PPA v. Jessie W. Eddy (2013)

MEMORANDUM OF DECISION

This is a decision on the defendant's motion to strike, filed on September 18, 2013, which seeks to strike the second count of the plaintiffs' amended complaint.

On August 28, 2013, the plaintiffs, Stephanie and Saul Hockman, parents of Phillip Hockman, filed a two-count amended complaint against the defendant, Jessie W. Eddy.

The plaintiffs allege in their first count, sounding in negligence, that Phillip Hockman was a player on the Amity football team playing in a game against Cheshire in a junior football league game at the Cheshire High School.   The plaintiffs further allege that on one particular play, Phillip was injured when he ran or was pushed toward the sideline with other players, and into a metal down marker which was being held by the defendant, Jessie W. Eddy (Eddy.) As a result of the play and the defendant's negligence, the plaintiffs claim injuries to Phillip, which included a comminuted fracture of his left arm which required surgery.

In the second count, sounding in recklessness, the plaintiffs allege the following:  “Phillip's injuries and damages were caused by the recklessness of the defendant Eddy in that having been reminded by an official that he was to be attentive, hold the metal yard marker, which was a dangerous instrument, five (5) yards from the sideline and to drop the yard marker as players approaching him running, and knowing that he was to be attentive and hold the yard marker a safe distance from the sideline and drop the yard marker as players approaching him running, and knowing of the danger posed if he failed to do so, he failed to observe the game held the marker too close to the sideline and failed to drop it as group of players, that included the plaintiff Phillip Hockman, approached him, running in the course of a running play.”   As a result of the play and the defendant's recklessness, the plaintiffs claim injuries to Phillip, which included a comminuted fracture of his left arm which required surgery.

The defendant has moved to strike the second count claiming that the complaint fails to state sufficient facts to support a recklessness claim.

The plaintiffs object to the motion and have filed a memorandum in opposition, dated October 2, 2013, and the defendant filed a reply on October 9, 2013.   The parties appeared at short calendar on October 28, 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).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)   Faulkner v. United Technologies Corp., supra, 240 Conn. 580.  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover ․ [w]hat is necessarily implied [in an allegation] need not be expressly alleged.”  (Citation omitted;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).

II.

The defendant, Eddy, claims that the second count of the complaint should be stricken as it fails to set forth sufficient facts to constitute a claim for recklessness.

Negligent conduct and reckless conduct are not the same.   Recklessness involves more than a failure to exercise reasonable care to avoid danger to others, or to take reasonable precautions to avoid injuring another.  Mooney v. Wabrek, 129 Conn. 302, 308 (1942).   Recklessness is more than negligence, or even gross negligence.  Bordonaro v. Senk, 109 Conn. 428, 432 (1929).   It involves a disregard of the consequences of one's actions, and a disregard of the rights of others.  Duby v. Irish, 207 Conn. 518, 532 (1988);  Markey v. Santengelo, 95 Conn. 76, 78 (1985).

“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.”  (Citations omitted.)   Matthiessen v. Vanech, 266 Conn. 822, 832 (2003).  “[W]illful, wanton, 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.”  (Citations omitted;  internal quotation marks omitted.)  Craig v. Driscoll, 262 Conn. 312, 342–43 (2003).   Negligence, on the other hand, involves a failure to use the degree of care and skill which the ordinarily prudent person would use under the circumstances.  Hoelter v. Mohawk Services, Inc., 170 Conn. 495, 501 (1976).

Among the allegations in the second count are claims that the defendant “knowing that he was to be attentive and hold the yard marker a safe distance from the sideline and drop the yard marker as players approach[ed][him], and knowing of the danger posed if he failed to do so, he failed to observe the game held the marker too close to the sideline and failed to drop it as group of players, that included the plaintiff Phillip Hockman, approached him.”   Recklessness, however, requires a conscious choice of a course of action either with knowledge of the serious danger to others, or with knowledge of facts which would disclose this danger to any reasonable man, Matthiessen v. Vanech, supra, 266 Conn. at 832.  “Conduct arising from momentary thoughtlessness, inadvertence or from an error of judgment, does not indicate a reckless disregard of the rights of others.”  Ascher v. Friedman, Inc., 110 Conn. 1, 4 (1929).   The plaintiffs allege that the defendant “failed to observe the game,” which falls short of alleging that the defendant engaged in a conscious choice of a course of action.   Further, given the nature of the sport, and the plaintiffs' allegations that Phillip Hockman “was involved in a running play which he ran or was pushed toward the sidelines ․ and into a metal down marker,” and that the defendant “failed to observe the game,” the incident as alleged was, at most, a momentary thoughtlessness, inadvertence or error of judgment.

Therefore, after examining the second count, and construing the same in a light most favorable to the plaintiffs, the court concludes that the plaintiffs have not sufficiently pled a cause of action sounding in common-law recklessness.   Therefore, the court grants the defendant's motion to strike the second count.

Matasavage, J.

Matasavage, Paul, J.