Opinion
No. CV03 08 26 18
April 2, 2004
MEMORANDUM OF DECISION
FACTS
On July 30, 2003, the plaintiff, Lauren Fitzgerald, filed a seven-count complaint against the defendants, Marcus Dairy, Inc. (Marcus Dairy) and Herminio Perez (Perez). This action arises out of injuries and losses allegedly sustained by the plaintiff as a result of a motor vehicle collision that occurred on February 12, 2002. The plaintiff alleges that the motor vehicle owned by Marcus Dairy and operated by Perez rolled over and onto the motor vehicle in which the plaintiff was operating.
In the first count of her complaint, the plaintiff alleges that:
1. On February 12, 2002, she was operating her motor vehicle in a northerly direction on Orange Center Road, in Orange, Connecticut;
2. Perez was operating a motor vehicle owned by Marcus Dairy in an easterly direction on Derby Avenue in Orange, Connecticut; and
3. While Perez was attempting to turn south onto Orange Center Road, the vehicle he was driving "rolled over and onto the plaintiff's vehicle," causing injury to the plaintiff.
In paragraph four of the first count, the plaintiff further alleges that Perez was negligent or careless "in any one or more of the following ways":
A. he was inattentive, failed to keep a proper lookout and failed to pay attention to where he was going;
B. he operated the vehicle at a greater rate of speed than was warranted and the speed was excessive, unreasonable and improper;
C. he failed to sound the vehicle's horn or to give the plaintiff any warning of the collision;
D. he violated § 14-80h(b) by operating a vehicle with defective or inadequate brakes, or by failing to apply those brakes;
General Statutes § 14-80h(b) provides: "(b) The service brake system, upon actuation by the operator, shall be effective in directly applying braking action on all wheels except as provided in the Code of Federal Regulations Title 49, Section 393.42, as amended. The service brake system employed on vehicles manufactured after January 1, 1968, shall be so designed and constructed that the wheel brakes on at least one axle operate separately from the wheel brakes on at least one other axle in a manner that will provide braking effort on at least two wheels in the event of a failure in any singular part or component of the service brake system, excluding the common actuation pedal or lever and excluding a structural failure of the brake distribution mechanism housing, effectiveness indicator body or other housing common to the divided brake actuation system. The service brakes, upon application by the operator, shall be capable of bringing the motor vehicle to a controlled stop within such distance and under such conditions as prescribed by the commissioner."
B. he failed to keep the vehicle under proper control;
F. he did not turn the vehicle in time to avoid the collision;
G. he did not "exercise the care of a reasonable and prudent operator . . .";
H. he violated General Statutes § 14-218a; and
General Statutes § 14-218a provides in relevant part: "(a) No person shall operate a motor vehicle upon any public highway of the state, or road of any specially chartered municipal association or any district organized under the provisions of chapter 105 a purpose of which is the construction and maintenance of roads and sidewalks, or on any parking area as defined in section 14-212, or upon a private road on which a speed limit has been established in accordance with this subsection, or upon any school property, at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions."
I. he violated General Statutes § 14-242 (a).
General Statutes § 14-242(a) provides: "No person shall turn a vehicle at an intersection unless the vehicle is in a proper position on the highway as required by section 14-241, or turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a highway unless such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner provided in section 14-244."
The same allegations are set forth in the second count against the defendant Marcus Dairy, wherein the plaintiff alleges that Perez was the "agent, servant and/or employee of the defendant Marcus Dairy, Incorporated and [was] operating a vehicle owned by Marcus Dairy, Incorporated in the scope of his authority and/or employment."
In the fourth count of her complaint, the plaintiff incorporates by reference paragraphs one through four of the second count, and in addition to the specifications of alleged negligence summarized above, the following is added as paragraph five of the fourth count:
The defendant owner . . . is liable to the plaintiff under Section 14-295 because . . . Perez . . . deliberately or with reckless disregard: CT Page 6198
a. Operated said vehicle in violation of . . . 14-222 and said violation was a substantial factor in causing the plaintiff's injuries;
General Statutes § 14-222 provides in relevant part: "(a) No person shall operate any motor vehicle upon any public highway of the state, or any road of any specially chartered municipal association or of any district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or in any parking area for ten cars or more or upon any private road on which a speed limit has been established in accordance with the provisions of section 14-218a or upon any school property recklessly, having regard to the width, traffic and use of such highway, road, school property or parking area, the intersection of streets and the weather conditions. The operation of a motor vehicle upon any such highway, road or parking area for ten cars or more at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle, or the operation, downgrade, upon any highway, of any motor vehicle with a commercial registration with the clutch or gears disengaged, or the operation knowingly of a motor vehicle with defective mechanism, shall constitute a violation of the provisions of this section. The operation of a motor vehicle upon any such highway, road or parking area for ten cars or more at a rate of speed greater than eighty-five miles per hour shall constitute a violation of the provisions of this section."
b. Operated said vehicle in violation of . . . Section 14-218a and said violation was a substantial factor in causing the plaintiff's injuries.
In the third count, the same allegations set forth in subparagraphs (a) and (b) above are set forth directly against Perez.
Thus, in contrast to the detailed allegations in the first and second counts of the complaint concerning alleged negligent acts by Perez, the third and fourth counts contain no allegations of specific actions by Perez that were deliberate or reckless.
In the fifth and sixth counts, the plaintiff alleges that the collision was caused by the "reckless, willful and malicious conduct of the defendant operator." In the first and second counts, the plaintiff alleges that the collision was caused by the "negligence and carelessness of the defendant operator." The alleged conduct constituting negligence and recklessness is the same in the first, second, fifth and sixth counts, except for an additional allegation in the fifth and sixth counts of a violation of § 14-222(a). Thus, such four counts contain negligence allegations that Perez was inattentive, that he failed to keep a proper lookout, that he failed to pay attention, that he failed to sound the horn of the motor vehicle, that he failed to give timely warning, that he failed to apply his brakes in time to avoid the collision and that he failed to exercise the care of a reasonable and prudent operator.
Before the court is the defendants' motion to strike the third, fourth, fifth and sixth counts of the plaintiff's complaint. As set forth above, the third count alleges recklessness based on General Statutes § 14-295 because Perez "deliberately or with reckless disregard" operated the Marcus Dairy vehicle in violation of General Statutes §§ 14-222 and 14-218a. The fourth count alleges liability against Marcus Dairy pursuant to § 14-295 because Perez "deliberately or with reckless disregard" operated such vehicle in violation of §§ 14-222 and 14-218a. The fifth count alleges common-law recklessness against Perez as the operator of such motor vehicle for his "reckless, willful and malicious conduct" including but not limited to violations of General Statutes §§ 14-80h(b), 14-218a, 14-222(a) and 14-242(a). The sixth count alleges liability against Marcus Dairy for Perez's "reckless, willful and malicious conduct" for the same violations as set forth in the fifth count. In addition, the sixth count alleges that "Perez was the agent, servant and/or employee of the defendant Marcus Dairy, Incorporated and operating a vehicle owned by Marcus Dairy, Incorporated in the scope of his authority and/or employment." In the prayer for relief, the plaintiff seeks "double or treble damages" pursuant to § 14-295 as to the third and fourth counts, and "compensatory and punitive damages" as to the fifth and sixth counts.
On July 14, 2003, the defendants requested that the plaintiff revise the paragraphs in the third, fourth, fifth and sixth counts pertaining to the "reckless" conduct of Perez. In particular, the defendants requested the plaintiff "[t]o state the specific conduct which plaintiff claims was recklessness on the part of the defendant driver" in the third and fourth counts and "[t]o state specific facts sufficient to support a finding that the defendant driver's conduct was `reckless, willful and malicious' "in the fifth and sixth counts. The plaintiff objected to each of these requests on the grounds that the proper way to attack the legal sufficiency of the plaintiff's allegations is by way of a motion to strike, not a request to revise. Moreover, the plaintiff claimed that she properly alleged recklessness claims. The court, Upson, J., sustained the plaintiff's objection on October 21, 2003.
On December 15, 2003, the defendants filed a motion to strike the third, fourth, fifth and sixth counts of the plaintiff's complaint, accompanied by a supporting memorandum of law. On January 2, 2004, the defendants filed a supplemental memorandum of law in support of their motion to strike. The plaintiff filed an objection to the motion to strike on February 26, 2004.
DISCUSSION
"The function of a motion to strike is to test the legal sufficiency of a pleading . . ." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
A. Statutory Recklessness
The defendants move to strike the third and fourth counts on the ground that the plaintiff has failed to state a claim of recklessness because the plaintiff has not alleged "facts showing specific reckless conduct which goes beyond ordinary negligence as a basis for awarding . . . damages pursuant to General Statutes § 14-295." The plaintiff counters that she has sufficiently pleaded a claim pursuant to § 14-295 because she has pleaded the language set forth in such statute.
On the date of the accident, § 14-295 provided: "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."
Public Act 03-250, effective October 1, 2003, and applicable to causes of action accruing on or after that date, amended General statutes § 14-295 by adding the following sentence: "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."
Neither the Supreme Court nor the Appellate Court has yet addressed the pleading requirements for recklessness under § 14-295. As a result, there is a split of authority among the Superior Court judges as to what degree of specificity is required in pleading recklessness. One viewpoint, sometimes referred to as the "majority viewpoint," is that "a plaintiff, in addition to pleading facts constituting negligence, need only make the general allegations mentioned in § 14-295: that the defendant has deliberately or with reckless disregard violated one of the enumerated statutes, and that the violation was a substantial factor in causing the plaintiff's injuries." Dickinson v. Volicella, Superior Court, judicial district of New Britain, Docket No. CV 02 0516604 (January 13, 2004, Robinson, J.). The second viewpoint "holds that a plaintiff must plead the specific facts constituting recklessness, above and beyond the facts constituting mere negligence." Id.; Chieffo v. Yannielli, Superior Court, judicial district of Waterbury, Docket No. CV 00 0159940 (January 29, 2001, Doherty J.).
This court agrees with the second viewpoint, sometimes referred to as the "minority viewpoint," that in asserting a claim under § 14-295, a plaintiff must not only satisfy the specific language requirements of § 14-295 but must also plead facts sufficient to set forth a common-law recklessness claim. See Cappiello v. Steeves, Superior Court, judicial district of New Haven, Docket No. CV 02 0470424 (June 24, 2003, Harper, J.); Welcome v. Ouellette-McGregor, Superior Court, judicial district of Hartford, Docket No. CV 01 0811039 (November 21, 2002, Hennessey, J.) ( 3 Conn.L.Rptr. 454); Bravo v. Watson, Superior Court, judicial district of Waterbury, Docket No. 0129692 (March 13, 1996, McDonald, J.); Pitka v. Ullrich, Superior Court, judicial district of New London, Docket No. 530000 (November 15, 1994, Austin, J.) ( 13 Conn.L.Rptr. 32). "[A] complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless conduct is [being] relied on . . . [A] brief reference to recklessness, contained within a count which otherwise is clearly limited to ordinary negligence is [not] sufficient to raise a claim of reckless and wanton misconduct. Simply using the word `reckless' or `recklessness' is not enough." (Citations omitted; internal quotation marks omitted.) Kostiuk v. Queally, 159 Conn. 91, 94, 267 A.2d 452 (1970).
As set forth above, the plaintiff has not alleged nor incorporated facts setting forth a recklessness claim. The plaintiff has alleged only that §§ 14-218a and 14-222, both of which appear in § 14-295, were violated, and that said violations were a substantial factor in causing the plaintiff's injuries.
In the third count, the plaintiff alleges, pursuant to § 14-295, that Perez "deliberately or with reckless disregard" operated the vehicle in violation of General Statutes §§ 14-222 and 14-218 and that each "violation was a substantial factor in causing the plaintiff's injuries." The fourth count contains the same allegations as the third count but claims liability against Marcus Dairy for the actions of Perez as the "agent, servant and/or employee" of Marcus Dairy who was "operating a vehicle owned by Marcus Dairy, Incorporated in the scope of his authority and/or employment."
In following the so-called minority viewpoint, this court finds persuasive the "line of cases hold[ing] that simply using the word `reckless' with respect to the claimed violation of the statutory provisions set forth in § 14-295 is not enough." McGuire-Kelley v. Sciuto, Superior Court, judicial district of New Haven, Docket No. CV 99 0428860 (October 1, 1999, Devlin, J.). Specific allegations setting out the conduct that is claimed to be reckless must be made. See id. This is especially important in Connecticut which is a fact pleading state. See Practice Book § 10-1. The plaintiff's legal conclusion that the defendant's conduct was reckless or deliberate is insufficient to establish a claim in support of double or treble damages under § 14-295. The defendants' motion to strike the third and fourth counts is granted.
Practice Book § 10-1, entitled "Fact Pleading," provides in pertinent part: "Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . ."
It is difficult to reconcile application of this rule solely to negligence claims for compensatory damages, for which insurance coverage generally exists, but not to reckless or deliberate claims pursuant to § 14-295 for double or treble damages, for which insurance coverage may not exist, which claims are "more than negligence, more than gross negligence" and which claims involve "a conscious choice of a course of action." See infra. Part B.
The court also concludes that the plaintiff cannot set forth any cause of action for a violation of § 14-295 against the nonoperator owner, Marcus Dairy. Section 14-295 pertains to the deliberate or reckless operation of a motor vehicle. Until October 1, 2003, when the amendment adding the last sentence to such statute became effective, there was no mention of or reference to nonoperating owners in such statute. See supra note 1. "[I]f the [General Assembly] had intended the judiciary to impose double or treble damages upon [nonoperator] owners, it would have done so by requiring such action pursuant to section 14-295 . . .," e.g., by enacting a specific statutory provision to that effect. Pirro v. Berardi, Superior Court, judicial district of Waterbury, Docket No, CV 01 0165815 (October 3, 2003, Alvord, J.) ( 35 Conn.L.Rptr. 541).
In Matthiessen v. Vanech, 266 Conn. 822, 836 A.2d 394 (2003), in discussing why § 52-183 does not abrogate the common-law rule against vicarious liability for punitive damages, our Supreme Court utilizes a similar analysis. "It is reasonable to presume, therefore, that, if the legislature had intended for § 52-183 to abrogate the common-law rule against vicarious liability for punitive damages, it would have used language similarly explicit to that contained in § 14-154a. The fact that the legislature did not employ such language strongly suggests a contrary intent." Id., 842-43.
B. Common Law Recklessness
The defendants move to strike the fifth and sixth counts of the plaintiff's complaint on the ground that the plaintiff has failed to state a claim of recklessness because the plaintiff has not alleged specific reckless conduct which goes beyond ordinary negligence as a basis for awarding common-law punitive damages. As to the sixth count against Marcus Dairy, the defendants argue, relying on Matthiessen v. Vanech, 266 Conn. 822, 836 A.2d 394 (2003), that punitive damages may not be imposed upon a party at common law on the basis of vicarious liability. The plaintiff counters that the fifth and sixth counts are legally sufficient because the plaintiff has alleged that Perez drove recklessly in violation of General Statutes § 14-222(a), which "is explicit enough to inform the court and the defendants that a claim of recklessness is being asserted."
"A claim of common-law recklessness must be pleaded with specificity." Weinberg v. Bogacki, Superior Court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV 96 0154426 (June 27, 1997, D'Andrea, J.); see also Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958). The Supreme Court has defined common-law recklessness as "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." (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988). "Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent." (Internal quotation marks omitted.) Bishop v. Kelly, 206 Conn. 608, 614-15, 539 A.2d 108 (1988). "[R]eckless conduct tends to 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." (Internal quotation marks omitted.) Dubay v. Irish, supra, 207 Conn. 533.
In the fifth and sixth counts of the complaint, the plaintiff attempts to state common-law claims of recklessness by alleging the collision was caused by the "reckless, willful and malicious conduct" of Perez, who "deliberately or with reckless disregard" operated the vehicle in violation of § 14-222(a). With the exception of this additional allegation of a violation of the "reckless driving" statute, the plaintiff has simply repeated the allegations of her negligence counts. This repetition of allegations could be sufficient as long as the recklessness claim has been pleaded with the proper specificity. See Doe v. Favreau, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 02 393019 (March 7, 2003, Thim, J.) ( 34 Conn.L.Rptr. 276); Welcome v. Ouellette-McGregor, supra, 3 Conn.L.Rptr. 454. "The fact that the recklessness count relies on the same factual allegations as the negligence claim does not, in and of itself, provide [the defendants] with the basis for a motion to strike." (Internal quotation marks omitted.) Ouellette v. Hartford Insurance Co., Superior Court, judicial district of New Britain, Docket No. CV 99 496991 (April 12, 2000, Kocay, J.). The fifth and sixth counts, however, do not allege a factual basis that demonstrates that Perez's actions were performed with a reckless indifference to the interests of others. See Ames v. Sears, Roebuck Co., 8 Conn. App. 642, 655, 514 A.2d 352, cert. denied, 201 Conn. 809, 515 A.2d 378 (1986). The addition of the word "reckless" and a citation to a statutory violation do not satisfy the specificity of pleading that is required to support a cause of action predicated on common-law recklessness. Connecticut is a fact pleading state. The fifth and sixth counts of the complaint are legally insufficient, and the motion to strike these counts is granted.
Moreover, the sixth count is also legally insufficient because "at common law, there is no vicarious liability for punitive damages." Maisenbacker v. Society Concordia, 71 Conn. 369, 379-80, 42 A. 67 (1899). "[U]nder that 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). As the defendants correctly argue, our Supreme Court's recent holding in Matthiessen confirms this doctrine. Matthiessen held "that General Statutes § 52-183 does not abrogate the common-law principle that punitive damages may not be assessed against parties whom the law holds vicariously liable for the acts of others." Id., 843. Because the sixth count seeks to hold Marcus Dairy vicariously liable for punitive damages resulting from Perez's allegedly reckless operation of the vehicle, the common-law prohibition still stands in light of Matthiessen. In her brief and at oral argument, the plaintiff agreed that if and to the extent that Matthiessen applies, the sixth count may be stricken.
General statutes § 52-183 provides: "In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner of the motor vehicle, shall be presumed to be the agent and servant, of the owner of the motor vehicle and operating it in the course of his employment. The defendant shall have the burden of rebutting the presumption."
Thus, the defendants' motion to strike the third, fourth, fifth and sixth counts is granted.
Stuart David Bear, Judge