Opinion
No. CV09-5004004S
August 31, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #108
The court is confronted with a mild conundrum in deciding the defendant's motion to strike. The basis of the motion is the defendant's claim that the plaintiff's action is legally deficient as brought under the highway defect statute, § 13a-149. The defendant claims that the plaintiff's allegations support an inference of contributory negligence on the part of the plaintiff. The court's analysis indicates that the inferences which the defendant asks the court to draw regarding the plaintiff's contributory negligence are improper in a motion to strike, where the court must construe the facts in the complaint most favorably to the plaintiff. The defendant's motion is a "speaking" motion which is improper and should be denied.
The conundrum which is confronted, however, is a procedural one, which, if followed would lead to the draconian result of the defendant's motion being granted on the technical basis that the plaintiff's objection was not timely filed according to the Practice Book. While the court is mindful of the need to make sure that the rules of practice are followed, sometimes the result of form over substance yields a completely inequitable result. Here the plaintiff failed to file and serve a copy of its memorandum of law objecting to the defendant's motion to strike within the five-day window prescribed by Practice Book § 10-42. Practice Book § 10-42(b) states: "Any adverse party who objects to this motion shall, at least five days before the date the motion is to be considered on the short calendar, file and serve in accordance with Sections 10-12 through 10-17 a memorandum of law." Significantly, this rule was revised in 1989 to afford greater discretion to the court in deciding whether form should trump substance in all cases. Indeed, while "the 1989 amendment to this rule deleted the former provision that a party failing to file an opposing memorandum in a timely fashion has consented to the granting of the motions, the authors caution that a party intending to oppose a motion to strike should still file an opposing memorandum of law five days prior to the short calendar to protect its rights . . . Trial courts have generally been willing to exercise their discretion to prevent rigorous application of the timely memorandum requirement to thwart justice." (Citations omitted.) W. Horton K. Knox, 1 Connecticut Practice Series: Superior Court Civil Rules (2007), p. 495. In view of this amendment, many courts have exercised their discretion in similar cases, and reached the merits of the motion rather than to decide the matter on procedural grounds alone. See, e.g., Thompson v. Home Depot, Superior Court, judicial district of New Haven, Docket No. CV 06 5006389 (June 22, 2007, Holden, J.); Young v. Ferraj, Superior Court, judicial district of Windham, Docket No. 064191 (March 21, 2001, Foley, J.); Delmoral v. Tilcon Connecticut, Superior Court, judicial district of Waterbury, Docket No. CV 990155116 (May 12, 2000, Doherty, J.); Griffith v. Espada, Superior Court, judicial district of New Britain, Docket No. CV 98 0489998 (January 25, 1999, Robinson, J.).
Nevertheless, our Appellate Court has suggested that, at least where the adverse party objects, the court should enforce the rules of practice: "[O]ur Supreme Court has previously `afforded trial courts discretion to overlook violations of the rules of practice and to review claims brought in violation of those rules as long as the opposing party has not raised a timely objection to the procedural deficiency.' Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 273, 819 A.2d 773 (2003) . . . In the absence of any objection by the defendant on this basis, or any appellate case law making such a filing mandatory, this oversight by the plaintiffs is not fatal to their claims. See generally Doe v. Board of Education, 76 Conn.App. 296, 298 n. 5, 819 A.2d 289 (2003); cf. Pepe v. New Britain, 203 Conn. 281, 287-88, 524 A.2d 629 (1987) (requirement under Practice Book § 155, now § 10-42, mandatory); Hughes v. Bemer, supra, 200 Conn. 402 (same)." Fennelly v. Norton, 103 Conn.App. 125, 146 n. 4, 931 A.2d 269, cert. denied, 284 Conn. 918, 931 A.2d 936 (2007). Ergo, our Appellate Court has emphasized the need to balance the need to overlook minor violations of the rules of practice with a party's right to rely on the rules to afford fundamental fairness.
In this case, the plaintiff appears to have faxed in its memorandum of law on June 19, 2009, only four days prior to this issue being argued on short calendar, placing it in violation of P.B. 10-42(b). Unlike those cases where the defendant failed to object to this oversight, the defendant in this case has objected. Indeed, the defendant should be provided sufficient time to independently research the plaintiff's legal arguments to prepare for oral argument, which the defendant in this case could not do because the plaintiff filed its memorandum of law just a few days before oral argument. The dicta in Fennelly, supra would seem to indicate that the plaintiff's failure to comply with the five-day window prescribed by Practice Book § 10-42, especially when the defendant has posited an objection, is a fatal error. While this may be true, the court may also look for recourse to Practice Book § 1-8 which provides, "The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice." In addition, our Appellate Courts have indicated a preference that cases be decided on the merits rather than dismissed on overly technical and procedural grounds.
For these reasons, the defendant's objection to the late filing of the plaintiff's objection to the motion to strike (#111) is overruled.
The court now turns to the substance of the defendant's legal argument that the plaintiff's complaint should be dismissed. The defendant asks that the court draw inferences regarding the plaintiff's contributory negligence where "the court must construe the facts in the complaint most favorably to the plaintiff." Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). The plaintiff alleges that the town is negligent under the highway defect statute for failing to replace a stop sign at an intersection. "To prove a breach of statutory duty under this state's defective highway statutes, the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the city, it should have known of that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed . . ." (Internal quotation marks omitted.) Ormsby v. Frankel, 255 Conn. 670, 675-76, 768 A.2d 441 (2001). The defendant argues, however, that the plaintiff's complaint does not establish that the town's negligence was the sole proximate cause of the plaintiff's injuries.
The essence of the defendant's argument is that the plaintiff's complaint states that she entered an intersection that did not have a stop sign or traffic light without first stopping and without yielding to the car on her right. According to the defendant, the plaintiff's failure to yield to the car on her right violates General Statutes § 14-245, which states in relevant part: "Each driver of a vehicle approaching an intersection shall grant the right-of-way at such intersection to any vehicle approaching from his right when such vehicles are arriving at such intersection at approximately the same time, unless otherwise directed by a traffic officer." Thus, because the plaintiff's complaint states that she was hit from the right when she entered an intersection, the defendant argues that the plaintiff violated a statute and is per se negligent. Consequently, the defendant argues, the absence of the stop sign is not the sole proximate cause of the accident. The plaintiff responds by pointing to a number of cases holding that the right of way encapsulated in § 14-245 is only applicable if the cars enter the intersection at the same time; see, e.g., Callahan v. Grady, 125 Conn. 733, 734, 7 A.2d 225 (1939) (car already in intersection has right of way to car on right); which was not the case here, as her complaint demonstrates by alleging that her car was struck broadside.
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable there under. In doing so, moreover, we read the allegations broadly . . . rather than narrowly." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Additionally, while "all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted"; Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006); "[a] motion to strike is properly granted if the complaint 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). While the defendant argued that these cases were too old to be relied upon by the court, it should be noted that Marbury v. Madison, U.S. 137 (1803) is far older yet still remains good law today. Moreover, the court's research confirms that the cases relied upon by the plaintiff in its argument remain good law today.
In this case, a broad reading of the plaintiff's complaint confirms it to be legally sufficient. The plaintiff alleges that she entered an intersection that did not have a stop sign due to the town's negligence, that her line of sight entering the intersection was obscured by a tree, and that she entered the intersection well before the car on her right. Questions of fact regarding who got to the intersection first, where the plaintiff's car was struck, and whether the plaintiff should have seen the car on her right before entering the intersection without stopping might well be resolved during discovery, allowing this action to be resolved by summary judgment. In the context of a motion to strike, however, the court must construe the complaint in the manner most favorable to sustaining its legal sufficiency, read the allegations broadly, and assume the truth of both the specific factual allegations and any facts fairly provable thereunder. Under that standard, the motion to strike must be denied.