Bernard Kershner v. LTD (2013)

RULING ON MOTION TO STRIKE (# 102)

I. DISCUSSION

The defendant, Brightview Nursing & Retirement Center, Ltd., moves to strike the second count of the plaintiff's complaint on the ground that the plaintiff's common-law recklessness claim is legally insufficient inasmuch as it fails to sufficiently allege any facts that support a finding over and above medical negligence as alleged in the first count.   Specifically, the defendant argues that the second count does not contain any additional allegations sufficient to state a claim for recklessness.

“Recklessness is 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.)  Franc v. Bethel Holding Co., 73 Conn.App. 114, 137–38, 807 A.2d 519, cert. granted in part, 262 Conn. 923, 812 A.2d 864 (2002).  “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.”  Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003).

In the present case, the plaintiff, Bernard A. Kershner, alleges that the defendant knew or should have known that the plaintiff was suffering from paralysis in his left leg and loss of sensation in his left thigh.   Further, the plaintiff alleges that “despite knowledge of these conditions [the defendant] applied the heat pack to the area of the left thigh, which recklessness was a substantial factor in causing the plaintiff's injuries.”   As a result of this conduct, the plaintiff alleges that he suffered injury.

The plaintiff sufficiently alleges facts that demonstrate the defendant was aware of the plaintiff's physical condition, namely, the paralysis and loss of sensation of his left thigh, but disregarded this knowledge when it applied the heat pack to the plaintiff's left thigh, causing injury The plaintiff's allegations that the defendant knew of the plaintiff's condition and acted in disregard of this condition demonstrates the state of consciousness required to support a claim for common-law recklessness.

II. CONCLUSION

For the foregoing reasons, the motion to strike is denied.

SO ORDERED.

BY THE COURT

PETER EMMETT WIESE, JUDGE

Wiese, Peter E., J.