Tyneal M. Smith v. Timothy A. Verma et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE COUNTS TWO AND THREE (# 106)

On December 13, 2012, the plaintiff, Tyneal M. Smith, filed a four-count complaint against the defendants, Timothy A. Verma and Loretta Verma.   Counts one, two and three are against Timothy A. Verma for negligence, statutory recklessness, and common-law recklessness, respectively.¹  The plaintiff's prayer for relief seeks, inter alia, double or treble damages pursuant to General Statutes § 14–295.   On March 4, 2013, the defendant moved to strike that part of the prayer, and counts two and three, on the ground that the plaintiff failed to allege sufficient facts to support a claim for recklessness.   On April 19, 2013, the plaintiff filed an opposing brief.   The motion was argued on August 19, 2013.

FACTS

For present purposes, the court takes the facts to be those alleged in the complaint, construed in favor of its legal sufficiency.   See New London County Mutual Ins. Co v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012);  see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010) (necessarily implied allegations are accepted as true;  complaint is construed broadly and realistically).   With these principles in mind, and omitting conclusions of law,² the court finds the following essential allegations pertinent to the present motion.

On March 26, 2012, the plaintiff was traveling west-bound on Bank Street near its intersection with Carroll Court in New London.  (Compl.¶ 1.)   At the same time, the defendant was also traveling westbound on Bank Street, directly behind the plaintiff.  (Compl.¶ 2.)   As the plaintiff came to a stop in order to make a left hand turn into a parking lot on Bank Street, the defendant's vehicle violently collided with the rear of the plaintiff's vehicle.  (Compl.¶ 3.)   The collision and the resulting injuries and damages to the plaintiff were caused by one or more of the following acts of the defendant:  (a) he operated his vehicle more closely than is reasonable and prudent, having disregard for the speed of such vehicles and the traffic on the highway;  (b) he operated his vehicle at a very high rate of speed where he knew there would likely be traffic, without regard for others in the area;  and (c) he operated his vehicle in such a manner that the plaintiff and the public were at risk of injury or death.  (Compl.¶ 4.)   The defendant's conduct was a substantial factor in causing the collision and the plaintiff's injuries and damages, which are alleged in some detail.³

Applying the same principles, the third count incorporates paragraphs 1, 2 and 3, above, and alleges the following additional facts.   The collision and the resulting injuries to the plaintiff were directly caused by one or more of the following acts of the defendant:  (a) he deliberately drove his vehicle at a high rate of speed on a heavily traveled highway with conscious disregard for the safety of the plaintiff and other motorists;  (b) he drove his vehicle too closely behind the plaintiff's vehicle, given the circumstances;  (c) he drove his vehicle in a manner that put the plaintiff and other motorists at risk of grave injury;  (d) he struck the plaintiff's vehicle without sounding his horn, applying his brakes, turning his vehicle, or in any way attempting to avoid imminent harm to the plaintiff;  (e) he drove into the plaintiff's vehicle with conscious disregard for the safety of the plaintiff;  and (f) he operated his vehicle in such a manner that the plaintiff and the public were at risk of injury or death.   By operating his vehicle in one or more of these ways, which the plaintiff labels “recklessly,” the defendant chose a course of action that he knew, or should have known, posed a serious danger to the plaintiff;  and such conduct was a substantial factor in causing the collision and resulting injuries.   The plaintiff's injuries and losses, which are detailed, are alleged to be the result of the defendant's recklessness.   See footnote 3 of this opinion.

DISCUSSION

A motion to strike contests the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted.  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 and construes the complaint in the manner most favorable to sustaining its legal sufficiency.  New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 747.   A motion to strike a complaint is confined to the facts alleged in the complaint.  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005);  see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988).   A complaint which alleges conclusions of law that are unsupported by the facts alleged may be stricken.   Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

The defendant first attacks the sufficiency of facts alleged in the third count, which claims common-law recklessness.⁴  “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 ․ 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.   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.”   (Citations omitted;  internal quotation marks omitted.)  Matthiessen v. Vanech, 266 Conn. 822, 832–33, 836 A.2d 394 (2003).   Conduct that is reckless, let alone deliberate, is highly unreasonable conduct involving an extreme departure from ordinary care in a situation where a high degree of danger is apparent.  Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, 90, 63 A.3d 1011 (2013).   Despite the difference between negligence, on the one hand, and recklessness, on the other, a complaint which alleges both is not deficient so long as the facts support both claims and it is clear that both negligence and reckless misconduct are being asserted.  Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003).

On a motion to strike, if the specific facts alleged, together with any facts fairly provable under those allegations, if proven, would support a claim on which relief could be granted, the motion to strike must be denied.  Holth v. Chelsea Groton Bank, 143 Conn.App. 732, 738, 71 A.3d 597, cert. denied, 310 Conn. 911, 76 A.3d 625 (2013).  “Reckless,” “recklessness,” “wanton,” “misconduct,” and alleged violations of statutes are conclusions of law.   See Dezhbod v. Robichaud, Superior Court, judicial district of Waterbury, Docket No. CV–03–0178474–S (October 27, 2003, Alvord, J.);   Marron v. Grala, Superior Court, judicial district of New Britain, Docket No. CV–12–6016399–S (October 27, 2013, Shortall, J.T.R.).   Moreover, the interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

In the present case, the plaintiff's brief describes the pertinent allegations of the third count but addresses no argument directly to the motion to strike that count.   Nevertheless, subparagraphs (a) and (e) of paragraph 4 in the third count allege that the collision and the resulting injuries to the plaintiff were directly caused by one or both of the following acts of the defendant:  (a) he deliberately, or with conscious disregard for the safety of the plaintiff, drove his vehicle at a high rate of speed on a heavily traveled highway with conscious disregard for the safety of the plaintiff and other motorists;  and (e) he drove into the plaintiff's vehicle with conscious disregard for the safety of the plaintiff.   Based on these allegations, the court finds that subparagraphs 4(a) and 4(e) state facts sufficient to constitute a claim for common-law recklessness.   See Nguyen v. Donohoe, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–04–4001240–S (March 17, 2005, Lewis, J.T.R.).   Accordingly, the defendants' motion to strike is denied as to the third count.⁵

The plaintiff's prayer for relief seeks double or treble damages pursuant to General Statutes § 14–295 on the third count.  “Practice Book ․ § 10–39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded.”  Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).   The third count of the plaintiff's complaint is explicitly for common-law recklessness.   It does not purport to state a claim under § 14–295.   Therefore, the prayer for relief based on § 14–295 damages has no support in the third count.   Accordingly, the motion to strike is granted as to the prayer for such damages under the third count.

The defendant next attacks the legal sufficiency of the second count, entitled “Recklessness Action Pursuant to Connecticut General Statutes Section 14–295,” on the ground that the plaintiff fails to allege facts that support a claim for reckless misconduct.   The plaintiff contends that a statutory recklessness claim simply requires allegations of statutory violation.

Section 14–295 provides, in pertinent 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, 14–222, 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.”

As noted by both parties, there has been no specific appellate guidance regarding how to plead a claim under § 14–295 and a Superior Court split exists on this issue.   The split has often been described as falling into two groups.   One group of decisions holds that “a claim for statutory recklessness is legally sufficient so long as it alleges that the defendant deliberately or with reckless disregard violated one of the statutes enumerated in § 14–295, and further asserts that the violation was a substantial factor in causing the plaintiff's injuries ․ [A]s long as the general requirements of the statute are met, such pleading is enough to survive a motion to strike and to state a cause of action under § 14–295.”  (Internal quotation marks omitted.)   Cutler v. Flynn, Superior Court, judicial district of New Haven, Docket No. CV–11–6017763–S (June 2, 2011, Woods, J.).   As of May 24, 2013, this was described as the majority view.   See Marciniak v. Wright, Superior Court, judicial district of Middlesex, Docket No. CV–12–6008689–S (May 24, 2013, Tierney, J.T.R.).

Under the minority view, a plaintiff claiming recklessness must plead specific facts above and beyond negligence because the substantial difference between negligence and a recklessness requires clear notice of the allegedly reckless misconduct.   See Araujo v. Champa, Superior Court, judicial district of Stamford at Norwalk, Docket No. CV–12–6014022–S (August 8, 2012, Tierney, J.T.R.), quoting Termini v. Taylor, Superior Court, judicial district of New Haven, Docket No. 05 5000171 (November 29, 2005, Taylor, J.) (40 Conn. L. Rptr. 424).   Thus, under this view, a § 14–295 claim must specifically allege the conduct or other facts on which the plaintiff bases his or her claim that the defendant “deliberately or with reckless disregard operated a motor vehicle in violation” of at least one of the nine statutes enumerated in § 14–295.

What matters here is the analytic approach, not counting precedents like votes.  “[T]here is no reason why the plaintiff, relying on the same set of facts in negligence counts, cannot set forth in separate counts, causes of action arising out of those same facts alleging recklessness ․ It is frequently urged on this court that the similarity of allegations renders one cause of action (usually, of course, the recklessness one) invalid.   But similarity cannot be the sole focus.   To so consider would often require a plaintiff to ratchet down the negligence claim in order to render more visible the conceptual space between the counts.”  (Citation omitted, internal quotation marks omitted.)   Iwanow v. Finnucan, Superior Court, judicial district of New Britain, Docket No. CV–05–5000281–S (December 21, 2005, Shapiro, J.).  “Focus must instead primarily rest on the recklessness sufficiency of that count ․ Rather than follow a mechanistic approach ․ it seems more appropriate ․ to examine instead whether the facts that are alleged could, under any set of facts admissible under the pleadings, support a conclusion of recklessness.”  (Internal quotations marks omitted.)   Doe v. First Step Preschool, Inc., Superior Court, judicial district of Danbury, Docket No. CV–12–5009050–S (January 31, 2013, Doherty, J.);   see also Decuir v. Smith, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV–05–4003557–S (September 16, 2005, Lewis, J.T.R.);   Womack v. Snead, Superior Court, judicial district of Fairfield, Docket No. CV–05–4006433–S (September 7, 2005, Fischer, J.).

This court finds that § 14–295 is self-contained in describing the requirements of pleading § 14–295 claims, as the first group of opinions holds.   However, simply to allege that the defendant violated a statute would be a classic conclusion of law.   See Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013) (“motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged”).

This court finds nothing in § 14–295 to indicate that the General Assembly intended to vary, as to that statute, our general law of pleading.   See also Rogers v. Dellop, Superior Court, judicial district of Fairfield, Docket No. CV–12–6032092–S (May 8, 2013, Sommer, J.) (56 Conn. L. Rptr. 152, 155) (“there is nothing fundamentally different about the recklessness element that would preclude it from being subjected to the same pleading requirement as the other provisions in the statute, nor from the strictures of Practice Book § 10–1”).   Connecticut is a fact pleading state.  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 214 n.7, 32 A.3d 296 (2011).   The § 14–295 requirement that “the injured party ․ specifically [plead] ․ that another party has deliberately or with reckless disregard operated a motor vehicle in violation of [any of nine sections of Title 14]” means that the complaint must allege facts showing violation of at least one of those nine sections of title 14.⁶  See Rose v. Cuadro, Superior Court, judicial district of New London, Docket No. CV–11–6011627–S (October 21, 2013, Cole–Chu, J.).

Requiring the pleading of facts to support an alleged violation of statute is consistent not only with our pleading practice, but also with the law of recklessness.  “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.”  (Internal quotation marks omitted.)  Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003). § 14–295 does not eliminate the requirement that “something more” be pleaded.   See Rogers v. Dellop, supra, 56 Conn. L. Rptr. 156 (complaint must allege specific facts which bring the defendant within the provisions of § 14–295);  see also, Appleton v. Crystal Water Co., Superior Court, judicial district of Windham at Putnam, Docket No. CV–00–0062719–S (September 16, 2000, Potter, J.) (motion to strike recklessness claim and prayer for punitive damages granted where plaintiff did not plead defendant knew or should have known its actions presented high degree of danger).

Turning to the present motion, in his second count, the plaintiff has alleged that the defendant recklessly or deliberately violated General Statutes §§ 14–222 and 14–219, which can trigger § 14–295 liability.⁷  General Statutes § 14–222(a) provides, in pertinent part:  “No person shall operate any motor vehicle upon any public highway of the state, or any road of any specially chartered municipal association ․ recklessly, having regard to the width, traffic and use of such highway, road, ․ the intersection of streets and the weather conditions.   The operation of a motor vehicle upon any such highway, [or] road ․ at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle ․ shall constitute a violation of the provisions of this section.”   Stripped of the plaintiff's conclusions of law, paragraph 4(b) of the second count alleges that the defendant operated his vehicle at a very high rate of speed where he knew there would likely be traffic, without regard for others in the area.   The court finds that allegation sufficient as a pleading of violation of § 14–222.   Although the allegations do not parrot the language of § 14–222, talismanic use of statutory language is not required.   See State v. Lameirao, 135 Conn.App. 302, 323, 42 A.3d 414 (2012).   Therefore, the defendant's motion must be denied as to the second count and as to the prayer for relief on the second count pursuant to § 14–295.

The plaintiff also alleges at paragraph 4(c) of his second count that the defendant violated General Statutes § 14–219.   That statute provides, in pertinent part:  “(a) No person shall operate any motor vehicle (1) upon any highway, [or] road ․ at such a rate of speed as to endanger the life of any occupant of such motor vehicle, but not the life of any other person than such an occupant;  (2) at a rate of speed greater than fifty-five miles per hour upon any highway other than a highway specified in subsection (b) of section 14–218a for which a speed limit has been established in accordance with the provisions of said subsection;  (3) at a rate of speed greater than sixty-five miles per hour upon any highway specified in subsection (b) of section 14–218a for which a speed limit has been established in accordance with the provisions of said subsection;  or (4) if such person is under eighteen years of age, upon any highway or road for which a speed limit of less than sixty-five miles per hour has been established in accordance with subsection (a) of section 14–218a, at a rate of speed more than twenty miles per hour above such speed limit.” ⁸  General Statutes § 14–219.   In the present case, the facts alleged to support the plaintiff's claim of violation of § 14–219 are that the defendant operated his vehicle in such a reckless manner that the plaintiff and the public was at risk of injury or death.   That allegation alone is insufficiently specific and does not describe how the defendant violated § 14–219.   Nevertheless, as discussed above, “a motion to strike that seeks to strike only portions of a count is improper.”   Open Solutions, Inc. v. First Presidio Bank, Superior Court, judicial district of Hartford, Docket No. CV–11–6020235–S (April 12, 2012, Wagner, J.T.R.).   Here, the plaintiff has sufficiently alleged a violation of § 14–222, which sufficiently triggers § 14–295 liability.   Accordingly the defendant's motion to strike count two must be denied.

For the reasons stated above, the defendant's motion to strike is granted as to the prayer for relief pursuant to § 14–295 under the third count but is otherwise denied.

Cole–Chu, J.

FOOTNOTES

FN1. Count four is directed against Loretta Verma for negligence.   Since the present motion to strike is filed only by Timothy A. Verma, he alone is here referred to as “the defendant.”.  FN1. Count four is directed against Loretta Verma for negligence.   Since the present motion to strike is filed only by Timothy A. Verma, he alone is here referred to as “the defendant.”

FN2. Although pleading “deliberately or with reckless disregard” is required by § 14–295, conclusions of law are not admitted on a motion to strike.  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997)..  FN2. Although pleading “deliberately or with reckless disregard” is required by § 14–295, conclusions of law are not admitted on a motion to strike.  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

FN3. Paragraphs 6, 7 and 8 of the second count each begin by alleging that the plaintiff's injuries were the result of the defendant's recklessness and statutory violations.   The second sentence of paragraph 6 alleges that some of the plaintiff's medical treatments were “a further result of the negligence and carelessness of the Defendant.”   This inconsistency is not attacked by the defendant's motion and is disregarded by the court..  FN3. Paragraphs 6, 7 and 8 of the second count each begin by alleging that the plaintiff's injuries were the result of the defendant's recklessness and statutory violations.   The second sentence of paragraph 6 alleges that some of the plaintiff's medical treatments were “a further result of the negligence and carelessness of the Defendant.”   This inconsistency is not attacked by the defendant's motion and is disregarded by the court.

FN4. See Section III(A) of the defendant's brief.   Section III(B) of that brief concerns the second count, for statutory recklessness..  FN4. See Section III(A) of the defendant's brief.   Section III(B) of that brief concerns the second count, for statutory recklessness.

FN5. It is rarely appropriate to strike only a part of a count.   See Sheehy v. Big Y Foods, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X06–CV–12–6014260–S (October 31, 2012, Agati, J.) (54 Conn. L. Rptr. 887, 889) (“this court agrees with the majority of the trial courts that only an entire claim, not portions of a count, may be subject to a motion to strike”).   Subparagraphs (b), (c), (d) and (f) of paragraph 4 of count three fail, in this court's view, separately or collectively to constitute a cause of action for recklessness and are superfluous.   Nevertheless, the court finds it neither necessary nor appropriate to strike them..  FN5. It is rarely appropriate to strike only a part of a count.   See Sheehy v. Big Y Foods, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X06–CV–12–6014260–S (October 31, 2012, Agati, J.) (54 Conn. L. Rptr. 887, 889) (“this court agrees with the majority of the trial courts that only an entire claim, not portions of a count, may be subject to a motion to strike”).   Subparagraphs (b), (c), (d) and (f) of paragraph 4 of count three fail, in this court's view, separately or collectively to constitute a cause of action for recklessness and are superfluous.   Nevertheless, the court finds it neither necessary nor appropriate to strike them.

FN6. The other elements of a § 14–295 claim are, of course, that the defendant committed the motor vehicle violation “deliberately or with reckless disregard” and such violation was a substantial factor in causing such injury, death or damage to property..  FN6. The other elements of a § 14–295 claim are, of course, that the defendant committed the motor vehicle violation “deliberately or with reckless disregard” and such violation was a substantial factor in causing such injury, death or damage to property.

FN7. The plaintiff also alleges General Statutes § 14–240 in paragraph 4(a) of the second count.   This is, however, not one of the statutes which can give rise to § 14–295 liability..  FN7. The plaintiff also alleges General Statutes § 14–240 in paragraph 4(a) of the second count.   This is, however, not one of the statutes which can give rise to § 14–295 liability.

FN8. Subsection (b) of General Statutes section 14–218a entitled, “Traveling unreasonably fast.   Establishment of speed limits,” provides as follows:  “(b) The Office of the State Traffic Administration shall establish a speed limit of sixty-five miles per hour on any multiple lane, limited access highways that are suitable for a speed limit of sixty-five miles per hour, taking into consideration relevant factors including design, population of area and traffic flow.”.  FN8. Subsection (b) of General Statutes section 14–218a entitled, “Traveling unreasonably fast.   Establishment of speed limits,” provides as follows:  “(b) The Office of the State Traffic Administration shall establish a speed limit of sixty-five miles per hour on any multiple lane, limited access highways that are suitable for a speed limit of sixty-five miles per hour, taking into consideration relevant factors including design, population of area and traffic flow.”

Cole–Chu, Leeland J., J.