Christopher Blanchard et al. v. Dean Velodota et al. (2012)

MEMORANDUM OF DECISION MOTION TO STRIKE (# 107)

PROCEDURAL AND FACTUAL BACKGROUND

The present action was commenced by writ, summons and complaint on December 6, 2011.   The plaintiffs, Christopher Blanchard and Suzanne Blanchard filed a four-count complaint in which they allege the following facts.   On August 22, 2010, the plaintiff, Christopher Blanchard was operating his automobile northbound on route 5, Buckland Road near its intersection with Webster Street in Newington, Connecticut.   At the same time and place, the defendant, Dean Velodota, was operating his automobile northbound on route 5, Buckland Road near the same intersection at Webster Street in Newington, directly behind the plaintiff's automobile.   The plaintiff further alleges that the defendant, Dean Velodota was operating the vehicle with permission of the defendant owner, Robert Dangelo as the agent, servant and/or employee of the defendant Robert Deangelo pursuant to General Statutes § 52–183;  or the defendant, Robert Deangelo maintained his vehicle as a family car and the defendant, Dean Velodota, was operating the automobile within the scope of his general authority to do so and with the authorization of the defendant, Robert Deangelo pursuant to General Stautes § 52–182.   The plaintiff alleges that the defendant, Dean Velodota caused his vehicle to violently collide with the rear of the plaintiff's vehicle, which caused the plaintiff to suffer personal injuries and losses.   The plaintiff, Christopher Blanchard suffered personal injuries, and incurred a plethora of expenses and losses as a result of the accident.   The plaintiff, Suzanne Blanchard has claimed a loss of consortium as result of her husband, Christopher Blanchard's injuries.

The plaintiffs allege in count one, that the defendant Dean Velodota was negligent in that he followed the plaintiff's vehicle too closely in violation of Connecticut General Statutes § 14–240;  failed to apply his brakes in time to avoid a collision, although by proper and reasonable exercise of his faculties, he could and should have done so;  failed to maneuver his vehicle to avoid a collision, although by a proper and reasonable exercise of his faculties he could have and should have done so;  operated his vehicle at an unreasonable rate of speed in violation of § 14–218(a);  failed to keep a proper and reasonable lookout;  failed to maintain his vehicle under proper and reasonable control;  failed to sound his horn or give the plaintiff a timely warning, or any warning whatsoever, of the impending collision;  and operated his vehicle in a careless and inattentive manner.   The plaintiffs have also alleged that the defendant acted recklessly at the time he collided with the plaintiff, Blanchard's vehicle.   The plaintiffs bring four counts against the defendants.   Count one alleges negligence against both defendants, count two alleges statutory recklessness against the defendant Velodota, count three alleges common-law recklessness against the defendant Velodota and count four alleges a loss of consortium claim by the plaintiff, Suzanne Blanchard.

The defendant, Dean Velodota ¹ filed a motion to strike on February 8, 2012, seeking to strike counts two and three of the plaintiffs' complaint alleging statutory recklessness and common-law recklessness, as well as the corresponding paragraphs of plaintiffs' prayer for relief, which requests inter alia, punitive damages and double or treble damages, pursuant to C.G.S. § 14–295.²  The plaintiffs filed an objection to the motion to strike on February 27, 2012 with an accompanying memorandum of law.   The matter was heard at short calendar on April 30, 2012.

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 ruling on a motion to strike, “[t]he role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [plaintiffs have] 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).

A

Statutory Recklessness

The defendant argues that the plaintiffs' second and third counts fail to allege any additional facts in support of the claim of recklessness and are merely based on the allegations of negligence set forth in count one of the complaint.

“Neither the Connecticut Supreme nor Appellate Court has yet had occasion 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 ․ The split of authority arises from the different constructions the courts have placed on the term specifically pleaded.”  (Internal quotation marks omitted.)   Cooke v. Maynard, Superior Court, judicial district of New Haven, Docket No. CV 10 6012259 (September 21, 2010, Wilson, J.).

This court has addressed the issue of the pleading standard under Section 14–295 on four previous occasions.   See Cooke v. Maynard, supra;  Campos v. Coleman, Superior Court, judicial district of New Haven, Docket No. CV 10 6009582 (June 9, 2010, Wilson, J.);   Braumann v. Clavette, Superior Court, judicial district of New Haven, Docket No. CV 09 5031138 (April 27, 2010, Wilson, J.);   Ferraiuolo v. Nicholson, Superior Court, judicial district of New Haven, Docket No. CV 09 50311385 (December 7, 2009, Wilson, J.).   On each occasion, the court sided with the majority and ruled that the plaintiff need only plead the language in § 14–295;  that the defendant violated one or more of the enumerated statutory provisions named therein and that the violation was a substantial factor in causing the plaintiff's injuries.

As this court has previously explained:  “The 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 ․ 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 ․ To permit otherwise, these courts reason, would enable any negligence claim to be brought as a recklessness claim and thereby make it subject to double and treble damages ․ effectively dissolve[ing] any distinction between [the two] claims ․

“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 the violation was a substantial factor in causing the plaintiff's injuries ․ The majority view is based both on 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.

“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 ․ 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 ․ This court will therefore continue to apply the majority view ․” (Internal quotation marks omitted.)   Cooke v. Maynard, supra.

In this case, the plaintiffs' complaint tracks the language of § 14–295 in count two alleging:  “The defendant, Dean Velodota's violations of Sections 14–240a and 14–218a of the Connecticut General Statutes were deliberate and/or with reckless disregard and was a substantial factor in causing the injuries sustained by the plaintiff Christopher Blanchard.”   The plaintiffs' complaint is therefore legally sufficient under the majority view and the continuing view of this court.   The court therefore denies the defendant's motion to strike count two inasmuch as they allege statutory recklessness claims under § 14–295.

B

Common–Law Recklessness

The defendant has moved to strike count three of the plaintiffs' complaint in which they allege common-law recklessness.   The defendant argues that the plaintiffs' allegation of [common law] recklessness must fail because it does not sufficiently identify facts, or identify any additional facts which would support the recklessness claim.

“[A] count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff ․ In order to establish that the conduct of a defendant, who was under such a duty, was deliberate, wanton and reckless, the plaintiff must prove ․ the existence of a state of consciousness with reference to the consequences of one's acts ․ [Such conduct] is more than negligence, more than gross negligence ․ [I]n 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 ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.”  (Citation omitted;  internal quotation marks omitted.)  Vitale v. Kowal, 101 Conn.App. 691, 698–99, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).

“Allegations of recklessness differ from allegations of negligence because 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 ․ [S]uch 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.)  Pecan v. Madigan, 97 Conn.App. 617, 622 n.5, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007).  “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.”   Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003).

In count three, the plaintiff alleges that the “collision was due to the willful, wanton and reckless conduct of the defendant Velodota” and recites the same allegations as set forth in the negligence count without alleging that the defendant operated his vehicle with reckless or deliberate disregard for the safety of others.   When construed in the light most favorable to the plaintiff, the allegations in the complaint simply allege negligence with a conclusory allegation that the defendant's conduct was willfull, wanton and reckless.   None of allegations describe with specificity the defendant's state of mind to distinguish between the common-law recklessness count and the negligence count.   The court concludes that the plaintiff has not sufficiently pled a cause of action sounding in common-law recklessness.   The motion to strike count three of the plaintiff's complaint and the corresponding prayer for punitive damages is therefore granted.

CONCLUSION

For the foregoing reasons, as to count two, the plaintiffs' statutory recklessness claim is legally sufficient because they have alleged the required language of the statute.   As to count three, the common-law recklessness claim, the plaintiffs' complaint is legally insufficient because they fail to allege reckless conduct on the part of the defendant other than that alleged in the negligence count and they fail to allege any facts that would distinguish the negligence count from the common-law recklessness count, other than the conclusory allegations that the defendant's conduct was willful, wanton and reckless.   Thus, the motion to strike count three and the corresponding prayer for relief is granted.

WILSON, J.

FOOTNOTES

FN1. Since counts two and three are directed solely against the defendant, Dean Velodota, and are not directed against Robert DeAngelo, and are the subject of the motion to strike, the court's reference to the defendant is directed at Dean Velodota..  FN1. Since counts two and three are directed solely against the defendant, Dean Velodota, and are not directed against Robert DeAngelo, and are the subject of the motion to strike, the court's reference to the defendant is directed at Dean Velodota.

FN2. General Statutes § 14–295 provides in relevant part that “[i]n 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 ․ or 14–240a, and that such violation was a substantial factor in causing such injury, death or damage to property.”.  FN2. General Statutes § 14–295 provides in relevant part that “[i]n 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 ․ or 14–240a, and that such violation was a substantial factor in causing such injury, death or damage to property.”

Wilson, Robin L., J.