Holly A. Byrnes v. David B. Zeidler (2012)

MEMORANDUM OF DECISION ON MOTION TO STRIKE, # 101

On November 14, 2011, the plaintiff, Holly A. Byrnes, filed this three-count complaint against the defendant, David B. Zeidler.   The plaintiff alleges that she was operating her motor vehicle on November 12, 2010, when her vehicle was struck in the rear by a vehicle operated by the defendant, David B. Zeidler.

Count one alleges that the defendant was negligent in operating his motor vehicle in a number of ways, including failing to keep his vehicle under control, failing to apply his brakes in time to avoid a collision, failing to turn his vehicle so as to avoid a collision, following too closely behind the vehicle in front of him, in violation of General Statutes § 14–240, speeding in violation of General Statutes § 14–219, operating his vehicle at a rate of speed unreasonable for the conditions in violation of General Statutes § 14–218a, operating his vehicle with an untreated diabetic condition which he knew or should have known posed an unreasonable risk of harm, and operating his vehicle while on a cell phone, in violation of General Statutes § 14–296aa(b).

Count two realleges the facts in count one and further alleges that the conduct of the defendant was “reckless misconduct ․ in that the defendant knew or should have known that his conduct in willfully operating his motor vehicle with a diagnosed and untreated dangerous diabetic condition would result in a high degree of risk of serious harm ․ and despite knowledge of that risk and the harm that would result from such conduct, acted recklessly in one or more of the following ways” including his operation of his vehicle with his uncontrolled diabetic condition, and operation of his vehicle in violation of §§ 14–218a, 14–219, and 14–222.   Count three realleges the facts in count two and further alleges that the conduct of the defendant was “deliberate or with reckless disregard,” and such conduct was a substantial factor in causing the collision and injuries, damages and losses, in violation of General Statutes § 14–295—statutory recklessness.

In the plaintiff's prayer for relief, she claims punitive damages for violation of common-law recklessness in count two, and double or treble damages pursuant to § 14–295 as to count three.   The defendant moves to strike counts two and three of the complaint and their respective sections of the prayer for relief.   The defendant contends that the plaintiff has failed to specifically plead allegations that would give rise to a claim for common-law recklessness or statutory recklessness.

“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.”  (Citations omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alvers, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “A motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court.”   (Citations omitted;  internal quotation marks omitted.)  Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Citations omitted;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “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.”  (Citations omitted;  internal quotation marks omitted.)  Asylum Hill Problem Solving Revitalization Ass'n v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).

The defendant argues in his motion to strike that the plaintiff has not pleaded anything in the recklessness counts other than ordinary negligence, as the plaintiff has done expressly in the first count, which alleges certain specifications of common-law negligence.   The only substantive difference in the counts pertaining to these claims is the addition of the words, “reckless misconduct,” and, without any additional factual allegations, that the defendant operated his vehicle with deliberate and/or reckless disregard in violation of General Statutes § 14–295.

“In determining the legal sufficiency of the recklessness counts, the question is not the similarity of the test to that in the negligence count.   Rather the question is whether the recklessness counts can stand on their own as sounding in recklessness.”   Kelly v. Miller, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 08 5008707 (August 28, 2008).

General Statutes § 14–295 provides:  “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.”

The appellate courts have not decided what degree of specificity is required in pleading recklessness under § 14–295 and, thus, a division of opinion has occurred amongst the judges of the superior court.   See e.g., Flores v. Viveros–Velazquez, Superior Court, judicial district of Windham at Putnam, Docket No. 063971 (November 21, 2000).   There are two lines of cases, the first representing the minority view, which 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.¹  “Relying on the usual rules of pleading, these courts generally reason that a plaintiff who is alleging recklessness must allege specific facts that informs both the court and the defendant what conduct is relied upon.”   Robbins v. Gondek, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 07–6000285 (March 18, 2008).²

The second line of cases, referred to as the majority view, distinguishes between pleading common-law recklessness and statutory recklessness, thus holding that a plaintiff need only plead the required language in § 14–295, that is, that the defendant violated one or more of the enumerated statutory provisions named therein, and that violation was a substantial factor in causing the plaintiff's injuries.³  “The majority view is based on both an analysis of the legislative history as well as a review of the statutory language of § 14–295 itself.   These cases conclude that 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.”   Ferens v. Brown, Superior Court, judicial district of New Britain, Docket No. CV 00–509116 (October 11, 2001).   After a careful review of both lines of cases, this court agrees that the plain meaning of statutory language in § 14–295 requires only that a plaintiff plead a violation of one or more of the enumerated statutes named therein, and that such violation was a substantial factor in causing the plaintiff's injuries.

The essential allegations of count three of the plaintiff's complaint in this case is that when the defendant drove his car, in violation of §§ 14–218a, 14–219, and 14–222, the defendant engaged in reckless conduct under § 14–295, and that those violations were a substantial factor in causing the plaintiff's injuries.   As pleaded, this count, sounding in statutory recklessness is legally sufficient as is the accompanying claim for multiple damages.

Count two is also legally sufficient.   In Craig v. Driscoll, 262 Conn. 312, 342–43, 813 A.2d 1008 (2003), the Supreme Court held that 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.   In the present case, the plaintiff's complaint in count two alleges common-law recklessness, based on the fact that the defendant followed too closely behind the vehicle in front of him, that he operated his vehicle at an unreasonable speed, and operated his vehicle with an untreated diabetic condition, and that the collision was due to the reckless misconduct of the defendant.   The plaintiff is explicit enough in her pleadings to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted.   A plaintiff is entitled to maintain an action for statutory recklessness and common-law recklessness simultaneously.   See Matthiessen v. Vanech, 266 Conn. 822, 830–35, 836 A.2d 394 (2003).

CONCLUSION

Accordingly, the motion to strike is denied.

Swienton, J.

FOOTNOTES

FN1. See McGuire–Kelley v. Sciuto, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 99–428860 (October 1, 1999);  Chatterton v. Infinity Insurance Co., Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 98–064615 (October 1, 1999);  Nocera v. Besso, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 98–086777 (September 29, 1999);  Reed v. Sesta, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 98–5777273 (June 19, 1998)..  FN1. See McGuire–Kelley v. Sciuto, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 99–428860 (October 1, 1999);  Chatterton v. Infinity Insurance Co., Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 98–064615 (October 1, 1999);  Nocera v. Besso, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 98–086777 (September 29, 1999);  Reed v. Sesta, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 98–5777273 (June 19, 1998).

FN2. In this case, the plaintiff is alleging that the conduct of the defendant in operating his vehicle with an untreated diabetic condition, among other conduct, was reckless..  FN2. In this case, the plaintiff is alleging that the conduct of the defendant in operating his vehicle with an untreated diabetic condition, among other conduct, was reckless.

FN3. See Kelly v. Miller, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 08–5008707 (August 28, 2008);  Sony v. Arselli, Superior Court, judicial district of Fairfield, Docket No. CV 01–0386408 (May 14, 2002);  Woolums v. Deveny, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01–454434 (November 7, 2001);  Donahue v. Thomas, Superior Court, judicial district of Waterbury, Docket No. CV 01–161182 (February 28, 2001);  Plimpton v. Amerada Hess Corp., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 99–0169861 (September 27, 1999);  Nelson–Hlebogiannis v. Lee, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 98–0167571 (May 17, 1999);  Carta v. Cohn, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98–0262531..  FN3. See Kelly v. Miller, Superior Court, judicial district of New Britain at New Britain, Docket No. CV 08–5008707 (August 28, 2008);  Sony v. Arselli, Superior Court, judicial district of Fairfield, Docket No. CV 01–0386408 (May 14, 2002);  Woolums v. Deveny, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 01–454434 (November 7, 2001);  Donahue v. Thomas, Superior Court, judicial district of Waterbury, Docket No. CV 01–161182 (February 28, 2001);  Plimpton v. Amerada Hess Corp., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 99–0169861 (September 27, 1999);  Nelson–Hlebogiannis v. Lee, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 98–0167571 (May 17, 1999);  Carta v. Cohn, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 98–0262531.

Swienton, Cynthia K., J.