November 30, 2009
RULING ON DEFENDANT'S MOTION TO STRIKE COUNT TWO OF AMENDED COMPLAINT (#110)
The plaintiff, Jane Skerpan, brought this action in two counts alleging negligence and common-law recklessness. The defendants, Carlos Gonzalez (Gonzalez) and Frank Criscuolo (Criscuolo), have moved to strike Count Two of the plaintiff's Amended Complaint dated September 23, 2009 on the ground that it fails to state a legally sufficient cause of action for common-law recklessness. "The purpose of a motion to strike is to challenge the legal sufficiency of the allegations of a complaint for failure to state a claim on which relief can be granted. Practice Book § 10-39. The motion admits all facts that are well pleaded . . . but does not admit legal conclusions or the truth or accuracy of opinions . . . On a motion to strike, the trial court's inquiry is to ascertain whether the allegations . . . if proven, would state a claim on which relief could be granted. Practice Book § 10-39(a). A motion to strike is properly granted if the complaint alleges mere conclusions of law that are not supported by the facts alleged." (Citations omitted.) Bennett v. Connecticut Hospice, Inc., 56 Conn.App. 134, 136-37, 741 A.2d 349 (1999), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000). The court must view the allegations in the light most favorable to sustaining the legal sufficiency of the second count. Keller v. Beckenstein, 117 Conn.App. 550, 563, 979 A.2d 1055 (2009).
The facts alleged in Count Two are as follows: Gonzalez was an employee or agent of Criscuolo, who owns and operates F L Electric. (¶¶ 2, 3.) On November 20, 2006, Gonzalez was operating a motor vehicle owned by Criscuolo immediately in front of the plaintiff on Interstate 91 near exit 14. (¶¶ 4, 5.) A ladder which the defendants had failed to secure to that vehicle fell off of it "directly in the path of the plaintiff's vehicle" causing her to lose control and crash into the guard rail. (¶¶ 6, 7.) Gonzalez operated the vehicle on that date "without an operator's license, in violation of Connecticut law, without possessing the training or skill required to safely operate a motor vehicle upon an interstate highway," (¶ 8.A.) and Criscuolo knowingly permitted him to operate "despite the fact that . . . Gonzalez had no operator's licence and was unqualified to operate" the vehicle. (¶ 8.B.)
Based on these facts, Skerpan alleged that the accident and her injuries "were proximately caused by the recklessness, intentional criminality and deliberate indifference of the defendants" specifically because Gonzalez operated the vehicle unlicensed and without proper training and skill and Criscuolo knowingly permitted him to do so. (¶ 8.) The defendants maintain, however, that Gonzalez's status as unlicensed and untrained, and Criscuolo's knowledge of it, is not legally sufficient conduct to support an allegation of recklessness. They point out that it was the alleged failure to secure the ladder to the vehicle, and not the status of the vehicle's operator, that was the proximate cause of the accident and they also point out that the plaintiff has not alleged improper operation of the vehicle.
A "legally cognizable claim for recklessness . . . requires an extreme departure from ordinary care." Angiolillo v. Buckmiller, 102 Conn.App. 697, 927 A.2d 312, cert. denied, 284 Conn. 927, 934 A.2d 243 (2007). "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 take reasonable precautions to avoid injury to [others] . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . intentional conduct designed to injure or for which there is no just cause or excuse . . . Not only the action producing the injury but the resulting injury also must be intentional." (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 532-33, 542 A.2d 711 (1988). Recklessness is an aggravated form of negligence. Id., n. 10.
It has been long established in Connecticut law that there is "no causal relation between the fact that the operator of a car was licensed or unlicensed, and an injury occurring during its operation, and that the lack of such license could not be deemed to be the proximate cause of the injury and was not therefore actionable negligence, either as a ground of recovery or of defense." (Citations omitted.) Kurtz v. Morse Oil Co., 114 Conn. 336, 341, 158 A. 906 (1932). Likewise, it has long been established that a vehicle operator's inexperience or incompetence does not establish a cause of action for negligence without specific allegations of some negligent conduct. Id., 343 (operator of motor vehicle); Carlson v. Connecticut Co., 94 Conn. 131, 136, 108 A. 531 (1919) (streetcar operator). Furthermore, "[i]ncompetency or inexperience . . . does not prove or tend to prove . . . negligence . . . evidence of the competency or experience, or of the incompetency or inexperience, of either party or of his servants, is inadmissible as evidence of negligence, or the reverse. The connection is too remote." Carlson v. Connecticut Co., 95 Conn. 724, 731, 112 A. 646 (1921).
If a driver's lack of a license, his incompetence or his inexperience are insufficient, without more, to support an allegation of negligence, such facts are equally insufficient to support an allegation of recklessness which requires "intentional conduct designed to injure or for which there is no just cause or excuse . . ." Dubay v. Irish, supra, 207 Conn. 533. Indeed, the "aggravated" negligent conduct required to support a cause of action for recklessness "must be more than any mere mistake resulting from inexperience." Id., quoting W. Prosser W. Keeton, Torts (5th Ed.) § 34, p. 214.
The operative paragraph of count two, ¶ 8, alleges that Gonzalez proximately caused the plaintiff's injury because he was unqualified to operate the vehicle in that he was unlicensed and untrained and that Criscuolo is vicariously responsible because he let Gonzalez operate the vehicle knowing these facts. These allegations are insufficient to support a cause of action sounding in recklessness. Accordingly, count two is stricken.