Opinion
No. CV-03-0102601S
December 10, 2004
MEMORANDUM OF DECISION
The defendant, the Siemon Company, has moved to strike the Second, Fourth, Fifth, and Sixth Counts and the corresponding prayers for relief of the Revised Amended Complaint (the "Complaint") dated August 12, 2004.
Allegations of the Complaint
In the Second Count of the Complaint, the plaintiffs allege that the plaintiff, Deborah A. Breault is the Administratrix of the Estate of Daniel R. Breault, who was an employee of Air Compressor Engineering ("ACE") as an air compressor service technician at the time of his death. On Monday, October 14, 2002 Mr. Breault was scheduled to perform subcontract work for ACE at the defendant's facility to attempt to repair a Danfoss "variable frequency control drive attached to a 75 horsepower Ingersoll Rand Air Compressor," which had suffered a lightening strike three months earlier. On Friday, October 11, 2002, Mr. Breault had been working at the defendant's premises attempting to repair the variable frequency drive. The plaintiffs allege that at that time "a shut off for the electrical feed to the variable frequency drive, located behind the lower panel of the drive, was locked out and tagged out," and "there was yet another electrical feed to the drive located several feet away on the ceiling and was accessible only with a ladder and required the permission of and active participation of Siemon's personnel in order to lock and tag it out." According to the plaintiffs, this source of power was locked and tagged out on Friday, October 11, 2002 when Mr. Breault was working on the drive.
The Complaint further alleges that the defendant knew or should have known that when Mr. Breault returned to the defendant's facility on Monday, October 14, 2002 he intended to dismantle the variable frequency drive and remove it from the plant. While Mr. Breault was attempting to remove the variable frequency drive, he was unaware that the main power source to the drive had been energized and as a result, he came into contact with electrical connectors energized with 480 volts of electricity resulting in his electrocution and subsequent death.
In the First Count of the Complaint the plaintiffs allege that the electrocution and death of Mr. Breault was caused by the negligence of the agents and employees of the defendant described in seven enumerated subparagraphs including that:
b. They failed to lock out and tag out the main electrical control source to the Danfoss variable frequency drive unit when they knew or should have known of the danger presented to any subcontractor working on the unit if it was energized.
f. They failed to warn their subcontractors, especially Daniel R. Breault, that the equipment he was working on was live with 480 volts of electricity and that his activities in working on the Danfoss variable frequency drive unit could result in his electrocution and death.
In the Second Count of the Complaint the plaintiff enumerates that the defendant's conduct was reckless because it engaged in the same acts or failures to act as are enumerated in the First Count and further alleges:
20. Siemon acted in a willful, wanton and reckless manner by failing to act with due care with regard to the health and safety of business invitees on its premises when it permitted Daniel R. Breault to work on electrical equipment within the plant which was energized with 480 volts of dangerous electrical current.
21. Siemon acted in a willful, wanton and reckless manner by failing to provide business invitees on its premises, especially the plaintiff, Daniel R. Breault, with a safe environment in which to work.
22. Siemon acted in a willful, wanton and reckless manner by failing to conduct routine and proper inspections of the premises commensurate with its duties as a possessor of land and to permit its premises to remain in such a condition so as to constitute a menace, danger, nuisance and trap for business invitees lawfully on its premises.
23. The defendant's acts and omissions identified in the preceding subparagraphs were consciously chosen with actual or constructive knowledge of facts which disclosed the serious danger involved to any reasonable person. The defendant knew or should have known that the aforesaid acts or omissions created a significant risk of harm to persons such as the plaintiff, Daniel R. Breault.
The Fourth Count of the Complaint alleges loss of consortium on behalf of Deborah Breault, the decedent's wife, based on the defendant's reckless conduct. The Fifth and Sixth Counts allege loss of parental consortium on behalf of the decedent's children.
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; 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).
The defendant has moved to strike the Second, Fourth, and Sixth Counts of the Complaint on the ground that those counts fail to allege sufficient facts to support a cause of action for recklessness.
"Recklessness is a state of consciousness with reference to the consequences of one's acts. Commonwealth v. Pierce, 138 Mass. 165, 175 [1884] . . . It is `more than negligence, more than gross negligence.' Bordonaro v. Senk, 109 Conn. 428, 431, 147 A. 136 [1929]. 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." Mooney v. Wabrek, 129 Conn. 302, 308, 27 A.2d 631 (1942).
Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988).
A negligence count cannot be transformed into a "count for willful or wanton misconduct merely by appending a string of adjectives to allegations that clearly sound in negligence." Brown v. Branford, 12 Conn.App. 106, 110, 529 A.2d 743 (1987). "Additional factual allegations are necessary to alter the nature of conduct complained of from an action negligence to an action for willful or wanton conduct." Estate of Just v. Aparo, 1993 WL 137542 (April 23, 1993, Higgins, J.). "If the plaintiff merely reiterates the facts from the negligence count and inserts the word `reckless,' a motion to strike is properly granted." Siegel v. Howell, 1999 WL 81017 (Feb. 11, 1999, Moran, J.).
The defendant argues that the plaintiffs have failed to plead the additional facts necessary to transform the negligence allegations of the First Count into a cause of action for recklessness. In paragraph 20 of the Second Count, the plaintiffs allege:
Siemon acted in a willful, wanton and reckless manner by failing to act with due care with regard to the health and safety of business invitees on its premises when it permitted Daniel R. Breault to work on electrical equipment within the plant which was energized with 480 volts of dangerous electrical current.
The foregoing alleges, essentially, that the defendant was reckless because it was negligent, i.e., failed to exercise due care. Therefore, this is an insufficient allegation of recklessness.
Paragraph 21 alleges that the defendant was reckless because it failed to provide business invitees with a safe workplace and paragraph 22 alleges that the defendant was reckless by failing to inspect the premises. Again, both of these paragraphs allege no more than negligent conduct.
In paragraph 23, the plaintiffs allege:
The defendant's acts and omissions identified in the preceding subparagraphs were consciously chosen with actual or constructive knowledge of facts which disclose the serious danger involved to any reasonable person. The defendant knew or should have known that the aforesaid acts or omissions created a significant risk of harm to persons such as the plaintiff, Daniel R. Breault.
The plaintiffs argue that the "defendant's consciously-chosen actions and omissions, coupled with its actual or constructive knowledge of the facts alleged . . . constitute highly unreasonable conduct which is more than `any mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.'" See Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). Putting aside an analysis of how one acts consciously based on constructive notice, and construing the Complaint in a manner most favorable to the plaintiffs, the combination of the allegations of paragraph 23 and sub paragraph 15f of the Second Count allege that the defendant knew that the equipment on which Mr. Breault worked was live with 480 volts of electricity, but did not warn him of that fact. Such conduct certainly could be considered reckless. Therefore, the court declines to strike Counts Two, Four, or Six for failure to adequately allege recklessness.
The plaintiffs' failure to couch their allegations of recklessness in a more straightforward manner does raise questions as to whether they really have evidence of any conduct by the defendant beyond the merely negligent. However, those questions can best be answered in a summary judgment or by a jury.
In the Fifth and Sixth Counts of the Complaint the plaintiffs allege a cause of action for loss of parental consortium. The defendant has moved to strike these counts on the grounds that the Connecticut Supreme Court has specifically held that such a cause of action is not recognized in Connecticut in Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998).
In Mendillo the Court stated:
We conclude in the present case that the general rule of limiting the tortfeasor's liability to the person directly harmed should prevail. Although, in light of the minor plaintiffs' arguments, the question is a close one, the balance of policy considerations fails to establish the additional justification necessary to support recognition of a legal duty on the part of a tortfeasor to compensate the children of the person whom the tortfeasor has harmed directly for their loss of consortium with their parent. We reach this conclusion primarily on the basis of: the fact that recognition of the cause of action would require arbitrary limitations; the additional economic burden that recognition would impose on the general public; the uncertainty that recognition would yield significant social benefits; the substantial risk of double recovery; and the weight of judicial authority.
Mendillo, supra, at 484-85.
The Court in Mendillo specifically refused to recognize that allegations of loss of parental consortium such as those set forth in the Fifth and Sixth Count constitute a cognizable cause of action. Therefore, the Fifth and Sixth Counts are hereby stricken.
By the court,
Aurigemma, J.