Kevin Titus v. William Holcomb (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (# 101)

On December 6, 2013, the defendant, William Holcomb, moved to strike the second and third counts of the plaintiff's complaint, and the corresponding prayers for relief.   The defendant supported his motion with a memorandum of law.   On December 10, 2013, the plaintiff, Kevin Titus, filed his objection to the motion, along with a supporting memorandum of law.   This matter came before the court on the January 27, 2014 short calendar.   The motion to strike counts two and three is denied.

I

PROCEDURAL AND FACTUAL HISTORY

On November 13, 2013, the plaintiff filed a three-count complaint, alleging negligence, common-law recklessness and statutory recklessness, arising out of a motor vehicle accident on December 7, 2011.   The plaintiff alleges that the defendant failed to stop at a stop sign, drove into an intersection and collided with the front of plaintiff's vehicle.   Count one alleges that the defendant negligently and carelessly failed to keep reasonable control of his vehicle, keep a lookout for other vehicles, stop at a stop sign, yield the right of way, apply his brakes in a timely manner, and turn left or right to avoid a collision.

In the second count, the plaintiff alleges common-law recklessness, claiming that the defendant “acted recklessly and/or with deliberate disregard for the safety of others” in that he failed to stop at a stop sign, failed to yield the right of way, and operated his vehicle into the path of a readily observable approaching vehicle, which had its headlights illuminated.¹  The plaintiff alleges that the defendant's actions, viewed cumulatively, show that he was a “distracted driver paying no heed to the road or traffic conditions.”

In the third count, the plaintiff seeks enhanced damages, pursuant to General Statutes § 14–295.²  He alleges that the defendant acted “deliberately or with reckless disregard in violation of General Statutes § 14–222,” in that he drove through a stop sign into the path of the plaintiff's vehicle despite the fact that the plaintiff's vehicle “was readily observable, its headlights were ․ illuminated, and the plaintiff had right of way ․” The plaintiff alleges that, if not distracted, the defendant had a “clear and unimpeded view of the road and traffic, but chose to blindly drive into the path of the approaching vehicle.”

The plaintiff seeks, inter alia, common-law punitive damages relative to the second count and statutory double or treble damages relative to the third count.

II

PARTIES' ARGUMENTS

The defendant moves to strike counts two and three, and the concomitant claims for punitive and double or treble damages, on the ground that the allegations are insufficient, as a matter of law, to state a cause of action sounding in recklessness.   Specifically, the defendant argues that count two fails to allege anything beyond the allegations already pled as simple negligence in the first count.   As to the third count, the defendant argues that this court should adopt the minority view of the Superior Court, and hold that, to sufficiently state a claim for statutory recklessness under General Statutes § 14–295, a plaintiff must plead facts sufficient to set forth a common-law recklessness claim.   According to the defendant, the plaintiff cannot meet this burden by merely reiterating the facts from the first count and inserting the word “reckless.”

In contrast, the plaintiff argues that the allegations in count two are based upon the defendant's combined failure to stop at a stop sign while simultaneously entering a road, under conditions which indicate that the defendant was a distracted driver.   Thus, according to the plaintiff, count two alleges that the defendant possessed the state of mind necessary for a recklessness claim.   The plaintiff further argues that a recklessness claim is not deficient merely because it uses the same language as a negligence claim, and that the second and third counts include allegations beyond those set forth in the negligence count.   As to the third count, the plaintiff asserts that it sufficiently alleges statutory recklessness.   The plaintiff argues that a majority of the Superior Court has held that a claim under General Statutes § 14–295 is sufficient if it tracks the statutory language, namely that the defendant “has deliberately or with reckless disregard operated a motor vehicle” in violation of certain enumerated motor vehicle statutes, and that “such violation was a substantial factor” in causing the plaintiff's injuries.

III

DISCUSSIONAMotion to Strike Standard

Practice Book § 10–39(a) provides in relevant part that “[a] motion to strike shall be used [w]henever any party wishes to contest:  (1) the legal sufficiency of the allegations of any complaint ․ or (2) the legal sufficiency of any prayer for relief ․” “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis omitted;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

In ruling on a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   The court is limited, in its review, “to a consideration of the facts alleged in the complaint.”  Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996);  see Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).   “[W]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).

B

Count Two:  Common–Law Recklessness

“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, [our Supreme Court] [has] 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, 266 Conn. 822, 832–33, 836 A.2d 394 (2003);  see Di Teresi v. Stamford Health System, Inc., 142 Conn.App. 72, 90, 63 A.3d 1011 (2013) (reckless conduct is highly unreasonable conduct involving an extreme departure from ordinary care in a situation where a high degree of danger is apparent).

“Despite the difference between negligence, on the one hand, and recklessness, on the other, a complaint which alleges both is not deficient so long as the facts support both claims and it is clear that both negligence and reckless misconduct are being asserted.”   Smith v. Verma, Superior Court, judicial district of New London, Docket No. CV–13–6015809–S (December 6, 2013, Cole–Chu, J.), citing Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003) ³ (claim 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”).

“[W]here the allegations of a count of a contested pleading support a cause of action of recklessness, the count sounding in recklessness may well be sufficient to withstand a motion to strike even though the allegations of reckless conduct are also alleged as a basis of negligent conduct in a count sounding in negligence.”  (Internal quotation marks omitted.)   Patenaude v. Carleton, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–13–6014379–S (December 5, 2013, Brazzel–Massaro, J.) (57 Conn. L. Rptr. 199, 200).   However, “[m]erely incorporating factual allegations ․ into a second count and reciting conclusory language that this conduct was also reckless, without providing any additional factual underpinnings, is not sufficient to convert a complaint of negligence into one of recklessness.”   (Emphasis added;  internal quotation marks omitted.)   Silano v. Exxonmobil Oil Corp., Superior Court, judicial district of Fairfield, Docket No. CV–04–0409151–S (February 25, 2005, Doherty, J.).  “ ‘Reckless,’ ‘recklessness,’ ‘wanton,’ ‘misconduct,’ and alleged violations of statutes are conclusions of law.”  Smith v. Verma, supra, Superior Court, Docket No. CV–13–6015809–S.

In the present case, the first count alleges that the defendant negligently and carelessly failed to keep reasonable control of his vehicle, keep a lookout for other vehicles, stop at a stop sign, yield the right of way, apply his brakes in a timely manner, and turn left or right to avoid a collision.   In the second count, the plaintiff alleges that the defendant was reckless in that he drove through a posted stop sign, without stopping, directly into the path of the plaintiff's approaching vehicle “despite the fact that the plaintiff's vehicle was readily observable, its headlights were clearly illuminated, and the plaintiff had the right of way ․ The defendant's actions indicate that the defendant was operating as a distracted driver paying no heed to the road or traffic conditions while operating his vehicle.”

Although the allegations in the first and second counts are based on the same conduct by the defendant and are not profoundly different, the second count does differ from the first as it contains allegations that the defendant was distracted and, therefore, possessed the state of mind necessary for a recklessness claim.   Accordingly, count two sufficiently alleges a claim of common-law recklessness.

C

Count Three:  Statutory Recklessness

“[T]here is no specific appellate guidance regarding how to plead a claim [of recklessness] under § 14–295 and a Superior Court split exists on this issue.   The split has often been described as falling into two groups.”   Martin v. LaQuerrre, Superior Court, judicial district of New London, Docket No. CV–13–6017265–S (December 18, 2013, Cole–Chu, J.).   The majority view holds that a claim for statutory recklessness is legally sufficient so long as it alleges the language of General Statutes § 14–295, to wit, that the defendant deliberately or with reckless disregard violated one of the specific statutes enumerated within § 14–295, and further asserts that the violation was a substantial factor in causing the plaintiff's injuries.  Martin v. LaQuerrre, supra.   The majority view is based upon the notion that § 14–295 establishes a standard for recklessness by listing, within it, specific statutory violations that, if committed, rise to recklessness.   See Hand v. Moore, Superior Court, judicial district of Stamford, Docket No. CV–05–2BJ–4003873–S (September 26, 2005, Jennings, J.) (40 Conn. L. Rptr. 83);  Estate of Chung v. Place Motors, Inc., Superior Court, judicial district of New London, Docket No. CV560074–S (February 11, 2003, Hurley, J.T.R.) (34 Conn. L. Rptr. 140).

In contrast, the minority view requires the plaintiff to plead specific factual allegations above and beyond the facts that were pleaded in the negligence count.   Colon v. SNET, Superior Court, judicial district of Fairfield, Docket No. CV–01–0385673–S (May 22, 2002, Gallagher, J.);   see Hopwood v. Sciarretta, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–01–0075934–S (July 11, 2002, Lager, J.) (32 Conn. L. Rptr. 474).  “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.)  Martin v. LaQuerrre supra, Superior Court, Docket No. CV–13–6017265–S.

“[T]here is no reason why the plaintiffs, 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 ․ 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 ․ 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.”   (Citation omitted;  internal quotations marks omitted.)  Id.

In the present case, the plaintiff has sufficiently alleged a statutory recklessness claim, regardless of whether this court applies the majority or minority view.   Consistent with the majority view, the third count sufficiently pleads the general allegations required by § 14–295 in that it alleges that the defendant acted deliberately or with reckless disregard in violation of § 14–222,⁴ and that the violation was a substantial factor in causing the plaintiff's injuries.   Consistent with the minority view, for the same reasons discussed in section B of this opinion, the third count sufficiently alleges that the defendant was either distracted or chose to blindly drive into an intersection, thereby alleging the requisite state of mind for a claim of recklessness.   Therefore, the plaintiff has sufficiently alleged a claim of statutory recklessness.

IV

CONCLUSION

For all of the foregoing reasons, the defendant's motion to strike counts two and three is denied.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. The parties stipulated that it was dark outside on the date and time at which the accident occurred, i.e., approximately 5:25 p.m. on December 7, 2011..  FN1. The parties stipulated that it was dark outside on the date and time at which the accident occurred, i.e., approximately 5:25 p.m. on December 7, 2011.

FN2. General Statutes § 14–295 provides in relevant part that “[i]n 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 ․ 14–222 ․”.  FN2. General Statutes § 14–295 provides in relevant part that “[i]n 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 ․ 14–222 ․”

FN3. See O'Dell v. Kozee, 307 Conn 231, 265, 53 A.3d 178 (2012) (legislature effectively overruled Craig by expressly abrogating the common-law negligence action against purveyors of alcohol with the passage of Public Acts 2003, No. 03–91)..  FN3. See O'Dell v. Kozee, 307 Conn 231, 265, 53 A.3d 178 (2012) (legislature effectively overruled Craig by expressly abrogating the common-law negligence action against purveyors of alcohol with the passage of Public Acts 2003, No. 03–91).

FN4. General Statutes § 14–222 is one of the enumerated statutes that will support a claim of recklessness under General Statutes § 14–295.   See n.2, supra..  FN4. General Statutes § 14–222 is one of the enumerated statutes that will support a claim of recklessness under General Statutes § 14–295.   See n.2, supra.

Danaher, John A., J.