Opinion
No. CV-03-0102226
May 26, 2005
MEMORANDUM OF DECISION OF MOTION TO STRIKE BY ALCO INVESTMENTS VII, LLC. AND ROBERT ALIBRIO
The defendants, Alco Investments VII, LLC ("Alco"), and Robert T. Alibrio, have moved to Strike Counts Two, Three, and Four of the plaintiff's Third Revised and Amended Complaint dated January 21, 2005 (the "Complaint"). The Complaint alleges causes of action against Alco and Robert Alibrio as well as, Neil Alibrio, Evan King and Mico Enterprises, LLC.
The Complaint alleges that the plaintiff, Nicholas Wilkinson, Jr., was an electrician who was asked to provide an estimate for electrical repair work at 65-67 Cooper Street, Manchester (the "Premises"). During his walk-through of the Premises the plaintiff allegedly stepped on a nail.
Count One alleges negligence. Count Two alleges negligence per se based on violations of the building code and a violation of OSHA. Count Three alleges reckless conduct and the Fourth Count alleges a violation of the Connecticut Unfair Trade Practices Act, Connecticut General Statutes § 42-110a, et seq. (CUTPA).
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, 36, 522 A.2d 1235 (1987).
The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986).
"It is incumbent on a Plaintiff to allege some recognizable cause of action" in the complaint and it is not the burden of the defendant to attempt to correct the deficiency. Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970). A motion to strike is an appropriate means of presenting to the court legal issues at the outset of litigation. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). "Whenever a party wishes to contest . . . the legal sufficiency of any such complaint . . . or any count thereof because of the absence of any necessary party . . . that party may do so by filing a motion to strike the contested pleadings or part thereof." George v. St. Ann's Church, 182 Conn. 322, 325, 438 A.2d 97 (1980).
In the Second Count the plaintiff alleges negligence per se based on alleged violations of the building code and a violation of the regulations of the Occupational Health and Safety Administration (OSHA). The Connecticut Appellate Court has held that "[b]uilding and fire codes are themselves not evidence of negligence, but only evidence of the standard of care." New London Federal Savings Bank v. Tucciarone, 48 Conn.App. 89, 99, 709 A.2d 14 (1998).
The Connecticut Supreme Court has held that regulations promulgated under OSHA cannot "furnish a basis for a jury instruction on negligence per se." Wendland v. Ridgefield Constr. Services, Inc., 184 Conn. 173, 181, 439 A.2d 954 (1981). The Second Count fails to allege a cognizable cause of action and is ordered stricken.
The Third Count incorporates the First Count's allegations of negligence and adds that the defendants "knew of should have known of the dangerous conditions" and that the defendants "have a history and pattern of violating codes and ordinances both before and after the incident." The plaintiff also alleges that the defendants were reckless in allowing a permit to be taken out which contained language stating that the applicable laws of the jurisdiction would be complied with. None of the foregoing allegations rise to the level of reckless conduct.
"To furnish a basis for recovery of [punitive] damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought . . . `A wilful or malicious injury is one caused by design. Willfulness and malice alike import intent . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.' Sharkey v. Skilton, 83 Conn. 503, 507-08, 77 A. 950 (1910). Wanton misconduct is reckless misconduct. Menzie v. Kalmonowitz, 107 Conn. 197, 199, 139 A.2d 698 (1928). `It is such conduct as indicates a reckless disregard of the rights or safety of others or of the consequences of the action.' Bordonaro v. Senk, 109 Conn. 428, 431, 147 A.2d 136 (1929)." (Citations omitted.) Markey v. Santangelo, 195 Conn. 76, 77-78, 485 A.2d 1305 (1985).
Seymour v. Carcia, 24 Conn.App. 446, 451, 589 A.2d 7 (1991).
[Recklessness] "requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man," and the actor "must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent." Restatement, 2 Torts, 500, comment g; Rogers v. Doody, 119 Conn. 532, 535, 178 A. 51 [1935].
Sheiman v. Lafayette Bank Trust Co., 4 Conn.App. 39, 45, 492 A.2d 219 (1985).
The plaintiff does not allege that the defendants intended to cause harm. The allegations cannot be construed as alleging highly unreasonable conduct involving an extreme departure from ordinary care. The Third Count is ordered stricken.
Paragraph 31 of the Fourth Count alleges:
[The defendants' actions] were unfair, oppressive and against the public policy of the State of Connecticut and construction work site safety standards, as well as a violation of OSHA . . . and therefore constitute a violation of the Connecticut Unfair Trade Practice Act (CUTPA). Doing business without proper permits, safety management and trained construction site supervisors to keep a construction site reasonably safe, multiple code and legal violations, a violation regarding the unsafe construction debris outstanding for approximately one month, as well as making made [sic] affirmative misrepresentations regarding compliance with the laws of the jurisdiction in applying for a building permit . . . warrants punitive damages under CUTPA.
The Connecticut Unfair Trade Practices Act, General Statutes § 42-110(b)(a), provides: "No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." General Statutes § 42-110a(4) defines "trade" and "commerce" as "the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and other article, commodity, or thing of value in this state."
In determining whether certain acts constitute a violation of CUTPA, courts "have adopted certain criteria set out in the cigarette rule by the federal trade commission . . . (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [(competitors or other businessmen)]." Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 591, 657 A.2d 212 (1995). "All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one criteria or because to a lesser extent it meets all three . . . Thus a violation of CUTPA may be established by showing either an actual deceptive practice or a practice amounting to a violation of public policy." Associated Investment Co. Ltd. Partnership v. Williams Associates IV, 230 Conn. 148, 156, 645 A.2d 505 (1994).
Acts of negligence can be the basis of a legitimate CUTPA claim. However, those negligent acts must still satisfy the criteria set forth in the "cigarette rule." A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 217, 579 A.2d 69 (1990). The Connecticut Supreme Court has held that the first prong, by itself, is insufficient to support a CUTPA violation, at least when the underlying claim is grounded solely in negligence. Id. Negligent acts, in general, are not inherently immoral, unethical, oppressive, or unscrupulous. CUTPA deals with actions that cause unjustified consumer injury rather than a personal injury based upon negligence. A-G Foods, Inc. v. Pepperidge Farm, Inc., supra, 216 Conn. 217.
Maintaining a construction site where a subcontractor steps on a nail is negligent conduct at best and certainly cannot be characterized as being unethical, oppressive or unscrupulous. Moreover, the plaintiff did not suffer a financial injury as a consumer, rather, he suffered a personal injury. CUTPA deals with actions that cause unjustified consumer injury rather than a personal injury based upon negligence. A-G Foods, Inc. v. Pepperidge Farm, Inc., supra.
For the foregoing reason, the Fourth Count of the Complaint is stricken.
By the court,
Aurigemma, J.