Carl Andrade v. LLC (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 112)

FACTS

The plaintiff, Carl Andrade, by writ, summons, and complaint commenced this action against the defendants, The Tradition Golf Club at Wallingford, LLC (Golf Club), The Tradition Golf Club Restaurant, LLC, Peter Naiden, and Kemper Independence Insurance Company, on July 2, 2013.¹  In an eight-count complaint filed on that same date, the plaintiff alleges the following facts.   On July 1, 2011, the plaintiff was an invitee at the Golf Club, which is located at 37 Harrison Road in Wallingford.   While on the premises, he rode as a passenger in a motorized vehicle owned by the Golf Club and operated by the defendant, Naiden, who had consumed intoxicating liquors during a round of golf and continued to do so while operating the vehicle with the plaintiff as his passenger.   At approximately 2 p.m. on that day, Naiden suddenly and unexpectedly turned the vehicle, causing it to tip over.   As a result, the plaintiff was thrown to the ground, sustaining serious injuries, and incurring damages.

The plaintiff further alleges that the injuries and damages he suffered were a result of the recklessness of the defendant, Naiden,² in the following ways:  (1) he operated the vehicle at a greater rate of speed than the circumstances warranted in violation of General Statutes § 14–218a; 3  (2) he turned unreasonably sharply under the circumstances;  (3) he operated a motor vehicle while under the influence of intoxicating liquors in violation of General Statutes § 14–227a; 4  and (4) he operated a motor vehicle recklessly or with reckless disregard in violation of General Statutes § 14–222.⁵

On September 20, 2013, the defendant filed a motion to strike count six, sounding in common-law recklessness, and count seven, sounding in statutory recklessness pursuant to General Statutes § 14–295.⁶  In his accompanying memorandum of law, the defendant argues that the facts alleged do not rise to the level of common-law recklessness, and that the allegations in count seven are insufficient to sustain a claim for a violation of § 14–295 because the pathway on which the accident allegedly occurred was not a public highway or parking area as required under the statute.   On November 7, 2013, the plaintiff filed an objection to the motion and an accompanying memorandum.   The court heard oral arguments on the motion and the objection thereto at short calendar on November 25, 2013.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

“A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).   On the other hand, “[i]f any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

I

COMMON–LAW RECKLESSNESS

In the present case, the defendant moves to strike the sixth count on the ground that the plaintiff's allegations that the defendant operated a vehicle under the influence of alcohol and at a high rate of speed, while perhaps sufficient for a negligence claim, do not satisfy the pleading requirements for recklessness.   The plaintiff counters that his allegations that the defendant acted knowingly, deliberately, and with reckless disregard for the consequences of his actions when he operated the vehicle with the plaintiff as his passenger and while intoxicated comprise a sufficient claim for common-law 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 ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.”  (Internal quotation marks omitted.)  Craig v. Driscoll, 262 Conn. 312, 342, 813 A.2d 1003 (2003).  “Allegations of recklessness differ from allegations of negligence because 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 ․ [S]uch aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.”  (Internal quotation marks omitted.)  Pecan v. Madigan, 97 Conn.App. 617, 622 n.5, 905 A.2d 710 (2006), cert. denied 281 Conn. 919, 918 A.2d 271 (2007).  “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, supra, 343.

In the present case, subparagraphs (a), (c), and (d) of paragraph 15 in the sixth count allege that the injuries and damages suffered by the plaintiff were a result of the defendant's recklessness or reckless disregard for the consequences in the following ways:  (a) he operated the vehicle at a greater rate of speed than the circumstances warranted;  (c) he turned the vehicle unreasonably sharply under the circumstances;  and (d) he operated the vehicle while under the influence of intoxicating liquors.   Although the allegations in subparagraphs (a) and (c) are carried over from count five, which alleges negligence, the plaintiff further alleges in count six that the defendant operated the vehicle while under the influence of alcohol.   The defendant's argument that count six should be stricken because it sets forth allegations that are similar to his negligence claim therefore fails.   As to the sufficiency of the recklessness claim, the defendant cites to two Superior Court decisions that found that allegations of driving while under the influence of alcohol and driving at a high rate of speed, on their own, did not meet the pleading requirements for recklessness.   See Gaudet v. Ziobran, Superior Court, judicial district of Middlesex, Docket No. 61126 (June 10, 1992, Austin, J.) [6 Conn. L. Rptr. 862];  Figliomeni v.C.S.R. Getty, LLC, Superior Court, judicial district of New Haven, Docket No. CV–03–0479244–S (November 3, 2003, Corradino, J.) [35 Conn. L. Rptr. 725].   The facts of the present case are distinguishable, however, as neither case involved allegations of speeding while driving under the influence of alcohol.   Taken as a whole, the allegations in count six set forth sufficient facts to infer that the actions of defendant involved an extreme departure from ordinary care, and therefore constitute a claim for common-law recklessness.   Accordingly, the defendant's motion to strike is denied as to the sixth count.

II

STATUTORY RECKLESSNESS

The defendant moves to strike count seven on two grounds:  (1) that the plaintiff does not allege sufficient facts to support his claim for statutory recklessness under General Statutes § 14–295, and (2) in the alternative, that § 14–295 is not applicable to the facts alleged because a golf cart path located on property that is owned and operated by a private entity is not a public highway or parking area, and thus is not governed by the statute.

Section 14–295 provides in relevant part:  “In any civil action to recover damages resulting from personal injury ․ 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 ․” Here, the plaintiff seeks double or treble damages on the ground that the defendant's conduct violated §§ 14–218, 14–222, and 14–227a.

As to the defendant's first argument, “[n]either the Connecticut Supreme nor Appellate Court has yet had occasion to address the pleading requirements for recklessness under § 14–295.   There has been a split of authority in Superior Court decisions as to what degree of specificity is required in pleading recklessness ․ The split of authority arises from the different constructions the courts have placed on the term specifically pleaded.”   (Internal quotation marks omitted.)  Hancock v. Cavallaro, Superior Court, judicial district of New Haven, Docket No. CV–13–6039029–S (August 12, 2013, Wilson, J.).

This court has addressed the issue of the pleading standard under § 14–295 in numerous previous decisions.   See id.;   Astudillo v. Turey, Superior Court, judicial district of New Haven, Docket No. CV 12 6030837S (August 22, 2012, Wilson, J.);   Perciballi v. Gambardella, Superior Court, judicial district of New Haven, Docket No. CV–12–6028366–S (August 13, 2012, Wilson, J.);   Blanchard v. Velodota, Superior Court, judicial district of New Haven, Docket No. CV–12–6025540–S (May 4, 2012, Wilson, J.);   Press v. Green, Superior Court, judicial district of New Haven, Docket No. CV–11–5033635–S (May 5, 2011, Wilson, J.);   Mozell v. Ramos, Superior Court, judicial district of New Haven, Docket No. CV–08–5021292–S (March 7, 2011, Wilson, J.);   Cooke v. Maynard, Superior Court, judicial district of New Haven, Docket No. CV–10–6012259–S (September 21, 2010, Wilson, J.);   Campos v. Coleman, Superior Court, judicial district of New Haven, Docket No. CV–10–6009582–S (June 9, 2010, Wilson, J.);   Braumann v. Clavette, Superior Court, judicial district of New Haven, Docket No. CV–09–5031138–S (April 27, 2010, Wilson, J.);   Ferraiuolo v. Nicholson, Superior Court, judicial district of New Haven, Docket No. CV–09–50311385–S (December 7, 2009, Wilson, J.).   On each occasion, the court consistently agreed with the majority and ruled that the plaintiff need only plead (1) the language in § 14–295;  (2) that the defendant violated one or more of the enumerated statutory provisions named therein;  and (3) that the violation was a substantial factor in causing the plaintiff's injuries.

As this court has previously explained:  “The minority view holds that a plaintiff must not only plead a statutory [violation] as set forth in § 14–295, but also facts that would support a claim of reckless conduct at common law ․ Relying on the usual rules of pleading, these courts generally reason that a plaintiff who is alleging recklessness must allege specific facts that inform both the court and the defendant what conduct is relied upon ․ To permit otherwise, these courts reason, would enable any negligence claim to be brought as a recklessness claim and thereby make it subject to double and treble damages ․ effectively dissolv[ing] any distinction between [the two] claims ․

“The majority view distinguishes between pleading common-law recklessness and statutory recklessness, thus holding that a plaintiff need only plead the required language in § 14–295, that is, that the defendant violated one or more of the enumerated statutory provisions named therein, and that the violation was a substantial factor in causing the plaintiff's injuries ․ The majority view is based both on an analysis of the legislative history as well as a review of the statutory language of § 14–295 itself.   These cases conclude that as 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 ․

“There does not appear to be any ambiguity in the language of [§ ]14–295 or how it should be applied or construed.   The statute says that in a civil action seeking damages for personal injuries, the trier of fact may award double or treble damages if the plaintiff has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of ․ [one or more motor vehicle statutes delineated in the statute].   If a further delineation of facts forming the basis of the recklessness claim were necessary, then such an explicit requirement could have been set out in the statute by the legislature ․ Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct ․ This court will therefore continue to apply the majority view ․” (Internal quotation marks omitted.)   Hancock v. Cavallaro, supra, Superior Court, Docket No. CV–13–6039029–S.

In the present case, the plaintiff alleges in count seven the same facts alleged in count six, that the defendant consumed intoxicating liquors prior to and while driving a motorized vehicle with the plaintiff as his passenger, and that he turned unreasonably sharply under the circumstances, causing the vehicle to tip over.   Count seven further alleges in paragraph 15 that the defendant, “deliberately or with reckless disregard operated a motor vehicle in one or more of the following ways:  (a) [h]e operated his vehicle at a greater rate of speed than the circumstances warranted in violation of C.G.S. § 14–218a;  (b) [h]e operated a motor vehicle while under the influence of intoxicating liquors in violation of C.G.S. § 14–227a;  and (c) [h]e operated a motor vehicle recklessly or with reckless disregard to the width and conditions of the roadway in violation of C.G.S. § 14–222.”   The plaintiff further states that the defendant's conduct was a substantial factor in causing the physical injuries that he suffered.   Although these allegations do not verbatim track the language of the enumerated statutes, read broadly, they are legally sufficient under the majority view and the continuing view of this court.   Accordingly, the court denies the defendant's motion to strike count seven on the basis of legal insufficiency, inasmuch as count seven alleges a statutory recklessness claim under § 14–295.

Alternatively, the defendant argues that count seven should be stricken on the ground that § 14–295 and the underlying statutes cited therein are not applicable to the facts alleged because a golf cart path does not constitute a “public highway of the state” or a “parking area.”   As stated above, the plaintiff alleges violations of §§ 14–218a, 14–227a,⁷ and 14–222, all of which sanction reckless operation of a motor vehicle “upon any public highway of the state” or “on any parking area as defined in section 14–212.” ⁸  The defendant argues that a golf cart path located on property “owned, operated, maintained and controlled by a non-state entity,” the Golf Club, does not qualify as a public highway or a parking area, and accordingly, § 14–295 is not applicable to this action.

In support of this argument, the defendant cites to Reardon v. Brown, Superior Court, judicial district of New Haven, Docket No. CV–07–6000950–S (April 18, 2008, Robinson, J.), which held that a private driveway did not qualify as a highway or parking area within the scope of § 14–295.   In Reardon, Judge Robinson looked to the statutory definitions of the terms “highway” and “parking area” to determine whether a private driveway would fall into either category and thus be subject to § 14–218a, which was the statute at issue in that case.  “The definition of the term ‘highway’ found in § 14–1 includes driveways that are under the control of the state and are ‘dedicated, appropriated or opened to public travel or other use.’  ․ Section 14–212 defines parking areas as ‘lots, areas or other accommodation for parking of motor vehicles off the street or highway and open to public use with or without charge.’  “ Id. As to what constitutes “public use,” Judge Robinson quoted State v. Boucher, 207 Conn. 612, 615, 541 A.2d 865 (1998), “For an area to be open to public use it does not have to be open to everybody all the time ․ The essential feature of a public use is that it is not confined to privileged individuals or groups whose fitness or eligibility is gauged by some predetermined criteria, but is open to the indefinite public.   It is indefiniteness or unrestricted quality of potential users that gives a use a public character ․” (Internal quotation marks omitted.)  Id. Because the plaintiffs in Reardon did not allege that the driveway in question was either “open to public travel” or for “public use,” the court found that they did not allege sufficient facts to support a claim under § 14–218a and granted the motion to strike the plaintiffs' claim for double or treble damages pursuant to § 14–295.

The defendant's reliance on Reardon in the present case is misplaced, however, given that the plaintiff clearly alleges that the Golf Club, where the path in question was located, was open for public use.   In paragraph 4 and 7 of the first count, which are incorporated in counts six and seven, the plaintiff alleges that the defendant “operated and maintained a golf course ․ which was open to the public,” and which the plaintiff paid money to enter.   The plaintiff further alleges in paragraph 9 that he rode as a passenger in a motorized vehicle that was driven by the defendant on the Golf Club premises.   According to the Supreme Court's standard, as cited in Reardon, the essential element of a public use is whether a roadway or parking area is “open to the indefinite public.”   Based on the facts alleged, the path on which the defendant drove the vehicle, unlike the private driveway at issue in Reardon, was open to any member of the public who, like the plaintiff, was willing to pay the fee to enter the golf course, and the path can therefore be characterized as a public highway for the purposes of § 14–295 and the statutes enumerated therein.

It also bears noting that, as this court has previously reasoned, “the statutes enumerated within § 14–295 all describe wrongs against the State of Connecticut, which has a clear interest in ensuring the safety of travel upon its public highways.”  (Internal quotation marks omitted.)   Maiorino v. Murphy, Superior Court, judicial district of New Haven, Docket No. CV–10–6010586–S (December 15, 2010, Wilson, J.) [51 Conn. L. Rptr. 119].   As the plaintiff states in his memorandum in opposition to the present motion, any member of the public may enter the premises of the Golf Club by paying an entry fee, so its usage is not confined to certain privileged individuals or groups.   It is therefore consistent with the public policy inherent in § 14–295 that its provisions should apply to the roadway in question in the interest of ensuring public safety.

A broad reading of the complaint, construed in favor of the plaintiff, indicates that he has stated a legally sufficient cause of action for statutory recklessness under § 14–295.   Accordingly, the motion to strike is denied as to the seventh count.

CONCLUSION

Based on the foregoing, the defendant's motion to strike is denied as to counts six and seven of the complaint.

Wilson, J.

FOOTNOTES

FN1. Counts one and two are directed against the Golf Club for negligence and recklessness respectively.   Counts three and four are directed against The Tradition Golf Restaurant, LLC, for negligence and recklessness respectively.   Counts five, six, and seven are directed against Naiden for negligence, recklessness, and statutory recklessness respectively.   Count eight is directed against Kemper Independence Insurance Company for breach of contract..  FN1. Counts one and two are directed against the Golf Club for negligence and recklessness respectively.   Counts three and four are directed against The Tradition Golf Restaurant, LLC, for negligence and recklessness respectively.   Counts five, six, and seven are directed against Naiden for negligence, recklessness, and statutory recklessness respectively.   Count eight is directed against Kemper Independence Insurance Company for breach of contract.

FN2. For the sake of clarity, hereafter, all references to the defendant in this memorandum are to Naiden, the party moving to strike counts six and seven of the complaint..  FN2. For the sake of clarity, hereafter, all references to the defendant in this memorandum are to Naiden, the party moving to strike counts six and seven of the complaint.

FN3. General Statutes § 14–218a provides in relevant part:  “No person shall operate a motor vehicle upon any public highway of the state ․ or on any parking area as defined in section 14–212, or upon a private road on which a speed limit has been established in accordance with this subsection ․ 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.”.  FN3. General Statutes § 14–218a provides in relevant part:  “No person shall operate a motor vehicle upon any public highway of the state ․ or on any parking area as defined in section 14–212, or upon a private road on which a speed limit has been established in accordance with this subsection ․ 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.”

FN4. General Statutes § 14–227a provides in relevant part:  “No person shall operate a motor vehicle while under the influence of intoxicating liquor ․”.  FN4. General Statutes § 14–227a provides in relevant part:  “No person shall operate a motor vehicle while under the influence of intoxicating liquor ․”

FN5. General Statutes § 14–222 provides in relevant part:  “No person shall operate any motor vehicle upon any public highway of the state ․ or in any parking area for ten cars or more or upon any private road on which a speed limit has been established in accordance with the provisions of section 14–218a ․ recklessly, having regard to the width, traffic and use of such highway, road, school property or parking area, the intersection of streets and the weather conditions.”.  FN5. General Statutes § 14–222 provides in relevant part:  “No person shall operate any motor vehicle upon any public highway of the state ․ or in any parking area for ten cars or more or upon any private road on which a speed limit has been established in accordance with the provisions of section 14–218a ․ recklessly, having regard to the width, traffic and use of such highway, road, school property or parking area, the intersection of streets and the weather conditions.”

FN6. General Statutes § 14–295 provides in relevant part:  “In any civil action to recover damages resulting from personal injury ․ 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 ․”.  FN6. General Statutes § 14–295 provides in relevant part:  “In any civil action to recover damages resulting from personal injury ․ 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 ․”

FN7. Although § 14–227a does not, in the text of the statute, sanction operation of a motor vehicle on a public highway or parking area, it is well established that “[a] conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs or both requires proof of (1) operation of a motor vehicle (2) on a public highway or on one of the other designated areas [in § 14–212](3) while under the influence of intoxicating liquor or drugs or both.”  State v. Harrison, 30 Conn.App. 108, 618 A.2d 1381 (1993), citing General Statutes § 14–227a;  State v. Lonergan, 213 Conn. 74, 80, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990)..  FN7. Although § 14–227a does not, in the text of the statute, sanction operation of a motor vehicle on a public highway or parking area, it is well established that “[a] conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs or both requires proof of (1) operation of a motor vehicle (2) on a public highway or on one of the other designated areas [in § 14–212](3) while under the influence of intoxicating liquor or drugs or both.”  State v. Harrison, 30 Conn.App. 108, 618 A.2d 1381 (1993), citing General Statutes § 14–227a;  State v. Lonergan, 213 Conn. 74, 80, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990).

FN8. Section 14–212 provides in relevant part:  “ ‘Parking area’ means lots, areas or other accommodations for the parking of motor vehicles off the street or highway and open to public use with or without charge ․”.  FN8. Section 14–212 provides in relevant part:  “ ‘Parking area’ means lots, areas or other accommodations for the parking of motor vehicles off the street or highway and open to public use with or without charge ․”

Wilson, Robin L., J.