Opinion
No. CV 09 5009996
June 19, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #108
FACTS
This action involves a claim to recover for the personal injury suffered by the plaintiff after a shopping cart filled with cases of soda allegedly fell on top of her. The plaintiff's complaint contains a single count alleging negligence. On April 8, 2009, the defendant filed its amended motion to strike paragraph 8, sections (b), (c), and (e) of the plaintiff's complaint. Oral argument was heard on this matter on April 27, 2009.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771, 802 A.2d 44 (2002). "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.) Commissioner of Labor v. C.J. M. Services, Inc., 268 Conn. 283, 292-93, 842 A.2d 1124 (2004).
The sections that the defendant moves to strike state: "(b) in that they failed to render assistance to the Plaintiff when she requested help; (c) in that the employee followed the Plaintiff into the parking lot but did nothing to assist her in pushing the shopping cart to her car; . . . (e) in that the employee of the Defendant corporation failed to intervene when the shopping cart tipped and thereby allowed the Plaintiff to be dragged to the ground and injured." The defendant moves to strike these sections on the grounds that the defendant owed the plaintiff no legal duty, and even if there did exist a duty, it would be impossible for the plaintiff to establish the claims contained in these sections.
"Although there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense . . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count . . . However, the weight or authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action." (Internal quotation marks omitted.) Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, Docket No. CV 06 5007079 (May 21, 2007, Tanzer, J.) (43 Conn. L. Rptr. 458); see also Zamstein v. Marvasti, 240 Conn. 549, 553, 692 A.2d 781 (1997) (noting that trial court "struck paragraph twenty-eight of the plaintiff's complaint because the court construed it as a claim for loss of filial consortium . . ."). A cause of action is defined as a "single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief." (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129, 788 A.2d 83 (2002).
The defendant has moved to strike specific subparagraphs of the plaintiff's complaint. These paragraphs do not set forth the plaintiff's entire cause of action but rather describe part of the factual basis for which her claim exists as required by Connecticut's fact pleading rules, set forth in Practice Book § 10-1. These facts are not, however, a group that would, alone, entitle the plaintiff to relief. They do not state a cause of action and therefore the defendant's motion to strike is improper under the majority rule in Connecticut.
Further, the defendant does not dispute the plaintiff's claim that she was shopping at the supermarket as a business invitee at the time of her injury. The law with respect to this kind of a case is clear. The plaintiff is correct that as a business invitee, the defendant owed her a duty to maintain the premises in a reasonably safe condition. Martin v. Stop Shop Supermarket Cos., 70 Conn.App. 250, 251, 796 A.2d 1277 (2002). Whether this duty was breached is a question for another day. In deciding a motion to strike it is this court's duty to take all well pleaded facts as admitted.
For the foregoing reasons, the defendant's motion to strike paragraph 8, sections (b), (c), and (e) of the plaintiff's complaint is denied.