Thomas Rosario v. William Bergenty (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 110)

The defendant, William Bergenty, filed this motion to strike on January 22, 2013, seeking to strike count two of the revised complaint of the plaintiff, Thomas Rosario, on the ground that the allegations of that count are insufficient to support the claim of statutory recklessness.   Specifically, the defendant contends that the plaintiff has not pleaded facts with enough specificity to rise above negligence and meet the standard for recklessness.   The defendant has also submitted a memorandum of law in support of his motion.   The plaintiff filed a memorandum in opposition to the motion on March 25, 2013, arguing that the claim is legally sufficient and the motion should be denied.   This matter was argued before the court on June 3, 2013.

BACKGROUND

The plaintiff commenced this action by serving the defendant with process on July 12, 2012, and subsequently filed a revised complaint on November 13, 2012.¹  The plaintiff's revised complaint is comprised of two counts, the first claiming that the defendant was negligent and the second claiming that the defendant was reckless.   Factually, the two counts mirror each other, both alleging the following relevant facts.   On August 14, 2010, the plaintiff was working as a security guard and was operating a bicycle while patrolling the streets within the Miami Beach Association in Old Lyme, Connecticut.   At approximately 11:30 p.m., while patrolling westbound on Pond Road on the bicycle, the plaintiff encountered a yellow moped driven by the defendant approaching from the west.   The defendant began circling the plaintiff with his moped, causing the plaintiff to stop his bicycle and inquire as to whether the defendant needed assistance.   The defendant then accelerated at a high rate of speed and struck the plaintiff on the left side of his body causing the plaintiff and bicycle to fall to the ground, at which time the moped ran over the bicycle and the plaintiff's leg.   As a result, the defendant and moped also fell to the ground.   The plaintiff helped the defendant get up from the ground and told him to stay where he was because he could smell odors associated with alcohol coming from the defendant's breath.   Instead, the defendant got on the moped and accelerated the engine, causing the moped to run over the plaintiff's foot.

In count one, the plaintiff claims that the defendant's conduct amounted to negligence, citing multiple grounds, and that such conduct was the cause of various injuries and damages to the plaintiff.   In count two, the plaintiff relies on the same factual scenario but omits the claim of negligence and replaces it with the claim that the defendant's conduct was committed “deliberately and/or with reckless disregard.”   The plaintiff further alleges in count two that “by operating at a speed that was in excess of what was reasonable and/or by operating a motor vehicle under the influence of alcohol, the defendant, William Bergenty, was driving said vehicle recklessly in violation of Connecticut General Statutes § 14–222, 14–218 and/or 14–227a.”   The plaintiff then alleges that said violations, individually or collectively, were a substantial factor in causing injuries and damages to the plaintiff, and the defendant is liable for double or treble damages pursuant to General Statutes § 14–295.   As such, the plaintiff's second count sounds in statutory recklessness.

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).  “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.)  Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).  “[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.)  Id., 116–17.   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.)  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).  “Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged,” because “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).  “If 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);  see also Santorso v. Bristol Hospital, supra, 349 (motion must be denied where provable facts support a cause of action).

ANALYSIS

In his motion to strike, the defendant argues that the plaintiff has failed to allege specific facts or conduct that would satisfy the pleading requirements necessary to assert a claim of statutory recklessness and seek double or treble damages under General Statutes § 14–295.²  Specifically, the defendant contends that, in the second count, “the plaintiff realleges some of the allegations of negligence from the first count and simply labels the same allegations as reckless without adding any new or additional facts to support such a claim.”   The defendant's position is that “[t]hese re-labeled ‘reckless' allegations do not elevate the plaintiff's claim to the level of recklessness required to survive a motion to strike ․”

In setting forth his argument, the defendant acknowledges that there is a split of authority in the Superior Court regarding the requirements to properly plead statutory recklessness, and conceded at oral argument that the plaintiff's revised complaint would be legally sufficient under the rule followed by the majority of courts.   Nonetheless, he advocates for this court to follow the minority view, which he submits would require count two to be stricken.   The plaintiff counters that count two is legally sufficient because, under the majority view, he has satisfied the pleading requirements for statutory recklessness.   At oral argument, he added that count two would also be legally sufficient under the minority rule, because the count adds an additional fact by alleging that the defendant was under the influence when operating his moped.   As discussed in more detail below, the court concludes that the defendant's motion to strike must be denied, because count two would be legally sufficient under either view and thus the split of authority is inconsequential to the present case.

The court begins by outlining the split of authority that exists in the Superior Court regarding the standard for pleading statutory recklessness and requesting double or treble damages pursuant to General Statutes § 14–295.   “Section 14–295 permits an award of double or treble damages in any civil action seeking damages resulting from personal injury, wrongful death or damage to property when the fact finder has determined that the tortfeasor [deliberately or with reckless disregard] violated one or more of the enumerated provisions of our motor vehicle laws, including General Statutes §§ 14–218a and 14–222, and that the statutory violation was a substantial factor in causing the injury, death or property damage.”  Matthiessen v. Vanech, 266 Conn. 822, 827 n.6, 836 A.2d 394 (2003).  “While Connecticut's appellate courts have yet to delineate the specific standard required for pleading recklessness under § 14–295, Connecticut's 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 for a plaintiff to sufficiently plead statutory recklessness;  however, a substantial trend has emerged in recent cases.   The majority 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, a minority of the 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.”  (Citations omitted, internal quotation marks omitted.)   Zwicker v. Sabetta, Superior Court, judicial district of New Haven, Docket No. CV–07–5008853–S (February 1, 2008, Skolnick J.T.R.) (45 Conn. L. Rptr. 9, 10–11).

The court first examines count two under the standard established by the majority view, which this court has recently expressed its intention to follow.   See Golett v. Young, Superior Court, judicial district of New London, Docket No CV–13–6016366–S (September 26, 2013, Devine, J.).   Under this more liberal standard, the plaintiff's allegations in count two would be legally sufficient to state a cause of action for statutory recklessness.   Count two begins by realleging the same facts from count one, which includes allegations regarding the defendant's conduct while operating his moped and said conduct causing a collision with the plaintiff.   Next, count two contains the additional allegation that the defendant's conduct violated various statutes, including General Statutes §§ 14–222 and 14–227a.³  These statutes are among the enumerated statutes in § 14–295, for which a plaintiff can seek double or treble damages when violated.   Additionally, as required, the plaintiff properly alleges that the violations were committed “deliberately and/or with reckless disregard” and that said violations were “a substantial factor in causing the injuries and damages to the plaintiff.”   The plaintiff's pleadings in count two, thus, track the language of § 14–295.   Therefore, applying the majority rule and construing the claim most favorably to sustaining its legal sufficiency, the plaintiff has complied with the pleading requirements for statutory recklessness and for requesting double and treble damages under § 14–295.

Moreover, even under the more stringent minority position advocated for by the defendant, the plaintiff's claim in count two would be legally sufficient.   In addition to the requirements of the majority rule, the minority rule adds one further requirement:  the plaintiff's statutory recklessness claim must also satisfy the standard for common-law recklessness.   The standard for common-law recklessness is well established.  “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 a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ 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 ․ 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.)  Craig v. Driscoll, 262 Conn. 312, 342–43, 813 A.2d 1003 (2003).

As previously noted, the defendant argues that count two is legally insufficient because the plaintiff has alleged the same facts from his negligence claim and relabeled it as statutory recklessness claim, without adding any new facts to support such a claim.   The court agrees that the plaintiff relies on an identical factual scenario to claim both negligence and recklessness, with no distinct facts to differentiate the two counts, but disagrees regarding the effect this has on the legal sufficiency of the complaint The plaintiff's contention that this situation is somehow fatal under the minority view invokes a common argument in cases with this issue that, to a certain extent, represents a misconception of the minority rule.   See, e.g., Ferens v. Brown, Superior Court, judicial district of New Britain, Docket No CV–00–0509116–S (October 11, 2001, Quinn, J.) (“cases in the minority have ․ stricken a claim for double or treble damages under § 14–295 where the complaint only alleges the same facts as set forth in the negligence count without more” and where “separate and distinct facts concerning recklessness were not pleaded”).   When properly applied, however, there is nothing in the minority's position that imposes an absolute bar on a plaintiff's reliance on identical facts in order to assert a claim for both negligence and statutory recklessness.   Rather, the minority's position is that, in order to rely on identical factual allegations, those allegations must meet the threshold required for common-law recklessness.   In other words, the plaintiff cannot allege negligent conduct in one count and then simply tack on an assertion that the defendant violated a statute enumerated in § 14–295 in a second count and call it statutory recklessness.   If, however, the plaintiff alleges conduct in his negligence claim that is egregious enough to satisfy the standards for negligence and recklessness, the plaintiff is permitted to reallege those identical facts in order to form a claim for statutory recklessness as an alternative theory of liability.   Claims pleaded to mirror each other in this fashion would be legally sufficient under both the minority view and the majority view.

If a decision were to hold to the contrary, it would be in contravention of our state's well established principle that a plaintiff may plead alternative and even inconsistent theories of liability;  see Vidiaki, LLC v. Just Breakfast & Things!!!    LLC, 133 Conn.App. 1, 24, 33 A.3d 848 (2012);  see also Practice Book § 10–25;  and would also conflict with the binding precedent set forth by our Supreme Court in Craig v. Driscoll, supra, 262 Conn. 343.   The controlling law, as articulated in Craig, is that where a recklessness claim shares identical facts with a negligence claim, such circumstances are not fatal to either claim, as long as the language is explicit enough to inform the court and opposing counsel that both negligent and reckless misconduct are being asserted.  Id. In Craig, the court noted that the defendants were incorrectly “mired in the fact that, aside from the addition of the words ‘willful, wanton and/or reckless actions,’ the plaintiffs' allegations in their reckless counts mirror[ed] their assertions in the counts charging the defendants with negligence.”  Id., 343.   The court explained instead that the identical allegations were not a valid reason to strike the recklessness claim, because “the plaintiffs' allegations of negligence were overinclusive” and also satisfied the requirements to state a cause of action for recklessness.  (Emphasis added.)   Id., 343 n.22. This principle makes practical sense, because “[i]t certainly would not be hard to imagine an allegation of negligence that simultaneously could describe a reckless conduct scenario, without change.”   Rendahl v. Peluso, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–12–6012549–S (June 5, 2013, Povodator, J.) (citing, as an example, a scenario where a motorist speeds through a school zone at dismissal time without yielding to pedestrians in the crosswalk);  see also Vanstean–Holland v. LaVigne, Superior Court, judicial district of New London, Docket No. CV–08–5007959–S (September 2, 2009, Martin, J.) (plaintiffs should not be required to “ratchet down” their negligence claim “in order to render more visible the conceptual space” between their negligence claim and recklessness claim).   Stated succinctly, even under the minority standard, an overinclusive negligence claim, which already alleges facts sufficient to qualify as reckless conduct, can be realleged without change to form a statutory recklessness claim under § 14–295, without being fatal to either claim.

In the present case, like the plaintiffs in Craig, the plaintiff's negligence claim in count one is overinclusive.   In count one, the plaintiff alleges that the defendant drove a moped in circles around the plaintiff while the plaintiff was on a bicycle, that the defendant hit the plaintiff, and that the defendant had an odor of alcohol on his breath.   From these facts alone, it can be reasonably inferred that the defendant's conduct was committed deliberately or with reckless disregard of the just rights or safety of others or of the consequences of his actions, both in driving circles around another person while operating a motor vehicle and by ingesting alcohol prior to operating said vehicle.   It is reasonable to infer that such conduct occurred through more than just mere inadvertence, mistake, or thoughtlessness.   See Craig v. Driscoll, supra, 262 Conn. 342 (“[t]he state of mind amounting to recklessness may be inferred from conduct”).   Thus, those allegations are enough, at least at this stage, to satisfy the standard for common-law recklessness, as required to plead statutory recklessness under the minority view.⁴  Consequently, by realleging those facts in count two and adding that they were a reckless violation of multiple statutes enumerated in § 14–295, the plaintiff has sufficiently met even the more stringent standard articulated by the minority position on this issue.   Because the plaintiff's negligence count is merely overinclusive, it is not fatal to either count that the plaintiff has advanced the same facts under alternative theories of liability.

Accordingly, the Superior Court split of authority debated by the parties in their memorandums is of no consequence under the circumstances of the present case, because the plaintiff's claim of statutory recklessness is legally sufficient under either view.   As a result, the defendant's motion to strike count two of the plaintiff's revised complaint must be denied.

ORDER

For the foregoing reasons, the defendant's motion to strike (# 110) is hereby denied.

Devine, J.

FOOTNOTES

FN1. On September 18, 2012, a motion to intervene was filed by Securitas Security Services USA, Inc., which was the plaintiff's employer at the time of his injury, on the basis that “the interveners have paid or may become liable to pay workers' compensation benefits to the plaintiff which concerns the same incident and injuries alleged in his complaint.”   The present motion to strike, however, does not involve the intervening plaintiff, and thus all references to “the plaintiff” are intended to refer solely to Thomas Rosario..  FN1. On September 18, 2012, a motion to intervene was filed by Securitas Security Services USA, Inc., which was the plaintiff's employer at the time of his injury, on the basis that “the interveners have paid or may become liable to pay workers' compensation benefits to the plaintiff which concerns the same incident and injuries alleged in his complaint.”   The present motion to strike, however, does not involve the intervening plaintiff, and thus all references to “the plaintiff” are intended to refer solely to Thomas Rosario.

FN2. General Statutes § 14–295 provides:  “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.   The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle.”.  FN2. General Statutes § 14–295 provides:  “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.   The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle.”

FN3. At oral argument, the defendant argued that merely smelling an odor of alcohol on the defendant's breath is not enough to assert a violation of General Statutes § 14–227a, which is the criminal statute for operation of a motor vehicle while under the influence of alcohol or drugs.   This court disagrees and concludes that the plaintiff's allegations are sufficient to form a good faith basis to allege a violation of § 14–227a and create a factual issue on this point, particularly considering the court's standard of review on a motion to strike.   There is only so much evidence that the plaintiff can be realistically expected to possess and allege this early in the proceedings.   See Termini v. Taylor, Superior Court, judicial district of New Haven at Meriden, Docket No. CV–05–5000171–S (November 28, 2005, Taylor, J.) (40 Conn. L. Rptr. 424, 425) (noting that one drawback with the minority position on pleading statutory recklessness is that “as is most likely true in all cases at this juncture in the pleadings, the plaintiff has yet to complete discovery and claims that she is therefore without the benefit of the facts necessary to make the specific factual allegations required by the minority view ․”)..  FN3. At oral argument, the defendant argued that merely smelling an odor of alcohol on the defendant's breath is not enough to assert a violation of General Statutes § 14–227a, which is the criminal statute for operation of a motor vehicle while under the influence of alcohol or drugs.   This court disagrees and concludes that the plaintiff's allegations are sufficient to form a good faith basis to allege a violation of § 14–227a and create a factual issue on this point, particularly considering the court's standard of review on a motion to strike.   There is only so much evidence that the plaintiff can be realistically expected to possess and allege this early in the proceedings.   See Termini v. Taylor, Superior Court, judicial district of New Haven at Meriden, Docket No. CV–05–5000171–S (November 28, 2005, Taylor, J.) (40 Conn. L. Rptr. 424, 425) (noting that one drawback with the minority position on pleading statutory recklessness is that “as is most likely true in all cases at this juncture in the pleadings, the plaintiff has yet to complete discovery and claims that she is therefore without the benefit of the facts necessary to make the specific factual allegations required by the minority view ․”).

FN4. This, of course, is not to say that the defendant's conduct was necessarily reckless;  rather, as pleaded, it raises an issue of fact sufficient to survive a motion to strike.   As this court previously stated in a similar case:  “Whether a defendant's conduct constitutes reckless disregard of the plaintiff's rights is usually a question of fact ․ and, therefore, it is not the role of the court on a motion to strike to establish a line separating negligence from recklessness and decide if the defendant has crossed it ․ [Such analysis is] more appropriately left to the trier of fact, except in cases where the alleged facts could never support a finding of recklessness by a reasonable jury.”  (Citation omitted.)   Golett v. Young, Superior Court, judicial district of New London, Docket No. CV–13–6016366–S (September 26, 2013, Devine, J.)..  FN4. This, of course, is not to say that the defendant's conduct was necessarily reckless;  rather, as pleaded, it raises an issue of fact sufficient to survive a motion to strike.   As this court previously stated in a similar case:  “Whether a defendant's conduct constitutes reckless disregard of the plaintiff's rights is usually a question of fact ․ and, therefore, it is not the role of the court on a motion to strike to establish a line separating negligence from recklessness and decide if the defendant has crossed it ․ [Such analysis is] more appropriately left to the trier of fact, except in cases where the alleged facts could never support a finding of recklessness by a reasonable jury.”  (Citation omitted.)   Golett v. Young, Superior Court, judicial district of New London, Docket No. CV–13–6016366–S (September 26, 2013, Devine, J.).

Devine, James J., J.