Joseph Nahass v. Eric Schumacher et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# l05)

This personal injury action was filed by the plaintiff.   Joseph Nahass, through Carole Coyle, his parent and next friend.   In the action, the plaintiff alleges that he sustained injuries during an incident involving the defendants, Eric Schumacher (Schumacher) and First Student, Inc. (First Student).   On March 11, 2013, the defendants filed a motion to strike counts two, three and five of the plaintiff's complaint on the grounds that counts two and five do not plead sufficient facts and count three is legally insufficient.   On April 9, 2013, the plaintiff filed his memorandum of law in opposition on the grounds that these counts are legally sufficient.   The court heard argument on the matter at short calendar on April 22, 2013.

BACKGROUND

In the six-count complaint, the plaintiff alleges the following facts.   On March 13, 2012, the plaintiff was on a school bus that was owned by First Student and operated by Schumacher, who was the employee and agent of First Student.   Schumacher instructed the plaintiff to move to the front of the bus.   While the plaintiff was walking to the front of the bus, Schumacher swerved, and then abruptly braked the bus.   This caused the plaintiff “to be thrown about and tumble and crash to the floor of the bus.”   The plaintiff suffered various injuries from his fall.   The plaintiff alleges that his injuries were caused by the negligence and recklessness of the defendants.

In count one, the plaintiff alleges that First Student is vicariously liable for the negligence of Schumacher and that First Student, through Schumacher, was negligent in one or more of the following ways:  failing to keep a proper and reasonable lookout;  failing to keep the bus under proper and reasonable control;  swerving the bus;  abruptly braking the bus;  failing to adequately warn the plaintiff as to the swerving and the braking of the bus, and operating the bus recklessly within the meaning of General Statutes § 14–222(a) ¹ In count two, the plaintiff incorporates most of the allegations of count one and further alleges that First Student was reckless because it, through Schumacher, operated the bus with intentional, wanton or reckless indifference to the risk of causing physical harm to the plaintiff in one or more of the following ways swerving and braking the bus, failing to give adequate warning;  operating the bus recklessly within the meaning of § 14–222(a);  that Schumacher knew or had reason to know that operating the bus in this manner created a high risk of harm to the plaintiff but deliberately acted in conscious disregard or indifference to that risk;  that Schumacher's conduct was a serious or extreme departure from ordinary or reasonable care;  that Schumacher intended to cause physical harm to the plaintiff;  and that Schumacher knew the natural consequence of his conduct would be real injury and harm to the plaintiff.   The plaintiff further alleges that First Student was reckless for hiring Schumacher, retaining him, and for approving of and authorizing his actions.   In count three, the plaintiff incorporates many of the allegations in count two and further alleges that First Student is liable pursuant to General Statutes § 14–295 because First Student authorized Schumacher to operate the bus in the manner described above and ratified and approved of his actions.   In count four, the plaintiff incorporates most of the allegations of count one and further alleges that Schumacher was negligent for operating the school bus in the manner described in count one.   In count five, the plaintiff incorporates most of the allegations of count four and further alleges that Schumacher was reckless for operating the school bus in the manner described in count two.   Finally, in count six, the plaintiff alleges that Schumacher is liable pursuant to § 14–295 for operating the school bus in the manner described in count two.

LAW RE MOTION TO STRIKE

“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).   In ruling on a motion to strike, the 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).  “Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010).   Accordingly, “[i]f any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).   On the other hand, “[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).

COUNT TWO

In count two of his complaint, the plaintiff alleges that First Student, through the conduct of Schumacher and by employing him, was reckless in the operation of the school bus.   The defendants argue that the plaintiff fails to plead sufficient facts to show that Schumacher's actions were reckless in order to support a claim of vicarious liability for recklessness, and that the plaintiff fails to plead sufficient facts to support the allegations of reckless hiring and direction by First Student.   The defendants further argue that the plaintiff merely incorporated the facts from his allegations of negligence from count one and labeled them as reckless without demonstrating any acts of reckless conduct by First Student.   The plaintiff counters that he did allege additional facts of reckless conduct by both Schumacher and First Student.   The plaintiff further argues that the count does not include the theory of vicarious liability, but instead is a claim of reckless entrustment.²

Count two, paragraph twelve of the plaintiff's complaint specifically alleges that First Student “through its employee, operated the school bus with intentional, wanton or reckless indifference.”  (Emphasis added.)   As the plaintiff is claiming that First Student is liable for the actions taken by Schumacher, its employee, it is clear that this portion of count two does include allegations of vicarious liability.  “[U]nder the common-law principle of respondeat superior, an employer is vicariously liable for compensatory damages arising out of the tortious conduct of his employee when that conduct occurs during the course of the employee's employment.”  Matthiessen v. Vanech, 266 Conn. 822, 839, 836 A.2d 394 (2003).

Nevertheless, paragraphs fifteen, sixteen, seventeen and eighteen set forth claims of direct recklessness by First Student.   This includes the factual allegation that First Student had knowledge that Schumacher had formerly driven the school bus in a reckless and dangerous manner, yet still permitted him to drive it.

As to the adequacy of these allegations, the courts have stated that “[r]ecklessness 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 ․ More recently, we have described recklessness as a state of consciousness with reference to the consequences of one's acts ․ 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 just rights or safety of others or of the consequences of the action.”  (Citations omitted;  internal quotation marks omitted.)  Matthiessen v. Vanech, supra, 266 Conn. 832–33.  “ ‘[In sum, such] 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’ ․ Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998).”   Lindie v. Avino, Superior Court, judicial district of New London, Docket No. CV 07 5004246 (March 31, 2009, Devine, J.).

When “construed broadly and realistically, rather than narrowly and technically”;  (internal quotation marks omitted) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. 253;  the allegation that First Student knowingly permitted a potentially dangerous driver to operate a school bus full of children could constitute “an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  (Internal quotation marks omitted.)  Elliott v. Waterbury, supra, 245 Conn. 415.³  Thus, the plaintiff alleges facts in count two that, if proven, could support a cause of action against First Student for recklessness, and the motion to strike count two must be denied.   Since this ruling is sufficient to resolve the motion as to count two, this court need not address the parties' arguments regarding vicarious liability.

COUNT THREE

In count three of his complaint, the plaintiff alleges that First Student is liable under General Statutes § 14–295 for double or treble damages for the reckless driving of Schumacher in violation of General Statutes § 14–222, and for its own conduct in employing him.⁴  The defendants argue that First Student, as the owner of the bus, cannot be held liable for the reckless conduct of Schumacher and subject to punitive damages under § 14–295.   The plaintiff counters that the defendants' argument relies on common law, and not on the statute, which permits vicarious liability for punitive damages.

“[A]t common law, there is no vicarious liability for punitive damages ․ and that under that common-law doctrine, the owner of a motor vehicle is not vicariously liable for punitive damages resulting from the driver's reckless operation of the vehicle.”  (Citations omitted.)  Matthiessen v. Vanech, supra, 266 Conn. 837.  “[It would be] improper to award punitive damages against someone who is innocent and, therefore, only liable vicariously.”   Stohlts v. Gilkinson, 87 Conn.App. 634, 654, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005).

In discussing whether this prohibition extends to statutory claims, this court has noted that “a violation of General Statutes § 14–295 requires the same level of culpability as is necessary to state a cause of action for recklessness at common law.”  (Internal quotation marks omitted.)  Lindie v. Avino, supra, Superior Court, Docket No. CV 07 5004246.  “ ‘While the legislature's authority to abrogate the common law is undeniable, we will not lightly impute such an intent to the legislature.’  Munroe v. Great American Ins. Co., 234 Conn. 182, 187, 661 A.2d 581 (1995) ․ ‘In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope ․ Although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed ․’ Alverez v. New Haven Register, Inc., 249 Conn. 709, 715, 735 A.2d 306 (1999) ․ On the basis of these principles, language used and purpose, this court concludes that § 14–295 does not abrogate the common law prohibition against the imposition of punitive damages predicated on vicarious liability.”   Allyson v. Durocher, Superior Court, judicial district of New London at Norwich, Docket No. CV 04 0129183 (September 28, 2004, Devine, J.).

Section 14–295 does not abrogate that rule, nevertheless, the Appellate Court has acknowledged a limited exception that applies to common-law claims.   That exception may, by logical extension, also apply to statutory claims.   The court states the exception as follows:  “[the common-law] rule makes it improper to award punitive damages against someone who is innocent and, therefore, only liable vicariously.   We do not believe this is such a situation and, thus, apply the exception stated in the Restatement (Second) of Torts.   ‘Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, (a) the principal or a managerial agent authorized the doing and the manner of the act, or (b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the principal or a managerial agent of the principal ratified or approved the act.’   4 Restatement (Second) Torts, § 909 (1979);  see also Maisenbacker v. Society Concordia, 71 Conn. 369, 378–80, 42 A. 67 (1899).”  Stohlts v. Gilkinson, supra, 87 Conn.App. 654.

The Appellate Court's application of this exception included analyzing whether the entity being held liable vicariously had actual control over the actions of its agent and whether its will was being imposed or its instructions followed.  Id., 654.   In at least three cases, judges of the Superior Court have seemingly endorsed the application of the exception to claims premised on § 14–295.   See Esposito v. Osinski, Superior Court, judicial district of New Haven, Docket No. CV 11 6017917 (November 26, 2012, Young, J.) (in ruling on motion to strike, court stated exception may be valid, but did not apply because plaintiff did not allege defendant controlled driver's conduct);  Zwicker v. Sabetta, Superior Court, judicial district of New Haven, Docket No. CV 07 5008853 (February 1, 2008, Snolnick, J.) (45 Conn. L. Rptr. 9) (in ruling on motion to strike, court stated exception did not apply because plaintiff did not allege defendant-employer controlled employee's reckless behavior);  and Faggio v. Brown, Superior Court, judicial district of Middlesex, Docket No. CV 05 4003488 (June 12, 2007, Beach, J.) [43 Conn. L. Rptr. 643] (in ruling on motion for summary judgment, court stated exception did not apply because plaintiff did not present evidence that defendants-employers authorized employee's reckless behavior).

Here, in count three of the complaint, the plaintiff alleges that First Student “ratified or approved of the actions” of Schumacher, that First Student “authorized [Schumacher] to drive its bus” in a reckless manner and that “Schumacher was unfit to be a school bus driver and [First Student] or one of its managerial agents was reckless in employing or retaining him.”   The plaintiff has alleged three of the exceptions to the common-law rule, that, by extension, may apply to claims brought under § 14–295 Therefore, the plaintiff's claim is legally sufficient and the motion to strike count three must be denied.

COUNT FIVE

In count five of his complaint, the plaintiff alleges that Schumacher was reckless in his operation of the school bus.   The defendants argue that count five does not plead sufficient facts to support a finding of reckless conduct by Schumacher.   The defendants further argue that the plaintiff must meet a heightened burden of alleging facts that requires him to do more than simply incorporating his previous allegations that Schumaker engaged in negligent conduct and then adding that he was “reckless” or “knowingly reckless.”   The plaintiff argues that there is not a heightened burden and that the facts pleaded are explicit enough to support a claim of reckless misconduct.

As previously noted, “[r]ecklessness 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 ․ More recently, we have described recklessness as 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 ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ [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” (Citations omitted, internal quotation marks omitted.)  Matthiessen v. Vanech, supra, 266 Conn. 832–33.

In count five, the plaintiff not only alleges that Schumacher operated the bus in a dangerous manner knowing that it created a risk of physical harm to the plaintiff, but that he did so intentionally “knowing that the natural consequences of his conduct would result in injury and harm to the plaintiff.”   This alleges that Schumacher acted with a reckless disregard for the safety of others and that he engaged in conduct that was an extreme departure from the ordinary care someone operating a bus should take.   Therefore, the plaintiff pleaded sufficient facts to support a claim of reckless misconduct and the motion to strike count five must be denied.

ORDER

Based on the foregoing reasons, the defendants' motion to strike is denied in its entirety.

Devine, J.

FOOTNOTES

FN1. General Statutes § 14–222(a) provides in relevant part that “[n]o person shall operate any motor vehicle upon any public highway of the state ․ recklessly, having regard to the width, traffic and use of such highway ․ the intersection of streets and the weather conditions.”.  FN1. General Statutes § 14–222(a) provides in relevant part that “[n]o person shall operate any motor vehicle upon any public highway of the state ․ recklessly, having regard to the width, traffic and use of such highway ․ the intersection of streets and the weather conditions.”

FN2. The plaintiff also argues throughout his opposition that the defendants did not comply with Practice Book § 10–41, which states that a motion to strike “shall separately set forth each ․ claim of [legal] insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”   This argument is not persuasive as the defendants' motion included the specific reasons they rely on for each count that they move to strike..  FN2. The plaintiff also argues throughout his opposition that the defendants did not comply with Practice Book § 10–41, which states that a motion to strike “shall separately set forth each ․ claim of [legal] insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”   This argument is not persuasive as the defendants' motion included the specific reasons they rely on for each count that they move to strike.

FN3. These allegations go to the plaintiff's theory of reckless entrustment.   It is well settled that negligent entrustment is a recognized cause of action in the state of Connecticut.   See Greeley v. Cunningham, 116 Conn. 515, 165 A. 678 (1933).   Reckless entrustment, however, has never been recognized as a cause of action in Connecticut, and some judges of the Superior Court have affirmatively stated that it is not a cause of action See Gomez v. Flores, Superior Court, judicial district of Windham, Docket No. CV 10 6001533 (February 16, 2011, Vacchelli, J.) (52 Conn. L. Rptr. 583);  Anastasia v. Mitsock, Superior Court, judicial district of New Haven.   Docket No. CV 05 4012156 (December 12, 2006.Jones, J.) (42 Conn. L. Rptr. 496);  Mullins v. Tuccinardi, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 92 0121700 (June 24, 1993, Lewis, J.).   While these decisions may be persuasive, they are not binding, and the Appellate Court has not addressed the issue.   A motion to strike would be the “proper vehicle” to test a new cause of action;  Torrington Health & Rehabilitation Center v. Cisowski, Superior Court, judicial district of Litchfield, Docket No. CV 10 5007241 (April 29, 2011, Roche, J.);   but the defendants did not raise this as a ground for their motion.  “In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.”  Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980)..  FN3. These allegations go to the plaintiff's theory of reckless entrustment.   It is well settled that negligent entrustment is a recognized cause of action in the state of Connecticut.   See Greeley v. Cunningham, 116 Conn. 515, 165 A. 678 (1933).   Reckless entrustment, however, has never been recognized as a cause of action in Connecticut, and some judges of the Superior Court have affirmatively stated that it is not a cause of action See Gomez v. Flores, Superior Court, judicial district of Windham, Docket No. CV 10 6001533 (February 16, 2011, Vacchelli, J.) (52 Conn. L. Rptr. 583);  Anastasia v. Mitsock, Superior Court, judicial district of New Haven.   Docket No. CV 05 4012156 (December 12, 2006.Jones, J.) (42 Conn. L. Rptr. 496);  Mullins v. Tuccinardi, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 92 0121700 (June 24, 1993, Lewis, J.).   While these decisions may be persuasive, they are not binding, and the Appellate Court has not addressed the issue.   A motion to strike would be the “proper vehicle” to test a new cause of action;  Torrington Health & Rehabilitation Center v. Cisowski, Superior Court, judicial district of Litchfield, Docket No. CV 10 5007241 (April 29, 2011, Roche, J.);   but the defendants did not raise this as a ground for their motion.  “In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion.”  Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).

FN4. General Statutes § 14–295 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, 14–22, 14–227, 14–230, 14–237, 14–239 or 14–240a, and that such violation was a substantial factor in causing such injury, death or damage to property.”.  FN4. General Statutes § 14–295 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, 14–22, 14–227, 14–230, 14–237, 14–239 or 14–240a, and that such violation was a substantial factor in causing such injury, death or damage to property.”

Devine, James J., J.