Opinion
No. LLI-CV-5002486S
May 7, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #155
This action arises out of a fireworks display held by the defendants, Salisbury Winter Sports Association ("Salisbury Winter Sports"), Berkshire Fireworks and David Lewis. The plaintiff, Moore Brook Farm, LLC, owns property adjoining Salisbury Winter Sports and operates an alpaca farm. The complaint alleges that as a result of the fireworks display, one of the plaintiff's pregnant alpacas was caused to abort its pregnancy, resulting in damages to the plaintiff. Salisbury Winter Sports seeks to strike the second count, alleging recklessness, on the sole ground that the claim is legally insufficient because the plaintiff has not alleged sufficient facts constituting extreme and outrageous conduct.
"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). "The court must construe the facts in the complaint most favorably to the plaintiff. (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
Allegations of recklessness must articulate "highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). Reckless conduct consists of "more than any mere mistake resulting from inexperience, excitement, or confusion and more than mere thoughtlessness or inadvertence, or simply inattention." Id. "Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence." (Internal citations omitted.) Craig v. Driscoll, 64 Conn.App. 699, 720, CT Page 7695 781 A.2d 440 (2001). "[A] plaintiff cannot transform a negligence count into a count for willful and wanton misconduct merely by appending a string of adjectives to allegations that clearly sound in negligence." Brown v. Branford, 12 Conn.App. 106, 110, 529 A.2d 743 (1987). "Rather, the allegations must allege that the actor intended his actions; acted wilfully; and with knowledge of and disregard for the potential harmful results." Giovanelli v. Cantor, Floman, Gross, Kelly Sacramone, PC, Superior Court, judicial district of New Haven, Docket No. CV 07 5010641 (Jan. 30, 2008, Robinson, J.).
Here, the plaintiff has alleged that the defendant was warned of the consequences of holding the fireworks display. Despite these warnings, the defendant proceeded with the fireworks display. Therefore, the plaintiff has alleged sufficient facts to support a claim for recklessness. The motion to strike is denied.
MEMORANDUM OF DECISION RE MOTION TO STRIKE #156
This action arises out of a fireworks display held by the defendants, Salisbury Winter Sports Association (Salisbury Winter Sports), Berkshire Fireworks and David Lewis (Lewis). The plaintiff, Moore Brook Farm, LLC, owns property adjoining Salisbury Winter Sports and operates an alpaca farm. The complaint alleges that as a result of the fireworks display, one of the plaintiff's pregnant alpacas was caused to abort its pregnancy, resulting in damages to the plaintiff. Berkshire Fireworks and Lewis seek to strike the plaintiff's fourth count, alleging violations of CUTPA, on the grounds that a business relationship is necessary to properly allege a CUTPA claim and alternatively that the plaintiff's allegations do not amount to a CUTPA violation.
"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). "The court must construe the facts in the complaint most favorably to the plaintiff. (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
The Connecticut Supreme Court has discussed the relationships necessary to maintain a CUTPA claim: "[W]e previously have stated in no uncertain terms that CUTPA imposes no requirement of a consumer relationship. In McLaughlin Ford, Inc. v. Ford Motor Co., 192 Conn. 558, [566-67], 473 A.2d 1185 (1984), we concluded that CUTPA is not limited to conduct involving consumer injury and that a competitor or other business person can maintain a CUTPA cause of action without showing consumer injury." (Internal quotation marks omitted.) Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 643, 804 A.2d 180 (2002). "In Ventres v. Goodspeed Airport, LLC, [ 275 Conn. 105, 881 A.2d 937 (2005)], the court rejected the argument that the cigarette rule "encompasses businesspersons in general" and dismissed the CUTPA claim on the ground that "[t]he relationship between the [parties] [could not] be characterized as competitive in any ordinary business sense." Id., 157. The court observed that even in Macomber v. Travelers Property Casualty Corp., supra, 261 Conn. 626, the parties had a business relationship with each other because, although the plaintiffs were neither consumers nor competitors of the defendant, they had entered into settlement agreements with the defendant. Ventres v. Goodspeed Airport, LLC, supra, 157-58." Pinette v. McLaughlin, 96 Conn.App. 769, 778 n. 9, 901 A.2d 1269 (2006).
The decision in Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 881 A.2d 937 (2005), is especially instructive in the present case. There, a land trust owned and operated a nature preserve which geographically bordered an airport. The inland wetlands and watercourses commission of the town of East Haddam filed an action against the land trust, a land conservation organization, the airport, the airport's owner, and a independent contractor. During the course of that action, the land trust defendants filed cross claims against the airport for CUTPA violations, among other things. The trial court granted the airport's motion to strike, holding that the land trust defendants were not competitors or customers of the airport defendants. The land trust defendants appealed this holding, arguing that the cigarette rule "encompasse[d] businesspersons in general" and alternatively that "a CUTPA plaintiff is not required to allege any business relationship with the defendant." Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 157-58. The court rejected both of these arguments.
The plaintiff has cited to Service Road Corporation v. Quinn, 241 Conn. 630, 698 A.2d 258 (1997), for the proposition that a geographically related party that interferes in the other party's business is subject to a CUTPA claim. In that case, however, both parties were not only geographically related, they were competitors in the same business, namely, the operation of exotic dance clubs. Service Road Corporation v. Quinn, 241 Conn. 630, 632, 698 A.2d 258 (1997).
Accordingly, "a plaintiff must have at least some business relationship with the defendant in order to state a cause of action under CUTPA." (Emphasis in original.) Pinette v. McLaughlin, supra, CT Page 7697 96 Conn.App. 778. The plaintiff has not alleged a business relationship with Berkshire Fireworks or Lewis. The motion to strike is granted.