Opinion
No. NNH CV 10-6010501
December 29, 2010
MOTION TO STRIKE #114
FACTS
The plaintiff, Jo-Ann Smith, commenced the present action by service of process against the defendants, Christopher Sunbury, John Sunbury and Margery Sunbury, on April 22, 2010. The plaintiff brings the present action in her capacity as the administratrix of the estate of Shane Smith, her deceased son (the decedent). John Sunbury and Margery Sunbury are the parents of Christopher Sunbury. Because they are the only defendants who object to the present motion, they will be hereinafter called the defendants. The four-count complaint alleges the following facts. On or about August 7, 2008, Christopher Sunbury was swinging a samurai sword on a public street in Wallingford, in the presence of a large group of individuals. The decedent was among them. He was struck by the sword and sustained serious injury to his left arm. He was then taken to Midstate Medical Center, where he died on or about August 8, 2008. The following counts comprise the complaint. Count one is against Christopher Sunbury and sounds in negligence. Count two is against the defendants and sounds in negligence. Counts three and four are brought against the defendants individually and sound in parental liability for a minor's torts, pursuant to Connecticut General Statutes § 52-572.
Section 52-572(a) provides in relevant part: "The parent or parents or guardian . . . of any unemancipated minor or minors, which minor or minors wilfully or maliciously cause . . . injury to any person . . . shall be jointly and severally liable with the minor or minors for the . . . injury to an amount not exceeding five thousand dollars, if the minor or minors would have been liable for the . . . injury if they had been adults."
The defendants filed an answer and three special defenses on June 10, 2010. The first special defense provides: "The defendant, Christopher J. Sunbury, was an estranged nonresident relative of the defendants, John Sunbury and Margery Sunbury, who at the time of the subject loss was not living in the parental home, and had not been, for some time prior thereto." The second special defense provides: "On information and belief, the plaintiff's decedent was a provocateur of the incident, thereby proximately and substantially contributing to his own injuries." Finally, the third special defense provides: "At the time of the action alleged in the complaint, and for sometime prior thereto, the defendant, Christopher J. Sunbury, was not living with his parents, leaving them no opportunity to control his actions."
The plaintiff filed the present motion to strike and a memorandum of law in support thereof on June 16, 2010. The defendants in turn filed an objection to the motion and a memorandum of law in support thereof on July 12, 2010. The matter was heard at short calendar on September 20, 2010.
DISCUSSION
Practice Book § 10-39 provides in relevant part: "(a) Whenever any party wishes to contest . . . (5) the legal sufficiency of any answer to any complaint . . . or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof." "In . . . ruling on the . . . motion to strike, the trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "[T]he total absence of any factual allegations" specific to the dispute "renders [the special defense] legally insufficient." U.S. Bank National Assn. v. Ascenzia, Superior Court, judicial district of New Haven, Docket No. CV 08 5022527 (July 30, 2009, Abrams, J.) ( 48 Conn. L. Rptr. 345, 346). In determining the sufficiency of a pleading challenged by a motion to strike, "all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010).
Practice Book § 10-50 provides in relevant part: "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." The plaintiff in the present action moves to strike the defendants' special defenses on the ground that they do not contain facts which are consistent with her allegations but which nonetheless show that she has no cause of action. Specifically, she challenges the first and third special defenses for the reason that they allege that Christopher Sunbury did not live with the defendants at the time of the incident and therefore deny her allegation that "Christopher J. Sunbury, John Sunbury and Margery Sunbury were residents of 2 Berkley Court in Southington" at the time of the incident. She challenges the second special defense for the reason that "provocateur is not a recognized special defense."
The plaintiff also argues in her memorandum that Christopher Sunbury's alleged nonresidency does not affect the defendants' liability under § 52-572 and therefore fails to meet the standard set by Practice Book § 10-50. The plaintiff did not, however, present this argument as a ground for striking the first and third special defenses on the face of the motion. "[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001). Therefore, the court will not consider this argument in deciding whether to strike the defendants' first and third special defenses.
The defendants object to the motion for two reasons. First, Gearity v. Salvo, 40 Conn.Sup. 185, 485 A.2d 940 (1984), provides that the first and third special defenses are proper defenses to the plaintiff's statutory parental liability causes of action. Second, the second special defense alleges comparative negligence and therefore is proper under Practice Book § 10-53, which provides: "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."
In Gearity v. Salvo, supra, 40 Conn.Sup. 186, which involved a statutory parental liability cause of action, the court denied the plaintiff's motion to strike one defendant parent's special defense alleging that the other defendant parent "had exclusive care, custody and control of their minor child at the time of the acts complained of and for some time prior thereto." The court based its decision on its conclusion that "`control of the minor' is a determining factor in the imposition of liability under § 52-572." Id., 187. In deciding the motion, the court contrasted the facts of Gearity with the facts of Repko v. Seriani, 3 Conn. Cir.Ct. 374, 377, 214 A.2d 843 (1965), in which the court held that the defendant father was liable for his minor son's conduct under § 52-572 where "the son was under the control of his father . . . although he was technically in the custody of the state."
The third special defense in the present action is similar to the special defense sustained by the court in Gearity because it alleges that the defendants had no control over their son's conduct at the time of the incident. The fact that the third special defense contains an allegation that denies one of the plaintiff's allegations is not fatal to the defense. Practice Book § 10-52 provides in relevant part: "No special defense shall contain a denial of any allegation of the complaint . . . unless that denial is material to such defense." (Emphasis added.) In the present action, the allegation that Christopher Sunbury did not reside with the defendants at the time of the incident is material to their allegation that they had no control over his conduct. The court therefore denies the motion with respect to the third special defense. It grants the motion with respect to the first special defense, however, because, per Repko, an allegation that Christopher Sunbury did not reside with the defendants at the time of the incident, without more, is insufficient to provide a defense to a § 52-572 cause of action.
The court furthermore denies the motion, with respect to the second special defense because it alleges facts sufficient to state the defendants' comparative negligence special defense. "To prove comparative negligence, the defendant must . . . prove by a fair preponderance of the evidence that the plaintiff was in fact negligent." Hackling v. Casbro Construction of Rhode Island, 67 Conn.App. 286, 294 n. 4, 786 A.2d 1214 (2001). "`Our general practice in this state is to require fact pleading only. Practice Book § 10-1 requires only that each pleading `contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved.' Florian v. Lenge, 91 Conn.App. 268, 274, 880 A.2d 985 (2005). In the context of a motion to strike, the factual allegations of the [challenged pleading], and not the label placed on the [challenged pleading], are dispositive." Lattanzio v. WVIT NBC-30, Superior Court, judicial district of New London, Docket No. CV 05 5000082 (May 15, 2007, Martin, J.).
In the present action, the second special defense alleges that the decedent was a "provocateur" at the time of the incident and therefore "proximately and substantially contribut[ed] to his own injuries." This is a plain and concise statement of the material facts on which the defendants rely in making their comparative negligence special defense. The court may read the allegation to imply that the decedent was negligent and contributed to his own injuries by engaging in provoking conduct at the time of the incident. The defendants need not use the words "comparative negligence" in order to make their special defense and put the plaintiff on notice of it. The alleged facts are not inconsistent with the alleged facts proffered by the plaintiff and, if proven, would show that the plaintiff could not fully prevail on her negligence causes of action. The court therefore concludes that the second special defense is legally sufficient and denies the plaintiff's motion to strike it.
CONCLUSION
For the foregoing reasons, the court grants the plaintiff's motion to strike with respect to the defendants' first special defense and denies the motion with respect to the defendants' second and third special defenses.