Heather Martin v. Abigail LaQuerre et al. (2013)

MEMORANDUM OF DECISION ON DEFENDANT DENNIS SMITH'S MOTION TO STRIKE (# 115.00)

On August 2, 2013, the plaintiff, Heather Martin, filed a revised amended six-count complaint (complaint) against the defendants, Abigail Laquerre, Timothy Laquerre, and Dennis Smith for damages claimed to have been suffered in a June 27, 2011, motor vehicle collision.   On August 21, 2013, Mr. Smith (defendant) moved to strike 1) the fifth count, which alleges statutory recklessness;  2) the sixth count, which alleges common-law recklessness;  and 3) the prayer for attorneys fees on the sixth count.   On September 5, 2013, the plaintiff filed an opposing brief.   The motion was argued on September 16, 2013.

FACTS

For the purpose of ruling on a motion to strike, 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) (complaint is construed broadly;  necessarily implied allegations are accepted as true).

Viewing the complaint in this light, the facts for present purposes are as follows.   In the fifth count, the plaintiff alleges that on June 27, 2011, she was driving a motor vehicle on Pequot Trail, Route 234, in Stonington, Connecticut.   Abigail Laquerre was driving directly behind the plaintiff while the defendant was driving directly in front of the plaintiff.   A collision occurred between all three motor vehicles.

The collision and the resulting injuries and damages to the plaintiff were caused by the defendant in that he:  (a) violated General Statutes § 14–218a by operating his vehicle at an unreasonable rate of speed, without due regard for the width, traffic, and use of the roadway;  and (b) violated General Statutes § 14–222 by operating his vehicle recklessly, without having due regard to the width, traffic, and use of the roadway.¹  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.

The sixth count, for common-law recklessness, replaces the facts in the immediately preceding paragraph with the following additional facts.   The collision and the resulting injuries to the plaintiff were caused by the recklessness and misconduct of the defendant in that he operated his vehicle with conscious disregard for the safety of others by (a) stopping short on the roadway without due regard for prevailing conditions including the width, traffic and use of the road;  (b) driving recklessly by driving at a high rate of speed in heavy traffic when he knew or should have known of, and ignored, the risk and danger of doing so;  (c) stopping short when he knew or should have known there was heavy traffic behind him;  (d and e) failing to give an appropriate signal and/or warning of his intent to stop suddenly or suddenly to decrease the speed of his vehicle, when he knew or should have known there was heavy traffic behind him;  and (f) by following too close to the vehicle in front of him, not allowing sufficient time to warn other motorists of his impending stop, when he knew or should have known that such conduct would cause an unreasonable risk of harm to other motorists, including the plaintiff.   The defendant's conduct, which the plaintiff labels “reckless and wanton,” was a substantial factor in causing the collision and plaintiff's resulting injuries and damages.

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).   A motion to strike is confined to the facts alleged.   See 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 legal sufficiency of the fifth count, entitled “Recklessness pursuant to Connecticut General Statutes Section 14–295 as to Defendant Dennis Smith,” on the ground that it is based on the negligence claim in the fourth count and fails to allege sufficient facts to support a claim under § 14–295.   The plaintiff contends that a § 14–295 claim (also known as a “statutory recklessness claim”) is sufficient if it alleges violation of at least one of the statutes listed in § 14–295 and causation of injury by that 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 is 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 August 12, 2013, this was described as the majority view.   See Hancock v. Cavallaro, Superior Court, judicial district of New Haven, Docket No. CV–13–6039029–S (August 12, 2013, Wilson, J.) (majority view requires only pleading the required language in § 14–295).

Under the minority view, a plaintiff must plead specific facts showing recklessness above and beyond mere negligence.  “The reasoning of the minority view is that there is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on.”  (Internal quotation marks omitted.)   Araujo v. Champa, Superior Court, judicial district of Stamford at Norwalk, Docket No. CV–12–6014022–S (August 8, 2012, Tierney, J.T.R.).   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.

Of course, what matters 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 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.).

Connecticut is a fact pleading state.  Bridgeport Harbour Place I, LLC v. Ganim, supra, 303 Conn. 214 n.7. 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.   Simply to allege, however, 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 conclusions of law unsupported by the facts alleged”);  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 ․ Practice Book § 10–1”).   In this court's view, the statutory 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]”;  General Statutes § 14–295;  means facts showing violation of at least one of the nine statutes listed in § 14–295 must be pleaded.²  See Rose v. Cuadro, Superior Court, judicial district of New London, Docket No. CV–11 6011627–S (October 21, 2013, Cole–Chu, J.);   Smith v. Verma, Superior Court, judicial district of New London, Docket No. CV–13 6105809–S (December 6, 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).   In this court's view, § 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 the plaintiff did not plead that the defendant knew or should have known its actions presented high degree of danger).

Turning to the present motion, in her fifth count, the plaintiff has alleged that the defendant recklessly violated one or both of two statutes which can trigger § 14–295 liability, General Statutes §§ 14–218a and 14–222.   Section 14–218a, entitled “Traveling unreasonably fast.   Establishment of speed limits,” provides, in pertinent part:  “(a) No person shall operate a motor vehicle upon any public highway ․ at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions ․ (c) Any person who operates a motor vehicle at a greater rate of speed than is reasonable, other than speeding, as provided for in section 14–219, shall commit the infraction of traveling unreasonably fast.”   In the fifth count, the plaintiff's entire allegation of violation of § 14–218a is that the defendant “operat[ed] his motor vehicle at an unreasonable rate of speed on a heavily traveled roadway, without due regard for the width, traffic and use of said roadway.”   This allegation asserts unreasonable speed but does not allege sufficient facts to show unreasonable speed—whether or not the width, traffic or use of the road is considered.   The only words which go beyond the essence of the statute are “heavily traveled” and “without due regard [for width, etc.].” These words provide no specific factual support for the allegation of unreasonable speed, i.e., for a violation of § 14–218a.

Section 14–222(a) provides, in pertinent part:  “No person shall operate any motor vehicle upon any public highway ․ recklessly, having regard to the width, traffic and use of such highway ․ the intersection of streets and the weather conditions.   The operation of a motor vehicle upon any such highway ․ 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.”   Paragraph 8(b) of the fifth count alleges that the defendant operated his vehicle “in a reckless manner without having due regard to the width, traffic and use of the roadway, placing the Plaintiff and others in extreme danger.”   These brief claims are essentially conclusions of law.   To the extent they might be construed as factual, the court finds them insufficient as a pleading of violation of § 14–222:  from them, it cannot be discerned what the defendant did that constituted recklessness.   Talismanic use of statutory language is not required;  State v. Lameirao, 135 Conn.App. 302, 323, 42 A.3d 414, cert. denied, 305 Conn. 915, 46 A.3d 171 (2012);  and the mere talismanic use of the statutory language is insufficient.   Because neither of the alleged statutory violations claimed by the plaintiff to support his § 14–295 claim is sufficiently stated, the defendant's motion to strike the fifth count must be granted.

The defendant next attacks the sufficiency of the sixth count on the ground that it fails sufficiently to allege facts showing common-law recklessness.   The plaintiff disagrees, citing Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003) and arguing that the sixth count must be viewed most favorably toward sufficiency.   It is true that, despite the “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.

“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, supra, 266 Conn. 832–33.   Reckless conduct tends to be highly unreasonable conduct, involving an extreme departure from ordinary care 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).

“On a motion to strike, the trial court's inquiry is to ascertain whether the allegations in each count, if proven, would state a claim on which relief could be granted ․ [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.”  (Internal quotation marks omitted.)  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, paragraph 8 of the plaintiff's sixth count alleges that the collision and the resulting injuries to the plaintiff were caused by the defendant operating his vehicle “with conscious disregard for the safety of others, including the [p]laintiff,” ³ in one or more of the following ways listed in the facts section of this decision.   While only one sufficiently stated claim of common-law recklessness would be enough to defeat the present motion;  Ahmad v. Yale–New Haven Hospital, Inc., Superior Court, complex litigation docket at Waterbury, Docket No. X02–CV–04–0183725 (September 29, 2004, Schuman, J.) (38 Conn. L. Rptr. 238, 241) (“court will not grant a ‘surgical’ motion to strike that seeks to eliminate only part of a count or request for relief”);  the court finds none of the plaintiff's allegations sufficient.   In this court's view, the prefatory allegations that the defendant's actions were “with conscious disregard for the safety of others, including the [p]laintiff” (or, in paragraph 8(b), “recklessly having no regard for the safety of others, including the [p]laintiff”) do not, without supporting facts, make these six claims sufficient as recklessness claims.   What appears is no more than a charge that the defendant stopped short without warning—a frequent cause of collisions but, without more, hardly recklessness.   Moreover, to find that the sixth count sufficiently alleges recklessness would invite claims in any case where a driver stops suddenly, such as for a traffic light or an obstruction, an animal, or even a child in the road, and the following car—for any reason, including following too closely—cannot stop in time to avoid a collision.   Accordingly, the motion to strike the sixth count must be granted.

Finally, the defendant moves to strike the plaintiff's prayer for attorneys fees as to the sixth 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).   Here, both because the sixth count is stricken and because attorneys fees, per se, are not recoverable for common-law recklessness, this part of the plaintiff's prayer must also stricken.

For the reasons stated above, the defendant's motion to strike is granted in its entirety.

Cole–Chu, J.

FOOTNOTES

FN1. Paragraph 8(b) of the fifth count adds that the alleged reckless driving placed the plaintiff and others in extreme danger.   That claim is omitted from the facts because it is a conclusion of law without the specific General Statutes § 14–222(a) element of “at such a rate of speed as to endanger the life of any person other than the operator ․”.  FN1. Paragraph 8(b) of the fifth count adds that the alleged reckless driving placed the plaintiff and others in extreme danger.   That claim is omitted from the facts because it is a conclusion of law without the specific General Statutes § 14–222(a) element of “at such a rate of speed as to endanger the life of any person other than the operator ․”

FN2. The other elements of a § 14–295 claim are that the defendant committed the motor vehicle violation “deliberately or with reckless disregard” and such violation was a substantial factor in causing the injury, death or damage to property..  FN2. The other elements of a § 14–295 claim are that the defendant committed the motor vehicle violation “deliberately or with reckless disregard” and such violation was a substantial factor in causing the injury, death or damage to property.

FN3. Instead of “conscious disregard,” paragraph 8(b) of the sixth count alleges operation “recklessly having no regard for the safety of others, including the Plaintiff.”  (Emphasis added.)   This phrasing is no less a conclusion of law than “with conscious disregard for the safety of others, including the plaintiff ․”.  FN3. Instead of “conscious disregard,” paragraph 8(b) of the sixth count alleges operation “recklessly having no regard for the safety of others, including the Plaintiff.”  (Emphasis added.)   This phrasing is no less a conclusion of law than “with conscious disregard for the safety of others, including the plaintiff ․”

Cole–Chu, Leeland J., J.