Opinion
CV196094535
01-07-2020
William Pajeski, Administrator of the Estate of Edward Harris, Jr. v. Mezzo Grille et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Ozalis, Sheila A., J.
MEMORANDUM OF DECISION MOTION TO STRIKE
OZALIS, J.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This action was commenced on July 8, 2019, when Whalen was served with process. On July 22, 2019, the plaintiff, William Pajeski, filed a seven-count complaint against the defendants: Mezzo Grille, William Fox, Court Street Group LLC, Kevin Whalen (Whalen), and Michael Tuscano. The plaintiff brings this wrongful death claim pursuant to General Statutes § 52-555, and alleges the following facts. The plaintiff alleges that on February 28, 2019, the Probate Court of North Branford appointed William Pajeski as administrator of the estate of Edward Harris, Jr., and the plaintiff acts in such capacity in filing this complaint. The plaintiff alleges that between 7 p.m. on January 11, 2019, and 1 a.m. on January 12, 2019, the defendant Whalen was a patron at Mezzo Grille in Middletown, Connecticut, where he was served alcohol by employees of the restaurant while visibly intoxicated. The plaintiff alleges that on January 12, 2019, at approximately 1 a.m., defendant Whalen operated a 2016 Jeep Wrangler on interstate 91 in Meriden, Connecticut, with the plaintiff’s decedent riding in the motor vehicle as a passenger. The plaintiff alleges that as a result of defendant Whalen’s intoxicated state, he collided with the rear of the vehicle directly in front of him. This collision caused the plaintiff’s decedent to be injured, and these injuries resulted in his death on January 16, 2019.
Section 52-555(a) provides: "In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of."
As to the Fourth Count of the Complaint, the plaintiff alleges the following. The collision, injuries, and subsequent death of the plaintiff’s decedent were caused by the negligence of defendant Whalen in that he: (a) followed the vehicle in front of him too closely in violation of General Statutes § 14-240; (b) failed to exercise due care to avoid the collision in violation of General Statutes § 14-300d; (c) failed to operate his vehicle in a reasonable manner in order to avoid collision in violation of General Statutes § 14-222; (d) operated his vehicle at an unreasonable speed in violation of General Statutes § 14-218a; (e) operated his vehicle with a braking system which was not maintained in good working order in violation of General Statutes § 14-80h; (f) operated his vehicle while distracted in violation of General Statutes § 14-296aa(i); (g) operated his vehicle while under the influence of alcohol in violation of General Statutes § 14-227a; (h) failed to be attentive, keep a reasonable lookout, and make reasonable use of his senses and faculties; and (i) failed to keep his vehicle under proper control, sound his horn, apply his brakes with reasonable care, and turn his vehicle to avoid striking the other vehicle.
The plaintiff’s Sixth Count of the Complaint incorporates these facts, and additionally alleges the following facts. The plaintiff alleges that the defendant Whalen recklessly disregarded the risk of driving at a high speed, with reduced vision, and while intoxicated, and deliberately or with reckless disregard operated his vehicle in violation of General Statutes § § 14-218a, 14-222, 14-227a, and 14-230. The plaintiff alleges that these violations were a substantial factor in causing the plaintiff’s decedent’s injuries and subsequent death, and the plaintiff is therefore entitled to double or treble damages pursuant to General Statutes § 14-295.
Section 14-295 provides in relevant part: "In any civil action to recover damages resulting from personal injury, wrongful death or damage to property, the trier of fact may award double or treble damages if the injured party has specifically pleaded that another party has deliberately or with reckless disregard operated a motor vehicle in violation of section 14-218a, 14-219, 14-222, 14-227a or 14-227m, subdivision (1) or (2) of subsection (a) of section 14-227n or section 14-230, 14-234, 14-237, 14-239 or 14-240a, and that such violation was a substantial factor in causing such injury, death or damage to property."
The defendant Whalen filed an answer and two special defenses to the Complaint on September 17, 2019. In the defendant’s First Special Defense, he asserts the special defense of contributory negligence to the Fourth Count of the plaintiff’s Complaint, and argues that any injuries or losses of the plaintiff’s decedent were the direct and proximate result of the decedent’s negligence in riding in the vehicle under the existing circumstances. The defendant Whalen additionally asserts in his Second Special Defense, the special defense of assumption of risk to the Sixth Count of the Complaint, and argues that the plaintiff’s decedent knew or should have known of the peril to which he was exposed, and continued of his own volition to subject himself to that peril.
On October 3, 2019, the plaintiff filed a motion to strike both of defendant Whalen’s special defenses, accompanied by a memorandum of law in support, on the grounds that defendant Whalen’s First Special Defense of contributory negligence fails to meet the requirements of Practice Book § 10-53, that defendant’s Second Special Defense of assumption of risk is prohibited by General Statutes 52-572h(1), and that assumption of risk cannot be asserted as a special defense where the defendant recklessly, wilfully and wantonly breached a public obligation created by statute. The defendant Whalen filed an objection on November 7, 2019. The plaintiff, in a reply filed November 13, 2019. Oral argument was heard on this motion on November 18, 2019.
II.
DISCUSSION
"In addition to challenging the legal sufficiency of a complaint or counterclaim, our rules of practice provide that a party may challenge by way of a motion to strike the legal sufficiency of an answer, ‘including any special defenses contained therein ...’ Practice Book § 10-39; see also Practice Book § 10-6." GMAC Mortgage, LLC v. Ford, 144 Conn.App. 165, 179-80, 73 A.3d 742 (2013). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
"A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action ... The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway ... Whether facts must be specially pleaded [however] depends on the nature of those facts in relation to the contested issues." (Citations omitted; internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005).
A. Contributory Negligence
The plaintiff first argues in his motion to strike that defendant Whalen’s First Special Defense of contributory negligence to the Fourth Count of the Complaint should be stricken because defendant Whalen fails to plead specific acts or omissions of the plaintiff’s decedent to support a claim of negligence. Specifically, the plaintiff argues that defendant Whalen does not plead sufficient facts from which the essential elements of contributory negligence may be reasonably inferred. "If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant and the defendant shall specify the negligent acts or omissions on which the defendant relies." Practice Book § 10-53.
This Court has reviewed the allegations contained in the First Special Defense. In the present case, defendant Whalen asserts that, if the plaintiff’s decedent suffered the injuries alleged in the complaint, the decedent’s injuries are the result of his own negligence or carelessness in riding in the vehicle under the circumstances. Without additional facts to support these conclusions, this court finds that defendant Whalen’s pleading is legally insufficient.
Accordingly, the plaintiff’s Motion to Strike the First Special Defense of contributory negligence as to the Fourth Count of the Complaint is granted.
B. Assumption of Risk
The plaintiff next moves to strike defendant Whalen’s Second Special Defense of assumption of risk as to the Sixth Count of the Complaint on the grounds that the special defense is barred by General Statutes § 52-572h(1).
General Statutes § 52-572h(1) provides in relevant part that "the legal doctrines of last clear chance and assumption of risk in actions to which this section is applicable are abolished." Our Supreme Court has explained: "The central purpose of § 52-572h was to abolish the harsh common law rule that the doctrines of contributory negligence, last clear chance and assumption of risk operated as a complete bar to recovery ... In lieu of these doctrines, subsection (a) of § 52-572h sets forth a single standard: comparative negligence. In determining the relative negligence of each party, however, the factors relevant to the assumption of risk doctrine may be considered by the trier. As long as the jury is properly instructed concerning the doctrine of comparative negligence ... elements involving the failure of the plaintiff to comprehend a risk may be specially pleaded and weighed by the trier in determining the propriety and totality of the plaintiff’s conduct in relation to that of the defendant. When a plaintiff’s conduct in assuming a risk is unreasonable, then the [assumption of risk] doctrine overlaps contributory negligence and the principle of comparative negligence embodied in the statute should apply." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 797-98, 462 A.2d 1043 (1983). It is well settled that "[b]y its own terms, the comparative negligence statute applies only to causes of action based on negligence." (Internal quotation marks omitted.) Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 782, 610 A.2d 1277 (1992); see also Levandoski v. Cone, 267 Conn. 651, 662-63, 841 A.2d 208 (2004) (holding that "the legislature has abolished the doctrine of assumption of the risk in negligence actions"); Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 793-95, 756 A.2d 237 (2000) (holding that "a ‘civil action to which section 52-572h applies’ ... means a civil action based on negligence"). "Had the legislature intended the comparative negligence statute to apply to actions brought under [other statutes] ... it could have explicitly done so by including specific language to that effect." Lukas v. New Haven, 184 Conn. 205, 212, 439 A.2d 949 (1981). Section 52-57h(1), therefore, "applies only to negligence actions and not to claims based on recklessness." Rubel v. Wainwright, 86 Conn.App. 728, 740, 862 A.2d 863, cert. denied, 273 Conn. 919, 871 A.2d 1028 (2005).
The plaintiff’s Sixth Count of the Complaint alleges that the defendant Whalen recklessly disregarded the risk of driving at a high speed, with reduced vision, and while intoxicated, and deliberately or with reckless disregard operated his vehicle in violation of General Statutes § § 14-218a, 14-222, 14-227a, and 14-230. The plaintiff alleges that these violations were a substantial factor in causing the plaintiff’s decedent’s injuries and subsequent death.
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." Dubay v. Irish, 207 Conn. 518, 532, 542 A.2d 711 (1988). "While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that ‘wilful, ’ ‘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." Id., 533.
As the Second Special Defense of assumption of risk is directed at the Sixth Count of the Complaint which alleges claims for statutory recklessness, § 52-572h(1), which applies to negligence claims, does not bar the Second Special Defense of assumption of risk as to plaintiff’s statutory recklessness claims. Accordingly, the plaintiff’s Motion to Strike the Second Special Defense on this ground is denied.
The plaintiff next argues that the Second Special Defense of assumption of risk is unavailable as a special defense where the plaintiff’s injury arises from the defendant’s reckless, wilful and wanton breach of a public obligation created by statute. Specifically, the plaintiff argues that the accident which killed the plaintiff’s decedent was caused by defendant Whalen’s illegal operation of a motor vehicle while intoxicated in violation of numerous statutory provisions, including § 14-227, and defendant Whalen is therefore prohibited from asserting an assumption of risk special defense.
There are few trial court cases that specifically address assumption of risk in the context of statutory recklessness claims such as § 14-227, pertaining to the operation of a motor vehicle while under the influence of intoxicating liquor. In McCormack v. Sedlak, Superior Court, judicial district of Waterbury, Docket No. 099914 (June 23, 1992, McDonald, J.) (6 Conn.L.Rptr. 594), an action brought by the passenger in a vehicle driven by the defendant while she was under the influence of alcohol, the trial court struck the assumption of risk special defense asserted by the defendant and held that "assumption of risk is not a defense to the violation of a statute designed to protect the public" citing to L’Heureux v. Hurley, 117 Conn. 347, 356-58, 168 A. 3 (1933).
In Casey v. Atwater, 22 Conn.Supp. 225, 226, 167 A.2d 250 (1960), an action against the driver of a motor vehicle whose passenger was killed, the court found that § 14-227 is aimed at the protection of the public. Relying on L’Heureux v. Hurley, supra, 117 Conn. 356, the Superior Court concluded that the defendant’s obligation not to operate his motor vehicle while under the influence was a public obligation and the defendant could not assert assumption of risk as a special defense. Casey v. Atwater, supra, 22 Conn.Supp. 226.
Additional superior courts have found that assumption of risk is not a valid defense to claims sounding in recklessness. See, e.g., Wylie v. Trio’s Bar & Grille, LLC, Superior Court, judicial district of New London, Docket No. CV-4002507-S (April 26, 2007, Hurley, J.T.R.) (43 Conn.L.Rptr. 275); Zawadski v. Robbins, Superior Court, judicial district of Hartford, Docket No. CV-384518 (July 14, 1992, Wagner, J.) (7 Conn.L.Rptr. 92). In granting a motion to strike an assumption of risk special defense as to a statutory recklessness claim, the trial court in Cheneski v. Barber, Superior Court, judicial district of Danbury, Docket No. CV-307083 (February 7, 1992, Fuller, J.) (7 Conn.L.Rptr. 92, 93) held "[The defense of contributory negligence does not apply where an injury is a result of wilful or wanton conduct ... [I]t is doubtful whether assumption of the risk applies as a defense to a claim of wilful, wanton, or reckless misconduct under Connecticut law, and the majority rule in other states is that assumption of the risk is not a valid defense to such actions."
This court is in agreement with the foregoing line of cases, and finds that assumption of risk cannot be asserted as a special defense to a claims of statutory recklessness. Accordingly, the plaintiff’s Motion to Strike the Second Special Defense as to the Sixth Count of the Complaint on this ground is granted.
III.
CONCLUSION
Based on the foregoing, the plaintiff’s Motion to Strike the First Special Defense of contributory negligence as to the Fourth Count of the Complaint is granted and the Motion to Strike the Second Special Defense of assumption of risk as to the Sixth Count of the Complaint is granted.