Julia Kenny v. LLC (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE [# 107]

FACTS

On February 28, 2012, the plaintiff, Julia Kenny, filed a four-count complaint against the defendant, Bridge Street Laundry, LLC, alleging claims for negligence, nuisance, violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42–110a et seq., and recklessness, respectively.   The defendant filed a motion to strike counts two and three and the corresponding prayers for relief seeking money damages, punitive damages, and attorneys fees on June 13, 2012, on the grounds that the plaintiff failed to allege facts to support a cause of action for nuisance in count two and that the plaintiff failed to allege facts which support a cause of action under CUTPA in count three.   Subsequent to the filing of the defendant's motion, the plaintiff filed a request for leave to amend her complaint on July 18, 2012, withdrawing count two, the nuisance claim, and amending the CUTPA claim in count three.   The defendant filed no objection to the plaintiff's request.   As a result, this memorandum only addresses the motion to strike with regard to count three of the amended complaint.

In count three of the amended complaint, the plaintiff alleges the following facts.   On or about February 20, 2010, the plaintiff, a customer, was lawfully on the premises owned by the defendant and was injured when she slipped and fell on a patch of wet dirt, grit, wetness or water accumulating on the floor at the entrance of Bridge Street Laundry located at 129 Bridge Street, Groton, Connecticut.   The defendant's negligence and carelessness caused the plaintiff's injuries in that, inter alia, the defendant failed to warn her with regard to a dangerous condition, it allowed this condition to exist while the defendant knew or in the exercise of reasonable care should have known of the dangerous condition, it failed to make reasonable and proper inspections to ensure the area was safe, it failed to take reasonable precautions to safeguard persons lawfully on premises, it failed to keep the area dry, and it failed to have proper drainage from the roof overhanging the sidewalk in front of the main entrance.

The plaintiff further alleges that the conduct of the defendant violates CUTPA because it “offends public policy by allowing a blatantly treacherous entryway—containing wet dirt and/or grit and/or wetness and/or water accumulating on the floor of the entryway” and/or “was immoral, unethical, oppressive, or unscrupulous” and “caused substantial injury” to the plaintiff.   This injury was “not outweighed by any countervailing benefits to consumers or competition that the practice produces” and the plaintiff could not have reasonably avoided the wetness or water accumulating on the floor of the entryway.   The plaintiff also alleges she suffered an ascertainable loss of money as a result of the defendant's violation.

The defendant's motion to strike is supported by a memorandum of law filed on June 13, 2012.   The plaintiff filed a memorandum of law in opposition to the motion to strike on July 18, 2012.   The matter was heard at short calendar on July 23, 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).  “[I]t 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 ․ The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Citation omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “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.)  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

The defendant argues that count three is legally insufficient to state a claim alleging a violation of CUTPA because the plaintiff has not alleged facts that elevate a negligence claim such that it supports the conclusion that the defendant's actions offended public policy or were deceptive or caused substantial injury to consumers.   The plaintiff argues in opposition that the amended complaint pleads with particularity how the defendant's actions meet the requirements of a CUTPA violation.

“[General Statutes § ]42–110b(a) provides that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.   It is well settled that in determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair:  (1)[W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers [competitors or other businesspersons] ․ All three criteria do not need to be satisfied to support a finding of unfairness.   A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three ․ Thus a violation of CUTPA may be established by showing either an actual deceptive practice ․ or a practice amounting to a violation of public policy.”  (Internal quotation marks omitted.)  Harris v. Bradley Memorial Hospital & Health Center, Inc., 296 Conn. 315, 350–51, 994 A.2d 153 (2010).

In addition, further clarifying the cigarette rule, our Supreme Court has “set forth a three part test for satisfying the substantial injury criterion:  [1] [the injury] must be substantial;  [2] it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces;  and [3] it must be an injury that consumers themselves could not reasonably have avoided.”  (Internal quotation marks omitted.)  Hartford Electric Supply Co. v. Allen–Bradley Co., 250 Conn. 334, 368, 736 A.2d 824 (1999).  “Although our Supreme Court has frequently stated that [u]njustified consumer injury is the hallmark of a CUTPA violation ․ it has done so in the context of trade, rather than personal, injuries.”  (Citation omitted;  internal quotation marks omitted.)  Simms v. Candela, 45 Conn.Sup. 267, 270, 711 A.2d 778 [21 Conn. L. Rptr. 479] (1998).

In the present case, the plaintiff alleges in count three of the amended complaint that the defendant's acts violated CUTPA because the defendant permitted a blatantly treacherous condition to exist at the entryway of the building and it failed to adequately warn the plaintiff of the danger.   As to the first prong of CUTPA, the plaintiff's claim is insufficient because it is grounded in negligence and fails to allege facts to support her conclusion that the defendant's conduct violated public policy.   As to the second prong, although the plaintiff concludes that the defendant's actions were immoral, unethical, oppressive, or unscrupulous, she has not pleaded facts to support this conclusion or alleged facts demonstrating that the defendant's actions were deceptive.

To satisfy the third prong of the cigarette rule the plaintiff must allege facts demonstrating that the defendant caused substantial injury to consumers.   In count three, the plaintiff alleges facts demonstrating substantial injury as detailed in count one of her complaint, that no benefit to consumers was produced by the defendant's conduct in allowing a dangerous condition to exist and that the plaintiff could not reasonably avoid the dangerous area that resulted in her injury.   The plaintiff does not, however, allege facts to support these last two conclusions beyond restating the applicable portions of the three-part substantial injury test set out in Hartford Electric Supply Co. v. Allen–Bradley Co., supra, 250 Conn. 368.

The plaintiff asserts in her memorandum in opposition that the defendant's conduct “meets criteria one (public policy) and three (substantial injury) in a much more appreciable degree than it meets criteria two (immoral, unethical, oppressive conduct)” and further asserts that the “practice/violation meets these two criteria to such a great degree” that it satisfies the criteria of the cigarette rule.   The amended complaint alleges no facts to support the plaintiff's assertions.   At trial, for a jury “to find a violation of CUTPA grounded in negligence, the plaintiff must prove that the act violated public policy and caused substantial unjustified injury to consumers, competitors or other business people.”  (Emphasis added;  internal quotation marks omitted.)   Thames River Recycling, Inc. v. Gallo, 50 Conn.App. 767, 787, 720 A.2d 242 (1998).   To survive a motion to strike, therefore, a plaintiff must allege such violation and injury.   As discussed above, the plaintiff has not alleged sufficient facts to satisfy either of these criteria.   As a result, the plaintiff's claim in count three is not legally sufficient.   Therefore, the defendant's motion as to count three and the corresponding prayers for relief must be granted.

CONCLUSION

For the foregoing reasons, the defendant's motion to strike count three of the plaintiff's amended complaint and the corresponding prayers for relief is granted.

Martin, J.

Martin, Robert A., J.