Joseph Bedell et al. v. Paul Compagna et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE (# 107)

On May 24, 2013, the defendants, Paul Compagna and Anne Compagna, moved to strike the third count of the plaintiff's amended complaint ¹ and that aspect of the plaintiff's prayer for relief that seeks punitive damages relative to the third count of the complaint.   The defendants supported their motion with a memorandum of law.   On May 31, 2013, the plaintiff, Joseph Bedell,² filed his objection to the motion, along with a supporting memorandum of law.   This matter came before the court on the short calendar on June 18, 2013.   The motion to strike count three is denied.

I

PROCEDURAL AND FACTUAL HISTORY

On April 3, 2013, the plaintiff filed an amended three-count complaint, alleging that, on April 30, 2011, while acting in the scope of his employment with Tailwaggers of Litchfield, LLC, he was injured when he attempted to put a collar on a dog owned by defendants.   Count one alleges that the defendants are strictly liable to the plaintiff pursuant to General Statutes § 22–357.   In the second count, the plaintiff alleges that the defendants were negligent in that they knew or should have known of the dog's violent propensities.   The third count, which is the subject of the motion to strike, alleges that the defendants were “reckless and wanton” in that they knew that the dog was violent and that the dog had previously attacked others, including members of their own family, and they failed to warn the plaintiff of the foregoing facts.   The plaintiff seeks, inter alia, punitive damages relative to the third count of his complaint.

II

PARTIES' ARGUMENTS

The defendants move to strike count three of the complaint, and the concomitant claim for punitive damages, on the ground that the allegations are insufficient, as a matter of law, to state a cause of action sounding in recklessness.   The defendants argue that the allegations of the third count simply incorporate, by reference, the allegations of the second count, which, they claim, may support a claim of negligence but do not rise to the level of recklessness.

The plaintiff opposes the motion to strike, arguing that the incorporation of the factual allegations contained in a negligence count does not render a recklessness count insufficient.   According to the plaintiff, his allegations of negligence were “over-inclusive” and, in fact, sufficiently allege that the defendants showed a reckless disregard of the rights or safety of others.   Nonetheless, the plaintiff asserts that the third count includes allegations beyond those set forth in the negligence count.

III

DISCUSSIONAMotion to Strike Standard

Practice Book § 10–39(a) provides in relevant part:  “Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint ․ or (2) the legal sufficiency of any prayer for relief ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

In ruling on a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   The court is limited, in its review, “to a consideration of the facts alleged in the complaint.”  Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996);  see Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).

“[W]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It 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 ․ Indeed, pleadings 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, 252–53, 990 A.2d 206 (2010).

B

Analysis

The defendants' argument fails, insofar as it relies on the belief that a “reckless” count cannot stand if it simply incorporates the factual allegations of a negligence count.   As the plaintiff points out, all that is required is that he “utilize 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).³  However, the plaintiff goes too far when he asserts that “Craig v. Driscoll conclusively decided this matter in the plaintiff's favor.”   Pl.'s Mem. 6.

A “reckless conduct” count is not necessarily deficient simply because it incorporates by reference the factual allegations set forth in a negligence count.   Nonetheless, “[m]erely incorporating factual allegations ․ into a second count and reciting conclusory language that this conduct was also reckless, without providing any additional factual underpinnings, is not sufficient to convert a complaint of negligence into one of recklessness.”   (Emphasis added;  internal quotation marks omitted.)   Silano v. Exxonmobil Oil Corp., Superior Court, judicial district of Fairfield, Docket No. CV 04 0409151 (February 25, 2005, Doherty, J.).  “Under the common law of this state, it has been held that liability for injuries committed by a vicious animal is grounded in negligence ․ It is the duty of the owner of such an animal, having knowledge of its vicious propensities, to give notice of the propensities or to restrain the animal, and that failure to do so is negligence that makes the owner liable for its consequences.”  (Citation omitted.)   Stokes v. Lyddy, 75 Conn.App. 252, 265–66, 815 A.2d 263 (2003).

However, to recover punitive damages under a theory that the defendants were guilty of recklessness, the plaintiff must allege more than simple negligence.   Instead, “the evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights.”  (Internal quotation marks omitted.)  Sorrentino v. All Seasons Services, Inc., 245 Conn. 756, 778, 717 A.2d 150 (1998).   Recklessness only arises when there is “a state of consciousness with reference to the consequences of one's acts ․ It is more than negligence, more than gross negligence ․ 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.”  (Citations omitted;  internal quotation marks omitted.)  Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988).   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.”  (Internal quotation marks omitted.)  Id., 533.   Although the “reckless or wanton” conduct must be specifically alleged;  Dumond v. Denehy, 145 Conn. 88, 90–91, 139 A.2d 58 (1952);  a plaintiff is not required to plead evidence.  Practice Book § 10–1.

In the present case, the negligence count alleges that, at the time of the attack on the plaintiff, the defendants “knew or shoulder [sic] have know [sic] of the vicious propensities of said dog prior to the attack and bite, and knew or should have know [sic] that the dog had attacked in the past and would therefore attack again.”   In addition to incorporating by reference the foregoing allegations into the recklessness count, the plaintiff further alleges that the defendants “had knowledge of the propensity of the dog's violent temperament;  were aware that the dog had attacked others including members of their own family in the past;  failed to warn the plaintiff of the dog's violent propensities;  and failed to warn the plaintiff that the dog had attacked others including members of their own family in the past.”

It is apparent that the allegations set forth in the recklessness count are not profoundly different than those set forth in the negligence count.⁴  Nonetheless, the additional factual claim, in the third count, that the dog had bitten “members of [the defendants'] family” is somewhat different than the claim, in the second count, that the dog “had attacked in the past,” in that, arguably, a dog that bites family members may be more dangerous than one who is only aggressive with strangers.   At this stage of the case, the court is limited to determining only whether, when viewed in a light most favorable to the plaintiff, the third count sufficiently alleges recklessness.   See, e.g., Ocasio v. West Hartford, Superior Court, judicial district of Hartford, Docket No. CV 05 4010818 (May 13, 2008, Miller, J.) (allegation that police dog handler caused his dog to attack a compliant, defenseless suspect after the need for force had passed could constitute recklessness).

The latter question is a close one.   The complaint does not state whether the dog had attacked many times or rarely in the course of its lifetime.   It does not allege whether the attacks resulted in significant physical injury or mere reddening of the skin.   It does not allege whether the attacks were recent or remote in time.   See Hope v. Valente, 84 Conn. 248, 251, 79 A. 583 (1911) (in certain circumstances “viciousness may not be found from a single act”).   However, the added allegation that the dog attacked family members, as opposed to strangers, does suggest behavior that would give rise to heightened concern about the dog's propensities.   Even still, the complaint does not identify which family members were involved, whether the attacks were remote in time, or whether the injuries inflicted, if any, were severe.   Such questions, however, are not ripe for resolution in a motion to strike.

Since this court is obligated to admit all facts well pleaded and to construe the complaint in the manner most favorable to sustaining its legal sufficiency, this court must conclude that the allegations that the dog was violent, that it had attacked others including family members in the past, that the defendants knew the dog was violent, and that they failed to warn the plaintiff of the dog's violent temperament and history, if true, sufficiently allege that the defendants' conduct was reckless.

IV

CONCLUSION

For all of the foregoing reasons, the defendants' motion to strike count three is denied.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. The court notes that the amended complaint was not properly filed.   Compare Practice Book § 10–59 (amendment as of right) with Practice Book § 10–60(a)(3) (need to file a request to amend).   The defendants appear to have waived their right to move to strike the improperly filed amended complaint.   Plaintiff Joseph Bedell alleges in a “notice” that he has changed his name to Joseph Leonard.   Despite the fact that the amended complaint and the accompanying “notice” were not properly filed, the captioned plaintiff, Joseph Bedell, will hereinafter be referred to as “the plaintiff.”.  FN1. The court notes that the amended complaint was not properly filed.   Compare Practice Book § 10–59 (amendment as of right) with Practice Book § 10–60(a)(3) (need to file a request to amend).   The defendants appear to have waived their right to move to strike the improperly filed amended complaint.   Plaintiff Joseph Bedell alleges in a “notice” that he has changed his name to Joseph Leonard.   Despite the fact that the amended complaint and the accompanying “notice” were not properly filed, the captioned plaintiff, Joseph Bedell, will hereinafter be referred to as “the plaintiff.”

FN2. Tailwaggers of Litchfield, LLC, intervened as a plaintiff, alleging that it made workers' compensation payments to the plaintiff and seeking reimbursement for those payments.   Tailwaggers of Litchfield, LLC has not taken a position with regard to the defendants' motion to strike and is not included in any reference to “the plaintiff.”.  FN2. Tailwaggers of Litchfield, LLC, intervened as a plaintiff, alleging that it made workers' compensation payments to the plaintiff and seeking reimbursement for those payments.   Tailwaggers of Litchfield, LLC has not taken a position with regard to the defendants' motion to strike and is not included in any reference to “the plaintiff.”

FN3. Craig v. Driscoll, supra, was superseded by statute.  O'Dell v. Kozee, 307 Conn. 231, 53 A.3d 178 (2012) (legislature effectively overruled Craig by expressly abrogating the common-law negligence action against purveyors of alcohol with the passage of Public Acts 2003, No. 03–91).   This subsequent history, however, does not implicate the point of law for which the case was cited in the present case..  FN3. Craig v. Driscoll, supra, was superseded by statute.  O'Dell v. Kozee, 307 Conn. 231, 53 A.3d 178 (2012) (legislature effectively overruled Craig by expressly abrogating the common-law negligence action against purveyors of alcohol with the passage of Public Acts 2003, No. 03–91).   This subsequent history, however, does not implicate the point of law for which the case was cited in the present case.

FN4. Indeed, it is not clear what is meant by the allegation that the defendants “had knowledge of the propensity of the dog's violent temperament.”.  FN4. Indeed, it is not clear what is meant by the allegation that the defendants “had knowledge of the propensity of the dog's violent temperament.”

Danaher, John A., J.