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Ercolani v. Carvalho

Superior Court of Connecticut, Judicial District of New Haven, New Haven

November 5, 2015

Jacob Ercolani
v.
Antonio Carvalho

MEMORANDUM OF DECISION RE MOTION TO STRIKE #106

Wilson L. Robin, J.

FACTS

On February 23, 2015, the plaintiff, Jacob Ercolani, filed a complaint against the defendant, Antonio Carvalho. The plaintiff alleges the following facts in his complaint. On or about August 14, 2014, the plaintiff and the defendant were both on the premises of Co-Ex Corporation in Wallingford, Connecticut. While there, the defendant acted negligently and carelessly in the following ways: throwing a box, causing it to hit the plaintiff in the face; using his hands in a negligent and careless way to push the plaintiff into a filing cabinet and desk, causing him to stumble and fall to the ground; and waving his arms with a weapon in his hands, acting in a threatening and aggressive manner towards the plaintiff. The plaintiff maintains that these acts also constitute reckless and wanton assault and battery as well as intentional assault and battery. As a result, the plaintiff has suffered various injuries and requests money damages.

On June 10, 2015, the defendant filed a motion to strike count two for reckless and wanton assault and battery, and count three for intentional assault and battery on the ground that both counts fail to state claims for which relief can be granted because they are mere reproductions of the plaintiff's negligence claims set forth in count one. In support of the motion, the defendant filed a memorandum of law. On June 22, 2015, the plaintiff filed a memorandum of law in opposition to the defendant's motion to strike. Oral argument was heard on the motion at short calendar on August 17, 2015.

DISCUSSION

" [A] motion to strike challenges the legal sufficiency of a pleading, and consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . [P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). Further, " [the court] will not uphold the granting of a motion to strike on a ground not alleged in the motion nor relied upon by the trial court." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).

In his memorandum of law in support of the motion to strike, the defendant argues that count two reckless and wanton assault and battery and count three intentional assault and battery fail to state claims for which relief can be granted because they are mere reproductions of the count one negligence claim. Specifically, he argues that counts two and three simply repackage the allegations that constitute the negligence claim without adding any additional facts. The plaintiff counters this argument, claiming that mere duplication of factual allegations from a negligence count does not automatically render a claim for reckless or intentional assault and battery legally insufficient and that the admissible facts under the pleadings support the reckless and intentional assault claims.

I

COUNT TWO RECKLESS AND WANTON ASSAULT AND BATTERY

" [A]n 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." Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985). Even though " [i]t is more technically correct in Connecticut civil tort law to refer to what is called an 'assault' as a 'battery' . . . the cases rarely make that distinction." Carragher v. DiPace, Superior Court, judicial district of Hartford, Docket No. CV-10-6014357-S, 2012 Conn. Super. LEXIS 2938 (November 30, 2012, Wahla, J.), citing Chouinard v. Marjani, 21 Conn.App. 572, 572, 575 A.2d 238 (1990). " A wanton assault and battery is one that under circumstances, evinces a reckless disregard of the consequence of the assaultive act . . . Both the terms 'wanton' and 'reckless' are employed interchangeably by Connecticut courts." (Citations omitted; internal quotation marks omitted.) Carragher v. DiPace, supra, Superior Court, Docket No. CV-10-6014357-S 2012 Conn. Super. LEXIS 2938.

" Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted." Craig v. Driscoll, 262 Conn. 312, 343, 813 A.2d 1003 (2003). " To determine whether the [plaintiff's complaint] states a cause of action sounding in recklessness, [the court looks] first to the definitions of wilful, wanton, and reckless behavior. 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 exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing." (Internal quotation marks omitted.) Id., 342. " [In sum, such] 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." (Internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998).

" Despite the difference between negligence . . . and recklessness . . . a complaint which alleges both is not deficient so long as the facts support both claims and it is clear that both negligence and reckless misconduct are being asserted." Smith v. Verma, Superior Court, judicial district of New London, Docket No. CV-13-6015809-S, 2013 Conn. Super. LEXIS 2814 (December 6, 2013, Cole-Chu, J.). " [T]here is no reason why the plaintiff relying on the same set of facts in negligence counts, cannot set forth in separate counts, causes of action arising out of these same facts alleging recklessness . . . [S]imilarity cannot be the sole focus. To so consider would often require a plaintiff to ratchet down the negligence claim in order to render more visible the conceptual space between the counts. Focus must instead primarily rest on the recklessness sufficiency of that count . . . Rather than follow a mechanistic approach . . . it seems more appropriate to examine instead whether the facts that are alleged could, under any set of facts admissible under the pleadings, support a conclusion of recklessness." (Internal quotation marks omitted.) Vanstean-Holland v. LaVigne, judicial district of New London, Docket No. CV-08-5007959-S, 2009 Conn. Super. LEXIS 2359 (September 2, 2009, Martin, J.).

In the present case, the plaintiff alleges in count one that his injuries were sustained due to the defendant's negligence when: (a) the defendant threw a box in a negligent and careless manner, hitting the plaintiff in the face; (b) the defendant used his hands in a negligent and careless way and pushed the plaintiff into a filing cabinet and then falling to the ground; and (c) the defendant waved his arms with a weapon in his hands and acted in a threatening and aggressive manner towards the plaintiff. Count two alleges a cause of action under reckless and wanton assault and battery by alleging in paragraph (5) that " the defendant recklessly and wantonly assaulted and battered" the plaintiff. In setting forth in what ways the plaintiff was assaulted, he relies on the same facts as alleged in count one, but removes the " negligent and careless manner" language from subparagraphs (a), but not (b). Subparagraph (c) remains the same. Despite the similarity of the facts alleged in these two counts, the plaintiff's complaint utilizes specific language of reckless and wanton assault and battery to notify the court that a different cause of action is being alleged in each count. Further, by the plaintiff adding the words, " recklessly and wantonly assaulted and battered, " the defendant's actions constitute a departure from ordinary care, causing a situation with a high degree of danger. The plaintiff's allegations that the defendant threw a box at and hit ...


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