Opinion
No. TTD CV 07-5001531-S
May 6, 2008
MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION TO STRIKE SPECIAL DEFENSE
In this case, the plaintiff, Michael Starkel alleges that while standing in the street directing traffic around a worksite where fellow workers were installing a traffic light at the intersection of North Road and Shoham Road in East Windsor, he was struck by a truck driven by the defendant James Klotzer. The complaint is in four counts against Klotzer and his employers. The First Count alleges negligence, the Second Count alleges recklessness, the Third Count is by Starkel's wife alleging loss of consortium by negligence and the Fourth Count is by her alleging loss of consortium by recklessness. The defendants filed an Answer with Special Defenses alleging, inter alia, assumption of the risk as to the recklessness counts alleged in the Second and Fourth Counts. Before the court is plaintiffs' Motion to Strike that Special Defense, arguing that assumption of the risk is not allowed as a special defense to recklessness under Connecticut law. For the following reason, that Motion to Strike is denied.
I
A motion to strike a special defense is a proper vehicle for the purpose of testing the legal sufficiency of the allegations of a special defense. Practice Book § 10-39(a)(5); Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001). In ruling on a motion to strike, the court has an obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency. Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). In ruling on a motion to strike, the trial court is limited to the facts alleged in the pleadings. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).
II
Plaintiffs' Motion to Strike reads, "Said defense is legally insufficient because assumption of the risk is not a defense to recklessness under Connecticut law." Thus, the plaintiffs' claim is that under no circumstances can assumption of the risk be raised as a defense against a cause of action for recklessness. Defendants argue that assumption of the risk is a legally viable defense to recklessness under Connecticut law.
Defendants also claim that the plaintiffs are barred from raising the additional arguments, contained in their Memorandum in Support of Motion to Strike Special Defenses, concerning whether the Special Defense contains adequate factual allegations to plead the defense. The court agrees with the defendants that plaintiffs must distinctly specify the reasons for each claimed insufficiency in the Motion, and they are limited to those reasons appearing in the motion, and extra arguments set forth in the Memorandum cannot be considered. See Practice Book § 10-41; Blancato v. Feldspar Corporation, 203 Conn. 34, 44, 522 A.2d 1235 (1987); Doe v. State, Superior Court, judicial district of Hartford, Docket No. CV 05-4013064 (July 11, 2006, Tanzer, J.). However, the court does not understand plaintiffs' challenge to be one of adequacy; rather, they challenge the ability of defendants to raise an assumption of the risk as a defense to any recklessness count under any circumstances, including the instant case. The Motion contains that challenge.
At common law, assumption of the risk was a complete defense against a negligence action. "Assumption of the risk on the part of a plaintiff exists where none of the fault for the injury rests with the plaintiff, but where the plaintiff assumes the consequences of injury occurring without his fault — injury occurring through the fault of the defendants, fault of a third person, or fault of no one . . . In its widest significance it affirm that one who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong." (Internal quotation marks omitted; citation omitted.) L'Heureux v. Hurley, 117 Conn. 347, 353-54, 168 A. 8 (1933).
Assumption of the risk was abolished as a defense in negligence actions in Connecticut in 1973. See Public Acts 1973, No. 73-622. That ban is now codified in General Statutes § 52-572h(l). The doctrine has been wholly supplanted by a comparative negligence model. General Statutes § 52-572h(b). Recklessness, however, is not the same as negligence; it is a different cause of action, for most purposes, and it usually requires additional factual allegations. Dubay v. Irish, 207 Conn. 518, 533 n. 6, 542 A.2d 711 (1988). Thus, General Statutes § 52-572h(l) did not, by its plain language, abolish assumption of the risk as a defense in recklessness cases.
General Statutes § 52-572h(l) provides:
(l) The legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished.
General Statutes § 52-572h(b) provides:
(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or the person's legal representative to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. The economic or non-economic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section.
At common law, in Connecticut, assumption of the risk has been recognized as a legal defense to recklessness since at least 1933. Cf. Freedman v. Hurwitz, 116 Conn. 283, 164 A. 647 (1933) (recognizing the defense, but, after trial, declining to find it applicable under the facts found); see also Starkel v. Edward Balf Co., 142 Conn. 336, 141 A.2d 199 (1955) (assumption of the risk available as a defense against claims by persons injured in inherently dangerous occupations). In light of the above, and inasmuch as the court is limited, in a Motion to Strike, to determining the legal sufficiency of a pleading, rather than resolving factual disputes after hearing all the witnesses, this court must conclude that assumption of the risk is still available as a defense to a recklessness claim in Connecticut, including the instant case. Whether it will survive as a defense on Motion for Summary Judgment; or be allowed as a jury charge after the parties rest at trial; or, if charged, whether it will be persuasive to a jury at time of verdict after all the evidence has been heard and the instructions of law have been given by the judge, remains to be seen.
The common-law precedent for allowing an assumption of the risk defense in a recklessness claim is old, and, as the parties point out, there is a split of authority among the Superior Court Judges who have written on the topic recently as to whether assumption of the risk is still a viable defense. A survey appears in the case of Das v. Turkey Hill Association, Inc., Superior Court, judicial district of Hartford, Docket No. CV 95-0552481 (January 11, 1996, Sheldon, J.) [16 Conn. L. Rptr. 13].
Some judges have ruled that assumption of the risk can never be a defense to reckless misconduct. Cheneski v. Barber, 7 Conn. L. Rptr. 92 (February 7, 1992) (Fuller, J.); Zawdski v. Robbins, 7 Conn. L. Rptr. 92 (July 14, 1992) Wagner, J.) In so ruling, these judges have noted that "the majority rule in other states is that assumption of the risk is not a valid defense to such action[s]" Cheneski, supra, 93 (citing 65A CJS 300, Negligence, See 174(4); 57 Am.Jur.2d 734, Negligence, Sec. 833), and that in Connecticut, where "the common-law defense of assumption of the risk operated as a complete bar to recovery, . . . recent legislative history on the subject of negligence would indicate a trend away from the application of such a harsh rule." Zawadski, supra.
Other judges, however, have disagreed. Fortier v. Hoban, 1994 WL 668036 (November 17, 1994) (Sylvester, J.); Sego v. Debco, Inc., 12 Conn. L. Rptr. No. 13, 415 (October 24, 1994) (Skolnick, J.); Tarver v. DeVito, 7 Conn. L. Rptr. 631 (July 27, 1992) (Rush, J.); Hockman v. Dukai Caliente, Inc., 4 CSCR 412 (April 28, 1989) (Schaller, J.). These judges appear to have concluded that assumption of the risk is a valid defense to reckless misconduct because it is a variant of contributory recklessness, which itself is a recognized defense to a recklessness claim. See, e.g., Tarver, supra, (expressly equating assumption of the risk with contributory recklessness, and on that basis denying plaintiff's motion to strike); and Sego, supra, 416 (quoting the legal definition of contributory recklessness, then concluding that the allegations of a challenged assumption-of-the-risk defense were sufficient to support that defense because they "might be held" to prove each essential element of contributory recklessness).
Das v. Turkey Hill Associates, Inc., supra.
This court is persuaded that there is existing Connecticut Supreme Court precedent authorizing the use of the assumption of the risk defense in a recklessness case — Freedman v. Hurwitz — and this court is constrained to follow it, absent evidence of a legislative change, or doctrinal shift in the law forecasting an end to the defense. No such legislative change has occurred. Also, no doctrinal shift is apparent in any recent Connecticut appellate court decision. In fact, the doctrine of assumption of the risk was discussed in detail and applied as recently as 2004, without suggestion of wholesale abandonment. See Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 684 n. 10, 849 A.2d 813 (2004); see also Levandoski v. Cone, 267 Conn. 651, 662, 841 A.2d 208 (2004). Therefore, there is no justification for striking the defense in the instant case.
III
For all of the foregoing reasons, the plaintiffs' Motion to Strike defendants' assumption of the risk special defense is denied.