Opinion
FBTCV186081001S
02-11-2019
Leon HOOK v. Kenneth P. PALMERO
UNPUBLISHED OPINION
OPINION
ELIZABETH STEWART, J.
The defendant, Kenneth Palmero, moves to strike the first count (statutory recklessness pursuant to General Statutes § 14-295) and subparagraph 4(b) of the second count (negligence) of the complaint filed by the plaintiff, Leon Hook. The complaint arose out of a rear-end collision that occurred on Lordship Boulevard in Stratford, Connecticut. The defendant argues in his motion to strike that the complaint does not adequately allege recklessness and that the first count for statutory recklessness and the second count subparagraph 4(b), which includes the word "recklessly," should be stricken. For the reasons that follow, the court grants the motion to strike the first count and denies the motion to strike subparagraph 4(b) of the second count.
LEGAL ANALYSIS
"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." (Internal quotation marks omitted.) 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).
I. THE FIRST COUNT SHOULD BE STRICKEN
The first 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, ... 14-222, ... [or] 14-240a ... 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 to survive a motion to strike a statutory recklessness claim under the current version of General Statutes § 14-295. Numerous Superior Courts have considered motions to strike these claims. They all agree that 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.
The plaintiff here has alleged in paragraph 4 of the first count:
The collision and the resulting injuries to the plaintiff, Leon Hook were caused by the defendant, Kenneth P. Palmero, and his reckless operation of his vehicle in violation of one or more of the following Connecticut General Statutes, in that he:
a. Traveled at an unreasonable speed, given the width, traffic conditions, use of the highway, and weather conditions, in violation of Connecticut General Statutes Section 14-218a;
b. Operated his vehicle recklessly, in violation of Connecticut General Statutes Section 14-222, in that she drove directly into a stopped motor vehicle; and
c. Failed to drive a reasonable distance apart in violation of Section 14-240a of the Connecticut General Statutes.
The plaintiff further has alleged, in paragraph 9 of the first count:
The defendant’s recklessness or deliberate disregard, as set forth above, was a substantial factor in causing the injuries to Leon Hook.
Here, the court holds that these allegations, albeit internally confusing, do state that the defendant deliberately or with reckless disregard operated his vehicle in violation of three of the enumerated statutes in § 14-295 and that those violations were a substantial factor in causing the plaintiff’s injuries. The confusion arises from the references to "unreasonable" and "reasonable" in subparagraphs 4(a) and 4(c), respectively. "Unreasonable" and "reasonable" connote negligence not recklessness. Nonetheless, § 14-218a may be violated by traveling "at a rate of speed greater than is reasonable," and § 14-240a may be violated by following "another vehicle more closely than is reasonable and prudent." Although those violations must be deliberate or with reckless disregard to come within § 14-295, the court holds that the complaint uses that language.
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 statutes (§ § 14-218a, 14-222, and 14-240a) were 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.
Here, the court agrees with the decision in Armstrong that the legislature has clearly laid out the three elements that must be alleged, but the 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.Kallaugher v. Basile, supra, Superior Court, judicial district of Hartford, Docket No. CV-010804191 (October 31, 2001, Beach, J.).
In another decision that concluded that fact pleading is still 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. Here, there is no reason to require fact pleading for other statutory violations or for common-law recklessness and not to require it for statutory recklessness.
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-010075934 (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-010804191 (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, 262 Conn. 312, 342, 824 A.2d 1003 (2003), superseded on other grounds by statute, O’Dell v. Kozee, 307 Conn. 231, 265, 53 A.3d 178, 197 (2012). 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. Other than paragraphs 4 and 9 recited above, there is no reference to any conduct by the defendant that would bring this complaint into § 14-295. The paragraph 4 subparagraphs are identical to the first three subparagraphs of paragraph 4 in the negligence count. They are bare-bones recitations of the elements of the three predicate statutes’ elements. The first count does not allege facts sufficient to establish that the predicate statutes (§ § 14-218a, 14-222, and 14-240a) were 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. Accordingly, the court grants the motion to strike the first count.
I. SUBPARAGRAPH 4 (b) SHOULD NOT BE STRICKEN
As for the motion to strike subparagraph 4(b) of the second count, the court denies the motion. Typically, a motion to strike is used to strike an entire complaint or at least a full count. Indeed, Practice Book § 10-39(1) expressly recognizes this. The defendant here, however, also seeks to use their motion to strike to eliminate an individual paragraph in the second count. Whenever a party moves to strike paragraphs, rather than an entire count of a pleading, the trial court must first determine if the motion to strike is procedurally proper. Motions to strike individual paragraphs are not expressly permitted under the Practice Book, and the judges in the Superior Court are divided over whether to apply motions to strike, rather than requests to revise, to eliminate single paragraphs. Indeed, Practice Book § 10-35(2), which governs requests to revise, calls for them to be used for "the deletion of unnecessary, repetitious, scandalous, impertinent, immaterial or otherwise improper allegations in an adverse party’s pleading."
The defendant was under the impression that the second count was attempting to allege common-law recklessness. See Memorandum in Support of Motion to Strike (No. 104.00). At oral argument, however, the plaintiff clarified that the second count sounds in common-law negligence. Subparagraph 4(b) alleges that "[t]he collision was caused by the carelessness and negligence of the defendant, Kenneth P. Palmero, in that he: ... operated his vehicle recklessly, in violation of Connecticut General Statutes Section 14-222, in that he drove directly into a stopped vehicle." The defendant objects to the term "recklessly," but because § 14-222 is the reckless driving statute, an allegation of "recklessly" is required. Although the court understands that the paragraph appears internally inconsistent, it is not appropriate to strike the individual subparagraph. The plaintiff is entitled to allege negligence based on a violation of the reckless driving statute. "Where a complaint is one sounding in negligence and that negligence is alleged to consist in part in a violation of the statute forbidding the reckless operation of motor vehicles, the action will remain purely one of negligence." (Internal quotation marks omitted.) Kostiuk v. Queally, 159 Conn. 91, 95, 267 A.2d 452, 454 (1970).
CONCLUSION
For the foregoing reasons, the motion to strike the first count is granted and the motion to strike subparagraph 4(b) of the second count is denied.