Opinion
No. X04-CV-04-04000696S
June 1, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE
In this case, the plaintiffs claim personal injuries due to mold in their residence, allegedly caused by the defendant's over-pressurized water entering their home and causing flooding, which was then improperly re-mediated. The Metropolitan District Commission, hereafter the MDC, seeks to strike counts four through counts seven of the complaint, which allege reckless conduct, violation of the Connecticut Unfair Trade Practices Act and negligent infliction of emotional distress. For the reasons set forth below, the court finds that the complaint adequately sets forth causes of action in all four counts and denies the motion.
DISCUSSION A. Legal Standard
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.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). In ruling on a motion to strike, the trial court examines the complaint "construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). When deciding the motion, "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 . . ." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). It bears repeating that the court is to construe the pleadings in favor of the plaintiffs.
1) Count Four — Recklessness
Defendant, in its motion, asserts that plaintiffs have not alleged adequately reckless conduct for their complaint to survive a motion to strike. Specifically it claims that because there are no allegations that the MDC was motivated by a conscious choice to harm the plaintiffs or with knowledge of serious danger, the complaint is legally deficient. Such a formulation of the law is inaccurate since it focuses on the outcome, not the conduct that led to the outcome for which the plaintiffs seek relief. While the MDC continues in its brief to correctly cite the legal definitions of what may be reckless conduct, it fails to apply them to the facts alleged and the reasonable inferences which may be drawn from such facts.
The fourth count, in addition to incorporating the earlier negligence allegations, also states that the MDC took certain affirmative acts as well as failed to take certain actions. It is alleged that the MDC by-passed alarms and safety decisions, failed to react to alarms, allowed repeated over-pressurization events, allow[ed] the growth of mold, did not timely and properly remediate the plaintiff's home, failed to advise the family of potential health risks, and to vacate the home.
The standard to be applied to such allegations is not in doubt. As the court noted in Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003):
To determine whether the plaintiffs' amended complaint states a cause of action sounding in recklessness, we look first to the definitions of willful, wanton and reckless behavior. Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . 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 . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . .
While we have attempted to draw definitional distinctions between the terms willful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or 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 . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention. (Internal quotation marks omitted.)
Defendant argues that such conduct as is alleged is not highly unreasonable. Interpreting the allegations in the light most favorable to the plaintiffs, the court concludes that all of these actions taken together were highly unreasonable, starting with the affirmative act of by-passing safety alarms which could not have been due to mere negligence. Ignoring alarms also typically requires something more than negligence, that is a disregard for the safety mechanisms in place to prevent harm to consumers. Further, the count alleges that such conduct by the MDC created a risk of injury to the plaintiffs, which the MDC intentionally disregarded. For all the foregoing reasons, the court finds that count four adequately states a cause of action for recklessness.
2. Count Five — CUTPA
The motion to strike further asserts that the MDC is exempt from CUTPA pursuant to 42-110c(a)(1) which provides that the act does not apply to "[t]ransactions or actions otherwise permitted under law as administered by any regulatory board or officer acting under statutory authority of the state." Our Supreme Court has discussed municipal agency liability under CUTPA. Connelly v. Housing Authority, 213 Conn. 354, 567 A.2d 1212 (1990) (CUTPA is applicable to failure of Housing Authority to comply with codes); City of Danbury v. Dana Investment Corp., 249 Conn. 1, 730 A.2d 1128 (1999) (CUTPA does not apply to a municipality in foreclosing a tax lien). Connelly can be read as describing certain factors to be considered in making a determination as to whether an agency is exempt.
Most Superior Court unreported decisions which have considered the issue have concluded that agencies alleged to have violated CUTPA are exempt and appear to have expanded the exemption without a Connelly-type analysis. Several other cases have taken a more in-depth view and concluded that a regulatory body may not always be exempt from CUTPA, depending on the nature of its actions. Indeed, plaintiffs assert that whether the MDC in this instance was acting as a regulatory board or acting under statutory authority of the state or the United States are questions of fact not alleged in the pleadings, which cannot be determined on a motion to strike. This is so, plaintiffs claim, because some limited evidence would need to be taken.
See, e.g., Nettleton Mechanical Contractors, Inc. v. Meriden, Superior Court, judicial district of Waterbury, Docket No. 146838 (February 3, 2000, Doherty, J.) ( 26 Conn. L. Rptr. 493); Colon v. GEICO Casualty Co., Superior Court, judicial district of New Haven, Docket No. 419197 (July 28, 1999, Moran, J.); Laclair v. East Hartford Housing, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 574379 (February 3, 1998, Wagner, J.) ( 21 Conn. L. Rptr. 359); Barnes v. General Electric Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 529354 (July 25, 1995, Hennessey, J.) ( 14 Conn. L. Rptr. 455); Stratford v. Siciliano, Superior Court, judicial district of Bridgeport, Docket No. 296847 (September 13, 1993, Leheny, J.) ( 9 Conn. L. Rptr. 507).
Charter Communications Entertainment I, LLC v. The University of Connecticut, Superior Court, judicial district of Tolland, Complex Civil Litigation, Docket No. X07 CV00-0072038 S (March 23, 2000, Bishop, J.) ( 27 Conn. L. Rptr. 11) (6 Conn.Ops. 397) ( 2000 Ct.Sup. 3190) (The State of Connecticut is a "person" under CUTPA and the phrase "any other legal entity" in the definition section of General Statutes § 41-110(3) could arguably include the state); Town of Manchester v. United Stone America, Inc., Superior Court, judicial district of Tolland, Complex Civil Litigation, Docket No. X07 CV 98-0070702 S (June 15, 2000, Bishop, J.) ( 27 Conn. L. Rptr. 414) (6 Conn.Ops. 863) ( 2000 Ct.Sup. 1283) ("The court is unpersuaded that Connelly stands for the broad proposition advanced by the plaintiff . . . Thus, while the court is unprepared to state that a municipality may never be subject to CUTPA . . .")
The court agrees with this formulation as the only two "facts" pled are that the MDC is a municipal corporation and that it has engaged in the business of the sale and delivery of water to residential customers. There are no allegations that it did so acting under statutory authority. At least superficially, these allegations would permit the inference that it may be subject to CUTPA. If the court is to determine the adequacy of the matter from the pleadings alone, such pleadings are inadequate, without more, to conclude that the MDC is exempt as a matter of law.
The MDC asserts in its reply memorandum that only by relying on facts outside the pleadings asserted by the plaintiffs can the court conclude that the MDC is subject to CUTPA. The court does not agree. As an initial proposition, the court must conclude that the MDC was acting under statutory authority before it can conclude that the MDC's assertion of exempt status is accurate. Nowhere is that fact alleged. While it may well turn out to be accurate that it is exempt and that therefore the cause of action cannot be maintained, such a determination is premature at this juncture and must await another day. For the foregoing reasons, the court concludes the matter is not yet capable of resolution and denies the motion to strike.
3. Counts Six and Seven — Negligent Infliction of Emotional Distress CT Page 9569
The MDC first argues that the two counts fail to specifically allege that its conduct created an unreasonable risk of harm. Carroll v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003) sets forth the necessary elements of the cause of action required as:
(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress.
Paragraph 2 of counts six and seven each state that the MDC knew or should have known that its negligent conduct created an unreasonable risk of emotional distress that might result in illness or bodily harm. Paragraph 3 of each count asserts that each plaintiff experienced emotional distress as a result of the MDC's conduct. Reading these two allegations together with the other incorporated allegations, the court finds that the counts in the complaint, while not using the "magic words" the defendant insists upon, are adequate to allege the cause of action for the negligent infliction of emotional distress.
For all the foregoing reasons, the court denies the motion to strike counts four, five, six and seven of the complaint.
BY THE COURT
BARBARA M. QUINN, Judge