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Trommer v. City of Middletown

Superior Court of Connecticut, Judicial District of Middlesex, Middletown

April 7, 2016

Robert W. Trommer, Jr.
v.
City of Middletown et al

          MEMORANDUM OF DECISION ON MOTION TO STRIKE

          Julia L. Aurigemma, J.

         The defendants, Officer August DeFrance and the City of Middletown, have moved to strike the complaint of the plaintiff, Robert W. Trommer, Jr., on the grounds that it fails to state a cognizable cause of action because there is no private right of action under Connecticut General Statutes § 14-108a(a)(2). The plaintiff has filed an opposing memorandum to which he has appended multiple exhibits. A motion to strike is limited to facts alleged in the complaint and, therefore, the court has not considered those exhibits.

         Facts

         The complaint alleges that on October 16, 2011 the plaintiff was riding a motorcycle on the northbound side of Route 9 in Middletown and was struck in the rear by a vehicle driven by Kyle Wolak. Officer August DeFrance took control of the accident scene and failed to properly investigate the accident in violation of Connecticut General Statutes § 14-108a(a)(2), which prevented the plaintiff from securing " a greater recovery in his accident-related lawsuit(s)." Complaint ¶ 17.

         Discussion of the Law and Ruling

         The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Faulkner v. United Technologies Corporation, 240 Conn. 576, 580, 693 A.2d 293 (1997); Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, 36, 522 A.2d 1235 (1987).

         The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986).

         " It is incumbent on a Plaintiff to allege some recognizable cause of action" in the complaint and it is not the burden of the defendant to attempt to correct the deficiency. Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970). A motion to strike is an appropriate means of presenting to the court legal issues at the outset of litigation. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). " Whenever a party wishes to contest . . . the legal sufficiency of any such complaint . . . or any count thereof, because of the absence of any necessary party . . . that party may do so by filing a motion to strike the contested pleadings or part thereof." George v. St. Ann's Church, 182 Conn. 322, 325, 438 A.2d 97 (1980).

         Connecticut General Statutes § 14-108a(a)(2) provides, in pertinent part:

(2) In each motor vehicle accident in which any person is killed or injured or in which damage to the property of any one individual, including the operator, in excess of one thousand dollars is sustained, the police officer, agency or individual who, in the regular course of duty, investigates such accident, either at the time of or at the scene of the accident or thereafter, by interviewing the participants or witnesses, shall, within five days after completing such investigation, complete and forward one copy of such report to the Commissioner of Transportation. Such report shall call for and contain all available detailed information to disclose the location and cause of the accident, the conditions then existing, the persons and vehicles involved and the names of the insurance companies issuing their automobile liability policies, as well as the enforcement action taken . . .

         The defendants claim that there is no private right of action under § 14-108a(a)(2). It is a " well settled fundamental premise that there exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute. In order to overcome that presumption, the [plaintiff bears] the burden of demonstrating that such an action is created implicitly in the statute." (Internal quotation marks omitted.) Perez-Dickson v. Bridgeport, 304 Conn. 483, 507, 43 A.3d 69 (2012). There is no case law indicating that § 14-108a(a)(2) provides for a private cause of action and the statute does not include an express authorization for a private cause of action, and no implicit authorization can be read from its text.

         The plaintiff does not claim that § 14-108a(a)(2) provides a private cause of action. Rather, he argues that the complaint alleges general negligence and he relies on § 14-108a(a)(2) solely to establish the standard of care for his claim of negligence.

         The problem with the foregoing argument is that the only count of the complaint is entitled, " COUNT 1-C.G.S. § 14-108a(a)(2)." The defendants argue, essentially, that the plaintiff cannot avoid the statute's failure to provide a private cause of action by pleading that the statute establishes a standard of care because the plaintiff has not alleged any breach of a duty that flows from the defendants to the plaintiff. " In order to recover in a tort case, the plaintiff must show that the defendant has breached a legal duty owed to him." Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 44, 492 A.2d 219 (1985). " What duty the defendant had, if any, is a question of law. The issue of whether the defendant owed the plaintiff a duty of care is an appropriate one for a motion to strike because the question embodies a matter of law to be decided by the court." Bennett v. Connecticut Hospice, Inc., 56 Conn.App. 134, 137, 741 A.2d 349 (1999).

         The plaintiff does not allege a breach of a duty that flows from the defendants to him. Instead, he claims that the defendants breached the legal duties set forth under § 14-108a(a)(2). As stated above, the only legal duties that arise under that statute are reporting requirements to the Connecticut ...


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