Opinion
No. CV 04-0831312 S
April 20, 2004
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE THE SECOND AND THIRD COUNTS OF THE PLAINTIFF'S COMPLAINT DATED JANUARY 8, 2004
FACTS
The plaintiff in this action alleges personal injury resulting from an automobile accident on February 6, 2002 while he was walking his dog on the Boulevard that intersects with Castlewood Road in the Town of West Hartford. He was attempting to cross Castlewood Road using the crosswalk at the intersection of Boulevard and Castlewood Road when the defendant, Robert Fowler, operating defendant Linda Filon's automobile, struck him and his dog while Robert Fowler was attempting to make a left-hand turn into Castlewood Road. The defendants, Robert Fowler and Linda Filon, on or about February 18, 2004 filed this Motion to Strike the Second and Third Counts of the Plaintiff's Complaint. A hearing was held before this Court on April 5, 2004, the matter was continued by agreement in order to permit the plaintiff to file a written objection to the Motion to Strike which he did by Objection dated April 16, 2004. By letter of the same date, counsel for the plaintiff advised this Court that all parties agreed that this Court may decide the matters on the papers.
STANDARD OF REVIEW
A motion to strike challenges the legal sufficiency of a pleading, including special defenses and counterclaims. Practice Book § 152, now § 10-39; see generally Mingachos v. CBS, Inc., 196 Conn. 91, 491 A.2d 368 (1985) (pleadings); see also Krasnow v. Christensen, 40 Conn. Sup. 287, 288, 492 A.2d 850 (1985) (special defenses); Fairfield Lease Corp. v. Roman's Auto Service, 4 Conn. App. 495, 496, 495 A.2d 286 (1985) (counterclaims). The motion admits well-pleaded facts but does not admit any legal conclusions or the truth or accuracy of opinions stated in the pleadings. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980). In ruling on a motion to strike, the court is limited to the facts alleged in the challenged pleadings. King v. Board of Education. 195 Conn. 90, 93, 486 A.2d 1111 (1985).
The court must construe the facts pleaded in the light most favorable to the pleader. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988). If any facts alleged in the pleading would support a cause of action, the motion must fail. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545 (1980).
ISSUES 1. Does the Second Count Which Claims Common Law Recklessness, State a Cause of Action?
The short answer is no. The Court agrees that the plaintiff may plead in the alternative, and the fact that the allegations of negligence in the First Count are the same as the allegations in the Second Count with the addition in the Second Count in Paragraph 8 that:
Upon information and belief, the defendant Robert Fowler, with knowledge of its consequences and in disregard of his actions, drove his vehicle recklessly is not fatal to the Second Count.
However, as stated by the plaintiff in his Objection "the test is whether the facts alleged establish a reckless cause of action." (Emphasis added.) Connecticut is a fact pleading state, and this Court finds that "with knowledge of its consequences and in disregard of his actions" are not sufficient facts to state a common-law cause of action in recklessness. Accordingly, the Motion to Strike Count Two is granted.
2. Has the Plaintiff Stated a Cause of Action in Count Three in Accordance with C.G.S. § 14-295?
The Court has reviewed said statute and the Third Count of the Complaint and finds that the plaintiff has properly pleaded the statutory cause of action under the statute. See Auger v. Baddeley, 1997 W.L. 16840 (Conn.Super.), 18 Conn.L.Rptr. 483, Judicial District of Tolland, Docket No. CV 9660334 S, dated January 13, 1997, Rittenband, J. The Court sees no reason to depart from its ruling in that case. Accordingly, the Motion to Strike Count Three is denied.
Rittenband, JTR