Opinion
No. X05 CV04-4014676S
October 30, 2009
MEMORANDUM OF DECISION ON PLAINTIFFS' MOTION TO STRIKE CERTAIN SPECIAL DEFENSES (ENTRIES #403 #409)
Introduction
This case arose out of a collision between a bicyclist and a motor vehicle on August 23, 2003 at an intersection along Route One in the town of Stonington, CT. It is alleged that the plaintiff cyclist, Edward Petner, Jr. sustained serious personal injuries as a result of that collision, injuries which have rendered him a paraplegic. The operative complaint is dated March 18, 2009 and is captioned "Revised Fourth Amended Complaint."
The first count alleges negligence on the part of the defendant Electrical Contractors, Inc. (ECI). This company and its employees were allegedly involved in the installation and testing of overhead traffic signals at the scene of the collision. It is alleged that in doing so, ECI acted without adequate consideration for the safety of bicyclists and motorists at the location of the collision, in that their actions and the placement of certain construction cones and lack of adequate police and/or traffic supervision created an unsafe condition that obstructed Edward Petner's lane of travel, which negligence resulted in the plaintiff being struck and injured by an automobile. Counts two, thee, five and six allege the loss of spousal and parental consortium against the defendant ECI on behalf of the plaintiff Edward Petner's wife, the plaintiff Margaret Mary Petner, and his children. Count four alleges that the actions of ECI also constituted a public nuisance.
Count seven sounds in negligence against the operator of the motor vehicle, the defendant Stacy Moody. It is also alleged that this vehicle was owned and maintained as a family car by the defendant Frederick Moody. The plaintiff Edward Petner claims that his injuries were caused by the negligence and carelessness of Stacy Moody, who is alleged to have been negligent in the operation of her motor vehicle in one or more of twenty separate ways, including numerous alleged violations of Connecticut motor vehicle statutes. Counts eight, nine, eleven, twelve, fourteen and fifteen claim the loss of spousal and parental consortium against one or both of the Moody defendants. Count ten alleges statutory recklessness against the defendant operator Stacy Moody pursuant to General Statutes § 14-295, while count thirteen alleges common-law recklessness on the part of Stacy Moody. The balance of the complaint consists of various counts and allegations which were previously either withdrawn by the plaintiffs, ordered stricken by the court (Beach, J.), or which were removed from the case by way of the granting of summary judgment (Shapiro, J. and Shortall, J.).
The Special Defenses
In addition to their answers, the defendants ECI and the Moodys have both filed special defenses to the plaintiffs' allegations. The plaintiffs have now moved to strike certain portions of these special defenses filed by both defendants on the grounds that in each instance they have not been sufficiently pleaded, which is the subject of this memorandum of decision.
It should be noted that "[m]otions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted . . . Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself . . ." (Emphasis added; citation omitted; internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). In the present case, the defendants, in opposing the plaintiffs' motion to strike, did not object to the plaintiffs' noncompliance with this aspect of Practice Book § 10-41. The noncompliance was therefore waived, and the court will consider the motion in the form presented, as Practice Book § 10-41 is not jurisdictional in nature. See Bouchard v. People's Bank, 219 Conn. 465, 468 n. 4, 594 A.2d 1 (1991).
The plaintiff is challenging multiple portions of the special defenses asserted by the defendant ECI, specifically sections (c), (f), (g), (h) and (i). The special defenses under consideration are stated in their entirety as follows: "If the plaintiffs sustained any injuries or damages as alleged in their complaint, said injuries or damages were proximately caused by the carelessness and negligence of the plaintiff Edward Petner, Jr. at said time and place in that he:
c. failed to exercise ordinary care to avoid known dangers and to discover dangers to which he might be exposed; . . .
f. violated the provisions of Connecticut General Statutes § 14-299 in the manner in which he operated his bicycle at said intersection;
g. violated the provisions of Connecticut General Statutes § 14-242;
h. violated the provisions of Connecticut General Statutes § 14-286b; [and]
i. violated the provisions of Connecticut General Statutes § 14-241.
The plaintiffs claim these special defenses are legally insufficient and fail to allege facts supporting the defendant's claim of contributory negligence. The defendant asserts that the special defenses are adequate, and that the plaintiffs do not require additional facts to understand the claims being asserted against them. Furthermore, the defendants argue that the specific statutes cited in the special defenses define the acts that would constitute violations of their provisions, and that no further exposition is therefore necessary.
The plaintiffs are also seeking to strike section (c) of the Moodys' special defenses. Section (c) is quoted here in its entirety: "The plaintiff's injuries and damages, if any, are due to the plaintiff's own comparative negligence in one or more of the following ways, in that he: (c) failed to exercise ordinary care to avoid known dangers and to discover dangers to which he might be exposed." The plaintiffs claim this special defense "is legally insufficient and fails to allege facts supporting the defendants' claim of contributory negligence." The Moody defendants contend that this special defense is an appropriately drafted allegation of contributory negligence, and that no further facts are required for it to be understood.
Discussion
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 718, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002); see Practice Book § 10-50. "The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." Bennett v. Automobile Insurance Co. Of Hartford, 230 Conn. 795, 802 (1994). The issue of the sufficiency or insufficiency of special defenses is properly raised by the vehicle of the plaintiffs' motion to strike. Practice Book § 10-39(5); Nowak v. Nowak, 175 Conn. 112, 116 (1978). In ruling on a motion to strike special defenses, the trial court has an obligation to take the facts as alleged and to construe the defenses in the manner most favorable to sustaining their legal sufficiency. Connecticut National Bank v. Douglas, 221 Conn. 530, 536 (1992). "In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." ( Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580.
Practice Book § 10-50 states in relevant part: "[f]acts which are consistent with such statements [of the plaintiff] but show, notwithstanding, that he has no cause of action, must be specially alleged."
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations . . . 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). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
Echoing the Appellate Court in the Fidelity Bank v. Krenisky case cited above, the Supreme Court stated, "Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . ."(Citations omitted; internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). Consequently, if the allegations contained in the defendant's special defenses are legally insufficient, the motion to strike should be granted. See Doe v. Yale University, 252 Conn. 641, 684, 748 A.2d 834 (2000).
In the present case, the defendants allege special defenses, but have not pleaded any facts in support of those allegations showing how or why each special defense applies. The court believes such special defenses as drafted are insufficient as a matter of law, as they do not comply with the Practice Book rules. Connecticut is a fact pleading state. See Practice Book § 10-1. "The fact that in a special defense one must plead facts which are consistent with the allegations of the complaint does not relieve the [defendant) of the duty of providing the plaintiff with a plain and concise statement of the material facts on which they rely. It does not enable the defendants to incorporate the factual claims of the plaintiff without stating them . . ." Sun Company, Inc. v. Greg Todd, Inc., Superior Court, judicial district of Hartford, Docket No. CV 98 0577958 (October 7, 1998, Hale, J.), (23 Conn. L. Rptr. 304, 305). In Pozoukidis v. City of Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 346988 (February 13, 1998) (Mottolese, J.), (21 Conn. L. Rptr. 382), a challenge to the legal sufficiency of a complaint without accompanying allegations of fact supporting the challenge could not withstand a motion to strike. The court held that the "rules of pleading hold defendants to the same standard of definiteness with respect to special defenses that plaintiffs are held to in their complaints," Pozoukidis v. City of Bridgeport, supra, 21 Conn. L. Rptr. 382. Accordingly, the plaintiff's motions to strike are granted.
SO ORDERED.