Opinion
No. 391326
April 1, 2003
MEMORANDUM OF DECISION
By complaint dated March 11, 2002, the plaintiff, James Orifice, commenced this action against the defendants, Ducci Electrical Contractors, Inc. (Ducci), and Leon E. Larned, Jr. (Larned), seeking damages for personal injuries he allegedly sustained as a result of a motor vehicle collision stemming from Larned's alleged negligent and reckless operation of Ducci's vehicle at an intersection.
In their second special defense, the defendants pled sudden emergency as a defense. In their third special defense, the defendants pled the unavoidable accident doctrine as a defense. The plaintiff moves to strike both special defenses on the ground that they are not proper special defenses but, rather, are variations on a simple denial.
"The motion to strike . . . replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading . . . In [determining whether to grant] a motion to strike, we construe the facts alleged in the complaint in a light most favorable to the pleader. If facts provable under the allegations would support a defense . . . the motion to strike must be denied." (Citation omitted; internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).
The test for whether an allegation or series of allegations constitutes a defense is embodied in Practice Book § 10-50, which provides: "No facts may be proved under either a general or special denial except such as show that the plaintiff's statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged. Thus, accord and satisfaction, arbitration and award, coverture, duress, fraud, illegality not apparent on the face of the pleadings, infancy, that the defendant was non compos mentis, payment (even though nonpayment is alleged by the plaintiff), release, the statute of limitations and res judicata must be specially pleaded, while advantage may be taken, under a simple denial, of such matters as the statute of frauds, or title in a third person to what the plaintiff sues upon or alleges to be the plaintiff's own."
"The emergency doctrine modifies the standard of reasonable conduct ordinarily expected of reasonable men and women by allowing the occurrence of a sudden or unexpected event to be taken into account as one of the circumstances determining what conduct is reasonable. Prosser, Torts (4th Ed. 1971) § 33, pp. 168-69. Restatement (Second), 1 Torts § 296 (1966). `In an emergency not due to his own negligence, one is not relieved of all obligations to exercise care but is required to exercise the care of an ordinarily prudent person acting in such an emergency. Degnan v. Olson, 136 Conn. 171, 177, 69 A.2d 642; Puza v. Haraway, 123 Conn. 205, 213, 193 A. 776.' Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 312, 268 A.2d 639 (1970). A person faced by such an emergency has some leeway when deciding rapidly between alternative courses of action. Id., 312. Vachon v. Ives, 150 Conn. 452, 455, 190 A.2d 601 (1963)." Oberempt v. Egri, 176 Conn. 652, 656, 410 A.2d 482 (1979).
The facts, though not the mixed conclusions of fact and law, associated with the sudden emergency doctrine are generally consistent with those alleged in the complaint. The doctrine seeks to add a fact — the fact of the emergency — which does not negate facts in the complaint nor show that the plaintiff has no cause of action but, rather, that her cause of action should be judged in light of an emergency. Id. "Negligence consists in the failure to exercise that degree of care under given circumstances which a person of ordinary prudence would exercise under similar circumstances." Stedman v. O'Neil, 82 Conn. 199, 205-06, 72 A. 923 (1909). The sudden emergency doctrine seeks to place before the trier for his consideration evidence of an extraordinary circumstance. "[T]he application of the emergency doctrine does not alter the standard of care to be exercised," but, rather, "is a factor to be considered in the evaluation of the [defendant's] conduct." Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 312, 268 A.2d 639 (1970). In a negligence case, it is always competent to place before the trier evidence of the circumstances then and there existing. "An emergency is but one of the circumstances shown in evidence which are to be considered by the trier in determining whether an operator exercised due care." Pareles v. McCarthy, 149 Conn. 238, 243, 178 A.2d 155 (1962). Nor does the doctrine imply that the plaintiff has no cause of action, the sine qua non of a common law special defense. Even if an emergency existed, the plaintiff's cause of action survives, the ultimate question being whether the defendant acted as a reasopable person would have in that circumstance. Mei v. Alterman Transport Lines, Inc., supra.
Finally, the Supreme Court has held that the doctrine of sudden emergency need not be pleaded; Pareles v. McCarthy, supra, 149 Conn. 243; and a number if not the majority of Superior Court decisions on the matter have held or suggested that the sudden emergency doctrine is not properly pleaded as a special defense. Pinsker v. Flemming, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 01 0382908 (April 12, 2002, Gallagher, J.); Gold v. American Economy Ins. Co., Superior Court, judicial district of New Haven, Docket No. CV 95 0380475 (April 26, 1996, Freedman, J.) ( 16 Conn.L.Rptr. 641). "[U]nder Connecticut practice facts tending to show that there was a sudden emergency or unavoidable accident can be proven under a simple denial since they bear on the degree of care required by that person confronted with the emergency." (Internal quotation marks omitted.) Mazza v. Alcock, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 95 0320421 (June 17, 1996, Grogins, J.) ( 17 Conn.L.Rptr. 221); see also McCoy v. Vuolo, Superior Court, judicial district of New Haven, Docket No. CV 91 0316972 (April 7, 1995, Hodgson, J.) ("[w]hile negligence of a plaintiff must be raised by special defense pursuant to [Practice Book] § 167, it appears that facts supporting a denial that the defendants' actions were causative is to be raised by a denial, not by a special defense"); see also 1 Horton Knox, Connecticut Practice Book Series, Practice Book Annotated, Superior Court Rules § 10-50, p. 382 (Table of Defenses) (1998).
The impropriety of asserting the inevitable or unavoidable accident doctrine as a special defense is even clearer and more settled. "The so-called defense of inevitable or unavoidable accident is nothing more than a denial by [a defendant] of his negligence, or a contention that his negligence, if any, was not the proximate cause of the injury." Tomczuk v. Alvarez, 184 Conn. 182, 190, 439 A.2d 935 (1981). It therefore does not satisfy the test for a special defense embodied in Practice Book § 10-50, requiring the pleading of facts consistent with the plaintiff's complaint. See also 1 Horton Knox, Connecticut Practice Book Series, supra.
The plaintiff's motion to strike the defendants' special defenses is granted.
BY THE COURT
Bruce L. Levin Judge of the Superior Court