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`CV 16 6022098 3
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`MARILOU MCNEIL
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`vs.
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`ANA DOANE, ET. AL.
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`JHD CLERKS SF:
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`SUPERiOR€5.33“
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`HlLFORB 3T
`SUPERIOR comm. OCT 22 p“ 2;.25
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`JUDICIAL DISTRICT OF
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`ANSONIA/MILFORD AT DERBY
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`OCTOBER 2018
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`MEMORANDUM OF DECISION
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`STATEMENT OF THE CASE
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`This action was instituted by the plaintiff, Marilou McNeil, against the defendants Anna
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`Doane and Sandra Doane, seeking monetary damages for injuries and losses the plaintiff
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`allegedly sustained in an automobile accident. According to the complaint, on November 18,
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`2014, the plaintiff was operating an automobile in the northbound direction on Pershing Drive,
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`Derby, Connecticut. Anna Doane was operating an automobile owned by Sandra Doane in the
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`northbound direction on Pershing Drive in the lane immediately adjacent to and to the right of
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`the lane occupied by the plaintiff’s automobile when suddenly and without warning Anna Doane
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`veered her automobile into the plaintiff’s lane striking the entire passenger side of the plaintiffs
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`vehicle. The complaint is in three counts. The first count is based on negligence. The second
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`count alleges statutory recklessness under General Statutes § 14—295. The third count is based on
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`common law recklessness. The plaintiff seeks compensatory damages under all the counts of the
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`complaint and also seeks punitive damages and attorney fees under the second and third counts.
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`On February 15, 2018, the defendants filed a motion with a supporting memorandum of
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`law seeking to strike the second and third counts of the complaint on the ground that the
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`allegations were insufficient to assert causes of action for recklessness under either General
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`Statutes § 14-295 or common law. On March 29, 2018, the plaintiff objected to the motion to
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`strike and filed a supporting memorandum. The motion and the objection appeared on the
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`court’s non-arguable short calendar docket, and on April 3, 2018, the court issued a summary
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`ruling denying the motion to strike and sustaining the objection to the motion.l On April 12,
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`2018, the defendants filed a motion requesting reconsideration of this ruling and seeking oral
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`argument and articulation. On April 12, 2018, the court granted the defendants’ motion to
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`reargue on the ground that the matter may have been considered on the papers when the movants
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`wanted oral argument. On July 9, 2018, the court heard argument on the motion and the
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`objection.
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`DISCUSSION
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`I
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`“A motion to strike shall be used whenever any party wishes to contest: (1) the
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`legal sufficiency of the allegations of any complaint, counterclaim or cross claim .
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`. to state a
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`claim upon which relief can be granted; or (2) the legal sufficiency of any prayer for relief in any
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`such complaint, counterclaim or cross complaint. .
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`. .” Practice Book § 10-39 (a). “It is well
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`established that a motion to strike must be considered within the confines of the pleadings and
`not external documents. .
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`. We are limited .
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`. to a consideration of the facts alleged in the
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`complaint.” (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn. App. 257, 268-69
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`‘The‘ court’s April 3, 2018 ruling stated the following: “The defendants’ motion to strike
`is denied and the plaintiff’s objection to the motion is sustained. The defendants claim that the
`second count fails to assert a claim for statutory recklessness under General Statutes § 14-295.
`The court has adopted the majority rule on this issue and on the basis of this rule concludes that
`these allegations are sufficient to state a claim under General Statutes § 14-295. Lombard v.
`Booth, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 03 83 6378
`(July 12 2001 , Stevens, J.) As to the third count, the court further concludes that the allegations
`are sufficient to assert a claim for common law recklessness. See Craig v. Driscoll, 262 Conn.
`312, 342-43 (2003).”
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`n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). “[A] motion to strike
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`challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by
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`the trial court. .
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`[The court] construe[s] the complaint in the manner most favorable to
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`sustaining its legal sufficiency. .
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`. Thus, [i]f facts provable in the complaint would support a
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`cause of action, the motion to strike must be denied. .
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`. Moreover .
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`. [w]hat is necessarily
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`implied [in an allegation] need not be expressly alleged. .
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`. It is fundamental that in determining
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`thesufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts
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`and those facts necessarily implied from the allegations are taken as admitted. .
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`. Indeed,
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`pleadings must be construed broadly and realistically, rather than narrowly and technically.”
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`(Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn.
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`385, 398, 142 A.3d 227 (2016). “If any facts provable under the express and implied allegations
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`in the plaintiff’s complaint support a cause of action .
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`. the complaint is not vulnerable to a
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`motion to strike.” Bouchard v. People ’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
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`II
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`As previously stated, the defendants first move to strike count two of the complaint
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`alleging statutory recklessness under General Statutes § 14-295. The text of this statute reads as
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`follows:
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`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 or 14—227m, subdivision (1) or (2) of subsection (a) of
`section 14-227n or section 14-230, l4—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. The owner of a rental or leased motor vehicle shall not be responsible
`for such damages unless the damages arose from such owner's operation of the
`motor vehicle.
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`According to the plaintiff, the allegations of the second count are sufficient because a
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`claim of recklessness under § 14—295 may be asserted by alleging that the plaintiff’s injuries were
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`caused by conduct committed by the defendants deliberately or with reckless disregard of the
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`consequences without the assertion of subordinate facts. In their motion to strike, the defendants
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`argue that in order for the plaintiff to assert a cause of action for statutory recklessness under §
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`l4~.295, the claim of recklessness must be pleaded with factual specificity, and mere reference to
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`and reliance on the statutory language of § 14—295 is insufficient. The defendants appreciate that
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`this argument implicates an issue of statutory construction which has not been addressed by our
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`appellate courts and which has created a decades long conflict among the trial courts.
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`The undersigned weighed in on this subject seventeen years ago in Lombard v. Booth,
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`Superior Court, judicial district of Bridgeport, Docket No. 01 038367 (July 12, 2001, Stevens, J.),
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`issuing a decision rejecting the defendants’ position. In their motion to reargue, the defendants
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`essentially take issue with this court’s continued reliance on Lombard and insist that recent
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`decisions provide a more persuasive, differing analysis of this issue. In making this argument,
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`the defendants neither appreciate nor address that under the doctrine of stare decisis, the court is
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`bound to follow this prior precedent absent a reasoned basis for the court to reverse itself. “The
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`doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the
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`most cogent reasons and inescapable logic require it .
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`. Stare decisis is justified because it
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`allows for predictability in the ordering of conduct, it promotes the necessary perception that the
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`law is relatively unchanging, it saves resources and it promotes judicial efficiency .
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`. It is the
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`most important application of a theory of decision—making consistency in our legal culture and .
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`is an obvious manifestation of the notion that decision-making consistency itself has normative
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`value.” (Internal quotation marks omitted.) State v. Ray, 290 Conn. 602, 614—15, 966 A.2d 148
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`(2009). After again reviewing the differing positions on this well traversed controversy, the court
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`remains convince-d about the reasoning of Lombard and is disinclined to reverse this precedent.
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`The parties’ dispute involves differing interpretations of § 14—295.
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`In this regard, the
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`court is guided by the provisions of General Statutes § 1-2z: “The meaning of a statute shall, in the
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`first instance, be ascertained from the text of the statute itself and its relationship to other statutes.
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`If, after examining such text and considering such relationship, the meaning of such text is plain
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`and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the
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`meaning of the statute shall not be considered.” Furthermore, “[w]hen the relevant statutory text and
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`the relationship of that text to other statutes do not reveal a meaning that is plain and unambiguous,
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`our analysis is not limited, and we look to other factors relevant to determining the meaning of [a
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`statute], including its legislative history, the circumstances surrounding its enactment and its
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`purpose. .
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`. The test to determine ambiguity is whether the statute, when read in context, is
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`susceptible to more than one reasonable interpretation.” (Citations omitted; internal quotation marks
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`omitted.) Viera v. Cohen, 283 Conn. 412, 421, 927 A.2d 843 (2007).
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`The language of § 14-295 is clear and unambiguous. The statute provides that “the trier
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`offact may award double or treble. damages if the injured party has specifically pleaded that
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`another party has deliberately or with reckless disregard operated a motor vehicle in violation” of
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`I one of the motor vehicle provisions specifically delineated in the statute. Consequently, if the
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`complaint alleges that the defendant has violated one of the specified provisions “deliberately or
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`with reckless disregard” then according to the statutory language nothing more needs to be
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`pleaded in order to seek double or treble damages as authorized by the statute. “If a further
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`delineation of facts forming the basis of the recklessness claim were necessary, then such an
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`explicit requirement could have been set out in the statute by the legislature. See Torres v.
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`Jacovino, Superior Court, judicial district of Waterbury, Docket No. 150549 (May 12, 2000,
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`Doherty, J.) (“General Statutes § 14-295 does not require the same specificity of pleading which
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`is required to support a cause of action predicated on [common law] recklessness .
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`. When the
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`language used by the legislature is plain and unambiguous, there is no room for construction by
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`the courts and the statute will be applied as its words direct
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`.
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`. ”).” Lombard v. Booth, supra.
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`Certainly, in order to prevail, the plaintiff must meet his burden of proving that the
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`defendant driver acted either “deliberately” or “with reckless disregard,” and these claims involve
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`well-defined and well-understood terms under Connecticut case law that would be addressed and
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`adjudicated through discovery and trial proceedings. “[A]lthough there is a wide difference
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`between negligence and recklessness (see Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58
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`(1958)), there is no question about what recklessness is under Connecticut law. Recklessness
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`requires a conscious choice of action either with knowledge that it will involve serious danger to
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`others or with knowledge of facts which would disclose this danger to a reasonable person. See
`Mooney v. Wabrek, 129 Conn. 302, 308, 129 A.2d 631 (1942). Consequently, if a plaintiff [as
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`the case here] has specifically pleaded that a defendant has caused the plaintiff injury by
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`“recklessly” violating the statute prohibiting the operation of a motor vehicle at an unreasonable
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`rate of speed (General Statutes § 14—218a), a jury will undoubtedly be charged that it has to
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`determine whether the defendant‘violated the statute in a manner that involved the defendant's
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`actual knowledge that [her] conduct involved serious danger to others or involved the defendant's
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`knowledge of such facts that would have caused a reasonable person to appreciate that such
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`danger was being created. An allegation in a complaint requiring such a charge is clearly
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`sufficient to satisfy the requisites of Section 14-295 in most instances. The defendant may
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`acquire further factual delineation about the claim through pretrial discovery if necessary.”
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`Lombard v. Booth, supra.
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`The Lombard decision continues to be cited as being representative ofthe majority view
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`on the construction of § 14—295. See, e.g., Waranowz’cz v. Arseneault, Superior Court, judicial
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`district of Waterbury, Docket No. CV 18 6038410 (July 20, 2018, Roraback, J.). “The majority
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`view is based both on an analysis of the legislative history as well as a review of the statutory
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`language of § 14—295 itself. These cases conclude that as long as the general requirements ofthe
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`statute are met, such pleading is enough to survive a motion to strike and to state a cause of
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`action under § 14—295.” (Footnote omitted.) Ferens v. Brown, Superior Court, judicial district of
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`New Britain, Docket No. CV-00-0509116-S (October 11, 2001, Quinn, J.); accord, Armstrong v.
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`Smith, Superior Court, judicial district of Hartford, Docket No. 94 0533947 (Sheldon, J.)
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`The defendants cite recent cases presenting arguments supporting the minority view that
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`the phrase “specifically pleaded” as used in § 14-295 refers to the fact pleading requirements of
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`common law. See, e.g., Shalla v. Bove, Superior Court, judicial district of New London, Docket
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`No. CV 12 6012695 (Aug. 3, 2015, Moukawsher, .I); Belknap v. Schroeder, Superior Court,
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`judicial district of Tolland, Docket No. CV 12 6005263 (Oct. 16, 2012, Sferrazza, J.) These
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`recent cases supporting the minority view, however, fail to provide cogent reasons or inescapable
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`logic sufficient to warrant this court’s deviation from the doctrine of state decisis and a reversal
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`of this court’s precedent as articulated in Lombard.
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`II
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`The defendants contend that the third count of the complaint alleging common law
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`recklessness must be stricken because the allegations of this count substantially reiterate the
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`factual specifications of negligence asserted in the first count with qualifying language that the
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`actions were committed by the reckless, wilful and want misconduct of the defendants and with
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`reckless disregard for the safety of the plaintiff. The manner in which the defendants have
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`framed this argument, as often done by defense counsel, fails to identify squarely or sufficiently
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`the dispositive issue.
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`The defendants correctly assert the well-established law that allegations of negligence
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`cannot be made recklessness claims merely by slapping a ‘recklessness’ label on them. On the
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`other hand, particular allegations may support both a negligence claim and a recklessness claim
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`because facts that are sufficient to support recklessness may very often be sufficient to constitute
`negligence. Consequently, the question is not whether the factual specifications for a negligence
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`claim and a recklessness claim are the same. The dispositive question is whether the factual
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`specifications of the recklessness count are sufficient to state a cause of action for recklessness
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`whether or not they are also used to support a negligence claim.
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`In the present complaint, paragraph five of the second count sets out twelve factual
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`specifications articulating the plaintiff’s recklessness claim. For the purpose of the defendants’
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`motion to strike, these factual specifications must be assumed to be true and if any one or more
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`of them are sufficient to state a cause of action for recklessness, then the motion to strike must be
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`‘ denied. On a motion to strike, the complaint’s factual allegations must be construed broadly and
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`liberally in favor of the non—movant and in the manner most favorable to sustaining the
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`complaint’s legal sufficiency. A fair reading of the complaint’s third count indicates that it
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`includes an allegation that the plaintiff’s injuries and losses were caused by the defendant’s
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`reckless, wilful and wanton misconduct in that the defendant Anna Doane operated her vehicle at
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`an excessive and unreasonable rate of speed and in such a manner in regard to the width, traffic
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`and use of the street so as to endanger the life of the plaintiff. This factual allegation, which must
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`be assumed true, is sufficient to assert a recklessness claim. See Craig v. Driscoll, 262 Conn.
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`312, 342-43, 813 A.2d 1003 (2003).
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`CONCLUSION
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`Therefore, for these reasons, the defendants’ motion to strike is denied and the plaintiff’s
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`objection to the motion is sustained.
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`So ordered this 22nd day of October 2018.
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