Bon Ames et al. v. LLC (2013)

MEMORANDUM OF DECISION ON DEFENDANT MANSFIELD MOVIEPLEX, INC.'S, MOTION TO STRIKE (# 140)

On June 14, 2013, the defendant Mansfield Movieplex, Inc. (Mansfield Movieplex or movant), moved to strike counts nineteen and twenty-three of the June 5, 2013, amended complaint of the plaintiffs, Bon Ames and Fred Weh. Mansfield Movieplex also moved to strike counts eighteen and twenty-two, which claimed nuisance, but the plaintiffs amended their complaint on June 19, 2013, to delete 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 June 5, 2013, amended complaint in paragraph 13 of count nineteen, and therefore of count twenty-three, which incorporates count nineteen.   However, the differences are essentially either of style, repetition of what is incorporated from count seventeen (negligence) or added legal conclusions:  the differences do not affect the basis of the present motion by Mansfield Movieplex or the court's analysis.

The nineteenth count of the complaint alleges a claim under the Connecticut Unfair Trade Practices Act (CUTPA), pertaining solely to the plaintiff Ames. In the twenty-third count, the plaintiff Weh, who is the husband of Ames, claims the movant's violation of CUTPA caused him a loss of consortium with his wife.   Mansfield Movieplex argues that the facts alleged do not support violations of CUTPA.   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 nineteen and twenty-three in this light, the essential facts are as follows.

Mansfield Movieplex 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 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 Mansfield Movieplex in that Mansfield Movieplex failed to inspect, prevent, remedy, warn of, or safeguard the plaintiff from the dangerous condition on the premises.¹  Mansfield Movieplex allowed a blatantly treacherous entryway ² to exist and its conduct caused the plaintiff to suffer an ascertainable loss of money.

Count twenty-three incorporates count nineteen and adds that the movant's conduct deprived Weh of the society, companionship, consortium and service of his wife, 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).

Mansfield Movieplex argues that counts nineteen and twenty-three should be stricken because the facts alleged do not support causes of action for violations of CUTPA or loss of consortium.   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 nineteen and twenty-three from those counts as alleged in the June 5, 2013, amended complaint are much more than legal conclusions and that the amendments provide the kind of details necessary to bring the movant's alleged conduct 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).

As alleged, this is in essence an ordinary slip-and-fall case.   The movant's conduct is so far outside the purpose and intent of CUTPA that an in-depth analysis by the court is not warranted.   The failure to clear snow and 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 Mansfield Movieplex's alleged failure to prevent Ames'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 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 Mansfield Movieplex 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 twenty-three 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 existence of the predicate action brought by the injured spouse).³

The defendant Mansfield Movieplex's motion to strike is granted.

Cole–Chu, J.

FOOTNOTES

FN1. In count seventeen, which is not addressed by the present motion, Ames alleges that this conduct—stated in more detail than in this summary—constituted negligence of the movant..  FN1. In count seventeen, which is not addressed by the present motion, Ames alleges that this conduct—stated in more detail than in this summary—constituted negligence of the movant.

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