Kira Eisenman v. Lisa Crockett et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 165

INTRODUCTION

The action was filed by writ, summons and complaint dated April 4, 2013 against the defendants, Lisa Crockett, F.J.C. Jr., Inc. d/b/a Cuppy's Cafe, and Frank J. Capece, Jr. The plaintiff filed an Amended Complaint dated July 22, 2013.   The defendants filed a motion to strike the Fourth, Fifth and Sixth Counts of the Complaint.   The plaintiff filed an objection to the motion to strike on October 28, 2013.   The plaintiff did not argue the motion as to the Fifth and Sixth Counts and indicated in her objection that she would revise the complaint as to these counts.   The parties argued the motion to strike as to the Fourth Count only on October 28, 2013.

DISCUSSION

“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).  “[T]he moving party admits all facts well pleaded.”  R.K. Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Batte–Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).   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.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 498.   The court should “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

The Amended Complaint contains Six Counts.   The Fourth Count is a claim for recklessness against the defendants F.J.C., Inc. and Frank Capece, Jr. The complaint alleges various causes of action which arose as a result of an accident in which the defendant, Lisa Crockett, allegedly drove through a red light striking the plaintiff's vehicle.   The First Count alleges negligence as to Lisa Crockett.   The Second Count alleges recklessness as to Lisa Crockett.   The Third Count alleges a cause of action pursuant to C.G.S. § 30–102 against the defendants F.J.C., Inc. and Frank Capece.   The Fourth Count alleges a cause of action for recklessness.   The Fifth and Sixth Counts allege negligence and gross negligence which are no longer relevant to this motion.

The defendants argue that the motion to strike should be granted as to the Fourth Count because the allegations of recklessness in the complaint are the same as the allegations alleged for the claim of negligence in the First Count.   In particular, the defendants argue that without additional factual allegations related specifically to the elements of recklessness the claim in the fourth count does not sufficiently plead a cause of action for recklessness.  “Recklessness” requires a conscious choice of a course of action involving a risk substantially greater than that which is necessary for negligent conduct.  Scheiman v. Lafayette Bank and Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985).

In viewing the allegations in the complaint, the plaintiff has alleged various acts in support of her claims of negligence in the first, second and third counts that depict behavior on the part of the defendant Lisa Crockett that lends support to the claim that she was highly intoxicated and unable to function as a reasonable person at the time she left the defendant's bar.   In particular, the allegations in the Second Count which are incorporated into the Fourth Count describe slurred speech, red glassy eyes, odor of alcohol and inability to maintain balance while standing, which acts could be supportive of a reckless claim against the business that provided the alcohol to Crockett.   Although there is a difference between negligence and a reckless claim, a complaint is not deficient so long as it utilizes 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, 342–34, 813 A.2d 1003 (2003).  “[W]here the allegations of a count of a contested pleading support a cause of action of recklessness, the count sounding in recklessness may well be sufficient to withstand a motion to strike even though the allegations of reckless conduct are also alleged as a basis of negligent conduct in a count sounding in negligence.”   Haley v. Connecticut Light and Power, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 059027 (November 9, 1999, Nadeau, J.), however, even if not different than the facts of the negligence claim, the decisions set forth in Craig v. Driscoll, supra, 262 Conn. 312, and Ritchie v. Lewis, Superior Court, judicial district of New Haven, Docket No. CV 07 5015479 (September 3 2008, Zoarski, J.), have found that it is irrelevant that the facts in a recklessness count are identical to those in a negligence count.

A review of the specific factual allegations of the Second and Third Counts which are incorporated into the Fourth Count and the claim in the Fourth Count viewed together provide sufficient factual allegations for a recklessness cause of action.

The motion to strike the Fourth Count is Denied.

THE COURT

Brazzel–Massaro, J.

Brazzel–Massaro, Barbara, J.