Opinion
No. CV 02 0468383
April 28, 2003
MEMORANDUM OF DECISION MOTION TO STRIKE #102
The defendant has moved to strike each of the four counts of the plaintiffs' Complaint dated August 7, 2002, pursuant to Practice Book § 10-39 et seq. The plaintiffs are the parents of John F. Savinelli, a minor who committed suicide on June 5, 2001. The plaintiffs have brought this action against the defendant in their individual capacities, as well as, their official capacities as co-administrators of their deceased son's estate.
The plaintiffs' Complaint is brought in four counts. Counts One and Two sound in common law wrongful death; Counts Three and Four allege a loss of filial consortium. The defendant has moved to strike the entire Complaint on the grounds that governmental immunity bars the plaintiffs' claims, and that the plaintiffs fail to rely upon any statute that would abrogate that immunity. Additionally, as to Counts One and Two, the defendant asks that they be stricken as Connecticut does not recognize a common law claim for wrongful death, and that Counts One and Two fail to set forth the requisite elements for a negligence claim. The defendants also argue that Count Two should be stricken because the plaintiffs' claim of "reckless indifference" against the defendant is not a cognizable claim in Connecticut. Lastly the defendants argue as to Counts Three and Four, that they should be stricken as Connecticut does not recognize a claim for loss of filial consortium.
The factual allegations allege that the minor, John F. Savinelli committed suicide "on or near" the grounds of East Haven High School, during regular school hours on June 5, 2001, having immediately prior thereto, "run in anguish from the school building." The plaintiffs allege that the agents, servants and employees of the defendant knew that the plaintiffs' minor child was distraught and suffering from severe emotional distress immediately prior to his suicide. The defendants further allege that the defendant has wrongfully concealed the names of its agents, servants and employees from the plaintiffs, and that these same individuals had the ability to prevent the suicide and were negligent in not doing so.
I
The court first reviews the relevant standard of law regarding a 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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn. App. 208, 211, 535 A.2d 390 (1988).
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra. 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
A motion to strike is the proper vehicle for resolving the issues of whether a cause of action is barred by governmental immunity and whether an exception to governmental immunity is sufficiently plead, as well as, whether such conduct, as alleged is ministerial or discretionary. Brown v. Branford, 12 Conn. App. 106, 111, n. 3 (1987); Perrota v. Town of Enfield, Superior Court, judicial district of Hartford at Hartford, Docket No. CV00596565, (June 15, 2000) (Hale, J.); Peters v. Town of Greenwich, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV99067957 (December 10, 2001) (Moran, J.).
II
The first issue the court must address is whether the plaintiffs may maintain a negligence action against the defendant, East Haven Board of Education, in the absence of a statute expressly providing for such municipal liability. The named plaintiffs, John A. Savinelli and Anna Frezza, brought this action, as co-administrators of the estate of their deceased minor son, John F. Savinelli, and on their own behalf, for a loss of filial consortium, against the defendant for their minor son's suicide. The defendant claims that governmental immunity barred the plaintiffs' negligence action against it because they did not rely on any statute granting an exception to the governmental immunity provided by the common law to a municipality.
The plaintiffs did not name any agent, employee or officer of the East Haven Board of Education as a defendant, and brought this action against only the East Haven Board of Education. The defendant claims that it has governmental immunity from liability for common-law negligence and that the plaintiffs cannot prevail as a matter of law because they did not rely on any statute to abrogate that immunity. Williams v. New Haven, 243 Conn. 763, 707 A.2d 1251 (1998). The court, in light of the recent decision in Spears v. Garcia, 263 Conn. 22 (2003) disagrees.
The Appellate Court in Spears v. Garcia, 66 Conn. App. 669, 785 A.2d 1181 (2001) found that although the plaintiffs had failed to cite in their complaint General Statutes § 52-557n as statutory authority abrogating the defendants' governmental immunity, the plaintiffs had mentioned it for the first time, in their legal memorandum opposing a motion for summary judgment. The plaintiffs in Spears also argued that § 52-557n abrogated governmental immunity during oral argument in opposition to the defendants' motion for summary judgment. The plaintiffs argued before the Appellate Court that although they did not specifically plead the statute in their complaint, nonetheless the defendants were sufficiently apprised of the statute by way of the plaintiffs' legal memorandum and oral argument on the motion for summary judgment. The Appellate Court determined that this case was unlike Williams v. New Haven, supra, 243 Conn. 763, which had similar factual circumstances. In Williams however, the plaintiffs, unlike the plaintiffs in Spears v. Garcia, never at any stage of the proceedings, relied on § 52-557n. Having found that the defendants were sufficiently apprised of the plaintiffs' reliance on § 52-557n, the Appellate Court went further to find that § 52-557n abrogates governmental immunity, thus allowing a direct cause of action for negligence against the defendants, which include among others, the City of Bridgeport and the Bridgeport Fire Department. Spears v. Garcia, supra, 66 Conn. App. 676-80. The Supreme Court affirmed the judgment of the Appellate Court in Spears v. Garcia, supra. 263 Conn. 22. The Supreme Court stated, "We reject the defendants' claim that permitting a direct cause of action against a municipality under § 52-557n, which does not require that an employee be named as the tortfeasor, would essentially destroy the defense of qualified immunity because it is supported neither by the purpose underlying the defense nor the statutory scheme. This defense is intended to protect the employee, not the municipality that otherwise is cloaked with its own immunity absent express statutory abrogation." Id. at 37. The question this court must answer therefore, is whether the plaintiffs in the instant case have sufficiently apprised the defendant East Haven Board of Education of their intent to rely upon § 52-557n before the plaintiffs can avail themselves of the protections of the Supreme Court's decision in Spears v. Garcia?
Sec. 52-557n. Liability of political subdivision and its employees, officers and agents reads in relevant part:
(a) (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . .
The plaintiffs have relied solely on their claim of common-law negligence on the part of the defendant. At no time have they advanced any statute as a basis for the liability of the defendant in this case. A review of the complaint and the plaintiffs' brief in opposition to the defendant's motion to strike fails to reveal any reference to § 52-557n. They have failed to name an agent, officer or employee of the municipality and to invoke indemnification pursuant to General Statute § 7-465. There was no reference to these statutes in any argument on the defendant's motion to strike when the matter appeared on short calendar on January 6, 2003. However, upon release of the decision in Spears v. Garcia, 263 Conn. 22, on April 1, 2003, the court invited the parties to comment on that decision by filing supplemental briefs on or before April 16, 2003. The plaintiffs filed a supplemental brief dated April 5, 2003, citing the Supreme Court's decision in Spears, and asking this court "to invoke the provisions of § 52-557n." The defendant East Haven Board of Education has remained silent on this issue and has not filed a supplemental brief. The court finds that by filing a supplemental brief stating that the plaintiffs rely upon § 52-557n, the plaintiffs have brought their action under the umbrella of the Appellate Court's and the Supreme Court's decisions respectively in Spears v. Garcia.
Sec. 7-465. Assumption of liability for damage caused by employees or members of local emergency planning districts reads in relevant part:
(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as hereinafter set forth, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. This section shall not apply to physical injury to a person caused by an employee to a fellow employee while both employees are engaged in the scope of their employment for such municipality if the employee suffering such injury or, in the case of his death, his dependent, has a right to benefits or compensation under chapter 568 by reason of such injury . . . No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. Governmental immunity shall not be a defense in any action brought under this section . . . As used in this section, "employee" shall include (1) a member of a town board of education and any teacher, including a student teacher doing practice teaching under the direction of such a teacher, or other person employed by such board and (2) a member of the local emergency planning committee from such municipality appointed pursuant to section 22a-601.
While the plaintiffs' notice to the defendant East Haven Board of Education of their reliance on § 52-557n is somewhat late in the proceeding regarding this motion to strike, and can be said to have been prompted by the court's invitation for supplemental briefs, the defendant has chosen not to respond. The defendant had until April 16, 2003, to do so, and presumably was aware of the plaintiffs' position on or about April 5, 2003. The court therefore, finds that by notifying the defendant of their intention to rely upon § 52-557n, the plaintiffs have satisfied the notice requirement set forth by the Appellate Court in Spears v. Garcia, 66 Conn. App. 669 (2001). By doing so they are entitled to abrogate governmental immunity, pursuant to § 52-557n as set forth in Spears v. Garcia, 263 Conn. 22 (2003). The plaintiffs may bring a direct cause of action against the East Haven Board of Education.
III
The plaintiffs' complaint contains allegations that certain unnamed and otherwise unidentified "agents, servants and employees" of the Board of Education acted negligently (Count 1) and in knowing and reckless disregard (Count Two). The defendant argues that even had the plaintiffs properly named such individuals and appropriately pleaded indemnification in Counts One and Two, those Counts would still fail to set forth a cause of action upon which relief could be granted, as the alleged conduct involves the exercise of discretion. "Municipalities and their employees or agents have immunity from negligence liability for governmental acts involving the exercise of judgment or discretion." Elliot v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998). A municipal official has qualified immunity in the performance of a governmental, or discretionary duty, but he may still be liable if he misperforms a ministerial act. Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).
The plaintiffs complain that certain unidentified employees of the Board failed to take action to prevent the decedent from committing suicide, despite having knowledge that the decedent was in danger of harming himself. The defendants state that "[D]eterminations as to what is reasonable and proper under a particular set of circumstances necessarily involve the exercise of judgment and are, therefore discretionary in nature." Segreto v. City of Bristol, 71 Coun. App. 844, 804 A.2d 928 (2002). Therefore, argues the defendant, the Board of Education and its employees are entitled to immunity for the conduct alleged in Counts One and Two.
The plaintiffs argue that a school system is not necessarily entitled to immunity for its own wrongdoing. Bell v. Board of Education, 55 Conn. App. 400, 739 A.2d 321 (1999). The plaintiffs state that Bell held that the plaintiffs could sue a Board of Education directly for its misconduct in administering the public schools. In the present case the plaintiffs allege that the defendant Board of Education intentionally concealed the identities of its responsible employees for the specific purposes of preventing the plaintiffs from obtaining redress for the death of their son. This misconduct by the Board, in itself, is sufficient to transfer to the Board directly, without the necessity of relying upon indemnification pursuant to § 7-465.
Contrary to the plaintiffs' assertion, however, the Appellate Court did no such thing in Bell. In fact, the Appellate Court sustained the trial court's granting of the defendants' motion to strike the plaintiffs' claim of educational malpractice. The Appellate Court reversed only the trial court's granting of the motion to strike with respect to claims of intentional infliction of emotional distress. Further, in Bell, the plaintiffs sued the Board of Education, as well as, the principal of the school, unlike the present case where the plaintiffs have sued only the Board of Education. There was no discussion in the Bell decision that would reveal whether the plaintiffs sued the board directly or sought indemnification. Nor is there any indication that the defendants moved to strike the plaintiffs' complaint for failing to plead a basis upon which the board's immunity could be abrogated.
The plaintiffs also allege that the defendant's agents had an absolute duty to prevent their son from fleeing school without permission and to protect him from injuring himself while in the defendant's care and custody. Thus, the defendant had no discretion in this regard. Therefore, argue the plaintiffs, the acts and omissions which are alleged to have proximately caused the decedent's death were ministerial in nature.
Lastly, the plaintiffs argue that, "The determination of whether official acts are ministerial or discretionary is a question of fact for the fact finder." Beach v. Regional School District Number 13, 42 Conn. App. 542, 553, 682 A.2d 118 (1996). It is not proper to decide this issue on the pleadings, whether by a motion to strike or a motion to dismiss the complaint. Ocasio-Maldonado v. City of Hartford, Superior Court, judicial district of Hartford at Hartford, CV97 0567019, (April 24, 1997) (Hennessey, J.), 1197 Ct. Sup. 3693, 19 CLR 476.
A reading of Ocasio-Maldonado v. City of Hartford, reveals that while the court did state that a determination of whether an act is discretionary or ministerial does not lend itself to a resolution by a motion to strike, the court went further to state, "If, however, it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant was not required to plead governmental immunity as a special defense and could attack the legal sufficiency of the complaint through a motion to strike." (internal quotation marks omitted) Brown v. Branford, 12 Conn. App. 106, 111 n. 3, CT Page 5321 529 A.2d 743 (1987). It is apparent from the face of this complaint that the defendant Board of Education was engaging in a governmental function, and thus a motion to strike is the proper vehicle to determine whether the acts of the defendant were discretionary or ministerial.
The dispositive question to be answered is whether the municipality, in light of Garcia v. Spears, supra, 263 Conn. 22, is entitled to the qualified immunity for discretionary governmental acts that a municipal employee enjoys as a common law defense, Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982) subject to the three recognized exceptions set forth in Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994) ? Based upon this court's interpretation of Spears v. Garcia, supra, 263 Conn. 22, 37, the answer is no.
The Supreme Court in Spears, supra 263 Conn. 37, stated, "The defense is intended to protect the employee, not the municipality that otherwise is cloaked with its own immunity absent express statutory abrogation. While a benefit accrues to a municipality when the employee successfully establishes qualified immunity, by permitting the municipality to avoid liability for indemnification, the defense is intended to benefit the employee in the exercise of his or her governmental duties." Commenting further, the Supreme Court stated, "We recognize that there may be circumstances under which a municipality is held liable under § 52-557n where it would have been able to avoid liability had the suit been brought jointly against the municipality under § 7-465. This outcome, however, results from a clear legislative expression of an intent to abrogate municipal immunity independent of the availability of a claim under § 7-465." Therefore, the court finds that qualified immunity for discretionary governmental acts is not available to the defendant East Haven Board of Education.
IV
The defendant next argues that the plaintiffs' Complaint fails to sufficiently set forth any duty owed by the defendants to the plaintiffs' decedent. "The essential elements of a cause of action in negligence are well established: duty, breach of that duty; causation; and actual injury. The existence of a duty of care is an essential element of negligence. A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate the harm of the general nature of that suffered was likely to result from his act or failure to act." Burns v. Board of Education, supra, 228 Conn. 646. "The law does not recognize a duty in the air." Waters v. Autori, 236 Conn. 820, 826 (1996).
A review of the plaintiffs' complaint reveals that the plaintiffs have failed to set forth any factual allegations that would support their conclusion that the sole defendant, the East Haven Board of Education, owed a duty to the plaintiffs' decedent. The plaintiffs merely claim that the Board's "agents, servants and employees" had a "duty to take immediate action to stop [the decedent's] flight from the school and thereafter to go to his rescue," to prevent the decedent from committing suicide. The plaintiffs then conclude that the unnamed "agents, servants employees" proximately caused the suicide.
Even considering these conclusory allegations in a light most favorable to the plaintiffs, the Complaint still fails to set forth the requisite elements of negligence as to the sole defendant the East Haven Board of Education. The plaintiffs have not brought an indemnification action, but rather, a direct action against the Board of Education. The allegations do not establish that the Board would anticipate that harm of the general nature of that suffered was likely to result from the alleged failure of the unidentified employees' alleged failure to stop the decedent from leaving school. Nor do the plaintiffs allege causation. Nothing in the Complaint can be fairly interpreted as an allegation against the Board or its employees, that the Board's alleged acts or omissions caused the decedent's suicide. One cannot leap to a conclusion that the agents' failure to stop the decedent from leaving the school building caused him to commit suicide. "As a general rule, negligence actions seeking damages for the suicide of another will not lie because the act of suicide is considered a deliberate, intentional and intervening act which precludes a finding that a given defendant, in fact, is responsible for the harm." Edwards v. Tardif, 240 Conn. 610, 615, 692 A.2d 1266 (1997) quoting, Mclaughlin v. Sullivan, 123 N.H. 335, 337, 461 A.2d 123 (1983); see also annot., 11 A.L.R.2d 751, 756 (1950) ("[w]here an action is brought under a wrongful death statute the general rule is that suicide constitutes an intervening force which breaks the line of causation from the wrongful act to the death and therefore the wrongful act does not render [the] defendant civilly liable"). In other words, suicide generally is an unforeseeable result that serves to preclude civil liability. Edwards v. Tardif, supra, 240 Conn. 615; See, also e.g., Tate v. Canonica, 180 Cal.App.2d 898, 913-14, 5 Cal.Rptr. 28 (1960); Eidson v. Reproductive Health Services, 863 S.W.2d 621, 627 (Mo.App. 1993); McLaughlin v. Sullivan, supra, 337-38. This common law rule has been stated as follows: "[I]f one is sane, or if the suicide is during a lucid interval, when one is in full command of all faculties, but life has become unendurable by reason of the injury, it is agreed in negligence cases that the voluntary choice of suicide is an abnormal thing, which supersedes the defendant's liability." Edwards v. Tardif, supra, CT Page 5323 240 Conn. 616, quoting W. Prosser W. Keeton, Torts (5th Ed. 1984) § 44, p. 311.
Conversely, suicide will not break the chain of causation if it was a foreseeable result of the defendant's tortious act. "Several courts have concluded that liability will be imposed on a physician when suicide was one of the foreseeable risks that made the physician's antecedent conduct negligent." Id. at 616-17; See, e.g., Wozniak v. Lipoff, 242 Kan. 583, 584, 750 P.2d 971 (1988), Meier v. Ross General Hospital, 69 Cal.2d 420, 427, 445 P.2d 519, 71 Cal.Rptr. 903 (1968) ("those charged with the care and treatment of a patient, who know of facts from which it might reasonably be concluded that a patient would be likely to harm himself in the absence of preclusive measures, must use reasonable care to prevent such harm"); Summit Bank v. Panos, 570 N.E.2d 960, 969 (Ind.App. 1991) (reversing summary judgment in favor of defendant because, "[g]iven [the decedent's] history, and [the defendant's] own testimony of his awareness of her emotional problems, there is a genuine issue of fact whether it was foreseeable that [the decedent] might abuse the drugs which he prescribed for her"); Fernandez v. Baruch, 52 N.J. 127, 132, 244 A.2d 109 (1968) ("[t]he controlling factor in determining whether there may be a recovery for a failure to prevent a suicide is whether the defendants reasonably should have anticipated the danger that the deceased would attempt to harm himself"); Edwards v. Tardif, supra at 617; quoting, Champagne v. United States, 513 N.W.2d 75, 76-77 (N.D. 1994). ("[i]f the patient's act of suicide is a foreseeable result of the medical provider's breach of duty to treat the patient, the patient's act of suicide cannot be deemed a superseding cause of the patient's death that breaks the chain of causation between the medical provider and the patient, which absolves the medical provider of liability").
Connecticut has adopted the standard set forth in § 442B of the Restatement [(Second) of Torts] that "[w]here the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct." (Internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 607-08, 662 A.2d 753 (1995). fn6
The plaintiff has not alleged sufficient facts to show that the defendant East Haven Board of Education committed sufficient negligent conduct that increased the risk of suicide by the decedent or that the defendant's conduct was a substantial factor in causing the suicide. This case is not analogous to those decisions which discuss physician negligence as a factor in the suicides of their patients. Mere conclusions unsupported by the facts alleged are not sufficient to overcome a motion to strike. Novametrix v. Medical Systems, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992). Accordingly Count One of the Complaint fails to set forth the requisite elements of a negligence claim and is hereby stricken.
V
The plaintiff next argues that Counts One and Two should be stricken as Connecticut does not recognize common law claims for wrongful death or reckless disregard. "The wrongful death statute; General Statutes 52-555; is the sole basis upon which an action that includes as an element of damages a person's death or its consequences can be brought." Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 295, 627 A.2d 1288 (1993). At common law, the death of the injured person, whether contemporaneous with the wrongful act or not, terminated liability of the wrongdoer because the right to enforce it ended with the death. Id.; See also, Floyd v. Fruit Industries, Inc., 144 Conn. 659, 668, 136 A.2d 918 (1957). Death and its direct consequences can constitute recoverable elements of damages only if, and to the extent that, they are made so by statute. Foran v. Carangelo, 153 Conn. 356, 359, 216 A.2d 638 (1966). Because it is in derogation of the common law, an action for wrongful death is limited to matters clearly within its scope.
Sec. 52-555. Actions for injuries resulting in death.
(a) In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of.
(b) Notwithstanding the provisions of subsection (a) of this section, an action may be brought under this section at any time after the date of the act or omission complained of if the party legally at fault for such injuries resulting in death has been convicted or found not guilty by reason of mental disease or defect of a violation of section 53a-54a, 53a-54b, 53a-54c, 53a-54d, 53a-55 or 53a-55a with respect to such death.
A review of Counts One and Two shows that there is no reference whatsoever to General Statutes § 52-555, regarding a claim for wrongful death. The plaintiff argues that they need not specifically plead the wrongful death statute and cite to Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 25 (1992), which states: ". . . A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. The court finds that the allegations of the complaint are sufficient to put the defendant on notice that the plaintiffs, as co-administrators of the decedent's estate are alleging that the decedent's death was a foreseeable result of the alleged tortious acts of the defendant. The plaintiffs need not specifically cite the Wrongful Death Statute § 52-555 in their complaint to avail themselves of the statute."
In Count Two the plaintiffs re-plead the same allegations as Count One, but claim that the alleged acts of the defendant constituted "knowing and reckless disregard." Connecticut does not recognize a cause of action for reckless disregard. In Caruso v. Board of Education for the City of Milford, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV99 067957, (December 10, 2001) (Moran, J.), 2001 Ct. Sup. 16306, the court held that reckless indifference may be a factor in deciding whether to award punitive damages, but reckless indifference is not a recognized cause of action. See also, Pitts v. Carabillo, Superior Court, judicial district of Danbury, Docket No. 334727 (May 22, 2000) (Carroll, J.); Berry v. Loiseau, 223 Conn. 786, 811, 614 A.2d 414 (1992). Viewing the complaint in a light most favorable to the plaintiff, no facts are alleged which would satisfy the conduct or mental state required to support a claim of recklessness.
Recklessness is a state of consciousness with reference to the consequences of one's acts. It is more than negligence, more than gross negligence. The state of mind amounting to recklessness may be inferred from conduct. But, 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. Wanton misconduct is reckless misconduct. It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. Wilful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse. Its characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. Not only the action producing the injury but the resulting injury also must be intentional. (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 532-33, 542 A.2d 711 (1988).
Taking allegations which sound in negligence and calling them recklessness does not make it so. See Kostiuk v. Queally, 159 Conn. 91, 94-95, 267 A.2d 452 (1970). Accordingly, Count Two of the complaint is hereby stricken for this additional reason.
V
In Counts Three and Four, the plaintiffs set forth claims for a loss of filial consortium due to the death of their son. Connecticut does not recognize a cause of action for a loss of filial consortium. Mahoney v. Lensink, 17 Conn. App. 130, 141, 55 A.2d 1088 (1988), rev'd on other grounds, 213 Conn. 548, 569 A.2d 518 (1990). Accordingly, Counts Three and Four are also ordered stricken.
In summary, the court has granted the defendant East Haven Board of Education's motion to strike each of the four counts of the plaintiffs' complaint dated August 7, 2002, for the various reasons stated herein.
The Court
By Richard E. Arnold, Judge