Gary Masi v. Toyota Motor Sales U.S.A., Inc. et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 144

INTRODUCTION

The plaintiff, Gary Masi (hereinafter “Masi”) has filed a writ, summons and complaint naming as defendants, Toyota Motor Sales U.S.A., Inc. (Toyota Sales) Toyota Motor North America, Inc. (Toyota N.A.), and Griffin Management Company, Inc. d/b/a Lexus of Green (“Griffin”).   The action is based upon an automobile accident that occurred on January 26, 2008.   The plaintiff alleges he was injured when driving a Lexus that exhibited unintended acceleration that caused the Lexus to accelerate out of control and hit the back of a truck.   The plaintiff contends the Lexus ES 350 that he was driving was provided to him by the defendant Griffin.   The plaintiff has revised the complaint and the operative complaint is the Second Revised Complaint filed on February 9, 2011.   The Revised complaint consists of Eight Counts.¹

The first, second, and third counts are claims pursuant to the product liability statute against each of the three defendants.   The second Count three is a claim for negligence against the defendant Griffin, count four is a claim of recklessness against the defendant Griffin, counts five, six and seven are claims pursuant to CUTPA as to each of the three defendants.   The plaintiff has set forth a lengthy description of facts in the first count which is incorporated into each count thereafter.

The defendant, Griffin, has filed a motion to strike the second Count 3 and Count 4 as well as Paragraphs 2 and 3 from the Prayer for Relief.   The plaintiff has submitted an objection to the motion to strike dated May 3, 2011.   The defendant filed a reply to the objection on May 6, 2011.   The court heard argument from counsel on May 6, 2011.

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).  “[T]he moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp. et al, 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).  “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.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 498.   The court should “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

The defendant argues that the second Count Three cannot survive because of the exclusivity provision of the product liability statute.  C.G.S. § 52–572n(a) provides in relevant part:  “[a] product liability claim ․ may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence ․ for harm caused by a product.”   The Connecticut Supreme Court has stated that “[this] exclusivity provision makes the product liability act the exclusive means by which a party may secure a remedy for an injury caused by a defective product.”  Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126, 818 A.2d 769 (2003).   The Gerrity action alleged claims for violations of CPLA and CUTPA.   The court found that the CPLA and CUTPA claims were not precluded by the exclusivity clause of the products liability statute.   The findings in Gerrity were contingent upon the fact that the claims were outside the scope of a product liability action.   However, in Hurley v. Heart Physicians, P.C., 278 Conn. 305, 898 A.2d 777 (2006), the court held that the product liability claim acted as a bar to the plaintiff's CUTPA claim where the plaintiff was seeking damages for personal injury.   The court stated that “[a]s noted previously, the legislature defined a product liability claim to include all claims or actions brought for personal injury, death or property damage caused by the allegedly defective product ․ The legislature also provided that the damages are caused by the defective product if they arise from the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product ․ The language of the exclusivity provision, however, suggests that it was not designed to serve as a bar to additional claims, including one under CUTPA, either for an injury not caused by the defective product, or if the party is not pursuing a claim for personal injury, death or property damage.”  (Citations omitted;  internal quotation marks omitted.)  Id., 324–26.   Therefore, the Hurley court distinguished the allowance of a personal injury claim only if it was a claim outside of the products liability claim for personal injury, death or property damage.   If however, the claim was one for personal injury or death within the products liability exclusivity provision it would not survive a motion to strike.

In the instant action, count three and four are based upon negligence and recklessness, both of which are claims for personal injuries, death or property damage.   The plaintiff contends however, that the instant claims are not subject to a motion to strike because they are claims permitted to be filed in the alternative pursuant to Connecticut Practice Book § 10–25.   In particular, the plaintiff contends that the defendant, Griffin, has raised an issue that it is not within the definition of a product seller in accordance with the product liability statute and that they were merely responsible for service to the plaintiff and thus would not be subjected to liability within the product liability statute.   The court inquired as to the defendant's position in regard to the claim of whether they are a product seller and thus fall within the purview of the product liability statute and the application of the exclusivity provision.   The defendant could not provide a response and left unanswered the inquiry.   The non-response leaves a question as to what law is implicated based upon the facts alleged.   That is, the defendant may not be a product seller which would trigger the exclusivity provision that precludes the claims for personal injury as a result of negligence or recklessness.   As a result, if this court grants the motion to strike it would prematurely eliminate two possible viable causes of action in the event the products liability claim is insufficient.   The court in viewing the claims in the most favorable light finds that these claims may be sufficient.   It was never the intention of the products liability exclusion to permit the preclusion of other causes of action by a well calculated series of pleadings to whittle away what may be a valid cause of action upon a review of all claims at one time.   To allow the defendant to strike these claims based upon the exclusivity provision and then to attack the remaining cause of action as lacking the essential elements in a later motion is a disservice to the integrity of the judicial process.   The court recognizes that in due time, the defendant may have a basis for judgment as to one or all causes of action but at the present time without a full opportunity to determine the challenges to the pleadings, the motion to strike is premature and would obviate the principle of permitting litigants to have their day in court by striking a claim that in the alternative may be sustainable.   Thus, this court denies the motion to strike as to the second Count three.

The defendant next argues that Count four does not allege facts to support a claim for recklessness.   In particular, the defendant contends that the allegations of the recklessness are the same as the negligence claim and thus there is no factual basis to support a claim for recklessness.   The second revised complaint has a litany of factual allegations in Count one which the plaintiff then refers to in each of the Counts that follow.   The defendant contends that because the plaintiff has utilized the same factual allegations, the claim of recklessness is not properly pled.   Count four of the Second Revised Complaint indicates that the plaintiff incorporates the allegation in the first count and then in paragraph 56 repeats the claim in the negligence above count with the exception of changing the terminology from negligence to recklessness.   Paragraph 56 states in part:  “[s]ame constitutes recklessness in providing a vehicle with a known defect that Griffin knew or should have known about and was specifically charged with addressing without properly addressing said defect prior to providing the vehicle to plaintiff.”   Other than the insertion of the word “recklessness” the paragraph is identical to the claim in the negligence count.  “[Recklessness] requires an extreme departure from ordinary care ․ [N]egligence and willful and wanton misconduct are separate and distinct causes of action ․ 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 ․ Merely using the term recklessness to describe conduct previously alleged as negligence is insufficient as a matter of law.”  (Citations omitted;  internal quotation marks omitted.)  Angiolillo v. Buckmiller, 102 Conn.App. 697, 705, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007).  “Recklessness entails 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 ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ Willful, wanton, or 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 ․ It is at least clear ․ that such 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.)  Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 350 n.11, 885 A.2d 734 (2005).

The Second Revised Complaint contains a series of allegations in Count one that describe certain action as being reckless and negligent.   However, in Count four the plaintiff merely changes the word negligence to reckless.   In Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), the court addressed a similar argument that the plaintiff had utilized the same facts for a cause of action in negligence and recklessness.   The Craig court disagreed that use of the same language was sufficient to strike the reckless claim.   The court stated, “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.”   Id., at 341–43.  “[W]here the allegations of a count of a contested pleading support a cause of action of recklessness, the count sounding in recklessness may well be sufficient to withstand a motion to strike even though the allegations of reckless conduct are also alleged as a basis of negligence conduct in a count sounding in negligence.   Haley v. Connecticut Light and Power, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 059027 (November 9, 1999, Nadeau, J.).   A review of the allegations that are set forth in Count one and incorporated into this count provide an abundance of facts that allege reckless conduct not only from the co-defendants but from this defendant.   Therefore, the motion to strike count four is denied.

Lastly, the defendant argues that Paragraphs 2 and 3 of the Prayer for Relief should be stricken.   The second paragraph seeks punitive damages as a result of the product liability recklessness claims.   The court has ruled above that Count one alleges many reckless acts on the part of the defendant.   If the court or a jury should determine that these acts are proven, the plaintiff can seek punitive damages.   These allegations provide a basis to request punitive damages for the reckless acts.   The defendants also request that the court strike the claim for attorney fees but the plaintiff argues the motion is premature because the attorney fees would be a postjudgment award.   In order to determine if such fees are appropriate, the court must have a resolution as to the findings and thereafter requires argument and/or testimony.   The motion to strike paragraph 3 as to attorney fees is premature.   Therefore, the court denies the motion to strike paragraphs 2 and 3 of the Prayer for Relief.

CONCLUSION

Based upon the above, the motion to strike is denied in all respects.

Brazzel–Massaro, J.

FOOTNOTES

FN1. The Revised Complaint indicates that the last count is Count Seven, however, in viewing the complaint, the plaintiff has included two Count threes which means there are eight causes of action..  FN1. The Revised Complaint indicates that the last count is Count Seven, however, in viewing the complaint, the plaintiff has included two Count threes which means there are eight causes of action.

Brazzel–Massaro, Barbara, J.