Opinion
FB5FBTCV176069331S
02-05-2019
Andrea REID v. The GREENS AT CANNONDALE et al.
UNPUBLISHED OPINION
OPINION
STEWART, J.
Defendants The Greens at Cannondale, Wilton Retirement Housing, LLC and Transcon Builders of Connecticut, Inc. have moved to strike the second, fourth and sixth counts of the revised complaint filed by plaintiff Andrea Reid. The revised complaint consists of six counts overall— the first count alleges negligence against The Greens at Cannondale, the second count alleges recklessness against The Greens at Cannondale, the third count alleges negligence against Wilton Retirement Housing, LLC, the fourth count alleges recklessness against Wilton Retirement Housing, LLC, the fifth count alleges negligence against Transcon Builders of Connecticut, LLC, and the sixth count alleges recklessness against Transcon Builders of Connecticut, LLC. All of the counts share a common nucleus of facts. They allege that the defendants’ employee or agent mopped the floor of the plaintiff’s apartment and left without any warning, and that the plaintiff emerged from her bedroom, slipped on the wet floor, and sustained injuries.
The defendants have moved to strike the three recklessness counts and their accompanying prayers for relief on the grounds that those counts add only conclusory allegations of recklessness to the immediately preceding claims of negligence and that they do not allege facts that would support a finding of recklessness. The plaintiff argues that she has alleged sufficient facts to plead recklessness. For the reasons that follow, this court grants the motion to strike.
"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 ..." 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. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 216-18, 618 A.2d 25 (1992).
To determine whether the second, fourth and sixth counts state a cause of action for recklessness, this court should first look at the definition of recklessness. Craig v. Driscoll, 262 Conn. 312, 342, 824 A.2d 1003 (2003), superseded on other grounds by statute. When defining recklessness, our Supreme Court has focused on state of mind. "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." Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003). "Recklessness is a state of consciousness with reference to the consequences of one’s acts ... It is more than negligence, more than gross negligence ..." Id., 836 A.2d 394; Craig, 262 Conn. at 342, 824 A.2d 1003.
While a state of mind amounting to recklessness may be inferred from conduct, "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." Matthiessen, 266 Conn. at 832, 836 A.2d 394. The conduct must be "more than mere thoughtlessness or inadvertence, or simply inattention." Craig, 262 Conn. at 343, 813 A.2d 1003. Our Supreme Court has defined reckless, willful and wanton conduct as meaning the same thing: "highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." Matthiessen, 266 Conn. at 833, 836 A.2d 394. Significantly for this case, the "characteristic element" of that conduct "is the design to injure either actually entertained or to be implied from the conduct and circumstances." Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). "Not only the action producing the injury but the resulting injury must be intentional." Id., 542 A.2d 711.
At oral argument, counsel agreed that there was no appellate authority on motions to strike recklessness claims in the context of premises liability. The Supreme Court has addressed a motion to strike a recklessness claim in Craig, a dram shop case. It held that the plaintiff had alleged conduct that survived a motion to strike because the conduct alleged "constitutes an extreme departure from ordinary care in a situation that involves a high degree of danger." 262 Conn. at 343, 813 A.2d 1003. The conduct alleged was 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., 813 A.2d 1003. While the court was not troubled by the mere addition of "willful, wanton and/or reckless actions" to the negligence allegations in the recklessness count, the factual allegations in that case were enough to state a claim for recklessness.
The parties here have provided the court with a number of Superior Court decisions, most of which considered motions to strike premises liability recklessness claims that, according to the defendants, merely restated negligence claims. In those cases where the recklessness claims alleged legal conclusions without factual allegations that met the state of mind or conduct standards set forth above, the courts granted the motions to strike. See, e.g., Bringman v. Stamford Associates, L.P., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-5000080 (June 1, 2005, Lewis, J.). But see Bringham v. Stamford Associates, L.P., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-055000080 (Oct. 21, 2005, Jennings, J.) (denying motion to strike recklessness count in same case after plaintiff replead her recklessness count to allege factual underpinnings for recklessness).
It is unclear to this court whether the proper spelling of the plaintiff’s name in this case is Bringham or Bringman, but it is clear that both Judge Lewis and Judge Jennings issued their decisions in the same case.
In those cases where some facts have been alleged besides mere labels for state of mind and conduct, the better reasoned Superior Court decisions have focused on the "recklessness sufficiency" of the factual allegations. "Rather than follow a mechanistic approach ... it seems more appropriate ... to examine instead whether the facts that are alleged could under any set of facts admissible under the pleadings, support a conclusion of recklessness." See, e.g., Policastro v. The Property Group of Connecticut, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-6016793 (June 7, 2013, Tobin, J.T.R.) (56 Conn.L.Rptr. 199); Wiener v. Block, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-03-0196389 (Aug. 30, 2004, Lewis, J.). This reasoning is consistent with the principle that "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Coppola Construction Co., 309 Conn. 342, 350, 71 A.3d 480.
Recklessness claims have survived motions to strike where they have alleged facts that, if proven, would establish a reckless state of mind or conduct from which such a state of mind could be inferred. In Policastro, the court denied a motion to strike because the plaintiff had alleged that he had told the defendants about a defective gutter that was allowing water to spill on to a walkway where it froze into ice that later caused the plaintiff to fall. The court held that this allegation of knowledge of a hazard and failure to take steps to prevent danger was sufficient to allege recklessness. Another decision cited by the plaintiff, Long v. Taranto, denied a motion to strike a recklessness claim based on allegations that the defendants knew of and advised the plaintiff of a defective furnace, and that the defendants attempted to repair the furnace, resulting in numerous code violations including carbon monoxide exposure to the plaintiff. Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-06-5002986 (Dec. 23, 2008, Pavia, J.). Finally, in Wiener, the plaintiff claimed that the individual defendants knew of and intentionally disregarded the ownership of trees and the property line when they requested that the defendant tree removal service cut down trees on the plaintiff’s decedent’s property.
Conversely, courts have stricken recklessness claims, even though they included specific factual allegations, where those allegations even if proven, would not amount to reckless conduct. In Pera v. YMCA of Greenwich, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-11-6008362 (July 29, 2011, Tobin, J.), the court struck a recklessness claim against the YMCA for failure to inspect its parking lot, failure to remove snow and ice from the lot, failure to sand or salt the lot, and failure to warn. The court held that any error in judgment based on trying to avoid costs was not an extreme departure from ordinary care. Similarly, in Zublena v. Carrozzo, Superior Court, judicial district of Litchfield, Docket No. CV-01-0084267 (May 20, 2002, Cremins, J.), another case in which the plaintiff fell on snow and ice, the court held that the defendants’ alleged failure to inspect the premises or to remove the snow and ice was not an extreme departure from ordinary care. See also Bush v. Lametta Construction Co., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-07-5005709 (Jan. 20, 2009, Adams, J.) (granting motion to strike recklessness claim based on placement of wooden stakes around library renovation project for failure to meet standards for recklessness).
This court will now apply these principles to the allegations in the revised complaint. Preliminarily, the court holds that the allegation in Paragraph 15 that the water was intentionally placed upon the floor as part of the act of mopping is not sufficient to allege a claim of recklessness because it is not just the action producing the injury, but the resulting injury that must be intentional. Dubay, 207 Conn. at 533, 542 A.2d 711. The allegations in paragraphs 19 and 20 regarding recklessness are purely conclusory. The more serious question is whether the allegations in the remainder of paragraph 15 and paragraphs 16 and 17 are enough to state a claim for recklessness. Those paragraphs allege that the defendants through their agent or employee knew or should have known that the wet floor was dangerous, knew or should have known that the plaintiff was in her bedroom with no other way to exit but to cross the wet floor, knew or should have known that the plaintiff was elderly, and deliberately failed to take steps to remediate the floor or to warn the plaintiff. Paragraph 17 also alleges that the defendants did not have a system of inspection, oversight and/or safety precautions to protect residents, presumably from injuries caused by wet floors.
As set forth above, "[r]ecklessness is a state of consciousness with reference to the consequences of one’s acts ... It is more than negligence, more than gross negligence ..." Matthiessen, 266 Conn. at 832, 836 A.2d 394. Moreover, to infer a state of mind amounting to recklessness from conduct, "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." Id., 836 A.2d 394. The conduct must be "highly unreasonable" and must involve "an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." Id. at 833, 836 A.2d 394. The allegations of the recklessness counts in this revised complaint, even construed most favorably to sustaining their legal sufficiency, simply do not meet these standards. There is nothing more here than a "failure to exercise a reasonable degree or watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them." This court recognizes that other Superior Courts have denied motions to strike recklessness claims arising out of falls on wet floors and walkways, but this court cannot hold that the facts alleged here, even taken as true, assert anything more than claims of negligence. The court grants the motion to strike the second, fourth and sixth counts.
Cf. Tracy v. New Milford Public Schools, 101 Conn.App. 560, 570, 922 A.2d 280 (2007) (affirming the granting of a motion to strike an intentional infliction of emotional distress claim where the behavior alleged was not extreme and outrageous under appellate caselaw).
The defendants also move to strike the demands for relief associated with the second, fourth and sixth counts. Since the court has stricken the recklessness claims, the associated demands for punitive damages in the demand for relief also should be stricken. Practice Book § 10-39(2); Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998); Bush, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-07-5005709 (striking punitive damages demand along with recklessness claim).