Blanca Rojas v. Jeffery Barman (2014)

Memorandum of Decision on Defendant's Motion to Strike (No. 102)

Procedural/Factual Background

On September 13, 2013, the plaintiff, Blanca Rojas, filed this action against the defendant, Jeffery Barman, for negligence and recklessness.   In the plaintiff's two-count complaint, she alleges the following facts.   On October 1, 2011, the plaintiff was a passenger in a motor vehicle operated by Fabio Rojas and underwent a collision while traveling southbound on Hillspoint Road in Westport, Connecticut.   At the same time, the defendant operated a motor vehicle traveling eastward while exiting a parking lot at 90 Hillspoint Road in Westport, Connecticut.   At that time and place, the defendant pulled out of the parking lot onto Hillspoint Road and violently collided with the Rojas vehicle.   As a result, the plaintiff was injured and suffered several “painful, permanent, severe, [and] disabling” physical injuries, as well as emotional distress, limitation of activities, and medical expenses.

In the first count, the plaintiff alleges the defendant negligently operated his motor vehicle, and consequently caused the plaintiff's injuries.   Specifically, the defendant, in violation of General Statutes §§ 14–218a and 14–219, operated his vehicle at an unreasonable speed;  failed to keep his vehicle under proper and reasonable control;  failed to keep a proper and reasonable lookout for other vehicles on the highway;  failed to apply the brakes properly as he reasonably should have;  failed to turn his vehicle to avoid a collision as he reasonably should have;  failed to sound his horn or give warning to the plaintiff of the impending collision;  was inattentive to the presence of other vehicles on the roadway;  operated a motor vehicle that was not equipped with adequate brakes in violation of General Statutes § 14–80h;  and failed to grant the right of way in violation of General Statutes § 14–247.

In the second count, the plaintiff states a claim for statutory recklessness under Conn. Gen.Stat. § 14–295.¹  He alleges that the defendant operated his motor vehicle with “deliberate and/or reckless disregard for the safety of the plaintiff.”   The count restates the same allegations of conduct found in count one, except adding that each alleged action was committed by the defendant in a deliberate and/or reckless manner.   Moreover, it asserts that the defendant's reckless violations of General Statutes §§ 14–218a, 14–219, and/or 14–222 were substantial factors in causing the plaintiff's injuries.

Count two also includes the following additional allegations not found in count one:  the defendant, without attention to other vehicles on the roadway, pulled out of the parking lot directly into moving traffic;  operated the vehicle in a reckless and dangerous manner in violation of § 14–222;  operated the vehicle with an obstructed view of the plaintiff's vehicle prior to the time of collision;  and made no attempt to evade the plaintiff's vehicle to avoid the collision.

On October 3, 2013, the defendant filed a motion to strike count two of the plaintiff's complaint and her corresponding prayer for relief requesting damages pursuant to General Statutes § 14–295 on the ground that “the plaintiff has failed to meet the legal standard required as a matter of law to state a claim for recklessness.”   In support of the motion, the defendant filed a memorandum of law.   In response, the plaintiff filed an objection to the motion to strike on October 18, 2013.   The matter was heard at the short calendar on November 18, 2013.

Discussion

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10–39(a).  “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 ․ 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.”  (Citation omitted;  internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

In his memorandum of law in support of his motion to strike, the defendant argues that the plaintiff's claim for recklessness under § 14–295 is legally insufficient because it “fails to allege specific facts or conduct.”   Relying upon a line of decisions of the Superior Court, the defendant contends that a claim for statutory recklessness must allege specific facts which establish the plaintiff's conduct as reckless, and that simply appending the word “recklessly” to the prior allegations of negligence is not sufficient to recover damages for recklessness under § 14–295.   Moreover, the defendant maintains that the plaintiff's allegations, in and of themselves, fail to establish that the predicate statutes enumerated in § 14–295 were violated with the requisite mental state of reckless disregard.   In response, the plaintiff counters that case law in Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003), overruled on other grounds by O'Dell v. Kozee, 307 Conn. 231, 265, 53 A.3d 178 (2012), permits a plaintiff's allegations of recklessness to mirror his allegations made in a prior count for negligence, so long as the court and opposing counsel are clearly notified that a separate claim for recklessness is also being asserted.   In any event, the plaintiff contends that the second count does include additional allegations that establish the defendant's conduct as reckless.   Further, the plaintiff argues that a cause of action for statutory recklessness under § 14–295 only requires a plaintiff to allege a violation of one of the enumerated statutes and that such a violation was a substantial factor in causing the plaintiff's injuries.   It is the plaintiff's position that specific allegations, as the defendant argues are required for common-law claims of recklessness, are not necessary to establish the statutory cause of action.   The plaintiff maintains that the allegations in the complaint that the defendant operated a motor vehicle without regard for the safety of others constitute a valid claim for recklessness under the statute.

“It is well established that causes of action for negligence and [recklessness] are separate and distinct causes of action.   There is a substantial difference between negligence and [reckless] conduct, and a complaint should employ language explicit enough to inform the court and opposing counsel clearly that [reckless] conduct is being asserted ․ The court may properly consider a recklessness claim which stems from the same factual situation as the [plaintiff's] earlier claims ․ and amplifies those claims only as to the egregiousness of the defendant's actions ․ General Statutes § 14–295 allows a party to select double or treble damages if one is injured as a result of certain [deliberately or reckless] statutory violations specifically enumerated.   Those statutory violations [include §§ 14–218a, 14–219, and 14–222].”  (Citations omitted;  internal quotation marks omitted.)   Lewis v. Willix, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–05–5000399–S (Aug. 15, 2006, Jennings, J.).

“The Appellate Courts have yet to clarify the degree of specificity required for pleading recklessness under General Statutes Section 14–295.   There is a split of authority within the Superior Courts regarding whether general allegations of recklessness are sufficient ․ One line of cases, representing the minority view, holds that a plaintiff must plead the specific facts constituting recklessness, above and beyond the facts constituting mere negligence ․ The majority point of view, on the other hand, is that a plaintiff, in addition to pleading facts constituting negligence, need only make the general allegations mentioned in section 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.)   Lussier v. Zarelli, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–05–5000389–S (Aug. 16, 2006, Jennings, J.).

“This court finds the ․ so-called ‘majority’ position more persuasive.”   Hand v. Moore, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–05–4003873–S (September 26, 2005, Jennings, J.) (40 Conn. L. Rptr. 83, 85).   Thus, “the specific pleading requirements for pleading common-law recklessness do not apply to pleading a case of statutory recklessness under § 14–295 ․” Id., 84.   The plaintiff must only make the general allegations provided for in the statute.  Id.

“The fact that the recklessness count relies on the same factual allegations as the negligence claim does not, in and of itself, provide [the defendants] with the basis for a motion to strike ․ While the courts require distinct pleading for each cause of action, it has been recognized that the most basic underlying fact will be the same throughout each count [of negligence and recklessness] since both counts are founded upon the same fundamental set of facts ․ If the alleged facts constitute recklessness ․ using the same facts in the negligence count does not prevent them from also being reckless.”   (Internal quotation marks omitted.)  Id., 85.

In this case, the allegations of recklessness in the second count of the plaintiff's complaint track the language and substance of § 14–295.   The complaint asserts that the defendant violated the enumerated statutes of §§ 14–218a, 14–219, and 14–222 while operating a motor vehicle with deliberate or reckless disregard for the safety of others, and that such violations were substantial factors in causing the plaintiff's injuries.   Thus, in line with majority of Superior Court cases on the matter, a cause of action for statutory recklessness has been sufficiently pled.   See Id. “[T]he defendant['s] motion to strike is subject to denial on that basis alone.”   Id.

Moreover, although the plaintiff's allegations of recklessness stem from the same factual allegations as the negligence claim, the plaintiff successfully distinguishes its pleading to establish two separate and distinct causes of action.   See Lewis v. Willix, supra, Superior Court, Docket No. CV–05–5000399–S.   By repeating the allegations found in the negligence count under a separate count with an explicit mention of their “deliberate and/or reckless” character, the second count “utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted.”   See Craig v. Driscoll, supra, 262 Conn. 343.   Thus, if the complaint's factual allegations constitute recklessness under the law, their use in the previous count of negligence provides no basis for a motion to strike.   See Hand v. Moore, supra, 40 Conn. L. Rptr. 85.

“To determine whether the plaintiff['s] amended complaint states a cause of action sounding in recklessness, we look ․ to the definitions of ․ reckless behavior.   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 ․ 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.”  (Internal quotation marks omitted.)  Craig v. Driscoll, supra, 262 Conn. 342.

Admitting the complaint's well-pleaded facts for purposes of deciding the motion to strike;  see Coe v. Board of Education, supra, 301 Conn. 116–17;  the defendant's conduct constitutes multiple examples of reckless behavior necessary to survive a motion to strike.   These include the plaintiff's claim that the defendant operated his motor vehicle recklessly in regard to width, traffic use, and weather conditions of the highway, in violation of § 14–222, and at a reckless rate of speed, in violation of §§ 14–218a and 14–219.   Even more, the plaintiff asserts that the defendant failed to take proper precautions as could have reasonably been made in order to avoid the collision.   These include:  controlling his vehicle away from other motorists, keeping a lookout, staying attentive, sounding his horn, yielding the statutory right of way, maintaining adequate brakes on his vehicle, and applying his brakes as needed.   As these behaviors indicate “a reckless disregard of the just rights [and] safety of others [and] of the consequences of the action,” the complaint states a valid cause of action sounding in recklessness.   Craig v. Driscoll, supra, 262 Conn. 342;  see also Lewis v. Willix, supra, Superior Court, Docket No. CV–05–5000399–S.   Thus, “[r]ather than adopting the defendant['s] conclusion that the allegations are not sufficient to state a cause of action for recklessness ․ we suggest that the plaintiff ['s] allegations of negligence were overinclusive.”  Craig v. Driscoll, supra, 262 Conn. 343 n.22.

In the alternative, even if the minority view requiring specific fact pleading for a cause of action in statutory recklessness were to be adopted, the allegations in count two would still satisfy that standard of specificity.   Count two includes additional allegations not found in count one.   Among them is the assertion that the defendant “was inattentive to other motor vehicles on the roadway and pulled out of a parking lot directly into moving traffic.”   (Emphasis added.)  “This additional allegation would satisfy the requirement of a specific allegation setting out the conduct that is claimed to be reckless or wanton” under the common-law standard for pleading recklessness.  (Internal quotation marks omitted.)  Hand v. Moore, supra, 40 Conn. L. Rptr. 86.

Conclusion and Order

For the foregoing reasons, the court holds that the plaintiff's allegations have sufficiently stated a cause of action for statutory recklessness under § 14–295, and the motion to strike is therefore denied.

Alfred J. Jennings, Jr.

Judge Trial Referee

FOOTNOTES

FN1. Defendant points out as a reason for striking the Second Count that it does not even allege that it is based on § 14–295, but the Second Count is clearly labeled “Second Count (Recklessness)” and plaintiff's Prayer for Relief No. 2 seeks “Damages pursuant to.  C.G.S. § 14–295.”   The court finds that the plaintiff is sufficiently on notice that Plaintiff's Second Count is a claim for statutory recklessness under § 14–295..  FN1. Defendant points out as a reason for striking the Second Count that it does not even allege that it is based on § 14–295, but the Second Count is clearly labeled “Second Count (Recklessness)” and plaintiff's Prayer for Relief No. 2 seeks “Damages pursuant to.  C.G.S. § 14–295.”   The court finds that the plaintiff is sufficiently on notice that Plaintiff's Second Count is a claim for statutory recklessness under § 14–295.

Jennings, Alfred J., J.T.R.