John Musial v. Adam Dlugolenski (2013)

MEMORANDUM OF DECISION

This is a decision on the defendant's motion to strike, dated March 27, 2013, which seeks to strike the third count of the plaintiff's complaint, sounding in common-law recklessness.

On January 22, 2013, the plaintiff, John Musial, filed a three-count complaint against the defendant, Adam Dlugolenski.   Plaintiff alleges that he was operating a vehicle and was injured in a two-vehicle automobile accident on Pershing Drive in Derby, CT on October 26, 2011.   Plaintiff claims that his vehicle was stopped for a red light when defendant's pickup truck “drove directly into the rear” of his vehicle.   Plaintiff claims injury and losses in the first count as a result of defendant's negligence.   The second count claims statutory recklessness agaiinst defendant, pursuant to C.G.S. § 14–295.   In the third count, the plaintiff claims common-law recklessness against defendant.

On March 27, 2013, defendant moved to strike the third count, claiming that it fails to state sufficient facts to support a recklessness claim, and to strike any claim for punitive damages.

The plaintiff objects to the motion and has filed a memorandum in opposition, dated May 14, 2013.   The parties appeared at short calendar for argument on June 3rd, 2013.

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).   Our Supreme Court stated in Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1048 (2002),

We ․ construe the complaint in the manner most favorable to sustaining its legal sufficiency.  Bohan v. Lost, 236 Conn. 670, 674, 674 A.2d 839 (1996);  see also Mingachos v. CBS, Inc., 196 Conn. 91, 108–09, 491 A.2d 368 (1985).   Thus, (i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.  Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996).  (Internal quotation marks omitted.)  Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 257 Conn. 531, 537–38, 778 A.2d 93 (2001).

II.

The defendant seeks to strike the plaintiff's third count, which makes a claim based upon common-law recklessness.   In Advanced Fin. Serv. v. Associated Appraisal Serv., 79 Conn.App. 22 (2003), the Appellate Court provided the following relevant analysis:

To determine whether the plaintiff's amended complaint stated a cause of action sounding in recklessness, we look first to the definition of reckless behavior.  “Recklessness 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 reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ [R]eckless 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, 64 Conn.App. 699, 720–21, 781 A.2d 440 (2001), aff'd, 262 Conn. 312, 813 A.2d 1003 (2003).  “It is well established that causes of action for negligence and [recklessness] are separate and distinct causes of action.   There is a substantial difference between negligence and [reckless] conduct, and a complaint should employ language explicit enough to inform the court and opposing counsel clearly that [reckless] conduct is being asserted.”  Warner v. Leslie–Elliot Constructors, Inc., 194 Conn. 129, 138, 479 A.2d 231 (1984).

Here, the plaintiff specifically alleged a recklessness cause of action.   Among the allegations in the third count are claims that the losses suffered by th1e plaintiff were due to the recklessness of the defendant in that he “deliberately operated a motor vehicle at a rate of speed much too fast for the conditions then and there existing, when [he] knew or should have known that failing to take necessary precautions such as slowing down or allowing for more distance between himself and other motorists resulted in a high likelihood of accident or injury to those other motorists, including the plaintiff.”

After examining the third count, and construing the same in a light most favorable to the plaintiff, the court concludes that the plaintiff has pled a cause of action sounding in common-law recklessness.   Despite the similarity of those allegations with the allegations of the first count, sounding in negligence, they are nevertheless sufficient in themselves to support a claim for recklessness.   The allegations are definitive enough to notify the court and opposing counsel that a claim of recklessness is being made and the nature of its basis.   Therefore, the court denies the motion to strike the third count.

Defendant also asks the court to strike the claim for punitive damages, without further discussion.  “Practice Book ․ § 10–39 allows for a claim for relief to be stricken only if the relief sought could not be legally awarded.”  Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).   Here, the request appears to be premised on the motion to strike the recklessness count.   Because the court declines to do so, it also declines to strike the third prayer for damages.

IV.

In conclusion, the motion to strike both the third count and the claim for punitive damages is denied.

Lee, J.

Lee, Charles T., J.