Opinion
No. CV 07-5013079
November 14, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #101
FACTS
On August 9, 2007, the plaintiff, Meriem Sofiane, filed a three-count complaint against the defendant, Pedro Cardona. In the complaint, the plaintiff alleges that on October 29, 2005, she sustained injuries and damages resulting from an accident on South Broad Street in Meriden, Connecticut when the defendant's vehicle collided with the vehicle she was operating. The first count of the complaint alleges negligence by the defendant. The second count of the complaint incorporates the entire first count of the complaint and alleges statutory recklessness by the defendant pursuant to C.G.S. § 14-295. The third count of the complaint similarly incorporates the entire first count of the complaint and alleges common-law recklessness against the defendant. The plaintiff requests, in her prayer for relief, money damages as to count one, double or treble damages pursuant to C.G.S. § 14-295 as to count two, and common-law punitive damages as to count three.
On September 14, 2007, the defendant filed a motion to strike the second and third counts of the complaint, on the grounds that the facts alleged were legally insufficient to state a claim upon which relief can be granted. On October 25, 2007, the plaintiff filed a memorandum of law in opposition. The matter was heard at short calendar on November 5, 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.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998).
"In ruling on a motion to strike, the trial court examines the complaint "construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). When deciding the motion, "the court is limited to the facts alleged in the complaint." (Internal quotations marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
As to the Second Count
In his memorandum of law in support of his motion to strike, the defendant argues that the plaintiff has made no specific allegations of recklessness in the second count other than to insert the phrase "reckless and wanton," and to cite to C.G.S. §§ 14-222(a), 14-218a, and 14-227(a) and thus, has failed to plead a sufficient factual basis to support a claim for double and treble damages under § 14-295. The defendant asserts that the plaintiff has failed to provide facts which support the allegations. In response, the plaintiff counters that she has sufficiently pled a claim for statutory negligence under § 14-295 pursuant to the majority view, i.e., she has alleged that the defendant violated several statutes enumerated in § 14-295, and such violations were a substantial factor in causing the plaintiff's injuries and losses.
The court's reading of the complaint in fact found no such phrase in count two of the complaint. Count two alleges that the defendant "deliberately and with reckless disregard, drove his car in a reckless and dangerous manner with extreme indifference to human life . . ."
General Statutes § 14-222 provides in relevant part: (a) No person shall operate any motor vehicle upon any public highway of the state . . . recklessly, having regard to the width, traffic and use of such highway . . . the intersection of streets and the weather conditions. The operation of a motor vehicle upon any such highway . . . at such a rate of speed as to endanger the life of any person other than the operator of such motor vehicle shall constitute a violation of the provisions of this section.
General Statutes § 14-218a provides in relevant part: (a) No person shall operate a motor vehicle upon any public highway of the state . . . at a rate of speed greater than is reasonable, having regard to the width, traffic and use of highway, road or parking area, the intersection of streets and weather conditions.
In fact, the complaint alleges that the defendant was driving under the influence of alcohol in violation of C.G.S. § 14-227a; the defendant's reference to § 14-227(a) appears to be a scrivener's error.
General Statutes § 14-227a provides in relevant part: "No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle on a public highway of this state . . . (1) while under the influence of intoxicating liquor or any drug or both or (2) while such person has an elevated blood alcohol content."
General Statutes § 14-295, which is entitled "Double or treble damages for personal injury or property damage resulting from certain traffic violations," provides in relevant part as follows: "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 . . . 14-222, 14-227a . . . and that such violation was a substantial factor in causing such injury, death or damage to property . . ."
Neither the Connecticut Supreme nor Appellate Court has yet had occasion to address the pleading requirements for recklessness under § 14-295. There has been a split of authority in Superior Court decisions as to what degree of specificity is required in pleading recklessness. See Franco v. Kang, Superior Court, judicial district of New Haven, Docket No. CV 04 4001991 (July 2, 2007, Zoarski, J.T.R.); Buccitti v. Sudhakar, Superior Court, judicial district of Waterbury, Docket No. CV 07 05004210 (June 20, 2007, Upson, J.); Esposito v. Lydell, Superior Court, judicial district of New Haven, Docket No. CV 06 5004543 (May 22, 2007, Holden, J.). "The split of authority arises from the different constructions the courts have placed on the term `specifically pleaded.'" Pyka v. Popielase, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 50000166 (May 30, 2006, Hartmere, J.).
A slight majority of Superior Court decisions has required that a plaintiff only plead the general allegations enumerated in § 14-295, namely, that the defendant has deliberately or with reckless disregard violated one of the enumerated statutes, and the violation was a substantial factor in causing the plaintiff's injuries. Franco v. Kang, supra, Superior Court, Docket No. CV 04 4001991; see also Benigni v. Regency Transportation, Superior Court, judicial district of New Britain, Docket No. CV 06 5002474 (August 1, 2007, Pittman, J.); Buccitti v. Sudhakar, supra, Superior Court, Docket No. CV 07 05004210; Healey v. Diggens, Superior Court, judicial district of New Britain, Docket No. CV 05 4003668 (October 11, 2006, Robinson, J.); Mugford v. Lee, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001463 (October 2, 2006, Matasavage, J.); Webster v. Bell, Superior Court, judicial district of New London, Docket No. 5000865 (September 22, 2006, Hurley, J.T.R.); Pizarro v. Couture, Superior Court, judicial district of New London, Docket No. 5000374 (September 18, 2006, Hurley, J.T.R.); Carawlanis v. Kaczmarczyk, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 06 5001507 (June 7, 2006, Rodriguez, J.); Shost v. Beeman, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05-4003960 (March 1, 2006, Ronan, J.T.R.); Pyka v. Popielase, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 50000166 (May 30, 2006, Hartmere, J.); Mandeville v. Kulikowski, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 05 4004292 (December 6, 2005, Ronan, J.T.R.); Termini v. Taylor, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 5000171 (November 28, 2005, Taylor, J.); Hand v. Moore, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 05 4003873 (September 26, 2005, Jennings, J.); Metzler v. Amenta, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 04 00848205 (June 15, 2004, Robinson, J.); Pickering v. Middlebrook, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 03 0195576 (June 10, 2004, Lewis, J.T.R.); Kaluski v. Izaguire, Superior Court, judicial district of New Haven, Docket No. CV 02 0463055 (July 15, 2002, Robinson-Thomas, J.); Lombard v. Booth, Superior Court, judicial district of Fairfield, Docket No. CV 01 0383637 (July 12, 2001, Stevens, J.); Wade v. Vahora, Superior Court, judicial district of Fairfield, Docket No. CV 98 0349630 (September 9, 1998, Skolnick, J.); Owens v. Dandanell, Superior Court, judicial district of Litchfield, CV 96 0070220 (May 13, 1997, Pickett, J.T.R.); Price v. Paccar Leasing Corp., Superior Court, judicial district of New London, CV 938888 (February 19, 1997, Booth, J.); Nowitz v. JBH Transport, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 335166 (January 27, 1997, Melville, J.); Castillo v. Caporani, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 329702S (April 12, 1996, Ballen, J.); St. George v. Connecticut Car Rental, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 0554923, (February 27, 1996, Spada, J.); Smith v. Mitsubishi Motors, Superior Court, judicial district of New London, Docket No. 535161, (January 17, 1996, Hurley, J.); Besson v. Davis, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 32 70 40 S, (January 5, 1996, Ballen, J.); Bavolacco v. Medalis, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 324479S (September 14, 1995, Ballen, J.); McGuire v. Ferguson, Superior Court, judicial district of Litchfield, Docket No. CV 950068021 (July 31, 1995, Pickett, J.) [14 Conn. L. Rptr. 624]; Eldridge v. Sternberg, Superior Court, judicial district of Hartford-New Britain, Docket No. CV95 544939 (February 16, 1995, Wagner, J.); Hoponick v. Bastis, Superior Court, judicial district of Waterbury, Docket No. 118941 (December 9, 1994, Sylvester, J.); Armstrong v. Smith, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 94-0533947S (December 2, 1994, Sheldon, J.) [13 Conn. L. Rptr. 120]; Solarzano v. Wilson, Superior Court, judicial district of New Haven, Docket No. 35 68 85 (November 10, 1994, Zoarski, J.); Ogletree v. Brown, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV93 0134778 (July 29, 1994, Lewis, J.) [12 Conn. L. Rptr. 272]; Knoblauch v. Atlantic Ventilating, Superior Court, judicial district of Hartford-New Britain, Docket No. CV93-0524505 (October 22, 1993, Corradino, J.) [10 Conn. L. Rptr. 275]; Spencer v. King, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV93-0069530S (September 16, 1993, Higgins, J.) [10 Conn. L. Rptr. 48] .
Courts taking the majority view have emphasized the plain meaning of § 14-295.
"There does not appear to be any ambiguity in the language of [§] 14-295 or how it should be applied or construed. The statute says that in a civil action seeking damages for personal injuries, the trier of fact may award double or treble damages if the plaintiff has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of . . . [one or more motor vehicle statutes delineated in the statute] . . . and that such violation was a substantial factor in causing such injury . . . When such an allegation is specifically made, nothing else is required under the statute. If a further delineation of facts forming the basis of the recklessness claim were necessary, then such an explicit requirement could have been set out in the statute by the legislature." Lombard v. Booth, supra, Superior Court, Docket No. CV 01 0383637. "Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct." Warkentin v. Burns, 223 Conn. 14, 22, 610 A.2d 1287 (1992).
Buccitti v. Sudhakar, supra, Superior Court, Docket No. CV 07 05004210. See also Mandeville v. Kulikowski, supra, Superior Court, Docket No. CV 05 4004292 (same); Carawlanis v. Kaczmarczyk, supra, Superior Court, Docket No. CV 06 5001507 ("the majority opinion is supported by the clear language of § 14-295"); Hand v. Moore, supra, Superior Court, Docket No. CV 05 4003873 ("no indication that the legislature intended to incorporate the specific fact pleading requirements of the common-law cases into cases of statutory negligence").
In Armstrong v. Smith, supra, Superior Court, Docket No. 94 0533947, Judge Sheldon clearly and concisely set forth the legislative history of § 14-295. In discussing the fact that the legislature explicitly required any person seeking treble damages to both plead and prove that the defendant acted "deliberately or with reckless disregard," Judge Sheldon made the following salient point:
Plainly, by importing such a standard to Section 14-295, the legislature sought to punish by treble damages only those traditionally regarded by the law as most worthy of punishment. The distinguishing factors about their behavior which makes them worthy of such special sanctions is plainly the deliberation or reckless disregard of others with which they act. By pleading, and thus committing herself to proving, this critical mental element, the plaintiff has pleaded all the law requires to ensure that the statute will be strictly enforced according to its terms.
In contrast, a minority of courts have required that plaintiffs plead the specific conduct that is reckless, above and beyond what must be pleaded for mere negligence. See Leigh v. Cook, Superior Court, judicial district of New Haven, Docket No. CV 06 6000492 (May 24, 2007, Holden, J.); Belgrave v. Turk, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 05 4010135 (February 1, 2007, Howard, J.T.R.); Victor v. Williamson, Superior Court, judicial district of Fairfield, Docket No. CV 05 4008786 (July 7, 2006, Owens, J.T.R.); Pamela v. Heinzelman, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 04 4005740 (January 19, 2006, Lewis, J.T.R.); Fitzgerald v. Marcus Dairy, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 03 082618 (April 2, 2004, Bear, J.); Kurensky v. Church Hill Enterprises, Superior Court, judicial district of Fairfield, Docket No. CV 02 0390806 (July 16, 2002, Brennan, J.); McGuire-Kelley v. Sciuto, Superior Court, judicial district of New Haven, Docket No. CV 99 0428860 (October 1, 1999, Devlin, J.); Nocera v. Besso, Superior Court, judicial district of Middlesex, Docket No. CV 98 0086777 (September 29, 1999, Gordon, J.); Meiliken v. Romano, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV93 0131303 (April 28, 1994, Lewis, J.); Santiago v. Drolet, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 92 0514312S (May 26, 1993, Hennessey, J.); Kalmanidis v. O'Dwyer, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV92 0126335S (February 2, 1993, Lewis, J.).
Courts following the minority view have highlighted the substantive difference between negligence and recklessness. "Our Superior courts have held that the reiteration of facts previously asserted to support a cause of action in negligence, without more, cannot be transformed into a claim of reckless misconduct [by mere] nomenclature." (Internal quotation marks omitted.) Leigh v. Cook, supra, Superior Court, Docket No. CV 06 6000492. "To allow a plaintiff to simply allege reckless disregard of a statutory provision would enable any negligence claim to be brought as a recklessness claim and thereby make it subject to double and treble damages. The plaintiff would only have to plead that in addition to the defendant's conduct being careless it was also deliberate. This court does not believe it was the legislature's intent when enacting § 14-295, to effectively dissolve any distinction between claims in negligence and recklessness." Victor v. Williamson, supra, Superior Court, Docket No. CV 05 4008786.
Other courts adopting the minority approach include: Chatterton v. Infinity Ins. Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 98 0069615 (October 1, 1999, Arnold, J.); Kelly v. Stone, Superior Court, judicial district of Fairfield, Docket No. CV 97 344231 (January 9, 1998, Maiocco, J.); Reed v. Sesta, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 98 0577273 (June 19, 1998, Aurigemma, J.); Bravo v. Watson, Superior Court, judicial district of Waterbury, Docket No. 0129692 (March 13, 1996, M Donald, J.); Collins v. Lull, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 96 058510 (August 9, 1996, Aurigemma, J.); Cavallaro v. Amara, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 96 0557711 (September 26, 1996, Aurigemma, J.); Murray v. Krupa, Superior Court, judicial district of New London, Docket No. 107233 (October 2, 1995, Teller, J.); Babkie v. Kinder, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV94 31 40 16 (June 30, 1995, Maiocco, J.); Fisher v. Irby, Superior Court, judicial district of Fairfield, Docket No. 309622 (February 1, 1994, Ballen, J.); Castrovillari v. Bourse, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV 93 0129351 (March 3, 1994, Lewis, J.); Bly v. Katrosar, Superior Court, judicial district of Waterbury, Docket No. 114655 (March 10, 1994), Sylvester, J.); Pitka v. Ullrich, Superior Court, judicial district of New London, Docket No. 530000 (November 15, 1994, Austin, J.) [13 Conn. L. Rptr. 32]; Jimenez v. Schell, Superior Court, judicial district of Stamford, Docket No. CV94 0137265 (November 8, 1994, Lewis, J.); Diana Bivens et al. v. Charles Brewster et al., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV93 0308588S (March 22, 1994, Rodriguez, J.); Minervini v. Pierce, Superior Court, judicial district of Waterbury, Docket No. 0111987 (January 22, 1993, Sylvester, J.); Lezotte v. Hanover Insurance Co., Superior Court, judicial district of Waterbury, Docket No. 0112067 (January 6, 1993, Sylvester, J.) [8 Conn. L. Rptr. 199]; Comparone v. Cooper, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV92 293125 (August 27, 1992, Lewis, J.) [7 Conn. L. Rptr. 262]; Gaudet v. Ziobran, Superior Court, judicial district of Middlesex, Docket No. 61126 (June 10, 1992, Austin, J.) [6 Conn. L. Rptr. 862]; and Varlese v. Beers, Superior Court, judicial district of Waterbury, Docket No. 0997551 (April 4, 1991, Sullivan, J.) [3 Conn. L. Rptr. 474] .
Courts taking the minority position have also emphasized the importance of fact pleading. "[T] he majority view — to plead only the bare bones of the statute — would lead to anemic pleading . . . Connecticut remains a fact pleading jurisdiction . . . The majority view would judicially take us to a notice pleading posture." Kurensky v. Church Hill Enterprises, supra, Superior Court, Docket No. CV 02 0390806. "Practice Book § 10-1, titled Fact Pleading, provides in relevant part: `Each pleading shall contain a plain and concise statement of the material facts on which the pleader relies . . .' There is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on." (Internal quotation marks omitted.) Leigh v. Cook, supra, Superior Court, Docket No. CV 06 6000492. "[T] he plaintiff must plead particularized facts that when taken as true would show that the defendant acted with reckless disregard. The facts alleged must show that the defendant consciously chose a course of action despite the fact that the defendant did know, or reasonably should have known, that the action posed serious danger to others." Victor v. Williamson, supra, Superior Court, Docket No. CV 05 4008786.
Several courts have used both the majority and minority approaches in examining pleadings that allege recklessness under § 14-295. See e.g. Lussier v. Zarelli, Superior Court, Judicial District of Stamford-Norwalk, Docket No. CV 05 5000389 (August 16, 2006, Jennings, J.) ("[The plaintiff] has not alleged that the defendants' violation of the statute was a substantial factor in causing her injuries. Therefore, her claim for recklessness is deficient under the majority view. The plaintiff's allegation of recklessness is also deficient under the minority view which requires her to `plead the specific facts constituting recklessness above and beyond the facts constituting mere negligence.'").
This court finds the majority view, which has also been the trend in recent years, persuasive. The language of § 14-295 is unambiguous, and the plaintiff has met the requirements of the statute by alleging that the defendant deliberately and with reckless disregard operated his motor vehicle in violation of §§ 14-218a, 14-227a, and 14-222(a), and that such violations were a substantial factor in causing injuries and losses to the plaintiff. The plaintiff has therefore adequately invoked the provision of § 14-295.
Accordingly, the motion to strike count two of the complaint is denied.
As to the Third Count
In his memorandum of law in support of his motion to strike, the defendant argues that the plaintiff has made no specific allegations of recklessness, and has merely reasserted allegations of conduct that were characterized as "negligence" in count one as "recklessness" in count three. The defendant's argument appears to be that the third count is legally insufficient because it duplicates the negligence count, adding no new factual allegations. The defendant does not argue that the third count, standing alone, fails to state a cause of action for common-law recklessness. The plaintiff counters that the facts alleged in the third count support a cause of action for recklessness. The court agrees with the plaintiff.
A plaintiff may set out alternative theories of liability based upon the same facts. "The plaintiff may claim alternative relief, based upon an alternative construction of the cause of action." Practice Book § 10-25. "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." (Internal quotation marks omitted.) Matthiessen v. Vanech, 266 Conn. 822, 832, 836 A.2d 394 (2003). Recklessness has also been described as "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 make 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 . . ." (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 532-33, 542 A.2d 711 (1988). "[T] he terms wilful, wanton or reckless, in practice . . . have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted.) Dubay v. Irish, supra, 207 Conn. 533.
"[W] here the allegations of a count of a contested pleading support a cause of action of recklessness, the count sounding in recklessness may well be sufficient to withstand a motion to strike even though the allegations of reckless conduct are also alleged as a basis of negligent conduct in a count sounding in negligence." Haley v. Connecticut Light Power, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 059027 (November 9, 1999, Nadeau, J.). "[T] here is no reason why the plaintiff, relying on the same set of facts in negligence counts, cannot set forth in separate counts, causes of action arising out of those same facts alleging recklessness." Adams v. Champagne, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. 061154 (May 27, 1998, Corradino, J.) (22 Conn. L. Rptr. 241, 242). The defendant's argument here is that the recklessness count should be stricken because it adds no new underlying factual allegations. "[S] imilarity cannot be the sole focus. To so consider would often require a plaintiff to ratchet down the negligence claim in order to render more visible the conceptual space between the counts. Focus must instead primarily rest on the recklessness — sufficiency of that count." Haley v. Connecticut Light Power, supra. "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." Triano v. Fitzpatrick, M.D., Superior Court. judicial district of New Britain, Docket No. 494828 (February 17, 2000, Graham, J.) [26 Conn. L. Rptr. 454] .
An examination of the facts alleged in the third count of the complaint support a claim for recklessness under Connecticut law. The facts as alleged by the plaintiff clearly demonstrate conduct that is an extreme departure from ordinary care. The plaintiff alleges, inter alia, that the defendant, operating a motor vehicle while under the influence of alcohol, and while speeding, made an abrupt turn, colliding with the plaintiff's vehicle, before evading responsibility. The plaintiff alleges that the defendant deliberately and with reckless disregard, drove his vehicle in a reckless and dangerous manner with extreme indifference to human life.
This is not an issue of mere nomenclature. While it is true that the plaintiff, in count three, substituted the phrase "reckless and wanton misconduct" in lieu of the reference to "negligence" in count one, the facts as alleged in the third count do give rise to conduct that indicates a reckless disregard for the safety of others.
Accordingly, the motion to strike count three is denied.
CONCLUSION
The plaintiff has stated claims upon which relief can be granted in the second and third counts of the complaint. As such, the defendant's motion to strike is denied.