Ashley Harmon v. Eleni Sarah Burchard et al. (2014)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (105.00)

FACTS

In her three-count complaint, filed on September 4, 2013, the plaintiff, Ashley Harmon, alleges the following facts.   On March 27, 2013, the plaintiff entered an intersection of Connecticut Avenue in Norwalk, Connecticut, from a private driveway, while driving her vehicle, a 1999 Toyota.   The defendant, Eleni Sarah Burchard, the operator of a 2007 Ford vehicle, drove the vehicle into the intersection and collided with the plaintiff's vehicle.¹  As a result of the vehicular accident, the plaintiff has suffered numerous injuries.   The complaint alleges in three counts the following claims:  negligence, common-law recklessness and statutory recklessness pursuant to General Statutes § 14–295, respectively.

On November 7, 2013, the defendants filed a motion to strike counts two and three of the complaint, as well as a memorandum in support of the motion, on the ground that the plaintiff failed to allege sufficient facts to support both claims.   On November 12, 2013, the plaintiff filed her objection and memorandum in opposition.   The matter was taken on the papers at the December 2, 2013 short calendar.

DISCUSSION

“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).   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 Connecticut Supreme Court] will not uphold the granting of [a] motion to strike on a ground not alleged in the motion nor relied upon by the trial court.”  Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).

In the present case, the defendant argues in her motion to strike count two that common-law recklessness must be pleaded with specificity, and that the plaintiff has failed to allege facts that take the defendant's conduct beyond the allegations of negligence in count one.   Further, she argues that a specific allegation of reckless or wanton conduct is needed to support a claim of recklessness.

In response, the plaintiff argues that she has sufficiently pleaded facts for common-law recklessness as she has included that the defendant entered a busy intersection, traveled at a high speed and ran through an illuminated red light.   Further, the plaintiff asserts that the Connecticut Supreme Court has held that a recklessness count is not deficient when the same language is used in counts for negligence as well as recklessness.

In Connecticut, “[a] plaintiff is entitled to maintain an action for negligence, statutory recklessness and common-law recklessness simultaneously.”   Ludwicki v. Sliwa, Superior Court, judicial district of New Britain, Docket No. CV–08–6001447–S (September 2, 2009, Zemetis, J.).   Further, “[t]he rules of practice allow plaintiffs to allege alternative theories of liability and relief sought based on alternative construction of the cause of action.”  Id. “It is frequently urged on this Court that the similarity of allegations renders one cause of action (usually, of course, the recklessness one) 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.”   (Internal quotation marks omitted.)   Drennan v. Geist, Superior Court, judicial district of Middlesex, Docket No. CV–99–0089114–S (January 29, 2002, Shapiro, J.).

In Connecticut “[a] claim of common-law recklessness must be pleaded with specificity.”   Weinberg v. Bogacki, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–96–0154426–S (June 27, 1997, D'Andrea, J.).  “To determine whether the [complaint] states a cause of action sounding in recklessness, [the court looks] first to the definitions of wilful, wanton and reckless behavior.”  (Internal quotation marks omitted.)  Craig v. Driscoll, 262 Conn. 312, 342, 813 A.2d 1003 (2003).  “In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts ․ [Such conduct] is more than negligence, more than gross negligence ․ [I]n 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 ․ [In sum, such] 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.”  (Internal quotation marks omitted.)  Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998).  “When it appears that the defendant was guilty of no more than momentary thoughtlessness or inadvertence, we have not hesitated to hold that the jury could not reasonably find that such conduct evinced a reckless disregard of the rights of others.”  (Internal quotation marks omitted.)  Brock v. Waldron, 127 Conn. 79, 83, 14 A.2d 713 (1940).

The decisions of the Superior Court in Connecticut have ruled in diverse ways on motions to strike counts of common-law recklessness.   Some decisions deny motions to strike allegations of common-law recklessness because the complaints, in various iterations, allege that the defendant “knew or should have known” that their actions caused an imminent risk of harm.²

A line of reasoning has emerged from other decisions of the Superior Court that holds a plaintiff to a higher standard when pleading common-law recklessness.   For example, in Bush v. Lametta Construction Co., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–07–5005709–S (January 20, 2009, Adams, J.), the plaintiff, after parking her car, tripped and fell on a wooden stake.   The plaintiff alleged that the defendant “acted in a reckless and wanton manner in that [it] failed to take any remedial measures to correct the hazardous condition that existed in the parking area, in that when [it] knew or upon reasonable inspection should have known the condition in the lot ․ posed a hazard to the [p]laintiff ․” (Emphasis in original;  internal quotation marks omitted.)   This court in Bush granted the motion to strike, and based its holding on Hawkins v. Handyman Hardware, LLC, Superior Court, judicial district of Stamford–Norwalk, Complex Litigation Docket, Docket No. X08–CV01–0186766–S (February 6, 2003, Adams, J.), which stated that “[t]he knew or should have known language traditionally connotes negligent behavior and the pleading as stated would allow punitive damages to be imposed even if the lack of knowledge was the result of inadvertence or mere mistake ․ Taken as a whole, the ․ [complaint] fail[ed] to plead facts that allege the defendants' conduct evinced the state of consciousness with reference to the consequences of one's acts required for recklessness.”   (Emphasis in original;  internal quotation marks omitted.).   Just as in Hawkins, the Bush court held that “[t]he plaintiff has failed to allege facts that allege [that the defendants'] conduct ‘evinced the state of consciousness with reference to the consequences of one's acts required for recklessness.’ “

In Constante v. Edward Knapp, Inc., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–09–5010730–S (January 8, 2010, Adams, J.), this court predicated its reasoning on the Bush case on facts similar to the present case, in that it also involved a motor vehicle accident that occurred as a result of one vehicle running a red light.   The Constante court held “the plaintiff alleges that the defendant ․ was reckless because despite actual knowledge that entering an intersection which was totally blind from the left hand side would cause an imminent risk that others could suffer bodily harm, the defendant entered such a blind intersection and that as a result of such recklessness, the collision occurred with the plaintiff's vehicle ․ Counts one and three contain the negligence allegations against the defendant, which in relevant part allege that the defendant entered into a blind intersection without first ascertaining that it was reasonably safe to do so when he knew or should have known that doing so caused an imminent risk of physical harm ․ Although factually similar, these allegations differ from the reckless allegations in the key language of knowledge ․ [T]he plaintiffs ․ do not merely allege that the defendants knew or should have known would cause an imminent risk of physical harm, sounding in negligence, but rather actual knowledge and, accordingly, reckless behavior.”  (Emphasis in original;  internal quotation marks omitted.)  Id.

In Buczynski v. Shaikh, Superior Court, judicial district of Hartford, Docket No. CV–12–6027998–S (June 7, 2012, Woods, J.), the court adhered to this same line of reasoning when evaluating a count sounding in common-law recklessness in a motor vehicle case, also involving an accident where one vehicle ran a red light.   The court in Buczynski held that the allegations were pleaded sufficiently to maintain a cause of action for common-law recklessness as “[h]ere ․ the plaintiff not only alleges the conduct contained in the negligence claim, but further alleges that the defendant, ‘made conscious choices of action involving a risk of serious danger to the plaintiff, in that, although he knew he had a red traffic light and should stop, instead he chose to drive his motor vehicle into said intersection at an unreasonable rate of speed thereby colliding with the plaintiff's vehicle already in said intersection.’   Such willful conduct, if proven, could rise to the level of ‘an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.’ “

In the present case, the plaintiff alleges in count two:  “the Defendant, Eleni Sarah Burehard, suddenly and without warning, recklessly and/or with deliberate disregard drove her Ford vehicle directly into the intersection, without slowing and at a high rate of speed despite an illuminated red traffic control signal, thereby causing a collision ․ Said collision was caused by the reckless and/or deliberate disregard of the Defendant, Eleni Sarah Burchard, in that she, recklessly and/or with deliberate disregard for the safety of others, abruptly drove her vehicle into a busy intersection at a high rate of speed through a red light directly into the path of the Plaintiff's vehicle.”  (Emphasis added.)   The fact that the plaintiff uses similar language in her negligence and common-law recklessness counts does not, on its own, render count two deficient because the plaintiff is allowed to bring simultaneous claims for negligence and common-law recklessness.   Here, however, the plaintiff does not allege that the defendant had actual knowledge of certain facts, a critical factor in successfully pleading common-law recklessness.   The description of the defendant's actions as “without warning” and “abrupt” does not rise to the level of what was deemed adequate in the Buczynski and Constante cases.   These descriptions do not evince the state of consciousness that is required for recklessness, but rather “momentary thoughtlessness or inadvertence ․” Brock v. Waldron, supra, 127 Conn. 83.   Furthermore, the language in count two is illustrative of the “knew or should have known” negligence standard;  the plaintiff appears to indicate that the presence of the red light ipso facto illustrates the defendant's knowledge of it.   The plaintiff, therefore, does not specifically plead that the defendant had actual knowledge, and that despite this actual knowledge, the defendant still chose her course of conduct.   Consequently, since the plaintiff does not plead a cause of action for common-law recklessness with adequate specificity, the court grants the motion to strike count two.

In the motion to strike count three, the defendant argues that the plaintiff fails to include the specific allegations of reckless conduct and subsequent injury that § 14–295 requires.³  In her memorandum in opposition to the motion, the plaintiff responds that she pleads facts that enumerate the specific statutes included in § 14–295, and mirrors the language of the statute as the majority decisions of the Superior Court demand.

The pleading requirements of § 14–295 have been the subject of numerous Superior Court decisions, but have not yet been determined by any Connecticut appellate court.   Chacon v. Fuseini, Superior Court, judicial district of New Haven, Docket No. CV–07–5009785–S (February 28, 2008, Bellis, J.).   Within the Superior Court, there exists a clear majority and minority position on this issue.   Fuda v. Calabrese, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–12–6013876–S (August 12, 2013, Adams, J.T.R.) (citing to the split in authority).  “The majority view maintains that a plaintiff, in addition to pleading facts constituting negligence, need only make the general allegations mentioned in § 14–295:  that the defendant has deliberately or with reckless disregard violated one of the enumerated statutes, and that the violation was a substantial factor in causing the plaintiff's injuries.”   (Internal quotation marks omitted.)   Porter v. Taylor, Superior Court, judicial district of New London, Docket No. CV–13–6016944–S (October 1, 2013, Devine, J.).

“In contrast, a minority of courts have required that plaintiffs plead the specific conduct that is reckless, above and beyond what must be pleaded for mere negligence ․ Our Superior [C]ourts have held that the reiteration of facts previously asserted to support a cause of action in negligence, without more, cannot be transformed into a claim of reckless misconduct [by mere] nomenclature ․” (Internal quotation marks omitted.)  Fuda v. Calabrese, supra, Superior Court, Docket No. CV–12–6013876–S.

This court has been, and remains, persuaded by the majority view.   Accordingly, under § 14–295, a plaintiff need only allege that one of the enumerated statutes was violated deliberately or with reckless disregard, and was a substantial factor in causing the injury or damage.   Starr v. Lopez, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–01–0185811–S (November 6, 2001, Adams, J.).

In the present case the plaintiff alleges in count three that the collision was caused by the defendant's operation of her motor vehicle which operation was either deliberate or with reckless disregard in violation of:  “Connecticut General Statutes § 14–218a, in that the Defendant operated her motor vehicle at rate of speed greater than was reasonable ․ Connecticut General Statutes § 14–222, in that she operated her motor vehicle on a public highway recklessly by operating her vehicle at a high rate of speed directly into an intersection in violation of a traffic control signal without regard for the traffic ․ Each and/or either of the aforementioned violations were a substantial factor in causing the Plaintiff's injuries and losses as hereinafter set forth.”

The plaintiff alleges that the defendant violated two of the enumerated statutes of § 14–295, and that these violations were substantial factors in causing the plaintiff's injuries.   Accordingly, count three is legally sufficient as it adheres to the plain language requirements of § 14–295.   The defendants' motion to strike count three is denied.

CONCLUSION

For the foregoing reasons, the court grants the motion to strike count two, alleging common-law recklessness, and denies the motion to strike count three, alleging statutory recklessness.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. Kari Burchard, the owner of the 2007 Ford, is also named as a defendant in the complaint;  for convenience, as the counts at issue are directed only against Eleni Burchard, she will be referred to in this memorandum opinion as the defendant..  FN1. Kari Burchard, the owner of the 2007 Ford, is also named as a defendant in the complaint;  for convenience, as the counts at issue are directed only against Eleni Burchard, she will be referred to in this memorandum opinion as the defendant.

FN2. These decisions have determined that such allegations are sufficient.  “[T]hat [the defendant] recklessly operated a vehicle at an unreasonable rate of speed endangering the life of [the plaintiff] under conditions [the defendant] knew or should have known were dangerous enough to require [the defendant] travel at a much slower rate of speed, the court finds the allegations to be sufficient enough to rise to the level of common-law recklessness and withstand the motion to strike.”   Ahmed v. Robinson, Superior Court, judicial district of Waterbury, Docket No. CV–08–5008410–S (September 25, 2008, Upson, J.).  “[T]he defendant's actions were undertaken in reckless disregard of the consequences of which [the defendant] knew or should have known in that he operated his vehicle on a highway with a high volume of daily traffic controlled by traffic signals at an unreasonable rate of speed and without yielding to on-coming vehicles all in a reckless manner which actions caused a violent collision ․” (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.).  “[The defendant] deliberately operated a motor vehicle at a rate of speed much too fast for the traffic conditions then and there existing, and that he did not have enough time to slow down or turn to the left or right after realizing that the plaintiff had the right of way ․ [and] he knew or should have known that operating a motor vehicle at such a high rate of speed through a busy intersection without first ensuring that it was safe to enter such an intersection put the lives of other motorists at risk, including the plaintiff.”  (Internal quotation marks omitted.)   Patenaude v. Carleton, Superior Court, judicial district of Ansonia–Milford at Derby, Docket No. CV–13–6014379–S (December 5, 2013, Brazzel–Massaro, J.) [57 Conn. L. Rptr. 199].  “[T]he defendant ․ knew that he was driving in a congested area ․ and in spite of that knowledge, he took his eyes off the road to look at his car radio when under the circumstances it was obvious that such action posed a great risk of harm to other persons using the highway in front of his vehicle ․ [T]he defendant's wanton and reckless indifference to the rights and safety of others caused them injury.”   Florio v. DoCarmo, Superior Court, judicial district of Waterbury, Docket No. CV–03–0183675–S (July 8, 2004, Matasavage, J.).  “[The defendant] was traveling at an excessive rate of speed, despite his knowledge of heavy traffic on the road, that it was during the morning commute, the speed of other vehicles and the presence of a school bus, which would make frequent stops.”   Alterio v. Diaz, Superior Court, judicial district of Fairfield, Docket No. CV–00–0375823–S (July 13, 2001, Skolnick, J.)..  FN2. These decisions have determined that such allegations are sufficient.  “[T]hat [the defendant] recklessly operated a vehicle at an unreasonable rate of speed endangering the life of [the plaintiff] under conditions [the defendant] knew or should have known were dangerous enough to require [the defendant] travel at a much slower rate of speed, the court finds the allegations to be sufficient enough to rise to the level of common-law recklessness and withstand the motion to strike.”   Ahmed v. Robinson, Superior Court, judicial district of Waterbury, Docket No. CV–08–5008410–S (September 25, 2008, Upson, J.).  “[T]he defendant's actions were undertaken in reckless disregard of the consequences of which [the defendant] knew or should have known in that he operated his vehicle on a highway with a high volume of daily traffic controlled by traffic signals at an unreasonable rate of speed and without yielding to on-coming vehicles all in a reckless manner which actions caused a violent collision ․” (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.).  “[The defendant] deliberately operated a motor vehicle at a rate of speed much too fast for the traffic conditions then and there existing, and that he did not have enough time to slow down or turn to the left or right after realizing that the plaintiff had the right of way ․ [and] he knew or should have known that operating a motor vehicle at such a high rate of speed through a busy intersection without first ensuring that it was safe to enter such an intersection put the lives of other motorists at risk, including the plaintiff.”  (Internal quotation marks omitted.)   Patenaude v. Carleton, Superior Court, judicial district of Ansonia–Milford at Derby, Docket No. CV–13–6014379–S (December 5, 2013, Brazzel–Massaro, J.) [57 Conn. L. Rptr. 199].  “[T]he defendant ․ knew that he was driving in a congested area ․ and in spite of that knowledge, he took his eyes off the road to look at his car radio when under the circumstances it was obvious that such action posed a great risk of harm to other persons using the highway in front of his vehicle ․ [T]he defendant's wanton and reckless indifference to the rights and safety of others caused them injury.”   Florio v. DoCarmo, Superior Court, judicial district of Waterbury, Docket No. CV–03–0183675–S (July 8, 2004, Matasavage, J.).  “[The defendant] was traveling at an excessive rate of speed, despite his knowledge of heavy traffic on the road, that it was during the morning commute, the speed of other vehicles and the presence of a school bus, which would make frequent stops.”   Alterio v. Diaz, Superior Court, judicial district of Fairfield, Docket No. CV–00–0375823–S (July 13, 2001, Skolnick, J.).

FN3. Section 14–295 provides in relevant part:  “In any civil action to recover damages for 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 ․ 14–222 ․ and that such violation was a substantial factor in causing such injury, death or damage to property.”.  FN3. Section 14–295 provides in relevant part:  “In any civil action to recover damages for 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 ․ 14–222 ․ and that such violation was a substantial factor in causing such injury, death or damage to property.”

Adams, Taggart D., J.T.R.