Opinion
No. CV 11-6019735 S
September 27, 2011
MEMORANDUM OF DECISION
FACTS
The Plaintiff, Candace Phillips, brings this action against the Defendants, Andrea Medley and David Ellerby, in two counts. She seeks to recover for injuries sustained on March 25, 2011.
The Defendants are the owners of L A Billiards and L A Liquor. Both businesses are located adjacent to one another at 1506-1512 Stratford Avenue, Bridgeport.
On March 25, 2011, at approximately 2:15 a.m., the Plaintiff was a patron at L A Billiards. At that time, she claims that one Carl Tomlin, who is not named as a party in this action, was on the sidewalk in front of L A Billiards.
The Plaintiff claims that Tomlin was in possession of a handgun, and fired shots into L A Billiards, wounding the Plaintiff in the leg. The premises were open to the public at the time of the incident.
Count one of the complaint alleges that the Defendants were negligent, and that their negligence proximately caused injury to the Plaintiff. Count two alleges a violation of the Connecticut Unfair Trade Practices Act (CUTPA), pursuant to Section 42-110a of the General Statutes.
Section 42-110a, C.G.S.-"No person shall engage in unfair methods of competition and unfair or deceptive practice in the conduct of any trade or commerce."
The complaint alleges that the Defendants were negligent, in that they failed to employ proper security precautions, despite prior criminal activity and violence at or near the subject premises. They are alleged to have failed to summon proper police protection, despite creditable threats of violence, and to have failed to warn the Plaintiff and other patrons of the possibility of violence on the evening in question.
In Count one, the Plaintiff maintains that the Defendants' negligence resulted in a failure to protect her from harm. She claims that the gunshot wound which she sustained was within the scope of the risk created by the Defendants' conduct. Stewart v. Federated Department Stores, Inc., 234 Conn. 597, 607-08 (1995).
Count two, the count alleging a violation of CUTPA, alleges that the Defendants, Andrea Medley and David Ellerby, engaged in reckless misconduct and gross negligence in the operation of their commercial enterprise. The allegations concerning negligence contained in Count one are also repeated in the pleading.
No count alleging reckless, or wanton misconduct is alleged, independent of the CUTPA claim.
The Defendants have moved to strike Count two of the complaint. They maintain that the count is legally insufficient, and that the injuries alleged are not those which are recoverable pursuant to CUTPA.
STANDARD OF REVIEW — MOTION TO STRIKE
The purpose of a motion to strike is to test the legal sufficiency of the allegations contained in a complaint, and to determine whether the facts alleged state a claim upon which relief can be granted. Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997); Ferryman v. Groton, 212 Conn. 138, 142 (1989); Practice Book S. 39. A motion to strike admits all well pleaded facts, and the court is required to construe all facts in the manner most favorable to the non moving party, in this case, Candace Phillips. Rowe v. Godou, 209 Conn. 273, 278 (1988); Amodio v. Cunningham, 82 Conn. 80, 82 (1980).
The court's inquiry is limited by the facts alleged in the complaint. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285-86 (1982). If facts deemed provable because contained in a complaint would support a cause of action, then the motion to strike must be denied. Vacco v. Microsoft, 260 Conn. 59, 64-65 (2002).
COUNT TWO ALLEGES A VIABLE CUTPA CLAIM
In determining whether a practice violates CUTPA, Connecticut has adopted the criteria set forth in the "cigarette rule," a three-fold test; (1) does the practice offend public policy, within a common-law, statutory or other concept of fairness, (2) is it immoral, unethical, oppressive or unscrupulous, and (3) does it cause substantial injury to consumers. Hartford Electric Supply Co., v. Allen-Bradley Co., 250 Conn. 334, 367-68 (1999); Conway v. Prestia, 191 Conn. 484, 492-93 (1983).
The Defendants initially maintain that the Plaintiff's cause of action sounds in negligence, and cannot form the basis for a CUTPA claim. This argument is not persuasive.
Although the Plaintiff has not pled a separate count alleging that the actions of the Defendants were reckless, wilful and wanton, allegations of reckless misconduct and gross negligence are included in the CUTPA count. No authority has been discovered for the proposition that a CUTPA count cannot be alleged, unless a separate count alleging reckless rather than negligent conduct has been included in the complaint.
However, assuming, arguendo, that the CUTPA claim is grounded solely on negligent conduct, the claim is sufficient to withstand a motion to strike.
In Williams v. Hartford Courant Co., 232 Conn. 559 (1995), the court held that there is no basis for a CUTPA action, when the sole basis of the claim is negligence, and the Plaintiff was contributorily negligent. However, the court specifically declined to hold that negligence, unaccompanied by comparative negligence, cannot form the underlying basis for a CUTPA claim. Williams Ford, Inc. v. Hartford Courant Co., supra, 591, n. 25. (See also Haynes v. Yale New Haven Hospital, 243 Conn. 17, 34 (1997).)
Here, Count two, as pled, contains claims other than those involving negligence. Furthermore, it is difficult to imagine any colorable claim of comparative negligence, in a situation where the Plaintiff was struck by a bullet fired from outside the premises.
Given the nature of the injury, and the need for medical attention, the Defendants cannot succeed in their claim that the Plaintiff failed to sustain ascertainable loss.
When all facts are construed most favorably to the Plaintiff, it cannot be said, as a matter of law, that the Plaintiff's CUTPA count (Count two) is legally insufficient.
The Defendants' motion to strike is therefore DENIED.