Opinion
No. CV04-0104110
December 22, 2004
MEMORANDUM OF DECISION RE MOTION TO STRIKE
This action arises out of a motor vehicle accident which allegedly occurred in Killingworth on June 18, 2003. The plaintiff alleges that the named defendant drove her car from her driveway into the path of the plaintiff, causing him injury. The named defendant and her mother, the owner of the vehicle she was operating, then filed an apportionment complaint against Frederick and Sheila Ehrgott, claiming that the Ehrgotts were negligent in that, inter alia, they allowed a tree on their property to obstruct the line of sight of motor vehicle operators in violation of General Statutes § 13a-149. The plaintiff then amended his complaint so as to add a second count raising the same general factual allegations against the Ehrgotts.
[Editor's Note: Footnote 1, which recites the language of Sec. 13a-149, has not been included in the reported opinion.]
The Ehrgotts have now moved to strike both the apportionment complaint and count two of the plaintiff's amended complaint, in which the plaintiff names the Ehrgotts as defendants. The Ehrgotts contend that they can not possibly be held liable for an apportioned share of the defendant's liability since liability under § 13-149 is premised on sole proximate cause. If the defendants are liable at all, the Ehrgotts can not be responsible for a portion of that liability under § 13-149 because the only way they can be liable under § 13-149, is solely, not proportionally.
In response, the defendants/third party plaintiffs do not appear to argue strenuously that the Ehrgotts can actually bear a "proportionate" share of liability under § 13-149. They appear to recognize that to be liable under that statute, the Ehrgotts must be solely liable, or not at all. Nor do they even argue strenuously for the proposition that a private landowner whose property abuts a highway and whose tree obstructs vision can be held liable under the defective highway statute at all as the "party liable to keep [the highway] in repair." Instead, their argument appears to be that both the third-party complaint and the second count of the plaintiff's amended complaint contain allegations not only of apportionment based on § 13-149, the sole object of the motion to strike, but also common-law negligence, in allowing the tree to obstruct the line of sight of motor vehicle operators and failing to remove the obstructing tree. They cite Whelan v. Whalen, 41 Conn.Sup. 519, 3 Conn. L. Rptr. 135 (1991), for the proposition that a motion to strike an entire complaint may not be granted if any of the claims made are legally sufficient. Because the complaint against the Ehrgotts contains common-law negligence claims that are not challenged by the instant motion, the defendants argue that the motion must be denied.
Whelan ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint, as it does in this case with respect to the § 13-149-based allegations, the proper course for the court is to strike those allegations only and to order the defendants to file an amended apportionment complaint that omits the § 13-149-based allegations. The legally cognizable allegations of the complaint thus remain intact, the invalid ones are stricken, confusion is avoided, and the case may proceed on its proper course.
The motion to strike is therefore granted as to the § 13-149-based allegations of the defendants' apportionment complaint and count two of the plaintiff's complaint, and the defendants and plaintiff are each ordered to file, within 30 days of receipt of this order, an amended apportionment complaint and second amended complaint, respectively, that omit the § 13-149-based allegations.
Jonathan E. Silbert, Judge