Opinion
No. CV03 0403104
April 1, 2004
MEMORANDUM OF DECISION RE (#112) PLAINTIFFS' MOTION TO STRIKE SPECIAL DEFENSE
This is a cause of action for personal injuries and other damages and losses allegedly caused by the negligence of the defendants in their ownership or operation of a motor vehicle which was involved in a collision with plaintiffs' vehicle. The alleged losses include the inability of the plaintiff operator "to pursue all of the duties of her employment" and her "lost wages and loss of earning capacity."
In addition to their amended answer to the complaint, the defendants filed a special defense alleging, "The defendants has failed to mitigate their damages in that the plaintiff, Deborah Medico, has failed to promote her own recovery by not using reasonable efforts to obtain employment."
The plaintiffs have moved to strike the special defense for the reason that failure to mitigate damages is not a proper defense.
The parties appeared through counsel and were heard and the court reserved decision.
Having considered the arguments of counsel, the Practice Rules and the applicable case law, the court makes the following findings.
"[A] motion to strike challenges the legal sufficiency of a pleading . . ." Sherwood v. Danbury Hospital, 252 Conn. 193, 212 (2000). The role of the court is to "construe the complaint in the manner most favorable to sustaining its legal sufficiency." Pamela B. v. Ment, 244 Conn. 296, 308 (1998). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Doe v. Yale University, 252 Conn. 641, 667 (2000). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. The court must construe the facts in the complaint most favorably to the plaintiff." Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). "[I]t does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." Id., 588. "If facts provable in the complaint would support a cause of action, the motion to strike must be denied" (emphasis added). Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270-71 (1999).
"It is arguable that . . . mitigation of damages is not a valid special defense because, one, it is not among those listed in the Practice Book Sec. 10-50, and two, it does not allege that a plaintiff has no cause of action [e.g. infancy, statutes of limitation, fraud or duress], but only that the damages, if any, should be decreased." Gabriele v. Bridgeport Port Jefferson Steamboat Company, 2091 Ct. Sup. 13260, judicial district of Stamford/Norwalk at Stamford No. CV 00 0178702 (Sept. 24, 2001) (Lewis, J.).
As noted in Peter-Michael, Inc., supra, the intended purpose of a special defense is to make the argument that, even if proven, the facts in the plaintiff's complaint do not support a cause of action. It is not the purpose of a special defense to determine the size or amount of the award or whether there should even be one. The defendant has every right to elicit evidence and testimony which challenges the plaintiff's claim of damages. Doing it by use of a special defense is unnecessary and unauthorized by Practice Book Section 10-50.
The plaintiff's motion to strike the special defense of failure to mitigate damages is granted. The defendant has the right to take issue with the plaintiff's claim of injuries and to make him explain what, if anything, he did to reduce the extent of his damages. Such a defense is not and should not be seen as an affirmative defense which places the burden of proof on the pleader and which would, technically, be deemed to be waived if not plead.
For the foregoing reason, the plaintiff's motion to strike the special defense of failure to mitigate damages is granted.
By the Court
Joseph W. Doherty, Judge