Bon Ames et al. v. LLC (2013)

MEMORANDUM OF DECISION ON DEFENDANT EAST BROOK F, LLC'S MOTION TO STRIKE (# 132)

On May 29, 2013, the defendant East Brook F, LLC (East Brook) moved to strike counts three, four, seven and eight of the then-pending May 8, 2013, complaint of the plaintiffs, Bon Ames and Fred Weh. East Brook also moved to strike counts two and six, which claimed nuisance, but the plaintiffs amended their complaint on June 19, 2013 (the second time since the May 8, 2013, complaint), and deleted those counts.

The amended complaint dated June 19, 2013 (complaint), is now the operative complaint in this case.   The plaintiffs' June 19, 2013, opposition to the present motion is based on the latter complaint and the court shall treat the present motion as being directed at the June 19, 2013, complaint.   There are substantial differences between the complaint and the May 8, 2013, revised complaint in paragraph 13 of count three, and therefore of count seven.   However, the differences are essentially either of style, repetition of what is incorporated from count one (negligence) or added legal conclusions;  the differences do not affect the basis of the present motion by East Brook or the court's analysis.

The third count alleges a claim under the Connecticut Unfair Trade Practices Act (CUTPA) and the fourth count sounds in recklessness, and both pertain solely to the plaintiff Ames. The seventh and eighth counts rely on the CUTPA and recklessness claims, respectively, to assert loss of consortium claims on behalf of the plaintiff Weh, who is the husband of Ames. East Brook argues that the facts pleaded do not constitute legally sufficient CUTPA or recklessness claims.   In particular, East Brook argues that the recklessness claims rely entirely on the facts of the plaintiffs' negligence claim, which facts do not rise to the level of misconduct required for recklessness.   The plaintiffs filed an opposing brief on June 19, 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 the relevant counts of the complaint in this light, the essential facts for this motion are as follows.

East Brook owned, possessed, controlled, leased, maintained, and/or had a business located at 95 Storrs Road in Mansfield, Connecticut (the premises).   On or about February 6, 2011, while a customer lawfully on the premises, Ames slipped and fell on a patch of ice on the sidewalk outside an exit of Mansfield Movieplex.   The fall, and Ames's injuries and damages from the fall, were caused by the negligence and carelessness of East Brook in that East Brook failed to inspect, prevent, remedy, or warn of the dangerous condition on the premises.¹

Omitting conclusions of law, count three adds that the essential facts stated above violated CUTPA in that East Brook's conduct allowed a blatantly treacherous entryway to exist, the plaintiff could not reasonably have avoided her fall because that condition was just outside an exit, and East Brook's conduct caused the plaintiff to suffer an ascertainable loss of money.   Count seven incorporates count three and adds that East Brook's conduct deprived Weh of the society, companionship, consortium and service of his wife, Bon Ames.

Again omitting conclusions of law, count four alleges that substantially the same conduct alleged in count one to have caused Ames's fall and injuries amounted to reckless, wanton, and wilful misconduct.²  In count eight, Weh claims loss of consortium based on count four.

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).

The court begins by addressing East Brook's motion to strike as to Ames's CUTPA claim in count three and Weh's derivative loss of consortium claim in count seven.   East Brook argues that the plaintiffs' CUTPA claims are legally insufficient under the facts of this case.   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.

The plaintiffs claim that their amendments in the complaint of counts three and seven from those counts as alleged in the May 8, 2013, revised complaint are much more than legal conclusions and that the amendments provide the kind of details necessary for East Brook's alleged conduct to fit within the “cigarette rule.”   The court disagrees:  the statement of facts beginning at the third paragraph of this decision summarizes the alleged facts, stripped of conclusions of law and opinion.   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).

It is so fundamental and obvious that an ordinary slip-and-fall case is far outside the purpose and intent on which the legislature enacted CUTPA, that an in-depth analysis by the court is unwarranted here.   The failure to clear ice from outside a business is neither unfair nor a trade practice.   Even if it constitutes negligence or recklessness, it is nonetheless not calculated to deceive or otherwise take advantage of consumers.   Thus, in the present case, there are no facts to support a finding that East Brook's alleged failure to prevent the plaintiff's slip and fall on ice constituted an “unfair method of competition” or a “deceptive act or practice in the conduct of any trade or commerce,” which is the conduct that CUTPA prohibits.

Although self-evident, if a more detailed explanation of this conclusion is desired, including more 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 East Brook 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 it did not meet the requisite standard for a legally sufficient CUTPA claim.   The court finds this case persuasive and directly on point.

Based on the foregoing analysis, East Brook's motion to strike count three is granted.   Consequently, the motion to strike the derivative loss of consortium claim in count seven is also granted.   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

Turning to East Brook's motion to strike count four and Weh's derivative loss of consortium claim, count eight, East Brook argues that the facts alleged in these counts—substantially the same facts in count one, for negligence—do not support a claim of reckless misconduct just because they are couched in conclusory allegations of recklessness such as “[an] extreme departure from ordinary care by committing highly unreasonable conduct in a situation where a high degree of danger is evident.”   In ruling on a motion to strike, the court must construe the challenged pleading in the manner most favorable to sustaining its legal sufficiency.  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).   East Brook's argument that it is necessary, or even proper, to strike the fourth count solely because the same facts underlie the plaintiffs' negligence and recklessness counts is not persuasive.   Both counts may be legally sufficient as long as a reasonable jury could find recklessness and the pleading is explicit enough to put the defendants and the court on notice that both claims are being asserted.  Craig v. Driscoll, 262 Conn. 312, 343, 343 n.22, 813 A.2d 1003 (2003).   A plaintiff is entitled to plead alternative and even inconsistent theories of liability.  Vidiaki, LLC v. Just Breakfast & Things!!!    LLC, 133 Conn.App. 1, 24, 33 A.3d 848 (2012).

The present motion turns on whether the facts alleged in the fourth count could support a claim for recklessness and, if so, whether it sufficiently notifies East Brook and the court that recklessness as well as negligence is being asserted.   On the first point, Craig v. Driscoll, supra, 262 Conn. 342, states that recklessness is a state of consciousness with reference to the consequences of one's acts.   It is more than negligence, more than gross negligence.  Id. Wanton misconduct is reckless misconduct;  that is, conduct indicating a reckless disregard of the just rights or safety of others or of its consequences.  Id. Wilful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.   Id., 342–43.

It is true that the fourth count is, in essence, count one adorned with legal conclusions and alternative descriptions of recklessness, in concept.   Not once does count four unequivocally allege East Brook ignored actual knowledge of a dangerous condition.   Not once does count four allege East Brook knew of a danger without adding, “or, in the exercise of reasonable care, should have known” of that danger.⁴  Nonetheless, 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) (only an entire claim, not portions of a count, may be subject to a motion to strike).   Count four is sufficient if some portion of the count supports the recklessness claim.   Construed most favorably to sustaining its legal sufficiency;  Santorso v. Bristol Hospital, supra, 308 Conn. 349;  the fourth count does contain sufficient allegations to support a claim of recklessness by alleging, inter alia, that East Brook failed to adequately clean the icy area despite knowing or, from the length of time the icy condition had existed, constructively knowing it was an unsafe, defective, and dangerous condition and yet failing to remedy it.   See complaint, count four, subparagraphs 5(c) and 5(h).  Such conduct, if true, may involve wilful misconduct and a reckless disregard for the just rights or safety of others or of the consequences of the action:  if those allegations are proven, a reasonable jury could find that East Brook's conduct was reckless.   Allegations of count four which do not allege actual or constructive knowledge, and disregard, of the hazardous condition are superfluous but it is neither necessary nor appropriate to strike them.   See Sheehy v. Big Y Foods, Inc., supra, 54 Conn. L. Rptr. 889.

As for the second Craig v. Driscoll factor, the fourth count unmistakably notifies East Brook and the court that recklessness is being asserted.   The fourth count is therefore legally sufficient.   Consequently, the derivative claim for loss of consortium in count eight—based as it is on the plaintiff Ames's damages other than money—is also legally sufficient.   See Champagne v. Raybestos–Manhattan, Inc., supra, 212 Conn. 555–56.

The defendant East Brook's motion to strike is granted as to the third and seventh counts and denied as to the fourth and eighth counts of the plaintiffs' June 19, 2013, amended complaint.

Cole–Chu, J.

FOOTNOTES

FN1. Counts one and five, alleging that this conduct constituted negligence by East Brook, are not challenged by the present motion..  FN1. Counts one and five, alleging that this conduct constituted negligence by East Brook, are not challenged by the present motion.

FN2. Subparagraphs 5(b) through 5(l) of count four inserts after the following introduction each of the alleged acts of negligence in paragraph 5 of count one:  “Exhibited an extreme departure from ordinary care by committing highly unreasonable conduct in a situation where a high degree of danger is evident;  and/or exhibited a design to injure, either actually entertained or to be implied from the conduct or circumstances;  and/or exhibited a reckless disregard for the just rights or safety of others or of the consequences of the action, and/or committed more than a mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention, all by ․” Subparagraph 5(a) of count four appends to that template, “failing to remove or remedy a patch of ice accumulating on the sidewalk just outside the back exit of a movie theater at Mansfield Movieplex, located on its premises,” which is not verbatim from count one (which has no subparagraph 5(j)) but which adds no significant fact to subparagraphs 5(b), (e), (g) and (i).  (Subparagraph 5(h) of count four substitutes “[failure to adequately] clean [said area]” for “[failure to adequately] repair [said area]” in subparagraph 5(g) of count one.   That change is immaterial for present purposes.).  FN2. Subparagraphs 5(b) through 5(l) of count four inserts after the following introduction each of the alleged acts of negligence in paragraph 5 of count one:  “Exhibited an extreme departure from ordinary care by committing highly unreasonable conduct in a situation where a high degree of danger is evident;  and/or exhibited a design to injure, either actually entertained or to be implied from the conduct or circumstances;  and/or exhibited a reckless disregard for the just rights or safety of others or of the consequences of the action, and/or committed more than a mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention, all by ․” Subparagraph 5(a) of count four appends to that template, “failing to remove or remedy a patch of ice accumulating on the sidewalk just outside the back exit of a movie theater at Mansfield Movieplex, located on its premises,” which is not verbatim from count one (which has no subparagraph 5(j)) but which adds no significant fact to subparagraphs 5(b), (e), (g) and (i).  (Subparagraph 5(h) of count four substitutes “[failure to adequately] clean [said area]” for “[failure to adequately] repair [said area]” in subparagraph 5(g) of count one.   That change is immaterial for present purposes.)

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).

FN4. An allegation of what someone knew is an allegation of fact.   Because of the role of duty in determining constructive knowledge, in this court's view an allegation of what someone should have known is a conclusion of law..  FN4. An allegation of what someone knew is an allegation of fact.   Because of the role of duty in determining constructive knowledge, in this court's view an allegation of what someone should have known is a conclusion of law.

Cole–Chu, Leeland J., J.