Opinion
FBTCV186080575S
06-27-2019
Jessica CRUZ v. David MASSEY et al.
UNPUBLISHED OPINION
OPINION
STEWART, J.
Defendants David Massey and Penske Leasing and Rental Company, Statutory Trust move to strike the second count of the amended complaint filed by Plaintiff Jessica Cruz, arguing that she has not stated a cause of action for statutory recklessness under Connecticut General Statutes § 14-295. For the reasons that follow, this court grants the motion to strike.
"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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). This court must construe the complaint "in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ..." Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). If, however, the plaintiff has failed to allege a valid cause of action, the motion to strike is properly granted. See Sturm v. Harb Dev., LLC, 298 Conn. 124, 127, 2 A.3d 859 (2010).
The second count purports to state a claim for statutory recklessness under General Statutes § 14-295, which states: "[i]n any civil action to recover damages from personal injury ... 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 ... and that such violation was a substantial factor in causing such injury ..."
Neither the Supreme Court nor the Appellate Court have addressed what is required for a statutory recklessness claim to survive a motion under the current version of General Statutes § 14-295. Numerous Superior Courts have considered motions to strike these claims. They all agree that, at a minimum, a plaintiff must allege three elements: (1) that the defendant deliberately or with reckless disregard operated his motor vehicle, (2) in violation of one of the predicate statutes, and (3) that the violation was a substantial factor in causing the plaintiff’s injury. See General Statutes § 14-295. The first question is whether the plaintiff has alleged these three elements.
In second count, the plaintiff repeats the first eight paragraphs of her negligence count and then adds paragraph 9, which reads:
The injuries and damages suffered by the Plaintiff, Jessica Cruz, were a result of the recklessness of the Defendant, David Massey, in that he deliberately and/or with reckless disregard operated said vehicle at an unreasonable, improper and excessive rate of speed having regard to the curves, width, traffic and use of said highway and the intersection of said streets and the weather conditions then and there existing in violation of § 14-218a of the Connecticut General Statutes which was a substantial factor in causing the Plaintiff’s injuries.
The court holds that these paragraphs state that the defendant deliberately or with reckless disregard operated the co-defendant’s vehicle in violation of one of the enumerated statutes in Section 14-295 and that this violation was a substantial factor in causing the plaintiff’s injuries.
The next question is whether the law requires a plaintiff alleging a § 14-295 violation to plead more than the bare elements of the statute. This court holds that a plaintiff must allege specific facts. Those facts must be sufficient to establish that the predicate statute (§ 14-218a) was violated with the required mental state (deliberately or with reckless disregard) and that these violations were a substantial factor in causing the plaintiff’s injury.
The court is aware that there is a split of Superior Court decisions on this question. After considering a number of decisions, the court concludes that the better-reasoned position is the so-called minority view that requires the allegation of specific facts in addition to the bare elements to state a violation of § 14-295. The split comes down to a dispute over whether that statute’s "specifically pleaded" language supplants the requirement of fact pleading.
The proponents of the majority view hold that the statute’s language is not ambiguous. See, e.g., Sears v. Brooks, Superior Court, judicial district of Hartford, Docket No. CV-15-6060624 (December 14, 2015, Noble, J.) (finding that § 14-295 unambiguously sets the minimum threshold for pleading cause of action); Ogletree v. Brown, judicial district of Stamford-Norwalk, Docket No. CV-93-0134778 (July 29, 1994, Lewis, J.) (finding that § 14-295 is a "very clear and explicit statute"). They also argue that legislative history supports their position. In an early decision, Judge Sheldon analyzed the legislative history of the 1988 amendment and concluded that the legislature "eliminated all speculation as to what the appropriate dividing line should be between conduct which does and does not fall within its proscription." Armstrong v. Smith, Superior Court, judicial district of Hartford, Docket No. CV- 94-0533947 (December 2, 1994, Sheldon, J.) (13 Conn.L.Rptr. 120). The court discussed the legislature’s narrowing of the predicate offenses to serious motor vehicle statutes and the legislature’s explicit requirement that a defendant must "deliberately or in reckless disregard" operate a motor vehicle in violation of those statutes. Based on this, the court concluded that alleging the three elements of the statute was enough to survive a motion to strike.
This court agrees with the decision in Armstrong that the legislature has clearly laid out the three elements that must be alleged, but this court holds that that does not lead to the conclusion that specific facts supporting these elements do not need to be alleged. Indeed, neither the language nor the legislative history of the statute suggests that the plaintiff does not have to plead facts that, if true, would establish these three elements.
Connecticut is a fact pleading state. See Practice Book § 10-1. The fact pleading requirement applies to all complaints, not just those claiming common-law recklessness. Therefore, the court disagrees that the conclusion that fact pleading is not required necessarily flows from the predicate for some majority view decisions that "[t]he specific pleading requirements for pleading common-law recklessness do not apply to pleading a case of statutory recklessness under § 14-295 ..." (Internal quotation marks omitted.) Biro v. Singh, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-11-6010146 (September 6, 2012, Genuario, J.); Hand v. Moore, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-2BJ-4003873 (September 26, 2005, Jennings, J.) (40 Conn.L.Rptr. 83). These decisions have argued that the legislature needed to specifically state in § 14-295 that it was requiring fact pleading. The proper analysis is the reverse- the legislature enacted and amended this statute against a backdrop of fact pleading in Connecticut’s common law and rules of procedure, and thus we should presume from its silence that it requires fact pleading.
The court agrees with the analysis in Kallaugher v. Basile, Superior Court, judicial district of Hartford, Docket No. CV-01-0804191-S (October 31, 2001, Beach, J.), that the legislature did not eliminate fact pleading when it enacted § 14-295:
The language of the statute does not specifically say anything at all about fact pleading or notice pleading-only that the trier of fact may award punitive damages when specific violations of certain statutes, and their causal effects, have been alleged. In the absence of any express language changing pleading requirements, and in the absence of any apparent or implied need to eliminate fact pleading in order to accomplish legislative intent, I think it unlikely that the legislature intended to change the procedural requirements of our practice. I have not been alerted to the existence of any statutorily created causes of action which, in the language creating the right, also require factual pleading, yet we require factual pleading. It would be incongruous for the legislature to have intended to create a marked exception to our practice without expressly saying so.Id.
In another decision that concluded that fact pleading is required to allege a violation of § 14-295, Judge Lager analyzed a long line of pre-1988 amendment Supreme Court decisions and determined that they all required fact pleading for violations of previous versions of that statute. Hopwood v. Sciarretta, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-01-0075934 (July 11, 2002, Lager, J.) . Turning to the present language of § 14-295, the court held that it "does not provide a basis to obviate the well-established rule that the complaint must clearly state those facts which would establish statutory liability for double or treble damages ..." She ultimately concluded:
Merely alleging a deliberate or reckless violation of one of the predicate statutes does not suffice to describe the conduct which would entitle a plaintiff to the extraordinary remedy available under § 14-295. To state a cause of action under § 14-295, a plaintiff must allege sufficient facts establishing that the predicate statute was violated with the requisite mental state, that is, deliberately or with reckless disregard, and that such violation was a substantial factor in producing the plaintiff’s injury.(Citations omitted.) Id. This court agrees with that standard and will apply it to this case.
Before applying this standard to the facts alleged in the complaint, this court makes it clear that it will examine whether the facts alleged could support a conclusion that the defendant deliberately or with reckless disregard operated his motor vehicle in violation of any of the three predicate statutes alleged and that this violation was a substantial factor in causing the plaintiff’s injury. This is the approach taken by the other courts that have held that specific facts must be alleged. See, e.g., Ruiz v. Lewinson, Superior Court, judicial district of Hartford, Docket No. CV-15-6056683 (April 16, 2015, Wahla, J.) (holding that there were no allegations that would indicate that a defendant who backed her car out of a driveway and into the plaintiff’s car "recognized a substantial risk of harm to others and consciously chose to act despite such knowledge"); Hopwood v. Sciarretta, supra, Superior Court, Docket No. CV-01-0075934 (holding that allegations that the defendant knowingly operated a wrecker vehicle with defective brakes and at an excessive rate of speed in a highly congested area sufficed for a claim under the statute); Kallaugher v. Basile, supra, Superior Court, Docket No. CV-01-0804191 (striking the statutory claim because "all that is pleaded is that the defendant saw the plaintiff stopped ahead of him, tried to stop and was unable to do so in time"). Notably, a number of the majority view decisions also looked at the supporting factual allegations. See, e.g., Biro v Singh, supra, Superior Court, Docket No. CV-11-6010146 (holding that the plaintiff in a rear-end crash on the Merritt Parkway had set out specific allegations that were distinct from mere negligence); Armstrong v. Smith, supra, Superior Court, Docket No. CV-94-0533947 (refusing to strike an allegation that the defendant abruptly drove his vehicle across traffic, without looking, into the car in which the plaintiff was traveling, in violation of a stop sign and in disregard of the right of way of the plaintiff’s car).
This case-specific analysis of the facts alleged is consistent with the Supreme Court’s approach when it addressed a motion to strike a common-law reckless infliction of emotional distress claim in Craig v. Driscoll, supra, 262 Conn. 312, 342, 824 A.2d 1003. In Craig, the plaintiff alleged that the defendant bar had a policy to continue to serve alcohol to a patron known to drink to excess, and that the defendant’s employees had served alcohol to that patron before the accident. Id., 314-16, 813 A.2d at 1006-08. Because this conduct was sufficient to establish recklessness, the court rejected the defendant’s argument that the only difference between the allegations in the negligence and recklessness counts was the mere addition of the words "willful, wanton and/or reckless actions." Id., 343, 813 A.2d at 1022-23.
Against this backdrop, the court has reviewed the complaint. There is nothing in the second count (including the paragraphs incorporated from the first count) to support the allegations that the defendant David Massey deliberately or with reckless disregard violated § 14-218a. Although a state of mind amounting to recklessness may be inferred from conduct, "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." Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003). The conduct must be "more than mere thoughtlessness or inadvertence, or simply inattention." Craig v. Driscoll, 262 Conn. 312, 343, 824 A.2d 1003 (2003), superseded on other grounds by statute. Here, Paragraph 4.d. alleges that the defendant was "inattentive," and Paragraph 4.h. alleges that he "did not use the degree of care which reasonable and prudent person would have used under like circumstances." These allege negligence, not recklessness or deliberateness. The plaintiff has not pled facts sufficient to state a claim for a violation of Section 14-295, and therefore, the court grants the motion to strike.