Opinion
No. 08-5007959
September 2, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (NO. 147)
FACTS
On October 15, 2008, the plaintiffs, Susan Holland, ppa, Emily Vanstean-Holland and Susan Holland, individually, filed a ten-count revised complaint against the defendants. Glenn R. LaVigne, Jane F. Nelson, Gary S. Chowder, Bruce Bozsum, Mitchell Etess, James Maloney and the Mohegan Tribal Gaming Authority (MGTA), seeking damages for personal injuries allegedly sustained by Vanstean-Holland, the minor plaintiff, when she was struck by a motor vehicle operated by either LaVigne or Nelson on October 13, 2007, in Quaker Hill, Connecticut. Counts one, two, three and five are against the defendant. Count one sounds in negligence, alleging that the defendant was operating his motor vehicle when he struck the minor plaintiff, and her injuries were directly and proximately caused by the defendant's negligence, carelessness and statutory violations. Count two, pled in the alternative to count one, also sounds in negligence, alleging that Nelson was the operator of the motor vehicle when she struck the minor plaintiff and the motor vehicle was owned by the defendant and operated by Nelson with the defendant's knowledge, permission and authority. Counts three and five are recklessness actions brought pursuant to General Statutes § 14-295 and the common law, respectively.
Nelson, Chowder, Bozsum, Etess, Maloney and the MGTA are not parties to this motion. Hereinafter, the term the defendant refers to LaVigne.
On March 17, 2009, the defendant filed an answer, raising two special defenses in response to the plaintiffs' allegations. The defendant's first special defense, sounding in contributory negligence, alleges that "[i]f the plaintiff . . . suffered the injuries and losses alleged . . . such were the direct and proximate result of the manner in which she proceeded upon said highway and as a result of one or more of the following negligent acts and/or omissions in that . . . (a) She failed to maintain a proper lookout for vehicles proceeding on said roadway; (b) She stood within the travel portion of the roadway in an area which was not designated for pedestrian; (c) She negligently and carelessly entered into the path of the vehicle which collided with her although said vehicle was properly within its designated lane of travel; (d) She failed to make reasonable and proper use of her senses and faculties; (e1) She failed to use reasonable care for her own safety commensurate with the existing circumstances and weather; (f1) She failed to move out of the way of the oncoming vehicle when she knew or should have known that she was standing directly in the path of said vehicle; (e2) She stood in the roadway when her senses and faculties were impaired by the consumption of alcohol when she knew or should have known that the consumption of alcohol would affect her ability to observe oncoming vehicles; (f2) She stood in a travel portion of the roadway in an unlit area when she knew or should have known that operators of vehicles would not be able to observe her in that she was wearing dark clothing." The defendant's second special defense, sounding in contributory recklessness, asserts the same eight subsections as the first special defense, prefaced by allegations that "[a]ny losses or injuries suffered by the plaintiff were the direct and proximate result of her own reckless conduct and were the direct and proximate result of the manner in which she proceeded upon said highway and as the result of one or more of the following reckless and/or wanted acts and/or missions." On March 20, 2009, the plaintiffs filed a motion to strike the defendant's special defenses accompanied by a memorandum of law in support of the motion. The defendant filed an objection to the plaintiffs' motion to strike accompanied by a memorandum of law in support of his objection on April 16, 2009. On April 23, 2009, the plaintiffs filed a reply memorandum in further support of their motion.
The defendant's first and second special defenses each contain two subsections (e) and two subsections (f). This court adopts the distinction used by the plaintiffs' in their motion to strike, referring to the fifth and sixth subsections of both special defenses as subsections (e1) and (f1), respectively, and referring to the seventh and eighth subsections of both special defenses as subsections (e2) and (f2), respectively.
The defendant argues that the court should deny the plaintiffs' motion to strike on the ground that the plaintiff's failed to set forth grounds for the motion in the motion itself pursuant to the requirements under Practice Book § 10-41. The plaintiffs subsequently amended their motion to strike on April 23, 2009, to include the grounds for the motion in the motion itself. Therefore, the defendant's argument to deny the plaintiffs' motion on this ground is not compelling.
DISCUSSION
"Whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike . . ." Practice Book § 10-39(a). "[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1978). "In . . . ruling on the . . . motion to strike, the trial court recognize[s] its 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). "[L]egal conclusions or opinions stated in the special defense are not deemed admitted, but rather must flow from the subordinate facts provided." County Federal Savings Loan Ass'n. v. Eastern Associates, 3 Conn.App. 582, 586, 491 A.2d 401 (1985).
I
The plaintiffs argue that the defendant's first special defense should be stricken to the extent that it is asserted against the plaintiffs' reckless counts, which are pled as counts three and five, on the ground that a defense of contributory negligence applies only to negligence actions. The defendant counters that the plaintiffs' argument is an improper attempt to strike a portion of a special defense.
"At common law, contributory negligence was not a defense to a cause of action alleging wanton and reckless misconduct." Belanger v. Village Pub I, Inc., 26 Conn.App. 509, 513, 603 A.2d 1173 (1992). General Statutes § 52-572h(o) provides in relevant part: "Except as provided in subsection (b) of this section, there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct, strict liability or liability pursuant to any cause of action created by statute . . ." "Section 52-572h specifically applies to negligence actions . . . When the language of a statute is clear, a court must interpret the statute as written." (Citations omitted; internal quotation marks omitted). Belanger v. Village Pub I, Inc., supra, 26 Conn.App. 513. As a result, "[§]52-572h, as amended by No. 99-69, § 1, of the 1999 Public Acts, is the statutory embodiment of the common-law rule that contributory negligence is not a defense to recklessness. See, e.g. Beckwith v. Stratford, 129 Conn. 506, 511, 29 A.2d 775 (1942), Bordonaro v. Senk, 109 Conn. 428, 432-33, 147 A. 136 (1929)." Matthiessen v. Vanech, 266 Conn. 822, 830, 836 A.2d 394 (2003).
The defendant cites Emar Development, Inc. v. William Raveis Real Estate, Inc., Superior Court, judicial district of New Britain, Docket No. CV 95 0548632 (June 28, 1995, Corradino, J.) in support of his argument that the plaintiffs are improperly attempting to strike a portion of his special defense. In Emar, the defendant moved to strike portions of the plaintiff's allegations within a singular count to the extent that the allegations within the count sounded in negligence. In the present case, unlike in Emar, the plaintiffs move to strike the defendant's entire first special defense as to the plaintiffs' reckless claims in counts three and five. Therefore, the plaintiffs' motion does not constitute an improper attempt to strike a portion of the defendant's special defense. As a result, the plaintiffs' motion to strike the defendant's first special defense as to counts three and five of the plaintiffs' complaint is granted.
II
The plaintiffs argue that subsections (b), (c), (f1), (e2) and (f2) of the defendant's first and second special defenses should be stricken on the ground that the subsections are duplicative because each subsection serves to allege that the minor plaintiff was standing in the path of the defendant's vehicle at the time of the accident. The defendant counters that the plaintiffs' argument does not challenge the legal sufficiency of the allegations, and therefore, the argument should have been brought in a request to revise. The defendant further counters that individual paragraphs of a pleading may not be challenged by a motion to strike.
"[A] motion to strike is not the proper vehicle for elimination of irrelevant, immaterial or otherwise improper allegations. The proper vehicle would be a request to revise . . . [T]he proper way to cure any confusion [regarding the complaint] is to file a [request] to revise, not a motion to strike . . ." (Citations omitted; internal quotation marks omitted.) Sabatasso v. Bruno, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4003811 (March 17, 2006, Wiese, J.). "While `[t]here is no explicit appellate authority on the issue of the proper vehicle for the elimination of duplicative claims;' Sandru v. Boyle, Superior Court, judicial district of New Haven, Docket No. CV 07 5014056 (September 3, 2008, Zoarski, J.T.R.) (46 Conn. L. Rptr. 238, 238); a majority of the Superior Court decisions dealing with this dilemma have held that `[a] request to revise, and not a motion to strike, is the proper procedural device for deletion of duplicative pleadings.' . . . Id., 239 (quoting Downing v. Yale University Health Services, Superior Court, judicial district of New Haven, Docket No. CV 94 0364862 (December 26, 1995, Zoarski, J.) and listing many cases that reached the same conclusion)." Law Offices of Thomas E. Porzio, LLC v. Northern Expansion, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 08 5008203 (April 15, 2009, Brunetti, J.). As a result, this court joins the majority of Superior Court decisions in finding that a request to revise is the proper procedural device for the deletion of duplicative pleadings.
Moreover, "[a]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count . . . However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action" (Internal quotation marks omitted.) Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, Docket No. CV 06 5007079 (May 21, 2007, Tanzer, J.) (43 Conn. L. Rptr. 458, 458). "[O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense." (Internal quotation marks omitted.) Leeb-Lundberg v. King, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 92 0125302 (January 31, 1996, Tobin, J.). A cause of action is defined as a "single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief." (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 259 Conn. 114, 129 788 A.2d 83 (2002).
In Moltz v. Harry's Taxi, Superior Court, judicial district of New London, Docket No. CV 98 0547023 (August 5, 1999, Martin, J.), this court held that subsections of the defendant's special defense of contributory negligence "[did] not set forth all of the essential allegations of the special defense, and therefore, [were] improper subjects of a motion to strike." Similarly, in the present case, the subsections of the defendant's first and second special defenses do not set forth all of the essential allegations of a special defense of contributory negligence or contributory recklessness. Therefore, the subsections of the defendant's first and second special defenses are improper subjects of a motion to strike.
Based on the foregoing, the plaintiffs' motion to strike paragraphs (b), (c), (f1), (e2) and (f2) of the defendant's first and second special defenses is denied.
III
The plaintiffs argue that paragraphs (d) and (e1) of the defendant's first and second special defenses should be stricken on the ground that they contain vague and conclusory allegations. The defendant counters that the allegations in his first and second special defenses are sufficiently pled, and if the plaintiffs required additional specifications, the proper vehicle to do so was a request to revise. The defendant further counters that individual paragraphs of a pleading may not be challenged by a motion to strike. As discussed herein, the individual subsections of the defendant's first and second special defenses are not proper subjects of a motion to strike. Therefore, the plaintiffs' motion to strike paragraphs (d) and (e1) of the defendant's first and second special defenses is denied.
IV
The plaintiffs argue that the defendant's second special defense should be stricken on the ground that contributory recklessness is not a viable defense in Connecticut. The defendant counters that contributory recklessness constitutes a legally valid special defense.
Pursuant to Connecticut case law, contributory recklessness constitutes a valid defense. "Contributory recklessness would constitute a defense to an action based on recklessness. Wright v. Fitzgerald AnRenman, Conn. Law of Torts (3rd Ed) 62. Wanton, willful or reckless conduct by the plaintiff's decedent which naturally increased the probability of injury and contributed thereto would be admissible under the pleadings and would constitute a defense to the claim of recklessness. See Murphy v. Ossola, 124 Conn. 366, 372 (1930)." Tarver v. DeVito, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 91 0120282 (June 25, 1992, Rush, J.); see also White v. Harborside Bar Grill, Superior Court, judicial district of Fairfield, Docket No. CV 07 5007030 (August 18, 2008, Frankel, J.) (46 Conn. L. Rtpr. 237, 237) (identifying contributory recklessness as recognized defense and citing additional cases in accord). Therefore, the plaintiffs' motion to strike the defendant's second special defense on this ground is denied.
The plaintiffs also argue that intoxication of a minor is not a valid basis for reckless conduct, and therefore, the defendant's second special defense should be stricken to the extent that it is predicated upon the minor plaintiff's intoxication. The defendant counters that a finding of recklessness constitutes a matter of fact. The defendant further counters that individual paragraphs of a pleading may not be challenged by a motion to strike. In the defendant's second special defense, the only reference to the minor plaintiff's intoxication exists in subsection (e2), which states that the plaintiff "stood in the roadway when her senses and faculties were impaired by the consumption of alcohol when she knew or should have known that the consumption of alcohol would affect her ability to observe oncoming vehicles." As discussed herein, an individual subsection of the defendant's second special defense is not a proper subject of a motion to strike. Therefore, the plaintiffs' motion to strike the defendant's second special defense on this ground is denied.
The plaintiffs further argue that the defendant's second special defense should be stricken on the ground that its factual allegations are insufficient to establish a finding of recklessness. The defendant counters that his second special defense sufficiently alleges facts from which recklessness could be established by a trier of fact.
"To determine whether a plaintiff's complaint states a cause of action sounding in recklessness, the court looks first to the definitions of wilful, wanton and reckless behavior. Recklessness is 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 take 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 . . .
"While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that wilful, 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.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).
"Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted." Craig v. Driscoll, supra, 262 Conn. 343. "[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 . . . [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 these same facts alleging recklessness . . . [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 . . . 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." (Citations omitted; internal quotation marks omitted). Maysonet v. Cogdell, Superior Court, judicial district of New Haven, Docket No. CV 08 5024267 (June 8, 2009, Wilson, J.).
In the present case, an examination of the facts alleged in the defendant's second special defense support a claim for recklessness under Connecticut law. While the defendant relies on the same facts alleged in his first special defense of contributory negligence, the defendant's second special defense alleges behavior that could constitute an extreme departure from ordinary care which naturally increased and contributed to the probability of injury in a situation involving a high degree of danger. See Tarver v. DeVito, supra, Docket No. CV 91 0120282. In construing the defendant's second special defense in the manner most favorable to sustaining its legal sufficiency, this court finds that the defendant has sufficiently alleged a special defense of contributory recklessness. As a result, the plaintiffs' motion to strike the defendant's second special defense on this ground is denied.
Therefore, the plaintiffs' motion to strike the defendant's second special defense is denied.
CONCLUSION
Based on the foregoing, the plaintiffs' motion to strike the defendant's first special defense as to counts three and five of the plaintiffs' complaint is hereby granted. The plaintiffs' motion to strike (b), (c), (f1), (e2) and (f2) of the defendant's first and second special defenses, (d) and (e1) of the defendant's first and second special defenses and the defendant's second special defense are hereby denied.