Superior Court of Connecticut, Judicial District of Waterbury, Waterbury
MEMORANDUM OF DECISION RE MOTION TO STRIKE #130
Andrew W. Roraback, J.
In this action, the plaintiff, Shataya Smith, seeks to recover damages for injuries she allegedly suffered as a result of a two-car motor vehicle collision. The defendant, Ishika Jackson, was the operator of the vehicle in which the plaintiff was a passenger. Allegedly, the vehicle went through an intersection from which a stop sign had been unlawfully or accidentally removed and collided with another vehicle that had the right of way.
In her answer, the defendant put forth a special defense alleging that the plaintiff's injuries were caused by her own negligence. The special defense is predicated on the allegation that the plaintiff " was sitting as a passenger in the defendant's vehicle, lived in the area and was familiar with intersection, knew that the defendant . . . was not familiar with the area or the intersection, and thus should have warned the defendant . . . [that] a stop sign was missing at the time so as to provide the defendant . . . with the knowledge and opportunity to take appropriate action to avoid the accident."
The plaintiff moves to strike this special defense. She argues that she had no duty to operate or assist in the operation of the vehicle driven by the defendant. The defendant argues that under the facts as alleged in this special defense, the plaintiff did have such a duty and that the special defense is therefore proper.
" 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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " In addition to challenging the legal sufficiency of a complaint or counterclaim, our rules of practice provide that a party may challenge by way of a motion to strike the legal sufficiency of an answer, 'including any special defenses contained therein . . .' Practice Book § 10-39; see also Practice Book § 10-6." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 179-80, 73 A.3d 742 (2013).
" As a general rule, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway . . . Whether facts must be specially pleaded depends on the nature of those facts in relation to the contested issues." (Internal quotation marks omitted.) Coughlin v. Anderson, 270 Conn. 487, 501, 853 A.2d 460 (2004). " In . . . ruling on [a] . . . motion to strike, the trial court [has an] 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). " On the other hand, 'the total absence of any factual allegations specific to the dispute renders [the special defense] legally insufficient.'" PHL Variable Ins. Co. v. Charter Oak Trust, Superior Court, judicial district of Hartford, Docket No. CV-10-6012621-S, 2013 Conn. Super. LEXIS 721 (March 27, 2013, Robaina, J.).
In this case, the allegations of the special defense, are specific to this dispute. " [O]lder Connecticut case law has recognized that, under extreme and particularized circumstances, there may be a very limited duty required of a passenger in an automobile to look out for threatened or possible dangers, and to warn the driver of such after their discovery . . . [These cases] suggest only that a passenger who fails properly to carry out this very limited duty may be barred from or limited in her recovery under the doctrines of contributory or comparative negligence." (Citations omitted; internal quotation marks omitted.) Dennison v. Klotz, 12 Conn.App. 570, 577-78, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988). Dennison also cites with approval to 2 Restatement (Second), Torts § 315, comment (b) (1965), which provides in relevant part: " Thus, if the actor, while riding merely as a guest, does not warn the driver of a danger of which he knows and of which he has every reason to believe that the driver is unaware, he becomes guilty of contributory negligence . . ." Id., 579 n.7.
" The Connecticut Supreme Court has recognized three circumstances as sufficiently extreme and particularized to permit the jury to consider whether a reasonably prudent passenger would have warned the driver . . . These three circumstances occur where the passenger's presence in the vehicle may obstruct the driver's view of a car or other approaching vehicle . . . where the passenger knows that the driver is operating [the vehicle] negligently or [the driver's] negligent conduct is so apparent that [the passenger] ought to have known it . . . and where the passenger knows about surrounding dangers and realizes that the dangers may very well go unnoticed by the driver." (Citations omitted; internal quotation marks omitted.) Fredericks v. Golde, Superior Court, judicial district of Bridgeport, Docket No. CV-96-334302-S, 1996 Conn. Super. LEXIS 3413 (December 17, 1996, Hartmere, J.).
Central to the resolution of this motion is the fact that the special defense under consideration does not allege that the plaintiff had any knowledge, prior to the collision, that the stop sign had been removed. It has not been alleged that she was on notice as to the existence of this hazard such as to create a duty to warn. To impose on a passenger, under otherwise normal circumstances, an ongoing duty to keep a lookout for traffic signs which may have been removed is inconsistent with the established precept that, " [G]enerally a passenger in a motor vehicle may be as supine as inert freight . . . He ...