Cheryl Patenaude v. Richard Carleton (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 101

INTRODUCTION

The plaintiff filed a writ, summons and complaint dated October 18, 2013 naming as defendant Richard Carleton.   The complaint is in three counts.   The first count alleges several negligent acts of the defendant while driving an automobile on New Haven Avenue in the City of Milford.   The second count alleges a claim of statutory recklessness and the third count is a claim for common-law recklessness.   The plaintiff's complaint alleges that on April 15, 2012, the plaintiff was operating her motor vehicle on New Haven Avenue in Milford when the defendant, who was driving toward the plaintiff, suddenly attempted to make a left-hand turn in front of her automobile and collided with her motor vehicle causing damage and injury to her.   The first count alleges eight various acts of negligence including the rate of speed.   Count two alleges in paragraph seven actions on the part of the defendant which are a violation of Connecticut General Statutes 14–218 and/or 14–222.   Count three alleges in paragraph seven similar claims to the claim in count two but alleges the actions amount to common-law recklessness.   The defendant filed a motion to strike count three of the complaint stating that it fails to set forth a cause of action in common-law recklessness.   The plaintiff filed a memorandum in opposition dated November 14, 2013, The parties appeared and argued at short calendar on December 2, 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 defendant argues that the motion to strike should be granted as to count three because the allegations of common-law recklessness in the third count are the same as the allegations alleged for the claim of statutory recklessness in count two.   In particular, the defendant argues that the third count of the complaint does not allege specific facts that would rise to the level of conscious disregard that would support a cause of action for common-law recklessness.   The defendant contends that the plaintiff has simply repeated the allegations in Count one and two and draws conclusions.

The first count of the complaint contains specific allegations of negligence in the paragraph.   The allegations of this count, paragraph 7, are not incorporated into count three.   Instead, the plaintiff has included a separate paragraph that describes the act that is alleged to contribute to the common-law reckless claim.   This claim in paragraph seven is almost identical to the allegation in paragraph seven on count two with the exception that it does not include the specific statutory references to 14–218a and 14–222.¹

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).

However, even if not different than the facts of the statutory recklessness claim, the decisions set forth in Craig v. Driscoll, 262 Conn. 312, 813 A.2d 1003 (2003), and Ritchie v. Lewis, Superior Court, judicial district of New Haven, Docket No. CV 07 5015479S (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.   The language of Driscoll clearly establishes this finding when it states:  “The defendants also contend that the Appellate Court improperly determined that the allegations in the plaintiff's complaint were sufficient to state a cause of action for reckless infliction of emotional distress on a bystander.   Essentially, they contend that, because the plaintiffs use the same language to allege negligent and reckless conduct, the allegations are insufficient.   We disagree ․ The defendants are 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 their assertion in the counts charging the defendants with negligence.   Although there is a difference between negligence and a reckless disregard of the rights or safety of others, 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.”  Id. at 341–43.  “[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 at Milford, Docket No. CV 059027 (November 9, 1999, Nadeau, J.).

Here, the defendant is concerned with the similarity of the statutory and recklessness counts which other than the statutory cites are the same.   In particular, the defendant argues that the third count of the complaint does not allege specific facts that would rise to the level of conscious disregard for the safety of the plaintiff and amount to a claim of common-law recklessness.   There is support for permitting the counts to remain even if similar allegations.   In Haley v. Connecticut Light and Power, Superior Court, judicial district of Ansonia–Milford at Milford, Docket No. CV 059027 (November 9, 1999, Nadeau, J.), the court stated that:  “[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 recklessness conduct are also alleged as a basis of negligent conduct in a count sounding in negligence.”   Although the law discusses the claims as applied to a case of negligence and recklessness it can be applied to a case such as this where the claims are statutory recklessness and common-law recklessness.   The allegations in count three could support a cause of action for common-law recklessness even though it contains similar allegations.   Therefore, after review of each of the counts and the court's view of the varied causes of action, the court finds that although there are some similarities, they are supportable causes of action.   The motion to strike the third count is denied.

THE COURT

Brazzel–Massaro, J.

FOOTNOTES

FN1. Paragraph seven of count states in pertinent part as to the defendant that he “deliberately operated a motor vehicle at a rate of speed much too fast for the traffic conditions then and there existing, and that he did not have enough time to slow down or turn to the left or right after realizing that the plaintiff had the right of way ․ he knew or should have known that operating a motor vehicle at such a high rate of speed through a busy intersection without first ensuring that it was safe to enter such an intersection put the lives of other motorists at risk, including the plaintiff.”.  FN1. Paragraph seven of count states in pertinent part as to the defendant that he “deliberately operated a motor vehicle at a rate of speed much too fast for the traffic conditions then and there existing, and that he did not have enough time to slow down or turn to the left or right after realizing that the plaintiff had the right of way ․ he knew or should have known that operating a motor vehicle at such a high rate of speed through a busy intersection without first ensuring that it was safe to enter such an intersection put the lives of other motorists at risk, including the plaintiff.”

Brazzel–Massaro, Barbara, J.