Raymond S. Deptulski, Jr., Administrator v. LLC (2016)

RULING RE DEFENDANTS' MOTION TO STRIKE

In this case, the plaintiff, Raymond S. Deptulski, Jr., Administrator of the Estate of Johnathan M. Deptulski, alleges that the decedent, Johnathan M. Deptulski, was killed when a defective staircase at the Nutmeg Woods Apartments at 23 North Hawthorne Drive in New London, Connecticut, collapsed under him, causing him to fall to his death.  The operative First Amended Complaint is in two counts against two defendants.  The defendants are Ansonia Acquisitions I, LLC and Beachwood Residential, LLC. As to both defendants, the plaintiff alleges, in Count One, negligence, and, in Count Two, recklessness.  The plaintiff seeks punitive damages corresponding to the recklessness claim in the Second Count.  Defendants move to strike Count Two, claiming that this count is legally insufficient as a matter of law because (a) it alleges merely passive conduct that amounts to no more than negligence, if proven;  and because it fails to allege the necessary indicia of the defendant's state of mind at the time of the incident to sustain the claim.  For the following reasons, the court disagrees with some of the defendants' arguments but nevertheless agrees that Count Two is legally insufficient.  Therefore, the motion is granted.  Count Two of the First Amended Complaint, and the corresponding request for punitive damages in the prayer for relief, are stricken.

I

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted ․ A motion to strike ․ consequently, requires no factual findings by the trial court ․ We take the facts to be those alleged in the complaint ․ and we construe the complaint in the manner most favorable to sustaining its legal sufficiency ․” (Citations omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “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.”  (Citation omitted;  internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).

While “[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.”  (Citation omitted;  internal quotation marks omitted;  emphasis in original.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Citations omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

II

The plaintiff's factual allegations in the negligence count and recklessness count are identical.  While careful not to make allegations as to the condition of the specific set of stairs that collapsed under the decedent, plaintiff generally alleges that the defendants “had specific and/or constructive notice that the stairs at Nutmeg Woods Apartments were defective and in a hazardous condition for users thereof, yet the defendants failed to inspect, repair and/or make safe the area or warn users of the danger associated with the stairs.”  First Amended Complaint, Count One, para. 9. The only difference between the two counts is that, in the negligence count, the plaintiff alleges that the defendants' actions amounted to “negligent acts or omissions.”  Count One, para. 10.  In the recklessness count, he alleges that those same actions amounted to “reckless, willful and/or wanton acts or omissions.”  Count Two, para. 15.  The Second Count, plaintiff alleges as follows:

15. The injuries caused to Johnathan M. Deptulski were proximately and directly caused to a substantial degree by one or more of the following reckless, willful and/or wanton acts or omissions of the defendant, acting through its agents, servants and/or employees:

(a) creating and /or maintaining a hazardous condition on the property;

(b) failing to inspect the stairs, and/or to inspect them adequately;

(c) failing to adequately repair the stairs despite specific notice of the hazards created by such condition and injuries associated therewith;

(d) failing to post a warning sign, or warning signs to alert users of the hazardous condition of the stairs while knowing that such defect was not obvious to the average person;

(e) failing to maintain the common property in a reasonably safe condition and keep it safe for invitees upon the property;  and

(f) otherwise failing to act as a reasonable landowner/manager under the conditions then and there existing.

First Amended Complaint, Count Two, para. 15.

To state a claim for common-law reckless misconduct, the pleader must set forth specific, subordinate, supporting facts.  See Dumond v. Denehy, 145 Conn. 88, 90, 139 A.2d 58 (1958);  D. Wright, J. FitzGerald, W. Ankerman, Connecticut Law of Torts (Third Ed., 1991), § 61.  “Simply 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.”  Dumond v. Denehy, supra, 145 Conn. 91.  Defendants argue that in these counts that plaintiff has simply realleged his negligence claims, and has then listed conclusory claims of recklessness without facts to support them.  This, they argue, is insufficient.  The court agrees.

The plaintiff must allege facts showing recklessness.  “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 ․ It is such 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 highiy unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  (Citations omitted;  internal quotation marks omitted.)  Craig v. Driscoll, 262 Conn. 312, 342–43, 831 A.2d 1003 (2003).  “[S]uch aggravated negligence must be more than mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention ․” (Citation omitted;  internal quotation marks omitted.)  Doe v. Hartford Roman Catholic Diocesan Corporation, 317 Conn. 357, 383, 119 A.3d 462 (2015).  The plaintiff has alleged facts amounting to nothing more than negligence in Count Two, not recklessness, and simply using the word reckless does not suffice.

Defendants also argue that passive conduct or omissions, such as a failure to inspect or repair, can never, as a matter of law, rise to the level of conduct that would constitute recklessness.  The court is not persuaded that there is any such per se rule in the law.  No such rule has been articulated by any appellate court, and the trial courts that have addressed the issue are in disagreement.  See Jo–Ann White–Hall v. Lyons, Superior Court, Judicial District of New Haven, Doc. No. CV 13–6005753 (June 18, 2013, Fischer, J.) [56 Conn. L. Rptr. 254] (collecting cases).  This court believes that the better approach is to evaluate the particular allegations of the complaint, regardless of whether the conduct is an act of commission or omission, and to determine whether they show facts that “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.”  (Citation omitted;  internal quotation marks omitted.)  DiTeresi v. Stamford Health System, Inc., 142 Conn.App. 72, 90, 63 A.3d 1011 (2013);  accord, Tiffany v. Spring Lake Village Condominium 1, Inc., Superior Court, Judicial District of New Britain, Doc. No. CV 14–6024824 (December 17, 2014, Gleeson, J.).  Utilizing that test, and for the same reasons previously explained, the instant complaint does not allege facts showing recklessness.

III

For all of the foregoing reasons, the defendants' motion to strike is granted.  Count Two and the corresponding claim for punitive damages in the prayer for relief are stricken.

Robert F. Vacchelli

Judge, Superior Court

Vacchelli, Robert F., J.