Bon Ames et al. v. LLC (2013)

MEMORANDUM OF DECISION ON DEFENDANT NORTHEAST RETAIL LEASING & MANAGEMENT CO.'S MOTION TO STRIKE (# 151)

On August 5, 2013, the defendant Northeast Retail Leasing and Management Co. (Northeast Retail) moved to strike the eleventh and fifteenth counts of the June 19, 2013 amended complaint (complaint) of the plaintiffs, Bon Ames and Fred Weh. The eleventh count alleges a claim under the Connecticut Unfair Trade Practices Act (CUTPA), pertaining solely to the plaintiff Ames. In the fifteenth count, the plaintiff Weh, who is the husband of Ames, claims the defendant's violation of CUTPA caused him a loss of consortium with his wife.   Northeast Retail argues that the facts alleged do not constitute violations of CUTPA.   The plaintiffs filed an opposing brief on August 8, 2013.   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).   Legal conclusions and the correctness of opinions are not admitted by a motion to strike.  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   Viewing the allegations of counts eleven and fifteen in this light, the essential facts are as follows.

Northeast Retail owned, possessed, controlled, leased, maintained, and/or had a business located at 95 Storrs Road in Mansfield, Connecticut (the premises).   On February 6, 2011, while she was a customer lawfully on the premises, Ames slipped and fell on a patch of ice on the sidewalk outside an exit from the Mansfield Movieplex.   The fall resulted in various injuries and damages.   Ames's fall, injuries and damages were caused by Northeast Retail's failures, in summary, to inspect, prevent, remedy, warn of, or safeguard the plaintiff from the dangerous, icy condition on the premises.¹  Northeast Retail allowed a blatantly treacherous entryway ² to exist.   Northeast Retail's conduct caused the plaintiff to suffer an ascertainable loss of money.

Count fifteen incorporates count eleven and adds that Northeast Retail's conduct deprived Weh of the society, companionship, consortium and service of his wife, the plaintiff Ames.

DISCUSSION

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ or of any one or more counts thereof ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a)(1).   The purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint or count 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 determining the sufficiency of a pleading, all well-pleaded facts and all necessarily implied facts are taken as admitted.  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).   If any facts provable under the stated and implied allegations support a cause of action, the motion must be denied.  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

In its motion to strike, Northeast Retail argues that Ames's CUTPA claim in count eleven and Weh's loss of consortium claim in count fifteen are legally insufficient.   This court agrees.

The Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq., prohibits unfair trade practices, stating that:  “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”  General Statutes § 42–110b(a).   The purpose of CUTPA is to protect the public from unfair practices in the conduct of any trade or commerce.  Sovereign Bank v. Licata, 116 Conn.App. 483, 493, 977 A.2d 228 (2009), appeal dismissed, 303 Conn. 721, 36 A.3d 662 (2012).   In evaluating whether a plaintiff has stated a legally sufficient CUTPA claim, our courts have adopted the criteria set out in the Federal Trade Commission's “cigarette rule,” which analyzes:  (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy—specifically, whether, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness;  (2) whether it is immoral, unethical, oppressive, or unscrupulous;  (3) whether it causes substantial injury to consumers, competitors, or other businessmen.  Id.

It is so fundamental and obvious that an apparently ordinary slip-and-fall case is outside the purpose and intent of the Connecticut Unfair Trade Practices Act that an in-depth analysis here is unwarranted.   The failure to clear ice from business premises is neither unfair nor, at least as alleged, a trade practice.   Even if that failure constitutes negligence or recklessness, there is no basis for finding that it was calculated to deceive or otherwise take advantage of the plaintiff or the public:  there are no facts alleged to support a judgment that Northeast Retail's alleged failure to prevent the plaintiff's fall on ice constituted an “unfair method of competition” or a “deceptive act or practice in the conduct of any trade or commerce,” the conduct prohibited by CUTPA.

Although self-evident, if a more detailed explanation of this conclusion is desired, including analysis under the “cigarette rule,” it can be found in the case of Garvin v. Altone's Italian American Restaurant, LLC, Superior Court, judicial district of New London, Docket No. CV–11–6007619–S (January 5, 2012, Martin, J.), which Northeast Retail has cited in support of its motion.   In Garvin, the court granted a motion to strike a CUTPA claim that was based on a plaintiff's slip and fall on snow and ice outside of the defendant's business, holding that the pleading did not meet the requisite standard for a legally sufficient CUTPA claim.   The court finds this case persuasive and directly on point.   In addition, because Ames's CUTPA claim is not legally sufficient, Weh's derivative loss of consortium claim in count fifteen also must be stricken.   See Champagne v. Raybestos–Manhattan, Inc., 212 Conn. 509, 555–56, 562 A.2d 1100 (1989) (a derivative action for loss of consortium is dependent upon the legal existence of the predicate action brought by the injured spouse).³

The defendant Northeast Retail's motion to strike counts eleven and fifteen is granted.

Cole–Chu, J.

FOOTNOTES

FN1. In count nine, Ames alleges that this conduct—stated in more detail than in this summary—constituted negligence of Northeast Retail.   This motion does not address count nine..  FN1. In count nine, Ames alleges that this conduct—stated in more detail than in this summary—constituted negligence of Northeast Retail.   This motion does not address count nine.

FN2. Paragraph 13(a) of count eleven alleges that the “entryway” was “just outside an exit.”   That discrepancy is immaterial to the present motion..  FN2. Paragraph 13(a) of count eleven alleges that the “entryway” was “just outside an exit.”   That discrepancy is immaterial to the present motion.

FN3. The court doubts that where, as here, one spouse's alleged loss is money alone, one can state a cause of action for loss of consortium.   However, the movant did not raise that issue and grounds not specified in the motion may not be considered.  Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001)..  FN3. The court doubts that where, as here, one spouse's alleged loss is money alone, one can state a cause of action for loss of consortium.   However, the movant did not raise that issue and grounds not specified in the motion may not be considered.  Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).

Cole–Chu, Leeland J., J.