Superior Court of Connecticut, Judicial District of New Haven, New Haven
MEMORANDUM OF DECISION RE MOTION TO STRIKE #106 AND #108
Brian T. Fischer, J.
On October 14, 2014, the plaintiff, Michael Stokes, filed a three-count complaint against the defendants, G6 Hospitality, LLC, Motel 6 Operating L.P., and Sam Patel. The operative complaint alleges the following facts.
The defendants own, operate, and manage the Motel 6 in Branford, Connecticut. While a guest at the motel, the plaintiff was violently assaulted by Taylor Banek and Rachel Celentano. As a result, the plaintiff sustained severe injuries and was rendered a quadriplegic. The plaintiff alleges that his injuries were proximately caused by the defendants' negligence in that they failed to provide a safe and secure environment for their guests, failed to enact adequate safety procedures, and permitted violent guests like Banek and Celentano to illegally consume alcohol on the premises.
On February 19 and 27, 2015, the defendants filed apportionment complaints against the plaintiff alleging that the plaintiff's injuries were directly and proximately by the negligence of Banek and Celentano. In particular, the defendants allege that Banek and Celantano negligently struck the plaintiff with excessive force; failed to take reasonable precautions to prevent the grievous injuries they inflicted; and negligently consumed excessive amounts of drugs and alcohol prior to the incident.
On May 8, 2015, the plaintiff filed motions to strike the apportionment complaints on the ground that the defendants cannot apportion liability to Banek and Celentano because General Statutes § 52-572h(o) precludes liability for intentional, willful or wanton conduct. This motion is accompanied by a supporting memorandum of law. The defendants filed an objection and supporting memorandum of law on August 14, 2015. This matter was heard at short calendar on August 17, 2015.
" [I]t is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Citation omitted; internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged"; (internal quotation marks omitted) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 990 A.2d 206 (2010); because the " pleadings are to be construed broadly and realistically, rather than narrowly and technically . . ." (Internal quotation marks omitted.) Downs v. Trias, 306 Conn. 81, 92, 49 A.3d 180 (2012). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). Nevertheless, " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013). " In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion"; Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980); and " [e]ach motion to strike must be accompanied by a memorandum of law citing the legal authorities upon which the motion relies." Practice Book § 10-39(c).
The plaintiff argues that the defendants' apportionment complaints are " a blatant attempt to apportion liability against the intentional, wanton and reckless actions of the apportionment defendants" and " [a]llowing the defendants to apportion liability against the intentional actors involved here would thwart public policy, disregard § 52-572h, and severely prejudice the plaintiff . . ." The defendants counter that the apportionment complaint is legally sufficient because under Connecticut law, an assault may be committed negligently, which has been properly alleged.
Pursuant to General Statutes § 52-102b(a), " [a] defendant in any civil action to which section 52-572h applies may serve a writ, summons and complaint upon a person not a party to the action who is or may be liable pursuant to said section for a proportionate share of the plaintiff's damages in which case the demand for relief shall seek an apportionment of liability . . ." " [A] 'civil action to which section 52-572h applies, ' within the meaning of § 52-102b, means a civil action based on negligence." Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 793-95, 756 A.2d 237 (2000). General Statutes § 52-572h(o) specifies that " there shall be no apportionment of liability or damages between parties liable for negligence and parties liable on any basis other than negligence including, but not limited to, intentional, wanton or reckless misconduct . . ."
Our Supreme Court has clarified " that, as a matter of statutory interpretation, only negligent persons may be cited in as apportionment defendants pursuant to the statute." Allard, supra, 253 Conn. 803. Nevertheless, " [i]n this state an actionable assault and battery may be one committed wilfully or voluntarily, and therefore intentionally; one done under circumstances showing a reckless disregard of consequences; or one committed negligently." (Internal quotation marks omitted.) Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985). " Under our law a civil action for assault and battery may be supported by proof of a negligent, or wanton, as well as an intentional, blow." Swainbank v. Coombs, 19 Conn.Supp. 391, 394, 115 A.2d 468 (1955).
" It is true, of course, that intentional tortious conduct will ordinarily also involve one aspect of negligent conduct, namely, that it falls below the objective standard established by law for the protection of others against unreasonable risk of harm. That does not mean, however . . . that the same conduct can reasonably be determined to have been both intentionally and negligently tortious. The distinguishing factor between the two is what the negligent actor does not have in mind: either the desire to bring about the consequences that follow or the substantial certainty that they will occur. If he acted without either that desire or that certainty, he was negligent; if he acted with either that desire or that certainty, he acted intentionally. Furthermore, if he acted with either that desire or certainty, a subsequent failure to warn his victim will not somehow transform his conduct from intentional to negligent conduct, because he is responsible for 'the direct and natural consequence of the intended act.'" (Emphasis in original.) American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 777, 607 A.2d 418 (1992); accord Lowe v. Italian Society of Middletown, Inc., Superior Court, judicial district of Middlesex, Docket No. CV-01-0096700-S, 2002 Conn. Super. LEXIS 4268 (July 10, 2002, Shapiro, J.) (32 Conn. L. Rptr. 506) (holding allegations " that while in the course of [an] assault, [the apportionment defendant] was careless and used excessive and unreasonable force, d[id] not change the legal character of her act" from intentional to negligent); cf. Higgs v. White, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-05-4002669-S, 2005 Conn. Super. LEXIS 2154 (July 26, 2005, Dooley, J.) (denying plaintiff's motion to strike apportionment complaint alleging that decedent's sexual assailant and murderer, inter alia, " failed to properly supervise the decedent; failed to timely and appropriately seek medical treatment for the decedent; negligently caused injuries to the decedent; failed to take proper precautions to prevent injuries to the decedent; and failed to provide the decedent with a safe environment").
In Casubolo v. Whelley, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-07-5004646-S, 2010 Conn. Super. LEXIS 1005 (April 21, 2010, Brazzel-Massaro, J.) (49 Conn. L. Rptr. 641), the plaintiff was assaulted while attending a party and sued the host and her parents for negligence. The defendants filed an apportionment complaint seeking to apportion liability to the plaintiff's assailants. Id. The court denied the plaintiff's motion to strike and reasoned that " [t]he [underlying] complaint, [which was incorporated by reference as an attachment], d[id] not characterize the assault as either negligent or intentional" and the apportionment claim alleged several negligent acts aside from the assault. Id. These included allegations " that the apportionment defendants were negligent in consuming alcohol, consumed alcohol in excess despite being intoxicated, came to the premises when they were not invited and did not leave although they were asked." Id.
Additionally, in DeCrescenzo v. Stillwater Realty, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-14-6021660-S, 2015 Conn. Super. LEXIS 134 (January 15, 2015, Karazin, J.T.R.), the decedent was robbed and beaten to death while he was a patron at the defendant's laundromat. The plaintiff filed suit alleging that the defendants were negligent in that they " knew or should have known that the premises were inadequately supervised, secured, staffed, and/or monitored, and therefore, were not reasonably safe for business invitees." In response, the defendant filed apportionment complaints against the men who assaulted the decedent, which alleged that the plaintiff's damages " were directly and proximately caused by the apportionment defendants who negligently consumed drugs, alcohol or other intoxicating substances prior to entering the premises, entered the premises unlawfully and without an invitation, assisted, and participated in a confrontation with the decedent during the commission of a robbery and/or attempted robbery, negligently failed to take reasonable steps to prevent the harm to the decedent, negligently failed to take reasonable steps to prevent the harm to the decedent during the confrontation with the decedent, negligently caused injuries to the decedent, negligently failed to seek medical treatment for the decedent despite being able to do so, and failed to prevent each other from harming the plaintiff despite being able to do so and having made the effort to do so." Id. The court denied the plaintiff's ...