Jo–Ann White–Hall v. Neal Lyons (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 101

FACTS

On December 30, 2012, the plaintiff, Jo–Ann White–Hall, commenced this action by service of process on the defendant, Neal Lyons.   In her complaint, the plaintiff alleges that she slipped and fell on the defendant's premises due to an accumulation of snow and/or ice.   The plaintiff accordingly brings claims sounding in negligence and common-law recklessness against the defendant for his failure to remedy such a dangerous condition on his property.   On January 28, 2013, the defendant moved to strike the plaintiff's recklessness claim.   In the accompanying memorandum of law, the defendant argues that the recklessness claim must be stricken because, first, the claim is based on prior allegations of negligence and, second, the passive conduct of failing to clear snow and ice does not support a claim for recklessness as a matter of law.   On April 8, 2013, the plaintiff filed an objection to the defendant's motion to strike, wherein she argues that her allegations are sufficient to support a claim for recklessness.   The matter was heard at short calendar on May 13, 2013.

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.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “[P]leadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010).   This court takes “the facts to be those alleged in the [complaint] ․ and ․ construe[s] the [complaint] in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).  “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).

“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.”  (Internal quotation marks omitted.)  Bishop v. Kelly, 206 Conn. 608, 614–15, 539 A.2d 108 (1988).  “The state of mind amounting to recklessness may be inferred from conduct.   But, in 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 rights or safety of others or of the consequences of the action.”  (Citations omitted;  emphasis added;  internal quotation marks omitted.)  Craig v. Driscoll, 64 Conn.App. 699, 720, 781 A.2d 440 (2001), aff'd, 262 Conn. 312, 813 A.2d 1003 (2003).   “[W]illful, 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.)  Id., 720–21.

The defendant first argues that the plaintiff's recklessness claim is legally insufficient because the plaintiff's recklessness claim merely consists of a re-characterization of the allegations supporting the plaintiff's negligence claim.   Indeed this court has noted that “[t]he mere labeling of previously alleged negligent conduct as ‘reckless' is an insufficient allegation.”   Vargas v. Elliot, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 10 6002225 (November 26, 2012, Fischer, J., J.);   see also Vega v. Kisiel, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 12 6004826 (September 18, 2012, Fischer, J., J.).   However, the plaintiff in the present case has more than merely labeled conduct “reckless.”   In paragraph nine of the second count of the complaint, the plaintiff has alleged, in relevant part, that her injuries were caused by the “willful, wanton and reckless conduct of the defendant” inasmuch as the defendant “knew his driveway posed an extremely hazardous and dangerous condition to pedestrians, such as the plaintiff, because the accumulation of snow and ice, and yet he consciously and or with reckless disregard, ignored the risk of injury to those pedestrians and chose not to remedy said condition.”   Construing the allegations in the light most favorable to the plaintiff, this court is of the opinion that such allegations address the defendant's state of mind as well as the conduct that gives rise to the plaintiff's claim for recklessness.   So long as the plaintiff has pled the requisite elements of a claim of recklessness, “[t]here is no reason why the plaintiff, relying on the same set of facts in negligence counts, cannot set forth in separate counts, causes of action arising out of those same facts alleging recklessness.”   Wiener v. Block, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 03 0196389 (August 30, 2004, Lewis, J.);   see also Drennan v. Geist, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 99 0089114 (January 29, 2002, Shapiro, J.) (same);  Adams v. Champagne, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 98 061154 (May 27, 1998, Corradino, J.) (22 Conn. L. Rptr. 241, 242) (same).   Furthermore, for the reasons that follow, it is not clear from the face of the complaint that the conduct alleged, as a matter of law, sounds only in negligence.

The defendant argues that, even if the facts alleged in support of the recklessness claim are not unduly duplicative of those alleged in support of the negligence claim, the passive conduct of failing to clear snow and ice does not support a claim for recklessness as a matter of law.   The defendant relies upon a line of superior court decisions that support this proposition.   For example, in Lopez–Morales v. Fourteenth Club of Willimantic, Inc., Superior Court, judicial district of Windham, Docket No. CV 06 5000851 (April 30, 2007, Boland, J.) (43 Conn. L. Rptr. 351), the court held that the plaintiff's allegation that the defendant had failed to inspect, properly monitor and remove the dangerous condition caused by an accumulation of snow and ice in its parking lot, despite the defendant's knowledge of the hazard, was not sufficient to rise to an extreme departure from ordinary care so as to be properly characterized as reckless, wanton, or willful conduct.   The court reasoned:  “Every decision preceding alterations to the condition of property, whether arising from ice and snow buildup or correction of any other defect, requires the owner to weigh what is needed, how quickly, at what cost, and what risks may be tolerable until the repairs are made ․ Such an error in judgment ․ is not the equivalent of conduct evidencing such an extreme departure from ordinary care as warrants it being characterized as reckless, wanton, or willful.”  Id., 353.   In Pera v. Young Men's Christian Ass'n. of Greenwich, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 11 6008362 (July 29, 2011, Tobin, J.), the gravamen of the plaintiff's recklessness claim was that the defendant was reckless in consciously choosing not to inspect its parking lot to remove snow from the parking lot and in failing to take remedial measures such as sanding or salting the parking lot or putting up warning signs.   Relying on the reasoning in Lopez–Morales, supra, 43 Conn. L. Rptr. 351, the court granted the defendant's motion to strike the plaintiff's recklessness claim.  Id.;  see also Zublena v. Carrozzo, Superior Court, judicial district of Litchfield, Docket No. CV 01 0084267 (May 20, 2002, Cremins, J.).

There is, however, persuasive authority that suggests quite the opposite.   In Grant v. Burger King Corp., Superior Court, judicial district of New London, Docket No. CV 08 5007237 (November 23, 2010, Cosgrove, J.), the court held that the plaintiff's allegation that the defendants failed to remedy an icy condition on the defendants' premises, despite knowledge of a leaking problem that had likely caused the hazardous condition, was sufficient to withstand the defendants' motion to strike.   The court noted that “[w]hether the plaintiff can ultimately prove that the defendants' conduct rose to the level of recklessness is question for the trier of fact.”  Id. In Onorato v. McDonald's Restaurants of Connecticut, Inc., Superior Court, judicial district of New London, Docket No. CV 10 6002673 (January 4, 2012, Cosgrove, J.), the court found that the plaintiff's allegation that the defendant had recklessly ignored the slippery condition of its walkway was sufficient “to satisfy the reckless conduct element of a cause of action for common law recklessness ․” Id. Similar to the court in Grant, the Onorato court noted that “whether the plaintiff can ultimately prove that the defendant's conduct rose to the level of recklessness is question for the trier of fact.”  Id.;  see also Maleski v. Connecticut Light & Power Co., Superior Court, judicial district of Waterbury, Docket No. CV 08 5008285 (March 26, 2009, Brunetti, J.) (“An allegation of the defendants' knowledge of a hazard and the failure to take steps to prevent danger is sufficient to state a cause of action in recklessness.”).

Upon review of the foregoing cases, this court is of the opinion that the plaintiff's allegations indeed satisfy the reckless conduct element of a cause of action for common-law recklessness and further agrees that it is proper to leave to the trier of fact the issue of the plaintiff's proof.   The defendant's contention that the passive conduct of failing to remedy a hazardous condition caused by an accumulation of snow and ice per se does not rise to the level of reckless conduct is unpersuasive, and such a determination will depend upon the factual circumstances surrounding each case.

CONCLUSION

Based on the foregoing, the defendant's motion to strike the second count of the complaint is denied.

BY THE COURT

Jack W. Fischer, Judge

Fischer, Jack W., J.