Opinion
No. X08 CV 00 0177860
January 20, 2004
MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION TO STRIKE SPECIAL DEFENSES (168.00)
The plaintiffs, administrators of the estate of their deceased son Jason Schweitzer, brought this wrongful death action alleging that Jason was killed in a one-car accident in Vermont while a passenger in a motor vehicle driven by Richard M. Aidinis at high speed which went out of control and off the road with both passengers being thrown from the vehicle. The alleged driver Richard M. Aidinis survived the accident but has subsequently died.
Plaintiffs allege that Aidinis' negligent and reckless conduct while operating the vehicle caused Schweitzer's death. Among other things plaintiffs allege that Aidinis was driving at a speed greatly in excess of the speed limit, was driving while impaired by drugs and alcohol, and violated numerous motor vehicle statutes while driving through Connecticut, Massachusetts and Vermont prior to the accident.
The defendants are the Estate of Richard M. Aidinis, BMW Financial Services, N.A., Inc., the owner of the car involved in the accident which was leased to Aidinis' father, pursuant to General Statutes § 14-154a, and Aidinis' father on a theory of negligent entrustment of the vehicle to his son. The defendants deny that Aidinis was driving the vehicle at the time of the accident and deny other material allegations. Each defendant has also asserted a special defense of contributory negligence.
The special defenses which plaintiffs move to strike state as follows:
Aidinis Defendants' Special Defense CT Page 1352
If the plaintiff's decedent sustained the damages and injuries in the manner and to the extent as alleged in the complaint and if the allegations in the plaintiff decedent's complaint concerning the operation of the vehicle are found to be true, which is herein expressly denied, then the plaintiff's decedent was negligent in that he drove with the defendant's decedent when he knew or should have known that the defendant's decedent was impaired and not able to make proper use of his senses and faculties; and in that the plaintiff's decedent failed to use care of a reasonably prudent person under all the circumstances then and there existing.BMW's First Special Defense
If in fact the allegations of the Plaintiff's Complaint are found to be true, the Defendant, BMW Financial Services alleges that the Plaintiff's decedent was chargeable with negligence, which caused his death first in that he observed the Defendant's decedent consume such a quantity of alcoholic beverage before he drove, that he knew, or should have known that the Defendant's decedent was in an intoxicated condition; second in that the Plaintiff's decedent was in such a condition of intoxication that he was rendered unfit to make proper uses of his senses and faculties; and, third, because of either one or both of the aforesaid he failed to use the care of a reasonably prudent person under circumstances then and there existing.
The plaintiff's have moved to strike these special defenses. The Connecticut Supreme Court has recently restated the rules applicable to determining a motion to strike.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [pleading] . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693, A.2d 293 (1997); see Practice Book § 10-39. "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 [pleading] . . . and we construe the [pleading) in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the [pleading] would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). "A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003).
DISCUSSION
The plaintiffs' motion sets forth several arguments. As the first prong of their motion the plaintiffs contend that for judicially recognized reasons of good public policy a court should not permit the above special defenses which are based on assumption of the risk. They point out that a driver-defendant who has violated a motor vehicle statute by speeding or driving while intoxicated (violations which can carry criminal penalties) could possibly be totally absolved from civil liability should a jury or other fact finder determine that a passenger-plaintiff who simply entered the vehicle be more at fault under our comparative negligence statute. Plaintiffs argue that such a result would be completely contrary to the strong public policy set forth in numerous state statutes prohibiting drunk driving, reckless operation and driving while under the influence of alcohol or drugs.
The plaintiffs also rely on two Connecticut Supreme Court cases and several cases decided in the Superior Court. In L'Heureux v. Hinley, 117 Conn. 347 (1933), and Panaroni v. Johnson, 158 Conn. 92 (1969), the Connecticut Supreme Court held that assumption of the risk was not a proper defense for a landlord in cases where injury resulted from a failure to comply with statutory obligations. In the motor vehicle context the plaintiffs point to Casey v. Atwater, 22 Conn. Sup. 225 (1960), and McCormack v. Sedlak, Superior Court, judicial district of Waterbury, D.N. 099914 (June 23, 1992, McDonald, J.) (6 Conn. L. Rptr. 594), two Superior Court cases invoking L'Heureux v. Hurley, supra and sustaining a demurrer to, and striking, respectively, special defenses based on the concept that the plaintiff passengers assumed the risk of injury by stepping into an automobile driven by an intoxicated person.
In opposition all defendants correctly contend that a majority of Superior Court cases in Connecticut have held it proper to assert a special defense alleging that a motor vehicle passenger was negligent in entering a car driven by an intoxicated or drug impaired driver. This line of cases arises in part from the Connecticut Supreme Court case Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791 (1983), which held that Connecticut's comparative negligence statute enacted in 1973 permitted special defenses employing assumption of the risk factors as long as the plaintiff's conduct in assuming the risk was alleged to be negligent, i.e. unreasonable under the circumstances. Many of these cases are discussed in Perry v. Tomany Superior Court, judicial district of New London, CV 01 0557538 (August 28, 2001, Martin, J.) ( 30 Conn. L. Rptr. 324), and Anastasio v. Ladd, Superior Court, judicial district of Waterbury, CV 00 0160470 (January 29, 2001, Doherty, J.).
This court concludes that the present statutory and case law in Connecticut permit the pleading of a special defense alleging that a plaintiff motor vehicle passenger was negligent in riding with a driver who the plaintiff knew, or should have known, was intoxicated or drug impaired. The court does not believe this case should be guided by the reasoning in L'Heureux which was decided when the law in Connecticut mandated that an assumption of the risk defense resulted in barring any recovery by the plaintiff, whereas under today's statutory framework the plaintiff is only precluded from any recovery when his negligence was greater than half of all the negligence involved.
The court has also considered the public policy arguments presented by the plaintiffs. While they have some force they are not sufficient to overcome what this court, without the guidance of any controlling appellate court decision, concludes is the law in Connecticut. Furthermore, courts, especially trial courts, should be hesitant to apply their own vision of proper policy when the legislature over the last thirty years has laid out a carefully drafted statutory scheme of weighing and apportioning fault in tort cases.
Next, the plaintiffs assert that the special defenses of Aidinis and BMW should be stricken because the defenses fail to allege the critical element of causation. Plaintiffs correctly point out that to state a special defense of contributory negligence the defense must allege the existence of a duty, breach of that duty by the plaintiffs' decedent, and that the breach of duty caused the plaintiffs' decedent's death. Causation in the legal sense means proximate cause; i.e. that the breach of duty (negligence) was a substantial factor in causing the harm.
At oral argument of this motion it was conceded by counsel for the Aidinis defendants that their special defense lacked language alleging the causal link between negligence and injury. The court agrees with this assessment, and therefore the Aidinis defendant's special defense is stricken.
BMW's special defense states ". . . Plaintiff's decedent was chargeable with negligence which caused his death . . . The defense further specifies that plaintiffs' decedent knew or should have known that the defendant was intoxicated." In Craig v. Dunleavy, 154 Conn. 100 (1966) the Connecticut Supreme Court held that
[I]f [the defendant] was intoxicated to the knowledge of [the plaintiff] at the time they entered the car, or if [the defendant's] condition of intoxication was palpably apparent at that time, it would be negligent for [the plaintiff] to enter the car and ride in it, and if the injuries and death of [the plaintiff] resulted from the failure of [the defendant] to operate the care with proper care and skill because of this intoxicated condition, the plaintiff could not recover.
Id., 103-04. While BMW's special defense does not spell out with specificity the factual causal connection between the negligence and the harm, a fair reading of the language construed in favor of the defendant BMW reveals an allegation that the plaintiff's decedent's decision to ride with the defendant Aidinis' decedent was unreasonable under the circumstances and was a substantial factor in causing his death.
The plaintiffs also assert that the defendants' special defenses improperly allege the defense of contributory negligence in opposition to the second count of the amended complaint which sets forth a claim of reckless misconduct by the alleged driver Richard M. Aidinis.
The plaintiffs are correct that Connecticut law, which permits the amount of recoverable damages to be reduced by the percentage of all the negligence in the matter which is attributable to the recovering party if that party's negligence is not greater than half of all the negligence, only applies to actions "based on negligence." General Statutes § 52-572h(b); see Durniak v. August Winter Sons, Inc., 222 Conn. 775, 782 (1992); Bhinder v. Sun Co., Inc., 246 Conn. 223, 231-32 (1998) (superseded on other grounds by P.A. 99-69). A cause of action based on reckless conduct is separate and distinct from a cause of action based on negligence. Kostiuk v. Queally, 159 Conn. 91, 94 (1970). The Appellate Court has upheld the striking of a special defense of contributory negligence to a cause of action alleging reckless misconduct. Belanger v. Village Pub I, Inc. 26 Conn. App. 509 (1992).
The court makes note of the status of the pleadings. Count One of the Amended Complaint alleges that Richard M. Aidinis was negligent, and Count Two alleges he was reckless. Count Three, by reiterating the allegations of the first two counts, seeks to hold BMW liable pursuant to General Statutes § 14-154a on the basis of Richard M. Aidinis' negligence and recklessness. The Aidinis defendants' special defense does not specify whether it is directed to Count One, Count Two, or both.
Therefore, to the extent the Aidinis defendants' special defense is directed toward Count Two it is stricken, and to the extent the BMW special defense is directed toward the reckless allegations in Count Three it is stricken.
Finally, the plaintiffs contend that the defendants' special defenses state inconsistent factual contentions and are therefore impermissible. Plaintiffs point out that the defendants' answers have denied that Richard M. Aidinis was the driver of the car, yet the special defenses of contributory negligence are based on the allegations that Schweitzer was negligent in becoming a passenger in the car Aidinis was driving.
Initially, the court concludes that the special defenses are not contradictory statements of fact as they both are explicitly premised on the condition, i.e. "if," the allegations of the amended complaint concerning Richard M. Aidinis being the driver are "found to be true." In Hanover Ins. Co. v. Fireman's Fund Ins. Co., 217 Conn. 340 (1991), the Connecticut Supreme Court held that absent a showing of prejudice there is no general prohibition of inconsistent pleadings. Id., 346. The Connecticut Practice Book specifically permits inconsistent pleadings in Section 9-14.
The Appellate Court has recognized an obligation of good faith in stating inconsistent pleadings. In DeVita v. Esposito, 13 Conn. App. 101, 105-06 (1987), cert. denied, 207 Conn. 807 (1988), the Appellate Court recognized the situation where an ultimate fact (whether ownership was by deed or adverse possession) could not be known until the evidence was presented, and stated
[s]ince the defendant could not, in good faith, determine the ultimate facts in advance, it would have been improper to require him to make an election at trial between the claim of record title and the claim of adverse possession.
Id., 13 Conn. App. 106 (citation omitted).
The plaintiffs have not contended that the special defenses evidence lack of good faith, and under the circumstances where Richard M. Aidinis has died, there is no evidence of bad faith in the pleading. Neither is there any showing of unfair prejudice. The motion to strike on the ground of contradictory or inconsistent pleading is denied.
Conclusion
The court rules that the Aidinis defendants' special defense should be struck on the basis of lack of causation language. Since the court anticipates those defendants to amend their pleading and because BMW's special defense was not deficient in causation language the court has also ruled as to which plaintiffs' claims the special defense does not apply. In its other respects, the motion to strike is denied.
TAGGART D. ADAMS SUPERIOR COURT JUDGE.