Michael Fowler v. Mark Mele (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 103

FACTS

On April 16, 2013, the plaintiff, Michael Fowler, commenced this action by service of process on the defendant, Mark Mele. In his complaint, the plaintiff alleges that he was operating his motor vehicle on or about December 9, 2011 in Hamden, Connecticut when the defendant's motor vehicle struck the rear of the plaintiff's motor vehicle.   The plaintiff accordingly brings claims sounding in negligence, common-law recklessness and statutory recklessness against the defendant for the injuries and damages that resulted from the aforementioned collision.   On May 21, 2013, the defendant moved to strike counts two and three of the plaintiff's complaint, which sound in common-law and statutory recklessness, respectively.   In an accompanying memorandum of law, the defendant argues that the common-law and statutory recklessness claims are legally insufficient.   On May 23, 2013, the plaintiff filed an objection to the defendant's motion to strike, wherein he argues that the allegations supporting counts two and three are legally sufficient to withstand the defendant's motion to strike.   The matter was heard at short calendar on June 18, 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 argues that the plaintiff's common-law and statutory recklessness claims are legally insufficient because both merely consist of a re-characterization of the allegations supporting the plaintiff's negligence claim.   Indeed, “[a] plaintiff cannot transform a negligence count into a count for wilful and wanton misconduct merely by appending a string of adjectives to allegations that clearly sound in negligence.”  Brown v. Branford, 12 Conn.App. 106, 110, 529 A.2d 743 (1987);  see also White–Hall v. Lyons, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 13 6005753 (June 18, 2013, Fischer, J., J.);   see also Vargas v. Elliot, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 10 6002225 (November 26, 2012, Fischer, J., J.);   Vega v. Kisiel, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 12 6004826 (September 18, 2012, Fischer, J., J.).   Nevertheless, “[a]lthough 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 determining the legal sufficiency of the recklessness counts, the question is not the similarity of ․ the negligence count.   Rather the question is whether the recklessness counts can stand on their own as sounding in recklessness.”   Scalia v. Townsend, Superior Court, judicial district of New Britain, Docket No. CV 10 6005409 (March 29, 2011, Swienton, J.).

The defendant's argument with respect to the plaintiff's common-law recklessness claim is without merit.   In paragraph four of count two of the complaint, the plaintiff alleges that the collision was “caused by the reckless and wanton misconduct of the defendant who acted with a reckless disregard for the consequences of her misconduct and the safety of others, including the plaintiff ․” Subparagraphs 4(a), (b), (c), (d), (e) and (f) of count two proceed to identify the manner in which the defendant acted recklessly.   These subparagraphs include allegations that the defendant “was inattentive and failed to keep a reasonable and proper look out although he had a clear view of the roadway,” “failed to operate the vehicle under safe and/or reasonable control,” “operated the vehicle in an unreasonably fast manner” and violated General Statutes §§ 14–218a, 14–219, 14–240(a), even though the defendant knew “of the traffic upon and the condition of the road and/or weather conditions,” and knew or was aware that his actions “presented a substantial risk to other motorists, including the plaintiff ․” Construing the complaint in the light most favorable to sustaining its legal sufficiency, this court concludes that the plaintiff has alleged sufficient facts to indicate that the defendant made conscious choice of a course of action with knowledge of a serious danger to others and that the defendant recognized that his conduct involved a substantial risk, given the traffic and weather conditions.   These allegations specifically speak to the defendant's state of mind as well as the conduct that gives rise to the plaintiff's claim for recklessness.  White–Hall v. Lyons, supra, Superior Court, Docket No. CV 13 6005753;  see generally Snurkowski v. Zmachinski, Superior Court, judicial district of New London, Docket No. CV 10 6006487 (April 12, 2011, Cosgrove, J.).   Notably, the allegations regarding the defendant's knowledge of the traffic, weather and condition of the road are sufficiently unique to the common-law recklessness claim so as to render the plaintiff's common-law recklessness claim more than a mere re-characterization of the plaintiff's negligence claim.   It is therefore proper to leave to the trier of fact the issue of whether the plaintiff can ultimately prove that the defendant's specific conduct given the attendant circumstances rose to a level of recklessness.  White–Hall v. Lyons, supra, Superior Court, Docket No. CV 13 6005753;  see also 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.) (same);  Grant v. Burger King Corp., Superior Court, judicial district of New London, Docket No. CV 08 5007237 (November 23, 2010, Cosgrove, J.) (same);  Creed v. Peachtree Ltd. Partnership, Superior Court, judicial district of New London, Docket No. CV 09 6001865 (October 5, 2010, Cosgrove, J.) (same).

The plaintiff's statutory recklessness claim, however, warrants further analysis.   In count three of the complaint, the plaintiff seeks double or treble damages pursuant to General Statutes § 14–295, which provides in relevant part:  “In 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, 14–219, 14–222, 14–227a, 14–230, 14–234, 14–237, 14–239 or 14–240a, and that such violation was a substantial factor in causing such injury, death or damage to property.”  General Statutes § 14–295.  “While Connecticut's appellate courts have yet to delineate the specific standard required for pleading recklessness under § 14–295, [the] trial courts have been confronted with this issue numerous times.   Currently there is a split of authority at the trial court level regarding the requirements to sufficiently plead statutory recklessness.  [One] view maintains that a plaintiff, in addition to pleading facts constituting negligence, need only make the general allegations mentioned in § 14–295:  that the defendant has deliberately or with reckless disregard violated one of the enumerated statutes, and that the violation was a substantial factor in causing the plaintiff's injuries ․ Conversely, [other] trial courts have held that a plaintiff is required to plead specific factual allegations that rise above and beyond the facts that need to be pleaded in a negligence case;  that such plaintiffs must set out the conduct that is claimed to be reckless in their complaint, so as to satisfy both the language of § 14–295, as well as the common-law recklessness requirements.”  (Internal quotation marks omitted.)   Kotowski v. Lambert, Superior Court, judicial district of New Britain, Docket No. CV 08 5006434 (July 23, 2008, Gilligan, J.).

This court is privy to the split of authority among the trial courts of this state regarding the pleading requirements associated with § 14–295 and previously has held that it adopts the latter view, erring on the side of stringency.   See, e.g., Cansler v. Zigmunds, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 11 6002684 (March 15, 2011, Fischer, J. J.).   Turning to the facts alleged in count three of the complaint, it is quite obvious that the plaintiff has failed to meet this strict standard.   The plaintiff merely has alleged in count three that the defendant acted “deliberately or with reckless disregard” in violating one or more of the following General Statutes:  §§ 14–218a, 14–219;  14–222, 14–240a, and that such conduct was “a substantial factor in causing the collision and injuries to the plaintiff ․” ¹ While these allegations may satisfy the literal requirements set out in § 14–295, the plaintiff wholly fails to allege facts that would support a claim of reckless conduct at common-law.   The plaintiff has failed to plead specific factual allegations evincing the defendant's conscious choice of a course of action made 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.   He also has failed to plead that the defendant recognized that the conduct involved a substantial risk.   See generally Vega v. Kisiel, supra, Superior Court, Docket No. CV 12 6004826;  Cansler v. Zigmunds, supra, Superior Court, Docket No. CV 11 6002684.   For these reasons, court three must be stricken.

CONCLUSION

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

BY THE COURT

Jack W. Fischer, Judge

FOOTNOTES

FN1. In count three, the plaintiff also has incorporated paragraphs five through ten of count one, which sounds in negligence.   The inclusion of these paragraphs, however, does not remedy the plaintiff's failure to include allegations that would satisfy the requirements of common-law recklessness..  FN1. In count three, the plaintiff also has incorporated paragraphs five through ten of count one, which sounds in negligence.   The inclusion of these paragraphs, however, does not remedy the plaintiff's failure to include allegations that would satisfy the requirements of common-law recklessness.

Fischer, Jack W., J.