Matthew Byington v. Dang Do (2016)

MEMORANDUM OF DECISION RE MOTION TO STRIKE

The plaintiff, Matthew Byington has brought this action against the defendant, Dang Do, claiming damages for injuries sustained in a two-car accident which occurred in the Town of Waterford on September 5, 2015.  The complaint contains four counts:  negligence, negligence per se, common-law recklessness, and statutory recklessness in violation of C.G.S. Sec. 14–295.  The defendant has moved to strike both recklessness counts, on the grounds that they merely repeat the charges in the negligence counts and fail to allege facts sufficient to establish an “extreme departure from ordinary care” as required to find liability for common-law recklessness (see Agiolillo v. Buckmiller, 102 Conn.App. 697 (2007)) or “something more” than mere negligence as required to establish statutory recklessness.  See Smith v. Verma, 2013 WL 6916781 (Conn.Super.2013).

Both the common-law recklessness count and the statutory recklessness count incorporate by reference Paragraphs 1–23 of Count 1, the negligence count.  These paragraphs allege that the plaintiff at 4 p.m. on September 5, 2015 was proceeding northerly along Rt. 32, approaching the intersection of Mohegan Avenue Parkway and Hempstead Drive.  Para. 7. At that time, the complaint states that the defendant was approaching the same intersection from the north on Rt. 32, which at that point is a divided highway.  Para. 8 & 9. The complaint then alleges that the defendant began to execute a U-turn at the intersection, a maneuver that is not permitted at that location.  Para. 10 & 11.  The complaint states that, to make the turn, the defendant slowed his vehicle to a stop before entering the northbound lane.  Para. 12.  According to the complaint, when the defendant's vehicle entered the northbound lane, the plaintiff's on-coming vehicle was approximately 30 feet south of the intersection, approaching the intersection at about 45 mph.  Para. 14–15.  The vehicles then collided resulting in the plaintiff's injuries.  Para. 17.

Based on these allegations, the plaintiff claims in the common law count that the defendant operated his vehicle “․ in a reckless manner without regard to the width, traffic and use of the roadway, in violation of General Statutes Sec. 14–222.”  He further asserts that the defendant executed an illegal U-turn in violation of C.G.S. Sec. 14–242.”  Para. 19.

Further, he claims he suffered injuries “․ caused by the negligence and carelessness of the defendant ․” in one or more of the following ways:

a. In that he operated the vehicle in violation of General Statutes Secs. 14–222, 14–242 & 14–245;

b. In that he operated the vehicle without regard to the speed of such vehicle, the traffic upon the condition of the highway, and weather conditions (sic);

c. In that he failed to keep and operate the vehicle under proper and reasonable control;

d. In that he failed to keep a proper and reasonable lookout and to pay attention to where he was going;

e. In that he failed to apply his brakes in time to avoid the collision;

f. In that he operated the vehicle with reckless disregard for the safety of others;  and

g. In that he failed to sound his horn or give the plaintiff a timely warning, or any warning whatsoever, of the impending collision.

In Count 3, which charges common-law recklessness, the plaintiff added to the above allegations paragraph 30, stating, “In causing the collision, the defendant engaged in a conscious choice of a course of action with knowledge of the serious danger, or with reckless disregard for the danger, to others that his course of conduct posed to others.”  And in Count 4 charging statutory recklessness under Section 14–295, he added to the above allegations paragraph 33, stating “The plaintiff deliberately or with reckless disregard operated a motor vehicle in violation of Section 14–222 by operating his vehicle upon a public highway, municipal road, or district road in a reckless manner, without regard to the width, traffic and use of the roadway.”

The defendant argues that the factual pleadings regarding common-law recklessness are identical to the negligence pleadings and void of any “․ specific allegation setting out the conduct that is claimed to be reckless or wanton ․” citing Dumond v. Denehy, 145 Conn. 88, 91 (1958).  Accordingly, he submits that the common-law recklessness claim is deficient and should be struck, in accordance with the holding of Arteaga v. Dana, 2011 WL 3483607 (Sup.Ct., JD Fairfield).  As to the statutory recklessness count, the defendant argues that paragraph 33 “․ merely tracks the language of the statute ․,” and fails to include any additional facts to support the charge.  Accordingly, he asserts that in line with the holding of Smith v. Verma, supra. the fourth count should be struck for failure to allege “․ something more ․” than mere negligence.

In assessing a motion to strike, the court must construe the facts alleged in the complaint in “․ the manner most favorable to sustaining its legal sufficiency ․” Sherwood v. Danbury Hospital, 252 Conn. 193, 212–13 (2000).  “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  Internal Peter–Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270–71 (1998).

The defendant submits that while the “․ actions alleged in the complaint are clearly acts of negligence, thoughtlessness, inattention and poor judgment ․” citing Arteaga v. Dana, supra, if proven, they would not constitute proof of recklessness, common law or statutory, and that the mere allegations of common law and statutory negligence in counts 3 and 4 do not transform the factual allegations of negligence into a factual basis for the allegations of recklessness.

In response, the plaintiff does not contest the assertion that recklessness and negligence are separate causes of action with somewhat different basis for establishing liability.  However, he, citing Webster v. Bell, 2006 WL 2865724 (Sup.Ct. JD NL), submits that as long as the pleadings inform the court and opposing counsel that both causes of action are being pursued and that the language of the pleadings alleging the factual basis for negligence set forth a factual basis for the recklessness charges and those allegations are incorporated by reference in the recklessness counts, the recklessness counts should not be stricken.

In this case, the plaintiff alleges that the defendant made a U-turn on a divided highway, at a location where U-turns were not allowed.  Further, the plaintiff alleges that the defendant did so in the face of on-coming traffic, failing to sound his horn or give any warning of his maneuver.  If the plaintiff proves these allegations, the jury could very well find that the defendant “engaged in a conscious choice of a course of action, with knowledge of serious danger or reckless disregard for the danger ․ that his course of conduct posed to others ․” as alleged count 3, para. 30.  The plaintiff should not be penalized by having his common-law recklessness count struck, just because the factual basis for the count is initially stated in the negligence charge.  See Craig v. Driscoll, 262 Conn. 312, 343, n.22 (2003).  “To state a claim of recklessness ․ the [plaintiff] must allege facts demonstrating both egregious conduct and the requisite state of mind.”  Webster v. Bell, supra.  The plaintiff has done that, and to the extent trier of fact may assess the state of mind of the defendant at the time of the accident—specifically whether the decision to make the U-turn was a conscious choice or reckless disregard for the consequences as alleged in para. 30 or not—that determination is best made by the jury or trier based on the testimony and demeanor of witnesses at trial and need not be more specifically pled.

Similarly, in regards to the motion to strike Count 4, alleging statutory recklessness, the defendant appears to focus on the general allegations included in paragraphs 33 and 34 of this count and to ignore the specific allegations in Count 1, paragraphs 10–30, which are incorporated by reference in Count 4. Count 1 includes allegations of reckless conduct in violation of C.G.S. Sec. 14–222 on the part of the defendant, by making an illegal U-turn in the face of on-coming traffic.  Section 14–222 is one of the statutes specifically incorporated by reference into Section 14–295, and proof of its violation would be a valid basis for determining liability for statutory recklessness under Count 4.

A jury or a trial judge hearing this matter at trial may, after hearing testimony and reviewing the evidence, find that the defendant did not make the U-turn into on-coming traffic on a divided highway deliberately or with reckless disregard for the consequences, but based on the allegations in Counts 3 and 4, including those incorporated by reference, the jury or judge has a sufficient legal basis to find the defendant liable on both the counts challenged in this motion if the evidence supports the pleaded allegations.  See Wieland v. Sheffer, 2007 WL 2702930 (Sup.Ct., JD NL).

Accordingly the Motion to Strike is denied.

Bates, J.

Bates, Timothy D., J.