Kelsey Broschart v. Matthew C. Reale, Adm. of the Estate of Malcolm Reid (2012)

MEMORANDUM OF DECISION RE (# 101) DEFENDANT'S MOTION TO STRIKE

This case involves a claim by the plaintiff for personal injuries, damages and other losses brought by the plaintiff against the administrator of the decedents' estate arising from a motor vehicle collision.

The defendant has moved the court to strike the Second and Third Counts of the plaintiff's complaint for the reason that those counts are based on § 14–295, C.G.S. and as the action was commenced after the death of the decedent, those claims are barred by the right of survival statute, § 52–599, C.G.S.

The plaintiff has since filed a revised complaint in which she withdrew the Third Count.   She persists with her allegations in the Second Count wherein it is alleged that the collision “was caused by the recklessness of Malcolm Reid” in several ways that constitute common-law recklessness, and that unlike statutory recklessness, common-law recklessness are permissibly filed against a decedent's estate.   In support of that position, the plaintiff cites a number of cases including Lockhart v. Naccarato (CV 09 5005428, New Haven J.D. at Meriden (December 16, 2009, Matasavage, J.) [49 Conn. L. Rptr. 24].

In that case, the court cited Welcome v. Ouellette–McGregor, Hartford J.D. No. CV 01 081139 (November 21, 2002, Hennessey, J.) [33 Conn. L. Rptr. 454] wherein the defendants had argued that “[the defendant's] continued existence is necessary to invoke the purpose of punitive damages to punish and deter and that without his presence neither party can offer evidence to establish or refute whether Ouellette had the state of mind required to establish a claim of recklessness.”  Id.

That court concluded that, “Although General Statutes § 52–599(c) may act as a bar, the courts have construed this exception narrowly ․ In upholding the survival of these actions, the courts considered the availability of evidence other than the testimony of the deceased and the fact that the burden of proof rests with the plaintiff ․ The state of mind of recklessness may ․ be inferred from conduct ․ In addition, it is noted that, in the present case, the plaintiff is the party that has the burden of demonstrating Ouellette's state of mind at the time of the accident.   At trial, the defendants will have the opportunity to refute the plaintiff's evidence.   This court does not believe that the defendants' ability to offer a defense to the present action will be impaired by Ouellette's death to the extent that the plaintiff's action should be stricken.   Therefore the motion to strike ․ on the basis that the claims for recklessness stated therein cannot survive the death of Ouellette is denied.”  Id.

In the instant case, Count Two alleges sufficient facts to support an action in common-law recklessness and § 52–599(c), C.G.S. does not act as a bar to the plaintiff's common-law recklessness claim because that claim survives the decedent's death.

For the foregoing reasons, the defendant's motion to strike the Second Count and its prayer for relief is denied.

BY THE COURT

JOSEPH W. DOHERTY, JUDGE

Doherty, Joseph W., J.