DOCKET NO.: ABC-CV-12-345678S
:
SUPERIOR COURT
SALLY PLAINTIFF
:
J.D. OF ANYWHERE
VS.
:
AT ANYTOWN
JANE DEFENDANT
:
JANUARY 3, 20XX
OBJECTION TO THE DEFENDANT’S MOTION TO STRIKE
The Plaintiff, Sally Plaintiff, through undersigned counsel, hereby offers this Objection to
the Motion Strike the Second and Third Counts of the Complaint by the Defendant, Jane
Defendant, dated February 7, 20XX. Set forth in more detail in the attached Memorandum of
Law, the Plaintiff objects on the ground that he has sufficiently alleged a cause of action in
recklessness in both Counts Two and Three.
The Plaintiff respectfully submits that the Defendants’ Motion should be denied and his
Objection sustained.
THE PLAINTIFF,
SALLY PLAINTIFF
BY:
1
__ __________
Chrysten A. Dufour, Esq.
Carter Mario Injury Lawyers
12 Montowese Avenue
North Haven, CT 06473
860-223-2100
Juris No. 106160
CERTIFICATION
This is to certify that a copy of the foregoing was mailed, postage prepaid, and faxed to
all counsel of record on this 3rd day of January , 20XX as follows:
Defendant Law Firm
123 Main Street
Waterbury, Connecticut 06705
________
Chrysten A. Dufour
Commissioner of the Superior Court
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DOCKET NO.: ABC-CV-12-345678S
:
SUPERIOR COURT
SALLY PLAINTIFF
:
J.D. OF ANYWHERE
VS.
:
AT ANYTOWN
JANE DEFENDANT
:
JANUARY 3, 2014
MEMORANDUM IN SUPPORT OF THE PLAINTIFF’S OBJECTION TO THE
DEFENDANT’S MOTION TO STRIKE
I.
FACTUAL BACKGROUND
This action stems from a March 4, 2011 rear end motor vehicle collision between the
Plaintiff, Sally Plaintiff, and the Defendant, Jane Defendant. As a result of the collision, the
Plaintiff sustained injuries to her head, cervical spine, lumbosacral spine, and a meniscus tear in
her right knee.
The Plaintiff instituted this action by way of Complaint, dated January 2, 20XX. On
February 7, 20XX, the Defendant filed a Motion to Strike Counts Two and Three of the
Plaintiff’s Complaint on the grounds that they fail to sufficiently allege a cause of action in
recklessness. Specifically, the Defendant contends that driving while distracted and driving too
fast cannot rise to the level of common law reckless conduct, (Def. Mot. to Strike, dated Feb. 7,
2013, at 3) and that the Plaintiff has failed to sufficiently plead statutory recklessness, (Def. Mot.
Strike at 4). The Plaintiff hereby offers this Objection.
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II.
STANDARD OF REVIEW
“Whenever a party wishes to contest . . . (1) the legal sufficiency of the allegations of any
complaint . . . to state a claim upon which relief can be granted, . . . that party may do so by filing
a motion to strike the contested pleading or part thereof.” Connecticut Practice Book §10-39.
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.” Fort Trumbull Conservancy,
LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). When “ruling on a motion to strike,
the trial court construes the facts in the complaint in the manner most favorable to sustaining its
legal sufficiency.” Id. “Pleadings must be construed broadly and realistically, rather than
narrowly and technically.” Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 29293 (2004). “All well-pleaded facts and those facts necessarily implied from the allegations are
taken as admitted.” Violano v. Fernandez, 280 Conn. 310, 318 (2006). “If facts provable in the
complaint would support a cause of action, the motion to strike must be denied.” Craig v.
Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003).
III.
LAW AND ARGUMENT
A. The conduct alleged by the Plaintiff satisfies the Connecticut standard for
pleading a cause of action in common law recklessness
The Defendant erroneously argues that the Plaintiff’s allegations of common law
recklessness in the Third Count of the complaint are the same as the negligence claims and,
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therefore, it should be struck. Contrary to the Defendant’s assertion, Connecticut Courts have
recognized that the same underlying conduct may give rise to causes of action sounding in both
negligence and recklessness. Wiener v. Block, No. CV030196389, 2004 WL 2167038 at *1
(Conn. Super. Ct. Aug. 30, 2004, Lewis, J.) (“There is no reason why the plaintiff, relying on the
same set of facts in the negligence counts, cannot set forth in separate counts, causes of action
arising out of those same facts alleging recklessness.”). If the court were to focus solely on the
similarity of the counts, a plaintiff would be “require[d] . . . to ratchet down the negligence claim
in order to render more visible the conceptual space between the counts.” Id.
The “critical difference [between negligence and recklessness] causes of action involves
a factfinders' [sic] determination of the defendant's state of mind, [and even] though the
defendant's physical conduct may be the same, the similarity of allegations of conduct is legally
permissible.” Ludwicki v. Sliwa, No. HHBCV086001447, 2009 WL 3087252, at *2 (Conn.
Super. Ct. Sep. 2, 2009, Zemetis J.) “Rather than follow a mechanistic approach . . . it seems
more appropriate . . . to examine instead whether the facts alleged could under any set of facts
admissible under the pleadings support a conclusion of recklessness.” Id. Therefore, the proper
inquiry by the court should focus on the sufficiency of the reckless count on its own.
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To properly plead a cause of action in recklessness, a plaintiff must allege the requisite
state of mind, and that a defendant’s conduct was an extreme departure from ordinary care.
Matthiessen v. Vanech, 266 Conn. 822, 831-33 (2003).
With respect to the requisite state of mind, the Connecticut Supreme Court has stated that
[r]ecklessness requires a conscious choice of a course of action
either with knowledge of the serious danger to others involved in it
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.
Id. at 829 (2003) (quoting Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 450-51
(1969)). “The state of mind amounting to recklessness may be inferred from conduct.” Id. “[I]n
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 take reasonable precautions to avoid injury to them . . .
.” Id.
With respect to the requisite conduct by the defendant, “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 . . . .” Craig v Driscoll, 262 Conn. 312, 343
(2003). “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 simple inattention.” Id.
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Turning to the allegations in the Plaintiff’s complaint, it is clear that he has sufficiently
alleged both the necessary mental state and conduct to sustain a cause of action sounding in
recklessness. With respect to the proper mental state, the Plaintiff has alleged in Count Three
¶9a. that the Defendant knew she was operating a speed that was too fast for the conditions and
that she knew operating her automobile at this speed created a high likelihood of an accident and
injury to other motorists. In ¶9b., the Plaintiff further alleges that the Defendant chose to direct
her attention away from the roadway and that she knew that by doing so she created a high risk
of collision and injury to others motorists. Each allegation demonstrates that the Plaintiff knew a
high risk of danger was involved in her conduct and that she chose that course of action in spite
of the risks of harm to other motorists. Thus, the Plaintiff has sufficiently alleged the necessary
mental state to sustain a claim in recklessness.
With respect to reckless conduct, the Plaintiff has also sufficiently pled conduct that
represents an extreme departure from ordinary care. It is plainly obvious that car collisions can
result in serious and potentially fatal injuries. Thus, knowingly and deliberately operating a
vehicle at a speed that is too fast for the conditions of the road and/or while in a distracted state
such that one is not focused on the road does represent an extreme departure from ordinary care
required of drivers on public roads.
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The Plaintiff has sufficiently pled the mental state and conduct necessary to sustain a
cause of action in recklessness. Respectfully, the Plaintiff submits that facts alleged in this count
if provable would sustain a cause of action in recklessness and that the Defendant’s Motion to
Strike must therefore be denied.
B. The Plaintiff submits that he has pled to satisfy the majority view in regard
to C.G.S. §14-295, Statutory recklessness.
“A slight majority of Superior Court decisions has required that a plaintiff only plead the
general allegations enumerated in §14-295, namely, that the defendant has deliberately or with
reckless disregard violated one of the enumerated statutes, and the violation was a substantial
factor in causing the plaintiff's injuries.” Alibrandi, 2008 Conn. Super. LEXIS 2809 at *5-6.
Courts taking the majority view have emphasized the plain meaning of §14-2951:
There does not appear to be any ambiguity in the language of
[§]14-295 or how it should be applied or construed. The statute
says that in a civil action seeking damages for personal injuries, the
trier of fact may award double or treble damages if the plaintiff has
specifically pleaded that another party has deliberately or with
reckless disregard operated a motor vehicle in violation of . . . [one
or more motor vehicle statutes delineated in the statute] . . . and
that such violation was a substantial factor in causing such injury .
. . When such an allegation is specifically made, nothing else is
required under the statute. If a further delineation of facts
C.G.S. §14-295 provides in relevant part: “In any civil action to recover damages resulting from personal injury,
wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has
specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in
violation of section 14-218a, 14-219, 14-222, 14-227a, 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such
violation was a substantial factor in causing such injury, death or damage to property.”
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forming the basis of the recklessness claim were necessary,
then such an explicit requirement could have been set out in
the statute by the legislature. Where the language used by the
legislature is plain and unambiguous, there is no room for
construction by the courts and the statute will be applied as its
words direct. (Emphasis Added) (Internal citations omitted)
(Internal quotation marks omitted)
Id. at 9-10 (quoting Buccitti v. Sudhakar, No. CV 07 05004210, 2007 Conn. Super.
LEXIS 1640 at *8-9 (Conn. Super. Ct. Jun. 20, 2007, Upson, J.) See also Mandeville v.
Kulikowski, No. CV 05 4004292, 2005 Conn. Super. LEXIS 3511 (Conn. Super Ct. Dec. 6 2005,
Ronan, J.); Carawlanis v. Kaczmarczyk, No. CV 06 5001507, 2006 Conn. Super. LEXIS 1719 at
*4 (Conn. Super. Ct. Jun. 6, 2006, Rodriguez, J.) ("the majority opinion is supported by the clear
language of §14-295"); Hand v. Moore, No. CV 05 4003873, 2005 Conn. Super. LEXIS 2647 at
*11 (Conn. Super. Ct. Sep. 26, 2005 Jennings, J.) ("There is no indication that the legislature
intended to incorporate the specific fact pleading requirements of the common-law cases into
cases of statutory negligence").
In this case, the Plaintiff has clearly satisfied the majority view by alleging that the
Defendant deliberately violated C.G.S. §14-218a and §14-222 of the enumerated statutory
provisions in C.G.S. § 14-295 and that the Defendant’s violation was a substantial factor in
causing the Plaintiff’s injuries. (See Pl. Comp, Count Two, ¶¶ 9 & 10). Therefore, the Plaintiff
has satisfied the necessary pleading requirements under the majority view by following the plain
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language of the statute and should not be required to plead anything further. See Alibrandi, 2008
Conn. Super. LEXIS 2809 at *5-6; See also Harkless v. Lynwood, No. CV116019548S, 2012
Conn. Super. LEXIS 2069 at * 8 (Conn. Super. Ct. Aug. 13, 2012, Wilson, J.) (“[U]nder the
pleading standard established by §14-295 . . . a plaintiff [is required to] allege a causal
relationship between the recklessness claimed and the injury suffered.”).
C. The Plaintiff has additionally satisfied the minority pleading view in regard
to C.G.S. §14-295
Even if the Court should disagree with the majority trend and apply the minority position,
the Plaintiff has satisfied this standard. The minority position requires that “plaintiffs plead the
specific conduct that is reckless, above and beyond what must be pleaded for mere negligence.”
Alibrandi, 2008 Conn. Super. LEXIS 2809 at *12.
"Our Superior courts have held that the reiteration of facts previously asserted to support
a cause of action in negligence, without more, cannot be transformed into a claim of reckless
misconduct [by mere] nomenclature." (Internal quotation marks omitted.) Leigh v. Cook, No.
CV 06 6000492, 2007 Conn. Super. LEXIS 1357 at * 5 (Conn. Super. Ct. May 27, 2007, Holden,
J.) "[T]he plaintiff must plead particularized facts that when taken as true would show that the
defendant acted with reckless disregard. The facts alleged must show that the defendant
consciously chose a course of action despite the fact that the defendant did know, or reasonably
should have known, that the action posed serious danger to others." Alibrandi, 2008 Conn.
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Super. LEXIS 2809 at *16 (quoting Victor v. Williamson, No. CV 05 4008786, 2006 Conn.
Super. LEXIS 2143 at *5-6 (Conn. Super. Ct. Jul 5, 2006 Owens, JTR.).
In Count Two the Plaintiff alleged specific facts in addition to the enumerated statutory
provisions. (Pl. Comp. Count Two, ¶ 9a.) With respect to the proper mental state, the Plaintiff
has alleged in Count Three ¶9a. that the Defendant knew she was operating a speed that was too
fast for the conditions and that she knew operating her automobile at this speed created a high
likelihood of an accident and injury to other motorists. In ¶9b., the Plaintiff further alleges that
the Defendant chose to direct her attention away from the roadway and that she knew that by
doing so she created a high risk of collision and injury to others motorists. Each allegation
demonstrates that the Plaintiff knew a high risk of danger was involved in her conduct and that
she chose that course of action in spite of the risks of harm to other motorists. Thus, the Plaintiff
has sufficiently alleged the necessary mental state to sustain a claim in recklessness.
With respect to reckless conduct, the Plaintiff has also sufficiently pled conduct that
represents an extreme departure from ordinary care. It is plainly obvious that car collisions can
result in serious and even potentially fatal injuries. Thus, knowingly and deliberately operating a
vehicle at a speed that is too fast for the conditions of the road and/or while in a distracted state
such that one is not focused on the road does represent an extreme departure from ordinary care
required of drivers on public roads.
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Each of these allegations demonstrates that the Plaintiff, in compliance with the minority
view, did not simply name an enumerated statutory provision and provide no further information.
Rather, the Plaintiff has set forth allegations of fact that demonstrate “that the defendant
consciously chose a course of action despite the fact that the defendant did know, or reasonably
should have known, that the action posed serious danger to others." See Alibrandi, 2008 Conn.
Super. LEXIS 2809 at 16 (quoting Victor v. Williamson, Superior Court, Docket No. CV 05
4008786, 2006 Conn. Super. LEXIS 2143.) Thus, the Plaintiff has sufficiently satisfied the
minority pleading view by pleading facts in addition to the enumerated provisions listed in
C.G.S. § 14-295.
IV.
CONCLUSION
For the foregoing reasons, the Plaintiff respectfully requests that this Court deny the
Defendant’s Motion to Strike and sustain his Objection, granting whatever other relief is deemed
necessary and proper.
THE PLAINTIFF,
SALLY PLAINTIFF
BY:
12
__ ___________
Chrysten A. Dufour, Esq.
Carter Mario Injury Lawyers
12 Montowese Avenue
North Haven, CT 06473
860-223-2100
Juris No. 106160