided with the plaintiff's vehicle and sounds in negligence.   Count two of the complaint is also as to defendant, Kendall Delfini and alleges statutory recklessness pursuant to General Statutes § 14–295.   Counts three and four of the complaint are as to Kenneth and Joan Delfini and allege vicarious liability.   The defendants move to strike count two of the complaint and its corresponding prayer for relief on the ground that the plaintiff has failed to state a legally sufficient claim for statutory recklessness pursuant to § 14–295.   The matter was submitted as take papers on the March 12, 2012 short calendar.

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).   A motion to strike therefore “requires no factual findings by the trial court.”  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”   Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   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 TWO:  STATUTORY RECKLESSNESS

In the second count of the complaint, the plaintiff repeats the allegations in paragraphs 1–4 as alleged in his negligence count, and in addition, alleges the following:  “[t]he aforesaid multiple collisions were caused by the recklessness of the defendant, Kendall Delfini, in one or more of the following ways:  a. with reckless disregard for the rights and safety of others, he operated his motor vehicle at a rate of speed greater than was reasonable in light of the width, traffic and use of the highway in violation of Connecticut General Statutes § 14–218a;  b with reckless disregard for the rights and safety of others, he operated his motor vehicle at a rate of speed greater than what was reasonable in light of the width, traffic and use of the highway in violation of Connecticut General Statutes § 14–219.”   The plaintiff further alleges in paragraph 6 of count two that “[a]s a direct and proximate result of the aforesaid recklessness of the defendant,” the plaintiff suffered “painful and serious personal injuries ․” The plaintiff seeks “double or treble damages for the conduct alleged in count two pursuant to Connecticut General Statutes § 14–295.”   The defendants argue that the court should strike the second count because it is “not legally sufficient.”   Specifically, the defendants argue that simply by claiming recklessness by pointing to statutes that might give rise to such a claim in the presence of appropriate facts is not enough.   The defendants argue that plaintiff's allegations that the defendant, Kendall Delfini violated two statutes, in the absence of additional facts, other than the restatement of the negligence allegations, is insufficient to state a statutory claim of recklessness pursuant to General Statutes § 14–295.   The plaintiff argues that he has sufficiently pled the elements of § 14–295 and according to the majority of Superior Court opinions that is all that is required.

This court has previously addressed the standard for a statutory recklessness claim in the context of a motion to strike in Ferraiuolo v. Nicholson, Superior Court, judicial district of New Haven, Docket No. CV 09 5031138 (December 7, 2009, Wilson, J.).   This court wrote:  “[Section] 14–295 states explicitly that ‘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 [inter alia ] Section ․ 14–222 ․ and that such violation was a substantial factor in causing such injury, death or damage to property ․’ Neither the Connecticut Supreme Court nor the Appellate Court has yet to address the pleading requirements for recklessness under § 14–295.   There has been a split of authority in Superior Court decisions as to what degree of specificity is required in pleading recklessness.   See Alibrandi v. Romero, Superior Court, judicial district of Fairfield, Docket No. CV 08 5017380 (November 7, 2008, Bellis, J.).   A slight majority of Superior Court decisions have required that a plaintiff need only plead the general allegations enumerated in § 14–295, namely, that the defendant has deliberately or with reckless disregard violated one of the enumerated statutes, and the violation was a substantial factor in causing the plaintiff's injuries.  Id. Courts taking the majority view have emphasized the plain meaning of § 14–295:  ‘There does not appear to be any ambiguity in the language of [§ ]14–295 or how it should be applied or construed.   The statute says that in a civil action seeking damages for personal injuries, the trier of fact may award double or treble damages if the plaintiff has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of ․ [one or more motor vehicle statutes delineated in the statute].   If a further delineation of facts forming the basis of the recklessness claim were necessary, then such an explicit requirement could have been set out in the statute by the legislature.’   Lombard v. Booth, Superior Court, judicial district of Fairfield, Docket No. CV 01 0383637 (July 12, 2001, Stevens, J.) (30 Conn. L. Rptr. 78).  ‘Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct.’  Warkentin v. Burns, 223 Conn. 14, 22, CT Page 13205 610 A.2d 1287 (1992).

“In contrast, a minority of courts have required that plaintiffs plead the specific conduct that is reckless, above and beyond what must be pleaded for mere negligence.  Alibrandi v. Romero, supra, Superior Court, Docket No. CV 08 5017380.   Courts following the minority view have highlighted the substantive difference between negligence and recklessness.  ‘Our Superior [C]ourts have held that the reiteration of facts previously asserted to support a cause of action in negligence, without more, cannot be transformed into a claim of reckless misconduct [by mere] nomenclature.’  (Internal quotation marks omitted ) Leigh v. Cook, Superior Court, judicial district of New Haven, Docket No. CV 06 6000492 (May 24, 2007, Holden, J.).  ‘To allow a plaintiff to simply allege reckless disregard of a statutory provision would enable any negligence claim to be brought as a recklessness claim and thereby make it subject to double and treble damages.   The plaintiff would only have to plead that in addition to the defendant's conduct being careless it was also deliberate.   This court does not believe it was the legislature's intent when enacting § 14–295, to effectively dissolve any distinction between claims in negligence and recklessness.’   Victor v. Williamson, Superior Court, judicial district of Fairfield, Docket No. CV 05 4008786 (July 7, 2006, Owens, J.T.R.).

“Courts taking the minority position have also emphasized the importance of fact pleading.  ‘[T]he majority view—to plead only the bare bones of the statute—would lead to anemic pleading ․ Connecticut remains a fact pleading jurisdiction ․ The majority view would judicially take us to a notice pleading posture.’   Kurensky v. Church Hill Enterprises, Superior Court, judicial district of Fairfield, Docket No. CV 02 0390806 (July 16, 2002, Brennan, J.).  ‘Practice Book § 10–1, titled Fact Pleading, provides in relevant part:  “Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies ․” There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on.’  (Citation omitted.)  Leigh v. Cook, supra, Superior Court, Docket No. CV 06 6000492.   ‘[T]he plaintiff must plead particularized facts that when taken as true would show that the defendant acted with reckless disregard.   The facts alleged must show that the defendant consciously chose a course of action despite the fact that the defendant did know, or reasonably should have known, that the action posed serious danger to others.’  Victor v. Williamson, supra, Superior Court, Docket No. CV 05 40008786.

“This court finds the majority view, which has been the trend in recent years, persuasive.   The language of § 14–295 is unambiguous ․” Ferraiuolo v. Nicholson, supra, Superior Court, Docket No. CV 09 5031138.   The language of § 14–295, also requires that the plaintiff plead that the reckless conduct at issue was a “substantial factor” in causing death, injury or property damage.   There is another split of authority in Superior Court decisions on whether the words “substantial factor” must be used by a plaintiff pleading a statutory recklessness claim.   One view is that a plaintiff pleading a statutory recklessness claim does not need to use the words “substantial factor” as long as he or she sufficiently alleges causation.   This view was articulated in Chacon v. Fuseini, Superior Court, judicial district of New Haven, Docket No. CV 07 5009785 (February 28, 2008, Bellis, J.):  “While the defendant is correct in that the plaintiff did not use the exact phrase ‘substantial factor,’ this court rejects the proposition that formulaic words must be employed in this case where the plaintiff has specifically pled that the defendant recklessly operated his motor vehicle in violation of the triggering statute and that such violation caused the plaintiff's injuries and losses.”   See also, e.g., Lindor v. Green, Superior Court, judicial district of New London, Docket No. CV 5000420 (August 4, 2006, Hurley, J.T.R.) (41 Conn. L. Rptr. 775);  Myers v. Ocean Trace Development, Superior Court, judicial district of Fairfield, Docket No. CV 00 0375476 (May 2, 2002, Gallagher, J.).

The other view is that the words “substantial factor” must be used by a plaintiff in order for his or her statutory recklessness claim to survive a motion to strike.   See, e.g., Decyk v. Lanquette, Superior Court, judicial district of New Haven, Docket No. CV 05 5000180 (July 28, 2006, Taylor, J.);   Carangelo v. Remis, Superior Court, judicial district of New Haven, Docket No. CV 04 4000641 (May 5, 2006, Wiese, J.) (41 Conn. L. Rptr. 318);  Comparone v. Cooper, Superior Court, judicial district of Fairfield, Docket No. CV 92 293125 (August 27, 1992, Lewis, J.) (7 C.S.C.R. 1108) [7 Conn. L. Rptr. 262].   The court is persuaded by the view set forth in Chacon, and concludes that while the plaintiff does not use the exact phrase “substantial factor” he does allege that “as a direct and proximate result of the aforesaid recklessness of the defendant, the plaintiff suffer[ed] ․ painful and serious personal injuries ․” This is sufficient under the pleading standard established by § 14–295, which requires that a plaintiff allege a causal relationship between the recklessness claimed and the injury suffered.   Because the plaintiff has, in addition to alleging the statutory violations as enumerated in § 14–295, fulfilled the “substantial factor” requirement of the statutory recklessness pleading standard, he has alleged all of the elements required under the statute and therefore, the second count of his complaint is legally sufficient.   Accordingly, the court denies the defendants' motion to strike count two of the complaint and the corresponding prayer for relief.

Wilson, J.

Wilson, Robin L., J.