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Ky v. Velazquez

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

September 20, 2017

Han Kim Ky et al.
v.
Michael A. Velazquez

          MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE, NO. 107

          Anthony D. Truglia, Jr. Judge

         Facts and Procedural Background

         Han Kim Ky (the plaintiff) makes the following allegations against the defendant, Michael A. Velazquez, in the above-referenced action. In the early morning hours of September 21, 2014, the plaintiff was a passenger in a motor vehicle which was proceeding in a southbound direction on I-95 in Milford, Connecticut. The defendant, who was operating his motor vehicle on the same roadway behind the plaintiff, then " caused his motor vehicle to crash into, and against, the rear of the [plaintiff's] vehicle, thereby causing the [plaintiff] to sustain severe, painful and permanent injuries." The plaintiff alleges that he has endured mental and physical pain and anguish, and that as a result of the defendant's actions he has been prevented from enjoying many of his life's activities and may be unable to do so in the future. The plaintiff also alleges that he has incurred, and is likely to continue to incur, costs for medical care and treatment as a result of the defendant's actions.

         The plaintiff's complaint alleges two causes of action against the defendant. The first cause of action alleges that the collision between the plaintiff's and the defendant's vehicles " was proximately caused by the carelessness and negligence of [the] defendant" in one or more of eight ways. The plaintiff alleges in the first count of his complaint that the defendant, inter alia, operated his vehicle at an unreasonable rate of speed, having due regard to the traffic, weather, width and use of the highway at the time of the collision; failed to keep a proper lookout for other vehicles on the roadway; failed to keep his vehicle under proper and reasonable control; failed to apply his brakes in time to avoid a collision; was following too closely to the plaintiff's vehicle in violation of General Statutes § 14-240(a); [1] and, " operated his vehicle when it was not equipped with brakes adequate to bring it to a controlled stop within the distance and under the conditions prescribed, and when the brakes were not in good working order, in violation of [General Statutes] § 14-80[2] . . ." (Footnote added.)

         The third count of the plaintiff's complaint incorporates the factual allegations of the first count and further alleges that the " collision was a direct result of the reckless conduct of the defendant, . . . which conduct was a substantial factor in causing injury to the plaintiff . . ." In the third count of his complaint, the plaintiff alleges that the defendant operated his motor vehicle " in reckless disregard for the safety of others in violation of [General Statutes] § 14-222[3] in that he was operating his vehicle at a dangerous and excessive rate of speed in light of the rainy conditions that prevailed and the resultant slippery condition of the road surface . . ." (Footnote added.) The plaintiff also alleges in this count that the defendant " operated his motor vehicle in reckless disregard for the safety of others at a rate of speed which was dangerous, excessive and unreasonable in violation of [General Statutes § § ] 14-218a[4] and 14-219." [5] (Footnote added.) The plaintiff alleges that the defendant's conduct was a substantial factor in causing his injuries and damages and claims " [d]ouble and [t]reble damages pursuant to [General Statutes § ]14-295" [6] in his prayer for relief as to the third count of his complaint.

         The defendant has filed a motion to strike the third count of the plaintiff's complaint on the ground that the plaintiff has not alleged a legally sufficient cause of action for statutory recklessness. The defendant argues that the plaintiff's claim of statutory recklessness fails to set forth additional facts that would support a claim for recklessness and that the third count " alleges classic acts of negligence, but simply applies the label of recklessness to these allegations. When stripped of these legal conclusions, straightforward allegations of negligence are all that remain." In other words, the plaintiff contends that the third count does not allege specific facts establishing that the defendant's actions in the moments prior to the collision demonstrated an extreme departure from ordinary care, or that the defendant was conscious of a situation involving a high degree of danger but disregarded that risk.

         In opposition to the motion, the plaintiff argues that the court should follow the " majority view" as to the specificity of the allegations required to state a cause of action for statutory recklessness under § 14-295. The plaintiff contends that the majority view holds that merely asserting that the defendant has violated one of the motor vehicle, statutes listed in § 14-295 and that " such violation was a substantial factor in causing" the plaintiff's injury is sufficient to state a cause of action for statutory recklessness. The plaintiff further argues that even if the court does not adopt the majority view regarding the level of specificity required to state a legally sufficient cause of action for statutory recklessness, the third count adequately sets forth additional facts demonstrating that the defendant did face or create a situation of greater than ordinary risk in the manner in which he operated his motor vehicle prior to the accident, which he disregarded. The plaintiff argues that his third count is legally sufficient as a matter of law and the defendant's motion to strike should be denied.

         Discussion

         " A motion to strike attacks the legal sufficiency of the allegations in a pleading . . . In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein and to determine whether those facts establish a valid cause of action." (Internal quotation marks omitted.) Kortner v. Martise, 312 Conn. 1, 48-49, 91 A.3d 412 (2014). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). " [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Citation omitted; internal quotation marks omitted.) Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

         Our Supreme Court has stated that " [t]here is a wide difference between negligence and a reckless disregard of the rights or safety of others, and a complaint should employ language explicit enough to clearly inform the court and opposing counsel that reckless misconduct is relied on." Brock v. Waldron, 127 Conn. 79, 81, 14 A.2d 713. 127 Conn. 79, 14 A.2d 713 (1940). " Allegations of recklessness differ from allegations of negligence because reckless 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.) Pecan v. Madigan, 97 Conn.App. 617, 622 n.5, 905 A.2d 710 (2006), cert. denied, 281 Conn. 919, 918 A.2d 271 (2007).

         The court recognizes the split of authority among Superior Court decisions regarding pleading requirements for statutory recklessness. See, e.g., Charquero v. Bender, Superior Court, judicial district of New Haven, Docket No. CV-13-6036656-S, (April 8, 2014, Nazzaro, J.), and Byrnes v. Zeidler, Superior Court, judicial district of New Britain, Docket No. CV-11-6013498-S, (April 11, 2012, Swienton, J.). Certain decisions have held that " a claim for statutory recklessness is legally sufficient so long as it alleges that the defendant deliberately or with reckless disregard violated one of the statutes . . . and further asserts that the violation was a substantial factor in causing the plaintiff's injuries . . ." (Internal quotation marks omitted.) Cutler v. Flynn, Superior Court, judicial district of New Haven, Docket No. CV-11-6017763-S, (June 2, 2011, Woods, J.). In other decisions, " courts have required that plaintiffs plead the specific conduct that is reckless, above and beyond what must be pleaded for mere negligence . . . [C]ourts taking [this] position have also emphasized the importance of fact pleading." (Citation omitted; internal quotation marks omitted.) Charquero v. Bender, supra (determining that " the plaintiff's allegation that the collision was caused by the recklessness of the defendant because he acted 'with reckless disregard for the rights and safety of others' is merely a conclusion of law and is insufficient for the court to infer recklessness" ). Under the latter approach, " [t]he reiteration of facts previously asserted to support a cause of action in negligence, without more, cannot be transformed into a claim of reckless misconduct [by mere] nomenclature." (Internal quotation marks omitted.) Perciballi v. Gambardella, Superior Court, judicial district of New Haven, Docket No. CV-12-6028366-S, (August 13, 2012, Wilson, J.). For example, in a recent Superior Court case, the court granted the defendant's motion to strike the plaintiff's allegations of common law and statutory recklessness, concluding that " in count two of the complaint, the plaintiff incorporates the allegations from count one, sounding in common-law negligence, and adds the allegation that the defendant . . . deliberately and/or with reckless disregard failed to perform all of the duties aforesaid, and such failures and violations were substantial factors in causing the aforementioned injuries to the plaintiff . . . Without alleging more-namely, conduct that constitutes an extreme departure from ordinary care in a situation that involves a high degree of danger-counts two and four alleging common-law recklessness are legally insufficient and fail to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Lauria v. New England Tractor-Trailer Training of Connecticut, Inc., Superior Court, judicial district of New Haven, Docket No. CV-12-6032231-S, (April 24, 2013, Nazzaro, J.). See, also, e.g., Salvatore v. Skovinski, Superior Court, judicial district of New Haven, Docket No. CV-13-6041882-S, (November 17, 2014, Nazzaro, J.).

         In yet another recent case, Grabon v. Mainville, Superior Court, judicial district of New London, Docket No. CV-14-6020879-S, (August 4, 2014, Moukawsher, J.), cited by the defendant in support of the present motion, the plaintiff alleged that the defendant " [v]iolated § 14-218a of the Connecticut General Statutes by operating said motor vehicle at a high rate of speed for the time, place and conditions then and there existing with conscious disregard for the safety of other motorists, including the [p]laintiff . . . Nothing about this distinguishes it from mere negligence . . . To do so, the complaint would have to indicate a high degree of danger by specifying something about the speed or conditions that would take it out of the realm of ordinary negligence. Saying this was done 'recklessly' does not help either. It is the facts that count, not the word." (Internal quotation marks omitted.) The court in Grabon held that there was nothing to distinguish the plaintiff's allegations from ordinary negligence, and granted the defendant's motion to strike the count alleging recklessness.

         The reasoning in these decisions is persuasive, and the court agrees that a specific statement is required for claims of statutory recklessness under § 14-295. In the present case, the third count of the plaintiff's complaint, viewed in the light most favorable to sustaining the legal sufficiency of the cause of action stated, alleges that the defendant was operating his vehicle late at night in the rain, when he knew or should have known that the road surface might be more slippery than usual, and at a high rate of speed. Taken as true for purposes of this motion, the third count alleges that the defendant faced or created a situation of greater than ordinary danger on an interstate highway and then disregarded that risk and proceeded anyway. These allegations, if proven, in addition to pleading violations ...


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