Opinion
No. CV 07 5007030S
August 18, 2008
MEMORANDUM OF DECISION AS TO PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S SPECIAL DEFENSES
This is an action which arose out of an incident that occurred inside the Harborside Bar and Grill. The plaintiff was struck with a glass bottle by the defendant, Paul Constantini.
The motions which have been filed in this case have been a proper way to sort out the law of this case and bring this case to a final resolution, either by settlement or trial.
The plaintiff filed Motion to Strike Defendant's Special Defenses (Motion #113). The defendant filed an Objection to the Motion to Strike (Motion #115) which is dated June 28, 2008.
The defendant's special defenses are in effect comparative negligence and assumption of the risk.
DISCUSSION OF THE LAW
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, 730 A.2d 1128 (1999). A plaintiff may move to strike a special defense. See Girard v. Weiss, 43 Conn.App. 397, 417, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996); Practice Book § 10-39(a)(5). "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). Bravo v. Ford Motor Company, Superior Court, judicial district of Hartford at Hartford, Docket No. CV 000594807 (April 16, 2001, Berger, J.) [ 29 Conn. L. Rptr. 676] 2001 Ct.Sup. 5438, 5439.
ISSUE OF LAW AS TO SPECIAL DEFENSES — RECKLESSNESS, ASSUMPTION OF THE RISK
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)." Starkel v. Somers Sanitation Service, Superior Court, judicial district of Rockville at Tolland, Docket No. CV 07-5001531 (May 6, 2008, Vacchelli, J.) 2008 Ct.Sup 7545.
Therefore, there is no justification for striking those defenses in the instant case and for the above reasons the Plaintiff's Motion to Strike is denied in its entirety.