Opinion
NNHCV116017917S.
11-26-2012
Mary ESPOSITO v. Shawn OSINSKI.
UNPUBLISHED OPINION
ROBERT E. YOUNG, J.
BACKGROUND
This is an action for damages resulting from a motor vehicle accident which occurred on August 18, 2010 in Hartford, Connecticut. In the third amended complaint, the plaintiff administratrix alleges that her decedent was operating a motorcycle on the Exit 46 off ramp of eastbound Interstate 84 when he was struck by the defendant Shawn Osinski, who was operating a vehicle owned by defendant Howard Newton in the wrong direction on the off ramp while intoxicated, causing the plaintiff's decedent's injuries and death.
The operative complaint is in eight counts. Defendant Newton moves to strike three of the counts directed against him together with the related requests for relief. Count Five is a cause of action claiming vicarious liability of Newton for the common-law recklessness of the operator, Osinski. Count Six is a cause of action claiming vicarious liability of Newton for the statutory recklessness of Osinski. Count Seven is a cause of action asserting direct liability of Newton for the statutory recklessness of Osinski. The plaintiff has objected to the motion to strike. The parties presented oral argument as to their positions on November 5, 2012.
LEGAL STANDARD
" Whenever any party wishes to contest ... (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). " 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.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006).
In ruling on a motion to strike, " [t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). " 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 ... [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly ... rather than narrowly." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
" All well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted" (internal quotation marks omitted); Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006); what is necessarily implied [in an allegation] need not be expressly alleged. (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). " 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). However, " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
ANALYSIS
I. Count Five— Recklessness and/or vicarious common-law recklessness
In Count Five of the operative complaint, the plaintiff alleges that the defendants had spent the evening in each other's company and that defendant Newton knew that defendant Osinski was intoxicated but nevertheless directed Osinski to operate his vehicle. Newton argues that he cannot be held vicariously liable for the recklessness of Osinski. Under the " common-law doctrine, the owner of a motor vehicle is not vicariously liable for punitive damages resulting from the driver's reckless operation of the vehicle." Matthiessen v. Vanech, 266 Conn. 822, 837, 836 A.2d 394 (2003).
The plaintiff has responded with two alternate arguments. The first is that she is not asserting a claim of vicarious liability for recklessness. Rather, she is asserting a direct claim against Newton that his conduct in directing the operation of his motor vehicle by the visibly intoxicated Osinski was reckless. The plaintiff's second alternate argument is that, if she is claiming vicarious recklessness, such is permitted by an exception to Matthiessen.
As to the first argument, if the plaintiff is alleging recklessness on the part of Newton, the claim is inadequately pleaded. " In order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Berry v.. Loiseau, 223 Conn. 786, 811, 614 A.2d 414 (1992). While the plaintiff utilizes some allegations of Osinski's recklessness by incorporation of language from a prior count in ¶ 7, she does not assert those allegations as to Newton. Therefore, to the claim of direct common-law recklessness of Newton, the motion to strike must be granted.
The wording of the allegations in Count Five appears to assert a claim of vicarious liability. Specifically, the plaintiff alleges in ¶ 14 that Newton is liable to the plaintiff " for the acts and omissions of the defendant driver, Shawn Osinski" in various ways. As Newton asserts, ordinarily, a defendant owner who is innocent cannot be held liable on a claim of vicarious recklessness of an operator. Matthiessen, 266 Conn. 837. In response, the plaintiff offers her second argument, that she is not asserting a claim of direct recklessness, but rather is asserting a claim of vicarious liability of Newton for the reckless conduct of Osinski.
Our Appellate Court has recognized such an exception to Matthiessen. In Stohlts v. Gilkinson, 87 Conn.App. 634, 687 A.2d 860 (2005), the court held that, where the defendant principal is not innocent but controlled the actions of his agent, imposing his will and his instructions were being followed, the principal could be held liable for punitive damages. Id., at 654-55. " Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, (a) the principal or a managerial agent authorized the doing and the manner of the act, or (b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the principal or a managerial agent of the principal ratified or approved the act." 4 Restatement (Second), Torts § 909 (1979).
If the plaintiff is, indeed, alleging a claim of vicarious liability as she asserts in her second argument, this could be a viable cause of action. The allegations against Newton are not that he was an innocent vehicle owner but rather that he actively participated in the events which precipitated the motor vehicle accident. In her memorandum in opposition to the motion to strike, the plaintiff asserts all of the elements necessary to plead vicarious liability under Stohlts.
However, these elements are not pleaded in the complaint. While the plaintiff alleges that Newton " authorized" or " directed" Osinski to do certain things, the plaintiff has failed to allege that Newton controlled the actions of Osinski, imposed his will or that Newton's instructions were being followed. These necessary elements must be pleaded for a legally sufficient claim under the theory advanced under Stohlts.
In summary, as to Count Five, the plaintiff has neither adequately pleaded theories of independent recklessness as to Newton nor of Newton's vicarious common-law liability as principal. Therefore, the court grants the motion to strike Count Five as well as the plaintiff's ancillary demands for relief as to this count.
II Count Six— Vicarious double/treble damages under General Statutes § 14-295
In Count Six of the operative complaint, the plaintiff alleges that defendant Newton is liable to the plaintiff for double and treble damages due to the reckless acts and omissions of the defendant Osinski pursuant to Connecticut General Statutes Section 14-295." ,
General Statutes § 14-295 states,
Under this statute, the plaintiff could not receive both double and treble damages against a defendant. It is presumed that the plaintiff is seeking an award of one or the other.
As to the viability of a statutory vicarious liability claim, previously in Priore v. Longo-McLean, Superior Court, judicial district of New Haven at New Haven, Docket No. NNH CV10-6007283 S (September 14, 2012) [ 54 Conn. L. Rptr. 686], this court adopted the analysis of the trial court in Aubin v. Moosup Post No. 10284, Superior Court, judicial district of Windham at Putnam, Docket No. WWM CV 11-6004605 S (April 10, 2012, Vacchelli, J.):
There is a split of authority among the Superior Court judges as to whether a cause of action under General Statutes § 14-295 may lie against the owner of a family car when a member of the family is charged with reckless driving, or if the owner gave authorization or permission. Some courts have granted motions to strike § 14-295 counts and the corresponding requests for double or treble damages. See, e.g. Keough v. Dayton Construction, Superior Court, judicial district of Waterbury, Doc. No. CV 09-5016265 (November 23, 2011, Blawie, J.); Goodkind v. Sharma, Superior Court, judicial district of New Haven, Doc. No. CV 02-282415 (November 25, 2003, Frazzini, J.); Krisak v. Pendagast, Superior Court, judicial district of Fairfield, Doc. No. CV 263835 (June 21, 1993, Lager, J.) [ 9 Conn. L. Rptr. 286]. Others have not. See, e.g., Santillo v. Arredono, Superior Court, judicial district of New Haven, Doc. No. 442323 (March 21, 2001, Blue, J.) [ 29 Conn. L. Rptr. 458].
This court is persuaded by the analysis used by the courts that have stricken such claims due to the plain language of General Statues § 14-295. The court is bound to follow the text if there is no ambiguity in that language. " The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply ... In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered ... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter ..." (Citations omitted; internal quotation marks omitted.) Grady v. Somers, 294 Conn. 324, 333, 984 A.2d 684 (2009). The language of the statute imposing liability and punitive-type damages used in General Statues § 14-295 is unambiguous. It applies only to drivers.
In the present case, the plaintiff has not alleged in Count Six, either directly or through incorporation, the relationship between the operator and the owner. In reading the complaint in a light most favorable to the plaintiff, it is presumed that the plaintiff is asserting a claim of statutory agency under General Statutes § 52-183. While Priore and Aubin concerned the family car doctrine, General Statutes § 52-182, the analysis is the same for § 52-183.
The language of General Statutes § 14-295 speaks only of multiplied damages against those who drive recklessly, not the owners of the vehicles. As such, this statute does not afford a statutory remedy against owners. The legislature has, in the past, imputed multiple damages to certain owners. General Statutes § 14-154a, now abrogated, is one example. There is no indication that the legislature wished to do so in this statute. The court (Sheldon, J.) in Reis v. Hendel, Superior Court, judicial district of Hartford at Hartford, Docket No. HHD CV 10 6016353 S (September 7, 2011) [ 52 Conn. L. Rptr. 526], also found that the statute was unambiguous but nevertheless conducted an extensive and thorough examination of the legislative history of this issue and an analysis which concludes that § 14-295 does not provide vicarious liability of non-operator owners of motor vehicles, which this court also adopts. Therefore, the court grants the motion to strike Count Six as well as the plaintiff's ancillary demands for relief as to this count.
III Count Seven— Direct double/treble damages under General Statutes § 14-295
In Count Seven, the plaintiff again alleges a claim of double or treble damages against defendant Newton pursuant to General Statutes § 14-295. However, in this count, the plaintiff does not allege the vicarious liability of Newton. Rather, the plaintiff alleges that Newton is directly liable to the plaintiff under the statute for his own conduct in directing the activities of Osinski. Defendant Newton, in his motion to strike, characterizes this claim as one of reckless entrustment. It does not appear that this is the claim. Rather, it is a claim that Newton was statutorily reckless in controlling the conduct of Osinski.
The analysis of section II above applies here. Generally, an owner who is not operating the vehicle cannot be held liable under § 14-295. Matthiessen, 266 Conn. 837. The plaintiff asserts that the Stohlts exception applies here.
In Faggio v. Brown, Superior Court, judicial district of Middlesex, Complex Litigation Docket No. X04 CV 054003488 (June 12, 2007, Beach, J.) [ 43 Conn. L. Rptr. 643], the court was presented with a similar factual situation, although it was presented in the context of a motion for summary judgment. In that case, the defendant newspaper publisher trained its delivery people to deliver its papers in a manner which caused the operators to drive in contravention of motor vehicle statutes, which ultimately led to the subject accident. The court in Faggio found that the Stohlts exception could apply. As there were material issues of fact, the court denied the motion for summary judgment.
In our case, a cause of action based upon a Stohlts exception may be valid, but it is insufficiently pleaded. As with Count Five, while the plaintiff alleges that Newton " authorized" or " directed" Osinski to do certain things, the plaintiff has failed to allege that Newton controlled the actions of Osinski, imposed his will or that Newton's instructions were being followed. On that basis, the court grants the defendant's motion to strike Count Seven as well as the plaintiff's ancillary demands for relief as to this count.
ORDER
The defendant's motion to strike (139.00) is granted. The objection to same (140.00) is overruled.
In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, 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, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property. The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle.