Bryan T. Marciniak v. Eric David Wright et al. (2013)

MEMORANDUM OF DECISION MOTION TO STRIKE NO.108

This is a decision on the Motion to Strike of Defendant Eric David Wright, dated January 17, 2013, which seeks to strike the second and third counts of plaintiff's complaint as well as plaintiff's demand for relief seeking double or treble damages as well as punitive damages.

On October 5, 2012 the plaintiff filed a five-count complaint against the defendants which complaint was revised on March 4, 2013 in response to defendants' request to revise.   While the Motion to Strike is directed to the original rather than the revised complaint, the court will treat it as having been addressed to the revised complaint.

The plaintiff, Bryan Marciniak, alleges in his complaint that he was injured in a rear end collision in Clinton, Connecticut on October 9, 2010.   Marciniak claims that his vehicle had stopped to wait for the vehicle ahead of him which was also stopped and waiting to make a turn when Eric David Wright failed to stop and struck his vehicle in the rear.   He claims injury and losses in the first count as a result of Wright's negligence.   The second count claims common law recklessness against David Eric Wright and the third count claims statutory recklessness against the same defendant pursuant to C.G.S. § 14–295.

The defendant, David Eric Wright, has moved to strike the second and third counts claiming that they fail to state sufficient facts to support recklessness claims as well as the plaintiff's amount in demand seeking, double, treble and or punitive damages.

I.

“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.)  Peter–Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998).   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.”  (Internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “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., supra, 240 Conn. 580.  “[T]he court must accept as true the facts alleged in the complaint.”  Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Citation omitted;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).

II.

The defendant seeks to strike the plaintiff's second count which makes a claim based upon common-law recklessness.   Negligent conduct and reckless conduct are not the same.   Recklessness involves more than a failure to exercise reasonable care to avoid danger to others, or to take reasonable precautions to avoid injuring another.  Mooney v. Wabrek, 129 Conn. 302, 308 (1942).   Recklessness is more than negligence, or even gross negligence.  Bordonaro v. Senk, 109 Conn. 428, 432 (1929).   It involves a disregard of the consequences of one's actions, and a disregard of the rights of others.   Duby v. Irish, 207 Conn., 518, 532 (1988);  Markey v. Santengelo, 95 Conn. 76, 78 (1985).

“Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent.”  (Citations omitted.)   Matthiessen v. Vanech, 266 Conn. 822, 832 (2003).  “(W)illful, wanton, 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.”  (Citations omitted;  internal quotation marks omitted.)  Craig v. Driscoll, 262 Conn. 312, 342–43 (2003).   Negligence, on the other hand, involves a failure to use the degree of care and skill which the ordinarily prudent person would use under the circumstances.  Hoelter v. Mohawk Services, Inc., 170 Conn. 495, CT Page 453–E 501 (1976).  “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 upon.”  Kostiuk v. Queally, 159 Conn. 91, 267 A.2d 452.

Among the allegations in the second count are “conscious and “knowing” actions all as set forth in paragraph 4. For example one of those allegations is that the defendant “consciously operated his vehicle at a rate of speed in excess of the posted limit on a busy highway with heavy traffic, in reckless disregard for the safety of others, such as the plaintiff, in violation of Connecticut General Statutes 14–219.”   After examining the second count and construing it in a light most favorable to the plaintiff, the court concludes that the plaintiff has pled a cause of action for common law recklessness.   The allegations are definitive enough to notify the court and opposing counsel that a claim of recklessness is being made and a conscious choice of action was pled.   Therefore the court denies the motion to strike the second count.

III.

The defendant, Eric David Wright, claims that the third count of the complaint should be stricken as it fails to set forth sufficient facts to constitute a claim for statutory recklessness.

There is a split of authority among the judges of the Superior Court in Connecticut as to the requirements for a plaintiff to sufficiently plead statutory recklessness.   As stated by Judge D'Andrea in Bell v. Harrow, No. CV980167961S (Nov. 29, 2001) 2001 Ct. Sup. 15776:

the appellate courts have not indicated what facts a plaintiff must plead in order to establish a cause of action pursuant to General Statutes § 14–295, and there is a split of authority in the Superior Court on this issue.   The first line of Superior Court cases requires a plaintiff to plead specific facts to support a claim of recklessness at common law in addition to alleging a violation of one of the enumerated statutes in § 14–295.   See, e.g., Pitka v. Ullrich, Superior Court, judicial district of New London at New London, Docket No. 530000 (November 16, 1994, Austin, J.) (13 Conn. L. Rptr. 32) (simple allegation that defendant deliberately or recklessly violated certain motor vehicle statutes is insufficient to support claim under § 14295);  Lezotte v. Hanover Ins. Co., Superior Court, judicial district of Waterbury at Waterbury, Docket No. 112067 (January 6, 1993, Sylvester, J.) (8 Conn. L. Rptr. 199, 200) (same);  Gaudet v. Ziobran, Superior Court, judicial district of Middlesex at Middletown, Docket No. 061126 (June 10, 1992, Austin, J.) (6 Conn. L. Rptr. 862, CT.Sup. 15780).

The second line of cases holds that a plaintiff must only allege that the defendant violated one or more of the motor vehicle statutes enumerated in § 14–295 and that this violation was a substantial factor in causing the plaintiff's injuries.   See, e.g., Nelson–Hlebogiaxmis v. Lee, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. 167571 (May 17, 1999, Hiller, J.);   Price v. Paccar Leasing Corp., Superior Court, judicial district of New London at New London, Docket No. 538888 (February 19, 1997, Booth, J.);   St. George v. Connecticut Car Rental Co., Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 554923 (February 27, 1996, Spada, J.).

While there exists this split of authority, a majority of the courts have interpreted C.G.S. § 14–295 to require that a plaintiff must merely plead a violation of one of the statutes enumerated in that section in order to set forth a valid claim.   Among the more thorough examinations of this view of the statute is Judge Sheldon's discussion in Armstrong v. Smith, Superior Court, judicial district of Hartford/New Britain at Hartford, No. 94 0533947 (Dec. 2, 1994, Sheldon, J.) [13 Conn. L. Rptr. 120], where the court reviews the legislative history of § 14–295.  “Though the legislature, in passing the amended version of Section 14–295 in 1988, was surely concerned that only serious, even egregious cases of vehicular misconduct should result in the payment of treble damages, it eliminated all speculation as to what the appropriate dividing line should be between conduct which does and does not fall within its proscription.   First, the revisors of Section 14–295 sought to limit the availability of treble damages to cases in which the defendant is proved to have committed one or more of our State's most serious motor vehicle offenses.   As the legislative history CT Page 12174 from 1988 makes clear, these offenses were selected precisely because their violation typically involves a greater potential for danger to other motorists and pedestrians than the vast majority of other motor vehicle offenses.”  (Armstrong v. Smith, supra.)

This court is siding with the second line of cases and the majority of courts which hold that a plaintiff must only allege that the defendant violated one or more of the motor vehicle statutes enumerated in § 14–295 and that this violation was a substantial factor in causing the plaintiff's injuries.   Since the plaintiff has so alleged that the defendant, Eric David Wright violated C.G.S. §§ 14–218a, 14–222, 14–219, 14–240a, 14–230, 14–234, 14–237 and 14–239 which are enumerated in § 14–295, and that these violations were a substantial factor in causing the plaintiff's injuries, the defendants' motion to strike the third count is denied.

IV.

In conclusion, the motion to strike both second and third counts as well as the plaintiff's amount in demand seeking double or treble or punitive damages is denied.

MARCUS, J.

Marcus, Shelley A., J.