Opinion
NNHCV186084120S
09-30-2019
Miriam VALCARCEL v. Mourad GUIRGUIS et al.
UNPUBLISHED OPINION
OPINION
Wahla, J.
Present before the court is the defendant’s motion to strike (#106.00) the plaintiff’s count two and three of the plaintiff’s amended complaint and prayers for relief requesting double and treble damages. The defendant argues that the plaintiff has failed to allege facts to support a claim of common-law recklessness or statutory recklessness. The motion to strike is granted for the reasons set forth below.
Procedural Context
This cause of action arises out of motor vehicle accident occurred on July 4, 2017. Count One alleges the defendant was driving his motor vehicle behind the plaintiff’s vehicle on Mather Street in Hamden, Connecticut. It is further alleged that it was the negligence operation of defendant’s motor vehicle which caused the accident and as a result the plaintiff suffered injuries and damages.
The Second Count of the plaintiff’s complaint alleges that the collision and resulting injuries to the plaintiff were caused by the reckless misconduct of the defendant in that the defendant knew or should have known that the defendant’s conduct in choosing to take her eyes of the road while the motor vehicle was in motion would result in a high degree of risk of serious harm and despite knowledge of that risk and harm that would result from such conduct, acted recklessly in one or more of the following respects. The Second Count then incorporates the allegations of the First Count which alleges negligence, and further alleges that the defendant operated the motor vehicle recklessly in violation of C.G.S. § 14-222.
The Third Count of the complaint alleges statutory recklessness. The plaintiff alleges in this Third Count that the defendant deliberately or with reckless disregard operated a motor vehicle in violation of one or more following Sections of C.G.S § 14-295 and such a violation(s) was a substantial factor in causing the collision and the injuries, damages and losses sustained by the plaintiff. The plaintiff alleges that the defendant violated C.G.S. § 14-218a; 14-219; 14-222 and/or 14-240a. The prayers for relief alleges monetary damages, and double and treble damages pursuant to CGS § 14-295.
The defendant filed a motion to strike Second and Third Counts of the complaint and the portion of plaintiff’s prayers for relief which seeks double and treble damages on the grounds that the complaint fails to allege facts sufficient to support a claim for statutory recklessness and common-law recklessness.
Standard of Review
"The purpose and scope of a motion to strike are identical to those of a demurrer under the old rules of practice." (Internal quotation marks omitted.) Nine State Street, LLC v. Planning & Zoning Commission, 270 Conn. 42, 49 n.6, 850 A.2d 1032 (2004).
"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, LLC 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.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015).
Discussion
In the present case, as far as the count of Common-Law Recklessness is concerned, the plaintiff in count two paragraph(s) four asserts reckless misconduct of the defendant(s) that the defendant knew or should have known the defendant’s conduct in choosing to take her eyes off the road while the vehicle was in motion would result in high degree of serious harm and despite knowledge of that risk ... the defendant acted recklessly.
Common-Law Recklessness
Definition of Recklessness is well established. J. Beach writing in Kallaugher v. Basile, No. CV 010804191S, 2001 WL 1429239, at *2 (Conn.Super.Ct. Oct. 31, 2001), cited Dubay v. Irish, 207 Conn. 518, 532 (1988). "Recklessness is a state of consciousness with reference to the consequences of one’s acts. Commonwealth v. Pierce, 138 Mass. 165, 175 [1884] ... It is ‘more than negligence, more than gross negligence.’ Bordonaro v. Senk, 109 Conn. 428, 431, 147 A. 136 [1929]. 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." Mooney v. Wabrek, 129 Conn. 302, 308, 27 A.2d 631 (1942). "Wanton misconduct is reckless misconduct. Menzie v. Kalmonowitz, 107 Conn. 197, 199, 139 A. 698 (1928). ‘It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.’ Bordonaro v. Senk, [supra, 431]." Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985); see also Brown v. Branford, 12 Conn.App. 106, 108, 529 A.2d 743 (1987).
In our State on the subject of Common-Law and Statutory recklessness, our Superior Courts are split. For Statutory Recklessness: The appellate courts have not had occasion to decide what degree of specificity is required in pleading recklessness under General Statutes § 14-295. The Superior Court judges are split on the issue. One line of cases, representing the minority view, holds that a plaintiff must plead the specific facts constituting recklessness, above and beyond the facts constituting mere negligence. See McGuire Kelley v. Sciuto, Superior Court, judicial district of New Haven at New Haven, Docket No. 428860 (October 1, 1999) (Devlin, J.); Chatterton v. Infinity Insurance Co., Superior Court, judicial district of Ansonia/Milford at Milford, Docket No. 064615 (October 1, 1999) (Arnold, J.); Nocera v. Besso, Superior Court, judicial district of Middlesex at Middletown, Docket No. 086777 (September 29, 1999) (Gordon, J.); Reed v. Sesta, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 577273 (June 19, 1998) (Aurigemma, J.); 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); Cloutier v. Meinerth, Superior Court, judicial district of Danbury, Docket No. 329940 (February 25, 1998) (Moraghan, J.); Kelly v. Stone, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 344231 (January 9, 1998) (Maiocco, J.). Torres v. Jacovino, No. CV 990150549, 2000 WL 670022, at *2 (Conn.Super.Ct. May 12, 2000).
The more persuasive line of cases are those that hold that it is not sufficient, either under common-law recklessness or under a C.G.S. § 14-295 claim to merely allege the same specification as in the negligence claim and allege the violation of the "trigger" statutes.
On the issue of sufficiency of the allegations in support of claim of damages pursuant to § 14-294, in the matter of Kallaugher v. Basile, No. CV 010804191S, 2001 WL 1429239, at *1-2 (Conn.Super.Ct. Oct. 31, 2001), the court wrote that,
Section 14-295, then, allows double or treble recovery for recklessness when certain statutory violations have been alleged and proved. The language of the statute does not specifically say anything at all about fact pleading or notice pleading- only that the trier of fact may award punitive damages when specific violations of certain statutes, and their causal effects, have been alleged. In the absence of any express language changing pleading requirements, and in the absence of any apparent or implied need to eliminate fact pleading in order to accomplish legislative intent, I think it unlikely that the legislature intended to change the procedural requirements of our practice. I have not been alerted to the existence of any statutorily created causes of action which, in the language creating the right, also require factual pleading, yet we require factual pleading. It would be incongruous for the legislature to have intended to create a marked exception to our practice without expressly saying so. There also is no impediment to accomplishing the obvious legislative purpose, of imposing punitive-type damages in specifically enumerated situations, if fact pleading is required.
The court goes on to state that ..."We then turn to the complaint to determine whether the facts alleged in the complaint support the conclusory allegations of recklessness in the third count. The factual allegations, including those incorporated by reference from other counts, are that the plaintiff was stopped at an intersection when the defendant Basile approached the intersection from behind the plaintiff." "[T]he defendant observed the Plaintiff stopped in the roadway with her left turn signal on and attempted to stop prior to colliding with the Plaintiff’s vehicle and was unable to do so. Paragraph 7 of the third count. Recklessness requires some element of knowledge of a substantial risk and disregard of it, such that the actor acts with conscious disregard of the rights of others."
Accordingly, in order to properly plead a statutory recklessness claim pursuant C.G.S. § 14-295, a specific allegation of the conduct that is reckless must be set forth, and further, the conduct set forth must rise to the level of reckless, as opposed to negligent behavior. In Varlese v. Beers, 3 Conn.L.Rptr. 614 (April 4, 1991) (Sullivan, J.), the court, in granting the defendant’s motion to strike plaintiff’s claim for double and treble damages pursuant to § 14-295, stated:
"We reiterate, and in so doing add emphasis to what we said in Brock v. Waldron, 127 Conn. 79, 80, 14 A.2d 713: ‘[T]he complaint does not state with desirable accuracy a cause of action based on wanton misconduct. 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.’ The complaint in the instant case fell far short of alleging a cause of action for reckless or wanton misconduct. Simply using the word ‘reckless’ or ‘recklessness’ is not enough. A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made." The Motion to Strike is granted. Varlese v. Beers, No. 099755, 1991 WL 60421, at *1 (Conn.Super.Ct. Apr. 4, 1991) .
In the case at hand, after close review of the complaint, the Court concludes that the plaintiff has not alleged a cause of action for reckless or wanton misconduct.
Conclusion
For all of the foregoing reasons, the motion to strike count two and three along with the corresponding relief of double and treble damages is granted.
It is So Ordered.