Opinion
No. CV 05 5000171-S
November 28, 2005
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE
I. Background
The plaintiff seeks damages for her injuries, allegedly caused by the negligence of two separate defendants who struck her motor vehicle from the rear on two separate occasions, approximately one month apart. The plaintiff claims that she is unable to apportion her specific injuries and damages, within a reasonable medical certainty, to the negligent acts of the individual defendants.
This action has been brought in a four-count amended complaint, dated November 7, 2005. The first two counts relate to the first accident, which is alleged to have occurred on February 4, 2004. The first count is directed toward Patricia Taylor, the owner, and Martin J. Taylor, the operator of the automobile involved in the accident. The second count, sounding in recklessness, is directed at Martin J. Taylor alone as the operator of the vehicle. The last two counts of the complaint relate to the second accident, which is alleged to have occurred on March 19, 2004. The third count is directed toward Elias Morillo, the owner, and Yaribel M. Mercedes, the operator of the automobile involved in the second accident. The fourth count, sounding in recklessness, is directed at Yaribel M. Mercedes alone as the operator of the vehicle.
The defendants have moved to strike counts one and two, based on misjoinder. They have also moved to strike count two, the recklessness count, based upon the plaintiff's failure to properly state a cause of action for recklessness.
II. Standard for Motions 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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, L.L.C. v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 154, 881 A.2d 937 (2005). "The exclusive remedy for misjoinder of parties is by motion to strike." (Internal quotation marks omitted.) Hilton v. New Haven, 233 Conn. 701, 723 n. 23, 661 A.2d 973 (1995); see also Practice Book § 11-3.
III. Misjoinder
The defendants, Patricia and Martin Taylor, move this court to strike the first and second counts of the complaint for misjoinder citing, in their brief and at oral argument, Practice Book § 10-21 and the case of Bailey v. Thomas, Superior Court, judicial district of Hartford, Docket No. CV 98 0577916 (June 18, 1999, Wagner, J.T.R.) ( 24 Conn. L. Rptr. 687). In response, the plaintiff cites the subsequently decided case of Card v. State, 57 Conn.App. 134, 747 A.2d 32 (2000). In Card, the Appellate Court approved the apportionment instructions of the trial court, wherein there were three different defendants, each of whom was involved in different automobile accidents with the same plaintiff within a relatively short period of time. Similarly in Card, the plaintiff was unable to differentiate the extent to which each accident caused her damages within reasonable medical certainty. The court therefore approved an instruction that allowed the jury to equally apportion damages among the three defendants.
Although the issue of misjoinder was not specifically addressed in Card, the Appellate Court's approval of the trial court's instruction lends itself logically to the conclusion that the court also gave its tacit approval to joining these cases together in the same action. Moreover, the court reasoned in Card that "[i]n the rare case where damages cannot be apportioned between two or more accidents, the plaintiff who can prove causation should not be left without a remedy. One judicial response to situations in which a jury is unable to make even a rough apportionment of damages is to apportion damages equally among the various accidents." Id., 144. In the present case, if separate actions were required, the plaintiff might very likely be left without a remedy, absent damages specifically and separately attributable to the negligence of individual defendants by an expert to a reasonable medical certainty.
Separate claims were consolidated for trial.
Under the reasoning of Card, the defendants' motion to strike counts one and two is denied.
IV. Recklessness
The parties acknowledge a split of authority on the requirements of a properly pleaded count under the provisions of General Statutes § 14-295, the so-called "recklessness" count. Under the majority view, after pleading specific facts sufficient for an allegation of negligence, a plaintiff need only make general allegations of the elements of recklessness identified in the statute; namely 1) that the defendant deliberately or recklessly violated at least one of nine motor vehicle statutes, and 2) that the violation was a substantial factor in causing the defendant's injury, damage or death. See Chieffo v. Yannielli, Superior Court, judicial district of Waterbury, Docket No. CV 00 0159940 (January 29, 2001, Doherty J.).
Section 14-295 provides that: "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 §§ 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 the property. The owner of a rental or leased motor vehicle shall not be responsible for such damages unless the damage arose from such owner's operation of the motor vehicle."
Under the minority view, a plaintiff must plead the specific facts constituting recklessness above and beyond the facts constituting mere negligence. The reasoning of the minority view is that "[t]here 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.) Kostiuk v. Queally, 159 Conn. 91, 94, 267 A.2d 452 (1970).
For a more complete discussion of the majority and minority views see Fitzgerald v. Marcus Dairy, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV03 082618 (April 2, 2004, Bear, J.).
In the present case, as is most likely true in all cases at this juncture in the pleadings, the plaintiff has yet to complete discovery and claims that she is therefore without the benefit of the facts necessary to make the specific factual allegations required by the minority view for a sufficient pleading under § 14-295. The court also notes that the specific statutory violations alleged in the complaint relate primarily to excessive speed. Therefore, the "recklessness" counts in this case reasonably inform the court and defendant that the plaintiff relies upon excessive speed as a likely factor in her allegation of recklessness in this case. The court therefore finds the majority view more persuasive, especially in light of the claims in this case.
The plaintiff alleges violations of, individually or in combination, §§ 14-222 (recklessness, which may involve speed); 14-219 (operation in excess of the posted speed); and/or 14-218a (operation at an unreasonably fast speed).
In following the majority view on the sufficiency of pleading recklessness under § 14-295, the defendant's motion to strike count two is denied.
The defendants' basis for a motion to strike count two, as it relates to Patricia Taylor, has been resolved by the amended complaint, dated November 7, 2005, and is therefore now moot.