Opinion
CV165041165S
01-12-2017
George Krawshuk v. Christopher Hollaway et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
A. Susan Peck, Judge Trial Referee.
MOTION TO STRIKE
On September 23, 2016, the plaintiffs, George Krawshuk, filed a seven-count amended complaint against the defendants, Christopher and Deborah Hollaway. In count one of the amended complaint, the plaintiff alleges the following facts. On June 27, 2014, the plaintiff was stopped at a traffic control light on his motorcycle when he was twice struck by an automobile, driven by the defendant Christopher, and suffered injuries as a result. The defendant Deborah was a passenger in the defendant Christopher's automobile at the time of the incident. In counts one, two, three, four, five, and six, the plaintiff alleges causes of action for negligence, violation of General Statutes § 14-295, and common law recklessness against the defendant Christopher stemming from the two collisions.
The original complaint, filed on January 29, 2016, set forth four counts against the defendants. The amended complaint, as granted by the court, Noble, J., October 11, 2016, asserts three additional counts against the defendant Christopher stemming from the alleged second collision. The only change as to the defendant Deborah is that the original count four (aiding a tort), is now count seven of the amended complaint.
In count seven, the plaintiff alleges a cause of action for aiding a tort against the defendant Deborah. In support of its claim for aiding a tort, the plaintiff alleges the following facts. Prior to the accident, the defendant Deborah knew that the defendant Christopher had been treated for depression, anger issues and anxiety, and that he had exhibited road rage on prior occasions. The defendant Deborah encouraged the defendant Christopher to hit the plaintiff's motorcycle by negligently making comments about the plaintiff's driving when she knew or should have known it would aggravate and incite the defendant Christopher's actions. Furthermore, the defendant Deborah, as a nurse, failed to tender or offer medical care to the plaintiff, causing an aggravation or worsening of his conditions.
On April 8, 2016, the defendant Deborah filed a motion to strike count four of the original complaint, now count seven of the amended complaint, on the ground that the plaintiff failed to state sufficient facts to demonstrate that the defendant Deborah knowingly and substantially assisted or encouraged the defendant Christopher's actions in support of a claim for aiding a tort. The plaintiff filed a memorandum of law in opposition on September 26, 2016. The court heard oral argument at short calendar on September 26, 2016.
Practice Book § 10-61 provides in relevant part: " When any pleading is amended the adverse party may plead thereto within the time provided by Section 10-8 or, if the adverse party has already pleaded, alter the pleading, if desired, within ten days after such amendment or such other time as the rules of practice, or the judicial authority, may prescribe, and thereafter pleadings shall advance in the time provided by that section. If the adverse party fails to plead further, pleadings already filed by the adverse party shall be regarded as applicable." See also Bailey v. West Hartford, 100 Conn.App. 805, 808 n.4, 921 A.2d 611 (2007) (reviewing motion to strike with regard to amended complaint rather than original complaint). Presently, the defendant Deborah has not altered the motion to strike in response to the plaintiff's amended complaint. Therefore, the defendant Deborah's motion to strike will be reviewed with regard to the amended complaint rather than the original complaint.
The plaintiff filed its objection over five months after the defendant Deborah filed its motion to strike on the day of the short calendar argument. Practice Book § 10-40(a) provides in relevant part: " Any adverse party shall have thirty days from the filing of the motion to strike to respond to a motion to strike filed pursuant to Section 10-39 by filing and serving in accordance with Sections 10-12 through 10-17 a memorandum of law in opposition." Nevertheless, " while there is no direct appellate authority on this issue, a majority of decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike." (Internal quotation marks omitted.) LYS Global Technology, LLC v. Bonarrigo, Superior Court, judicial district of Hartford, Docket No. CV-15-6061764-S, (May 13, 2016, Dubay, J.).
" The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " 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). Nonetheless, " [a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
In support of its motion to strike, the defendant Deborah argues that count seven of the plaintiff's amended complaint should be stricken because the complaint fails to allege sufficient facts concerning whether the defendant Deborah knowingly and substantially assisted or encouraged defendant Christopher's actions to support a cause of action for aiding a tort. In opposition, the plaintiff contends that he has established a prima facie case against the defendant Deborah for the cause of action of aiding a tort. The plaintiff further asserts that defendant Deborah knew of defendant Christopher's past issues relating to depression, anxiety, and anger with motorcyclists, and therefore knew or should have known that commenting on the operation of the plaintiff's motorcycle would aggravate and incite the defendant Christopher's actions. The plaintiff also asserts that there is " an audio and video tape interview" with the defendant Deborah and that this evidence, upon further discovery, will yield additional facts as to the defendant Deborah's intent.
On the question of aiding and abetting liability, the Connecticut Supreme Court has followed the principle expressed in Restatement (Second) of Torts § 876 (1979) that " [for harm resulting to a third person from the tortious conduct of another, one is subject to liability if he . . . (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, " and that " [i]f the encouragement or assistance is a substantial factor in causing the resulting [tort], the one giving it is himself a tortfeasor and is responsible for the consequences of the other's act." See, e.g., Connecticut National Bank v. Giacomi, 233 Conn. 304, 329, 659 A.2d 1166 (1995) (" to extent that § 876 of Restatement [Second] of Torts provides for aider and abettor liability, aggrieved party may have tort cause of action" [footnote omitted]); Carney v. DeWees, 136 Conn. 256, 262, 70 A.2d 142 (1949) (relying on portion of Restatement [First] of Torts § 876 [1939] containing same language). See also Efthimiou v. Smith, 268 Conn. 499, 505, 846 A.2d 222 (2004) (" aiding-abetting includes following elements: (1) party whom defendant aids must perform wrongful act that causes injury; (2) defendant must be generally aware of his role as part of overall illegal or tortious activity at time that he provides assistance; (3) defendant must knowingly and substantially assist principal violation" [internal quotation marks omitted]).
" The substantial assistance element requires plaintiffs to make some factual showing that the assistance provided by the alleged aider and abettor was a substantial factor in bringing about the violation." (Internal quotation marks omitted.) Brunette v. Bristol Savings Bank, Superior Court, judicial district of New Britain, Docket No. CV-92-0453957-S (August 22, 1994, Berger, J.) . See, e.g., Slicer v. Quigley, 180 Conn. 252, 260-61, 429 A.2d 855 (1980), overruled on other grounds by Ely v. Murphy, 207 Conn. 88, 95, 540 A.2d 54 (1988) (finding that knowledge of tortfeasor's prior incidents of driving after drinking, in addition to other facts, was not enough to show codefendant's conduct constituted substantial factor in causing resulting tort); Zimmitti v. Netherland, Superior Court, judicial district of New Haven, Docket No. CV-13-6005998-S, (October 27, 2015, Fischer, J.) [61 Conn.L.Rptr. 179, ] (finding words alone may be sufficient substantial assistance or encouragement where defendant jumped out of tortfeasor's vehicle and uttered and made threatening gestures toward third party prior to physical altercation).
In Slicer v. Quigley, supra, 180 Conn. 254-55, the tortfeasor, operating a motor vehicle while under the influence of alcohol, collided with a motorcycle, causing serious injuries. The codefendant was a passenger in the tortfeasor's motor vehicle at the time of the collision. Id., 254. In the events leading up to the collision, the tortfeasor repeatedly sped up and then jammed on the brakes in front of the motorcycle. Id., 259. While stopped alongside one another at a traffic control signal, the motorcycle driver made a remark to the tortfeasor, after which the codefendant stated to the tortfeasor, " Let's get that ******* motorcycle." Id. Immediately following the codefendant's comment, the tortfeasor crashed into the motorcycle. Id. The Supreme Court held that the trial court did not err in refusing to charge on the allegation that the codefendant " knew or should have known that the conduct of [the tortfeasor] constituted a breach of duty to other persons like [the plaintiff], and gave substantial assistance or encouragement to [the tortfeasor] to so conduct himself." (Internal quotation marks omitted.) Id., 258.
In the present case, although the plaintiff's amended complaint alleges that the defendant Deborah " encouraged" the defendant Christopher, it does not provide any factual support as to the nature of that " encouragement." Moreover, the plaintiff has failed to sufficiently allege how the defendant Deborah's encouragement or assistance was a substantial factor in bringing about the motor vehicle collision. The plaintiff's amended complaint alleges that the defendant Deborah knew that the defendant Christopher had previously been treated for depression, anger issues and anxiety, and had exhibited road rage on prior occasions. Nevertheless, these factual allegations do not speak to the degree that defendant Deborah's encouragement, independently of defendant Christopher's alleged history with road rage, was a substantial factor in bringing about the motor vehicle collision.
Additionally, the plaintiff's amended complaint fails to sufficiently allege that the defendant Deborah knowingly assisted the defendant Christopher in colliding with the plaintiff's motorcycle. Although the amended complaint alleges that the defendant Deborah generally knew of the defendant Christopher's past history with road rage, there are no facts establishing that the defendant Deborah encouraged or assisted the defendant Christopher with the intention of having him collide with the plaintiff's motorcycle. Rather, the amended complaint alleges that the defendant Deborah " negligently made comments" about the plaintiff's driving when she " knew or should have known" it would aggravate and incite the defendant Christopher. An individual acting negligently is not the same as an individual acting intentionally. See DaCruz v. State Farm Fire & Casualty Co., 268 Conn. 675, 693, 846 A.2d 849 (2004) (" intentional conduct and negligent conduct, although differing only by matter of degree . . . are separate and mutually exclusive" [citation omitted; internal quotation marks omitted]). Accordingly, the plaintiff has failed to allege sufficient facts showing that the defendant Deborah knowingly and substantially assisted or encouraged the defendant Christopher's actions to support a claim of aiding and abetting a tort.
CONCLUSION
For all the foregoing reasons, the defendant's strike count seven of the plaintiff's amended complaint is hereby granted.