Julio Echevarria v. LKQ (2013)

MEMORANDUM OF DECISION ON MOTION TO STRIKE (# 106)

In three counts, plaintiff alleges that he was personally injured on premises belonging to the defendant.   Defendant now moves to strike counts one and three of plaintiff's revised complaint filed March 27, 2013.

In ruling upon this motion, the court notes that Connecticut is a fact-pleading jurisdiction, and § 10–1 of our Practice Book requires that each pleading contain a plain and concise statement of the material facts on which the pleader relies.  Practice Book § 10–39 permits a party to move to strike all or part of a pleading on the ground that the pleading is legally insufficient to state a claim upon which relief can be granted.   Briefly stated, “[a] motion to strike attacks the legal sufficiency of the allegations in a pleading ․ In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder”;  Kumah v. Brown, 307 Conn. 620, 626 (2013).   But a motion to strike may properly be granted “if the complaint alleges mere conclusions of law that are unsupported by the facts alleged”;  Fort Trumbull Conservancy, L.L.C. v. Alves, 262 Conn. 480, 498 (2003).

According to the complaint, the event giving rise to this lawsuit occurred on January 7, 2011.   Plaintiff at that time was a laborer employed by AAA Staffing, a/k/a Merry Employment Group, Inc.¹ Defendant LKQ operates a tire and automobile recycling facility which utilizes specialized industrial equipment.   AAA detailed plaintiff to work as a laborer at LKQ's facility, where he was put at work on a tire removal device which uses high pressure air to separate rubber from metal.   The machine is allegedly dangerous.   In addition to operating the device, plaintiff was ordered to train a fellow loaned employee in its operation.   On the date in question, that fellow employee caused the machine to be triggered while plaintiff was within its zone of operation.   The device caught plaintiff's right hand and caused him severe injuries including the loss of all or part of a finger and thumb.

Count 2, which is not the target of this motion, claims that defendant's assignment of plaintiff to work upon a machine which he was not trained for, coupled with its adding another individual equally if not more incapable of safely operating the device, constitutes actionable negligence.   Count 3 essentially repeats these allegations but adds the characterization that defendant's acts were “wanton and reckless.”   On this basis, count 3 asserts a cause of action for recklessness.   Count 1, on the other hand, asserts that LKQ and AAA had contracted that AAA employees might load and unload trucks and perform other jobs, but would not be detailed to work on any “dangerous implementations” (sic).   Plaintiff claims to be a third-party beneficiary of that agreement and entitled to damages arising from LKQ's breach.

1. The Contract Count

The parties have both briefed their positions on whether plaintiff is a third-party beneficiary of any agreement between the two corporations.   Plaintiff's principal reliance is upon Stowe v. Smith, 184 Conn. 194 (1981), Neiditz v. Morris N. Fine & Associates, 199 Conn. 683 (1986), City of Milford v. Coppola Construction Company, Inc., 93 Conn.App. 704 (2006), and Couto v. Vista Vocational Life & Skills Center, Inc., # 07 5004704, Superior Court, Judicial District of New London (2010;  Cosgrove, J.).  Stowe and Neiditz involve quite different scenarios than the instant case, in that both involved professional service contracts which the two plaintiffs claimed were breached by the negligence of the respective defendants;  damages in either of the suits would be compensatory, measured by the plaintiff's economic losses.   Neither case involved serious personal injuries which demand a remedy over and above any standard breach of contract damages.   The Milford case focused upon whether and to what extent the parties to a breach of contract action had restricted the scope of the submission of their dispute to arbitration, and is barely tangentially related to the issues of this case.   Lastly, Judge Cosgrove's decision in Couto was to deny a motion for summary judgment filed by a defendant nursing home.   That defendant, while caring for a young woman described as “severely mentally retarded and disabled,” was sued by her parents following what they alleged was inadequate care and supervision.   The issue before the court in that context was whether or not to foreclose plaintiffs from proving the expenses they incurred attributable to the personal injuries she sustained as a consequence of the nursing home's breach of its contract to provide her with proper care.   Given the posture of the case and its clear dissimilarity with the case at bar, the court does not find its conclusion apposite.

The better authority on this point is found in Gazo v. Stamford, 255 Conn. 245 (2001).   Plaintiff slipped and fell on an icy sidewalk.   His substituted complaint, in addition to claims against the landowner and other parties, also included two counts against the snow-removal contractor whose negligent performance created the situation which caused the fall.   One of these counts, sounding in negligence, succumbed to the trial court's entry of a summary judgment for the contractor;  the Supreme Court reversed the trial court's judgment for the contractor on that count, and remanded for a trial to illuminate the facts that would support plaintiff's recovery on that theory.   The negligence count in that case is not dissimilar to the second count in the instant action.

The remaining count against the contractor consisted of a claim that plaintiff was a third-party beneficiary of the landowner's contract for snow removal, and that he was entitled to damages as a consequence of the contractor's breach.   The trial court granted the contractor's motion to strike this count for its failure to state a cause of action.   The Supreme Court upheld this ruling.   The decision includes a lengthy discussion of whether the parties to the snow-removal contract intended that the members of the public, like Mr. Gazo, be beneficiaries of the contract, and concluded as a matter of law that he was not.   That discussion of intent has provoked a debate on that topic in the briefs filed in this court on both sides of the present motion.   LKQ contends that the first count is devoid of specific factual allegations permitting a conclusion that LKQ and AAA's agreement to keep workers such as Mr. Echevarria away from dangerous implements was intended to benefit the employees themselves;  plaintiff argues that the provision at least by implication leads to no other reasonable inference.   Mr. Echevarria is not, like Mr. Gazo, a stranger, an Everyman, a random member of a potentially infinite public;  he is one of a discrete set of people who might be exposed to LKQ's machines, and both corporations are presumed to know exactly who might be in that set as well as to have a great deal of particular information about each individual comprising the set.   He has a much stronger claim to being the intended beneficiary of the “no dangerous implements” provision.   The only other interpretation of that provision is to construe it as intending solely to protect AAA's fiscal well-being.   This court finds offensive the suggestion that loaned employees are chattel, and that any injuries they might sustain are merely accounting details to be worked out between the corporations bargaining for their services.

Yet while intent was much discussed in the Gazo ruling, it was not the factor determining the Court's ruling.   At bottom, what the Court rejected was contorting the principles informing one cause of action to fit into another.   “Put another way, the liability of [the contractor] to the plaintiff, if any, is based on principles of tort law, and the plaintiff may not convert that liability into one sounding in contract merely by talismanically invoking contract language in his complaint.”  255 Conn. 245, 262.   A court's duty is to look beyond the language used in the complaint to determine what the plaintiff really seeks, and “putting a contract tag on a tort claim will not change its essential character ․ [W]hen the claim is one for personal injury, the decision usually has been that the gravamen of the action is the misconduct and the damage, and that it is essentially one of tort, which the plaintiff cannot alter by its pleading;” id., 263.   Like Gazo before him, the damages plaintiff seeks here are for medical expenses, lost wages, physical, mental and emotional pain and suffering—all generally understood to be tort damages.   In the end, the fundamental distinction between tort and contract actions led to the result in Gazo, and compels this court to conclude that LKQ is correct in seeking to strike the first count.

2. The Recklessness Count

LKQ moves to strike the recklessness count on the grounds that plaintiff alleges no facts indicating a conscious intent on the part of its agents to produce the injuries plaintiff sustained.   It cites and relies upon the Supreme Court cases of Matthiessen v. Vanech, 266 Conn. 822 (2003), Craig v. Driscoll, 262 Conn. 312 (2003), Dubay v. Irish, 207 Conn. 518 (1988), Bishop v. Kelly, 206 Conn. 608 (1988), and earlier cases, and upon the superior court's decision in Dumais v. Hartford Roman Catholic Diocese, 32 Conn. L. Rptr. 693 (2002).

The Matthiessen decision focused upon the adequacy of a jury instruction on recklessness, but its definition of the concept both summarized the earlier cases and remains an accurate statement of Connecticut law on this subject:

[R]ecklessness is a “serious or extreme departure from ordinary or reasonable care,” and requires “a conscious choice of a course of action involving serious dangers to others, either with knowledge of that serious danger, or with knowledge of facts which a reasonable person would recognize as being a serious danger to others.” ․”negligence is the failure to act prudently or to use ordinary and reasonable care under the circumstances” ․”[T]o be reckless means a person must recognize that his or her actions or omissions involved a risk to others which is substantially greater than that which is necessary to make his or her conduct negligent.”

266 Conn. 822, 833–34.

The definition of “recklessness” is not disputed here.   The determinative issue in a case involving recklessness is the state of mind of the actor.   Across the board, there is seldom a bright line test available to measure the mental state of an actor;  in cases where that mental state is material, the factfinder must look at all the circumstances in order to determine what would have been going through the actor's mind.  Suarez v. Dickmont Plastics Corp., 229 Conn. 99 (1993), is a case that is factually similar to that at bar.   Suarez lost two fingers cleaning a hot-injection plastic molding machine under improper conditions, and without proper training, allegedly at his employer's direction.   The state of mind of the employer was a pivotal concern, as it might allow the injured worker to avoid the exclusivity provisions of the Workers' Compensation Act. Gauging a mental state such as intent, the Court held, “is clearly a question of fact that is ordinarily inferred from one's conduct or acts under the circumstances of the particular case.   Thus, whether the actor knows that the consequences of his or her conduct are certain or substantially certain to result from his or her act and still proceeds with the conduct, so that he or she should be treated by the law as though he or she in fact desired to produce the result, is a question of fact for the jury.”   229 Conn. 99, 111.   The decision reversed a summary judgment favoring the defendant employer.

The present motion, if granted, would preclude a jury from weighing any evidence on this question.   Of the several cases LKQ has cited in support of its motion, it makes most use of the Dubay and Dumais decisions.   Other than mentioning Craig v. Driscoll in a string cite, and quoting Bishop v. Kelly for a fleeting observation on recklessness, LKQ does not analyze either decision and the court finds neither particularly helpful to the present topic.  Dubay was a suit brought by the estate of a seventeen-year-old woman severely injured after overdosing on her mother's prescribed medications.   Mother was the defendant, accused both of negligence and recklessness.   The evidence was that mother had delayed some hours between observing her daughter's symptoms and seeking medical assistance.   Apparently, she did so without knowledge of the crucial fact that her daughter had gotten into the medicine cabinet.   The case is suffused with discussion of the parental immunity doctrine and the relevant statutes of limitations;  the recklessness count may have been added to overcome difficulties plaintiff had with those issues.   The Court upheld a trial court summary judgment ruling in the mother's favor on the recklessness count.   The virtually sui generis facts of that case, and the posture in which the matter was reviewed, are wholly distinct from the case at bar and make easy application of its general declarations inappropriate.

The movant's reliance upon Dumais is puzzling since the decision reached by the trial court there is contrary to what it asks this court to do here.   Dumais was an alleged victim of sexual abuse perpetrated by a priest employed or under the supervision of the defendants.   They moved to strike two counts in the complaint asserting that failure on the part of the diocesan authorities to monitor its employee's behavior was reckless.   Utilizing a definition that is not in conflict with that expressed in Mathiessen, the court concluded that allegations that the diocese and other church defendants had allowed the priest to be in the unsupervised company of children when they knew of his propensity to take illicit liberties with other children was sufficient indication of conscious behavior on their part tantamount to recklessness;  the motion to strike was denied as to those counts.

The court is concerned whether count 3 contains sufficient specificity in alleging recklessness so as to distinguish it from the companion count in negligence.   Here, the second count alleges that plaintiff and his fellow employee were knowingly directed by defendant to work on a dangerous machine without being trained to do so, and that in the course of that conduct plaintiff sustained a serious injury.   There is no claim that his allegations are insufficient to support a claim in negligence.   LKQ points out correctly that counts 2 and 3 are virtually identical, save for the addition of the words “reckless” and “wanton” to the latter, and it correctly cites Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 46 (1985) for the proposition that use of the words “reckless” and “wanton” are insufficient standing alone to sustain a cause of action on that theory.   The problem the Sheiman plaintiffs had was that their complaint failed even to satisfactorily plead the elements of negligence, let alone recklessness.   Unlike the complaint in that case, however, the plaintiff here alleges objective details sufficient not only to plead a negligence action but to likewise support a recklessness charge if, to again quote the Matthiessen decision, they indicate or imply a recognition on defendant's part that “his or her actions or omissions involved a risk to others which is substantially greater than that which is necessary to make his or her conduct negligent.”   Whether or not that recognition is provable remains to be seen, but count 3's incorporation of the language of count 2, and its augmentation by invocation of the additional words “reckless” and “wanton,” sufficiently pleads the issue.

A motion to strike is not the proper vehicle upon which to decide a factual matter such as recklessness, and the motion must fail as the facts pled permit a finding that a reasonable and prudent person would not have taken the risks allegedly taken by defendant.   This court concludes that the words “reckless” and “wanton” in count 3 coupled with the foundational allegations of count 2 would permit a finding that LKQ's conduct was more than merely negligent.

Accordingly, the motion to strike is granted as to count 1. The motion to strike is denied as to count 3.

Boland, J.

FOOTNOTES

FN1. While not a party at the time of filing the complaint, nor the revised complaint, this corporation has been allowed to intervene as a party plaintiff in order to assert its rights to reimbursement of amounts paid to the named plaintiff as worker compensation benefits;  see order of August 20, 2013 (# 113.10).   An additional defendant has also been cited in on LKQ's apportionment complaint, that being Tri–Diamond Staffing (apparently a corporation, according to ¶ 5 of the apportionment complaint).   Neither AAA nor Tri–Diamond have taken any position with respect to the present motion..  FN1. While not a party at the time of filing the complaint, nor the revised complaint, this corporation has been allowed to intervene as a party plaintiff in order to assert its rights to reimbursement of amounts paid to the named plaintiff as worker compensation benefits;  see order of August 20, 2013 (# 113.10).   An additional defendant has also been cited in on LKQ's apportionment complaint, that being Tri–Diamond Staffing (apparently a corporation, according to ¶ 5 of the apportionment complaint).   Neither AAA nor Tri–Diamond have taken any position with respect to the present motion.

Boland, John D., J.