Opinion
No. CV 08 5006526
December 31, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE [#107]
FACTS
On April 22, 2008, the plaintiff, Cheryl Ritacco, individually and as the administrator of the estate of Katelyn Ritacco, filed a seven-count complaint against the defendants, Julio H. Archila, JDR Holdings, Inc., and Juan Orellana. On July 25, 2008, the plaintiff filed an amended complaint sounding in negligence and recklessness, to which the defendants filed no objection, thereby consenting to the amendments. Therein, the plaintiff alleges that, on April 13, 2006, the defendant, Julio H. Archila, was operating a tractor trailer owned and/or leased by the defendant, JDR Holdings, Inc., on Interstate 395 in Norwich, CT. The plaintiff further alleges that, on the same date, time, and location, the plaintiff's decedent was operating a vehicle to the rear of the defendant Julio H. Archila's vehicle when the decedent collided with said tractor trailer from behind, thereby causing the injuries and damages and death to the decedent. The plaintiff specifically contends, in count two of the amended complaint, that the decedent's death and injuries were caused by the reckless operation of the motor vehicle driven by defendant Julio H. Archila. Accordingly, the plaintiff seeks double and treble damages pursuant to General Statutes § 14-295. The plaintiff also alleges, in count four of the amended complaint, that the decedent's death and injuries were caused by defendant JDR Holdings, Inc.'s negligent hiring, training and supervision of Julio H. Archila. The plaintiff similarly alleges, in count seven of the amended complaint, that the decedent's death and injuries were caused by defendant JDR Holdings, Inc.'s negligent hiring, training and supervision of Juan Orellana, whose vehicle was disabled and stopped in the breakdown lane of Interstate 395. Defendant Julio H. Archila allegedly arrived to assist defendant Juan Orellana, both of whom were employed by defendant JDR Holdings, Inc. at the time of the accident.
"Practice Book § 10-60(a) provides in relevant part: Except as provided in Section 10-66, a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner . . . (3) By filing a request for leave to file such amendment . . . If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party . . ." (Internal quotation marks omitted.) J. Corda Construction, Inc. v. Zaleski Corp., 98 Conn.App. 518, 528 n. 9, 911 A.2d 309 (2006).
General Statutes § 14-295 states: "In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, 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, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property. The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damages arose from such owner's operation of the motor vehicle."
On June 18, 2008, prior to the plaintiff's filing of the amended complaint, the defendants filed a motion to strike counts two, four and seven of the complaint and the corresponding prayer for relief pursuant to General Statutes § 14-295 on the ground that they are insufficient as a matter of law. Although the plaintiff had filed her amended complaint while this motion to strike was pending, the amended complaint is the operative complaint in this court's determination of the motion to strike, pursuant to Practice Book § 10-61. "Practice Book § 10-61 provides in relevant part that `pleadings already filed by the adverse party shall be regarded as applicable so far as possible to the amended pleading.'" (Internal quotation marks omitted.) Bailey v. West Hartford, 100 Conn.App. 805, 808 n. 4, 921 A.2d 611 (2007).
DISCUSSION
"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). "[C]onsequently, [such motion] requires no factual findings by the trial court." (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552, 944 A.2d 329 (2008). "In ruling on a motion to strike, the court is limited to the facts alleged in the [pleading]. The court must construe the facts in the [pleading] most favorably to the [non-moving party]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "This includes the facts necessarily implied and fairly provable under the allegations . . . It does not include, however, the legal conclusions or opinions stated in the [pleading]." (Internal quotation marks omitted.) S.M.S. Textile v. Brown, Jacobson, Tillinghast, Lahan King P.C., 32 Conn.App. 786, 796, 631 A.2d 340, cert. denied, 228 Conn. 903, 634 A.2d 296 (1993). Thus, "[i]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
In their memorandum of law in support of the motion to strike, the defendants argue that the plaintiff's second count, alleging recklessness, is legally insufficient since it contains no allegation of conduct which rises to the level of recklessness. The defendants specifically argue that the second count does not set forth any facts that transform the defendants' alleged negligence into recklessness, and only where a plaintiff has alleged additional facts tending to show recklessness have the courts upheld such claims. With regard to the plaintiff's fourth and seventh counts, alleging negligent hiring, training and supervision, the defendants argue that they are legally insufficient since they fail to contain an allegation of foreseeability. The plaintiff counters, in her memorandum of law in opposition to the motion to strike, that the trial courts are split on the issue of whether a plaintiff must allege additional facts to support a claim of recklessness that is distinct from any claim of negligence in order to survive a motion to strike and seek double and treble damages under General Statutes § 14-295. The plaintiff argues that the defendants' motion is in accordance with the minority position. With regard to the fourth and seventh counts, the plaintiff argues that the amended complaint contains the requisite allegation of foreseeability, thereby making the issue moot.
I Count Two — Recklessness
In count two, the plaintiff attempts to set forth a claim of statutory recklessness and applicable damages pursuant to General Statutes § 14-295. As this court has previously noted, there is a split of authority regarding the pleading requirements for a claim of statutory recklessness under § 14-295. See Guitierrez v. Thienel, Superior Court, judicial district of Windham, Docket No. CV06 5000914 (May 1, 2007, Martin, J.). This court is of the view that "a plaintiff [need only] allege that the defendant deliberately or with reckless disregard operated a motor vehicle in violation of any of the statutes enumerated in § 14-295, and that the violation was a substantial factor in causing the plaintiff's injuries." (Internal quotation marks omitted.) Id. In construing the amended complaint most favorably to sustaining its legal sufficiency, the court finds that the plaintiff has met the aforementioned standard and, accordingly, the motion to strike is denied as to count two of the amended complaint, as well as the claim for double or treble damages, which is premised on the allegations of count two.
II Counts Four and Seven — Negligent Hiring, Training and Supervision
In counts four and seven, the plaintiff claims that defendant JDR Holdings, Inc was negligent in the hiring, training and supervision of defendants Julio H. Archila and Juan Orellana. In their motion to strike, the defendants argue that these counts fail to allege a factual basis sufficient to conclude that defendant JDR Holdings, Inc's alleged negligence was foreseeable.
"A common-law claim in negligent hiring exists in any situation where a third party is injured by an employer's own negligence in failing to select an employee fit or competent to perform the services of employment." (Internal quotation marks omitted.) Seda v. Maxim Healthcare Services, Superior Court, judicial district of Hartford, Docket No. CV 07 5010811 (April 8, 2008, Elgo, J.). See also Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982). "[A]n employer may [also] be held liable for the negligent supervision of employees." (Internal quotation marks omitted.) Hearn v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 02 0466339 (April 2, 2007, Licari, J.). "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable of care . . . [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007). "In any determination of whether even a special relationship should be held to give rise to a duty to exercise care to avoid harm to a third person, foreseeability plays an important role." (Internal quotation marks omitted.) Seguro v. Cummiskey, 82 Conn.App. 186, 193, 844 A.2d 224 (2004). "Our Superior Court has interpreted this foreseeability requirement as one in which the employer knew or should have known of the employee's propensity to engage in the alleged harmful conduct." (Internal quotation marks omitted.) Seda v. Maxim Healthcare Services, supra, Superior Court, Docket No. CV 07 5010811. "Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of foreseeability." Id. Accordingly, a simple conclusion that the harm to the plaintiff was foreseeable cannot by itself mandate a determination that a legal duty exists.
As previously noted, "[a] motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. In the present case, the court finds that the plaintiff has failed to allege facts that support the element of foreseeability in her claims of negligent hiring, training and supervision. In counts four and seven of her amended complaint, the plaintiff has merely alleged conclusions of law, unsupported by the facts, stating that defendant JDR Holdings, Inc. knew or should have known of defendants Julio H. Archila and Juan Orellana's propensities to engage in the alleged harmful conduct. Accordingly, the court finds that the plaintiff's claims of negligent hiring, training and supervision are insufficient as a matter of law, and the motion to strike is granted as to counts four and seven of the amended complaint.
CONCLUSION
Based on the foregoing, the court hereby denies the motion to strike as to count two of the amended complaint, as well as the claim for double or treble damages, and grants the motion to strike as to counts four and seven.