Opinion
No. CV06-65000640S
September 13, 2006
MEMORANDUM OF DECISION
The plaintiff brings this action in two counts, alleging legal malpractice against an attorney and the attorney's law firm. The complaint contains the following allegations. The defendant attorney represented the plaintiff's wife in divorce proceedings instituted by the plaintiff sometime prior to May 24, 2004. During the pendency of the proceedings, the defendant attorney agreed that the passports of the wife and the minor child were to be turned over to her in order to prevent the wife from taking the minor child out of the country. The plaintiff's wife absconded to Brazil with the minor child in March 2005. The plaintiff claims that the defendants breached their duty to the plaintiff to keep the plaintiff's wife, the defendant's client, from getting hold of the passports. The plaintiff claims, that as a result of the defendants' negligence, he has suffered damages, including the permanent deprivation of his minor son.
The defendants filed an answer denying the material allegations of the complaint, and they asserted, as a special defense, that the plaintiff failed to mitigate his damages. They revised that special defense to state that the "plaintiff has failed to mitigate his damages in that he has failed to take any and/or all reasonably necessary steps to have reasonable visitation with his son or have his son return to the United States."
Before this court is the plaintiff's motion to strike the special defense.
Discussion
"A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike. The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action . . . In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Internal quotation marks omitted; internal citations omitted.) Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.26 198 (2001).
The plaintiff moves to strike the special defense of mitigation of damages on two grounds; first, that the special defense is not properly supported by factual allegations and is therefore merely a legal conclusion and, second, that mitigation of damages is not properly pled as a special defense.
With respect to the first ground, the cases cited by the plaintiff in support of his motion are inapposite. In O'Dwyer v. Housatonic Area Regional Transit, Inc., No. 322861, 1996 WL 715406 (Conn.Super. Dec. 3, 1996), the special defense stated only the legal conclusion that "[t]he accident was the result of a sudden emergency and was unavoidable. The court (Moraghan, J.) granted the motion to strike because the allegation did not contain facts supporting the legal conclusion. In Fleming v. Stop Shop Co., Inc., No. CV90108768S, 2001 WL 1179284 (Conn.Super. Sept. 5, 2001), the court (McLachlan, J) granted a motion to strike a special defense that alleged that "this court lacks subject matter jurisdiction over Fleming's claims against defendant" because the court found that such special defense was merely a legal conclusion labeled and a special defense. In Duffy v. Fasano, No. 109145, WI, 369644 (Conn.Super. Dec. 2, 1992), the court (Sylvester, J.) struck special defenses that did not contain sufficient facts. Here, the defendants alleged that the plaintiff "failed to take any reasonably necessary steps to have reasonable visitation with his son or have his son return to the United States." The allegations are clearly not mere legal conclusions but rather sufficient facts to support the claim of mitigation of damages. The special defense complies with section 10-1 of the Practice book which requires that each pleading contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved. The motion to strike is therefore denied on this ground.
The plaintiff contends that mitigation of damages is not properly pled as a special defense. In discussing the nature and purpose of special defenses, our Supreme Court has held: "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." (Citations omitted.) Coughlin v. Anderson, 270 Conn. 487, 501, 853 A.2d 460 (2004). The superior court decisions are split on the issue. For example, in Union Savings Bank of Danbury v. Alan Barry, No. 320962, WL 151895 (Conn.Super. March 14, 1996), the court (Moraghan, J.) granted a motion to strike a special defense, stating that "failure to mitigate damages" does not meet the definition of a special defense as it does not address the issue of liability. In Gabriele v. Bridgeport, 2001 Ct.Sup. 13260 (J.D. Stamford-Norwalk, Sept. 24, 2001), Judge Lewis denied a motion to strike the special defense of failure to mitigate damages, stating: "[I]t is arguable that mitigation of damages is not a valid special defense because, one, it is not among those listed in Practice Book § 10-50, and two, it does not allege that a plaintiff has no cause of action, but only that the damages, if any, should be decreased. On the other hand, one could also argue that such a defense notifies the plaintiff of an issue that will be presented in the case and serves to clarify a general denial."
It is true that "failure to mitigate" does not meet the criterion of extinguishing the plaintiff's cause of action. It is also true that "failure to mitigate damages" is not one of the enumerated special defenses in section 10-50 of the Practice book. However, it cannot be overlooked that asserting the defense apprises the plaintiff of an issue that will be presented in the case and clarifies the general denial. Moreover, our appellate courts have at least implicitly viewed with favor the special defense of failure to mitigate damages. In Mauro v. Yale-New Haven Hospital, 31 Conn.App. 584, 593-94, 627 A.2d 443 (1993), the Appellate Court held that the defendant was entitled to a charge on failure to mitigate damages because he did assert it as a special defense and produced some evidence regarding the claim.
It is also observed that the special defense of comparative negligence does not necessarily extinguish a plaintiff's cause of action.
Sec. 10-50 of the Practice Book provides, in relevant part, [f]acts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own.
In Preston v. Keith, 20 Conn.App. 656, 664, 570 A.2d 214 (1990), the Appellate Court determined that the burden of proving the affirmative defense of failure to mitigate damages shifts to the defendant: "It is axiomatic that the initial burden of proving and establishing that the defendant's negligence was the proximate cause of claimed injuries lies with the plaintiff . . . We concur, however, with the leading treatises and aforementioned jurisdictions and believe that the most prudent course to follow is to hold that "[t]he burden of proving that the victim of tortious conduct failed to minimize damages rests with the wrongdoer. To prevail, the wrongdoer must show that the injured party failed to take reasonable action to lessen the damages; that the damages were in fact enhanced by such failure; and that the damages which could have been avoided can be measured with reasonable certainty . . ." Affirming the Appellate Court's allocation of the burden of proving failure to mitigate damages, the Connecticut Supreme Court noted that the theoretical foundation for the plaintiff's duty to mitigate damages is that the defendant's negligence is not the proximate, or legal, cause of any damages that could have been avoided had the plaintiff taken reasonable steps to promote recovery and avoid aggravating the original injury. Preston v. Keith, 217 Conn. 12, 16, 584 A.2d 439 (1991) Commenting on the rationale for placing the burden to prove failure to mitigate damages, the Supreme Court stated: "A defendant claiming that the plaintiff has failed to mitigate damages seeks to be benefitted by a particular matter of fact, and he should, therefore, prove the matter alleged by him. The rule requires him to prove an affirmative fact, whereas the opposite rule would call upon the plaintiff to prove a negative, and therefore the proof should come from the defendant. He is the wrongdoer, and presumptions between him and, the person wronged should be made in favor of the latter. For this reason, therefore, the onus must in all such cases be upon the defendant . . . To claim successfully that the plaintiff failed to mitigate damages, the defendant must show that the injured party failed to take reasonable action to lessen the damages; that the damages were in fact enhanced by such failure; and that the damages which could have been avoided can be measured with reasonable certainty." (Internal quotation marks omitted; internal citations omitted.) Id., 22.
The shifting of the burden of proof to the defendant and fulfilling of the function of apprising the plaintiff of the issues to be tried persuade this court that the special defense of "mitigation of damages" is a proper special defense.