Douglas A. Schalla et al. v. Albert Bove et al. (2015)

Memorandum of Decision Granting Motion to Strike (105.00)

1. Summary:  The Recklessness Referred to in General Statutes § 14–295 is Common–Law Disregard of a High Degree of Danger, and it Must be Pled Specifically

Practice Book § 10–39 permits a party to file a motion to strike to “contest ․ the legal sufficiency of the allegations of any complaint ․ or any one or more counts thereof, to state a claim upon which relief can be granted.”

General Statutes § 14–295 provides that in a personal injury case where “the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation” of certain statutes and that “such violation was a substantial factor in causing” a plaintiff's injury or damage, the trier of fact can award the party double or treble damages.

In his complaint's third count, the plaintiff Douglas Schalla alleges the defendant Albert Bove drove his car, “at an unreasonable rate of speed having due regard for the traffic, weather, width and use of the highway and the intersection of streets, in violation of C.G.S. § 14–218a” and “operated his vehicle recklessly at such a rate of speed as to endanger the lives of others in violation of C.G.S. § 14–222.”   Bove claims this language and the damages claim associated, “fail to allege sufficient facts setting forth what conduct is claimed to be reckless or deliberate.”   Bove is right.   Recklessness requires conduct showing disregard of a high degree of danger.   Bare allegations of driving at an “unreasonable rate of speed” and at “such a rate of speed as to endanger the lives of others” provide no facts sufficient to state a claim for liability based upon recklessness.

2. The Damages Statute Requires Allegations of Common–Law Recklessness

General Statutes § 14–295 is a damages statute, and Schalla seeks double or treble damages under it.   It does not create a cause of action.   This is important because, if it does not create its own cause of action, the allegations of recklessness must meet the common-law pleading requirement to be discussed below that the conduct alleged to be reckless must be specifically stated.

The statute's text says nothing about creating a cause of action.   It only provides for double or treble damages if someone deliberately or recklessly violates certain laws:

In any civil action to recover damages resulting from 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, 14–219, 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, death or damage to property.   The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle.

The statute is really no different than General Statutes § 52–560 which provides damages for the common-law tort of tree cutting:

Any person who cuts ․ any trees ․ without license of the owner ․ shall pay to the party injured five times the reasonable value of any tree intended for sale or use as a Christmas tree and three times the reasonable value of any other tree, timber or shrubbery ․

In 1916, in Avery v. Spicer, the Supreme Court held that such statutes, “do not give a new and independent right of action, and that their sole office is to prescribe the measure of damages in cases where compensatory damages would, in the absence of the statute, be recoverable.” ¹  Although Avery was decided nearly a century ago, the Supreme Court validated it as recently as 2013 in Caciopoli v. Lebowitz.²

Because § 14–295 creates no cause of action, the allegation of deliberate or reckless misconduct must be adequate under the common law.   The Supreme Court held in 1958 in Dumond v. Denehy, that “[s]imply using the word ‘reckless' or ‘recklessness' is not enough.   A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made.” ³  This is still good law too.   The Appellate Court relied on it verbatim in 2013 in DiTeresi v. Stamford Health System, Inc.⁴

3. At Common–Law, Recklessness Means Disregard for a High Degree of Danger

The Supreme Court defined recklessness in its 2003 decision in Frillici v. Town of Westport as, “conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ 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 ․” ⁵ The Court said it is, “at least clear ․ that such 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.” ⁶  These latter things are plainly only allegations of negligence.   Negligence, the Appellate Court held in 2002 in Bonan v. Goldring Home Inspections, Inc., “occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so.” ⁷

4. Schalla does not Adequately Plead Recklessness in Count 3

Schalla does not allege recklessness adequately.   Paragraph 5 of Count 3 of the complaint claims that Schalla's injuries were caused by the, “reckless conduct and statutory violations of the defendant.”   This by itself, of course, is inadequate because it obviously runs afoul of the Supreme Court's holding in Denehy that the specific conduct must be named.   But Schalla does not stop there.   He provides some more allegations, but not enough.

First, Schalla alleges Bove, “operated his vehicle at an unreasonable rate of speed having due regard for the traffic, weather, width and use of the highway and the intersection of streets, in violation of C.G.S. § 14–218a.”   Nothing about this claim distinguishes it from a mere negligence claim.   Indeed, this statute is named “travelling unreasonably fast”, and sets out a classic negligence formula which the allegations here must plainly exceed.   To do so, the complaint would have to indicate a high degree of danger by specifying something about the speed and conditions that would take it out of the realm of ordinary negligence.   Preceding it all by “reckless operation” does not help either.   It is the facts that count, not the word.

Second, Schalla alleges Bove, “operated his vehicle recklessly at such a rate of speed as to endanger the lives of others in violation of C.G.S. § 14–222.”   The bare bones claim that the speed was enough to “endanger the lives of others” is inadequate.   Schalla asserts a potential consequence of Bove's speed—lives in danger—without saying anything specific about that speed.   How did Bove's speed endanger the lives of others?   How close were the cars?   How heavy was the traffic?   Approximately how fast was Bove actually going?   Approximately how fast was Schalla going?   Schalla's allegations could be slapped verbatim into any auto accident complaint.   That is a fair indication that they are not specific enough under Denehy.   Schalla has done no more presumably because he mistakenly believes that, by merely alleging a violation of the statute, he alleges recklessness.

5. Conclusion:  Count 3 and the Associated Damage Claim are Stricken

Because Count 3 of Schalla's complaint purports to be in recklessness but does not allege it with the requisite specificity, it is stricken, along with the associated claim under § 14–295 for double or treble damages.

BY THE COURT,

Moukawsher, J.

FOOTNOTES

FN1. 90 Conn. 576, 583 (1916)..  FN1. 90 Conn. 576, 583 (1916).

FN2. 309 Conn. 62, 78 n.11 (2013)..  FN2. 309 Conn. 62, 78 n.11 (2013).

FN3. 145 Conn. 88, 91 (1958)..  FN3. 145 Conn. 88, 91 (1958).

FN4. 142 Conn.App. 72, 91 (2013)..  FN4. 142 Conn.App. 72, 91 (2013).

FN5. 264 Conn. 266, 278 (2003)..  FN5. 264 Conn. 266, 278 (2003).

FN6. Id..  FN6. Id.

FN7. 68 Conn.App. 862, 878 (2002)..  FN7. 68 Conn.App. 862, 878 (2002).

Moukawsher, Thomas G., J.