Opinion
CV186013517S
01-18-2019
Kristin SONG, Co-Administrator of the Estate of Ethan Song et al. v. Daniel MARKLE et al.
UNPUBLISHED OPINION
OPINION
Nada K. Sizemore, Judge
By Complaint dated March 27, 2018, the Plaintiffs Kristin M. Song and Michael Song, as co-Administrators of the Estate of Ethan M. Song, bring suit via six-count complaint against the Defendants Daniel Markle and Markle Investigations, Inc. as a result of an incident on January 31, 2018 in the Town of Guilford wherein Ethan Song was the minor son of Plaintiff Kristin and Michael Song and was allegedly fatally shot at the Defendant’s residence.
The Plaintiffs claim that the Defendant Daniel Markle resided at 104 Seaside Avenue Guilford (hereinafter referred to as the "premises") and that he had stored a loaded gun on the premises. They further claim that Defendant Markle Investigations, Inc. was in joint control of the premises, and that Defendant Markle was acting as agent/servant/employee of that corporate entity at the time of the incident.
The Decedent Ethan Song is alleged to have been on the premises visiting Defendant Markle’s minor son, Shane Markle. It is further alleged that the minors gained access to the loaded gun stored at that location, and that Ethan Song was fatally shot on the premises and died on January 31, 2018.
The Plaintiffs now bring suit as co-Administrators of the Estate of Ethan Song, pursuant to Connecticut’s wrongful death statute, Conn. General Statutes Section 52-555, seeking damages for permanent destruction of earning capacity and permanent destruction of Ethan Song’s ability to pursue and enjoy life’s activities.
PLEADING AND PROCEDURAL SUMMARY
The Plaintiffs are suing the Defendants based on common-law negligence, statutory negligence, strict liability and recklessness theories against both Defendant Daniel Markle, individually, and Defendant Markle Investigations, Inc.
More specifically, the Plaintiffs allege in the First Count that the Defendant Daniel Markle is liable under Conn. Gen. Statutes Section 52-571g under a strict liability theory.
Similarly, in the Second Count, the Plaintiffs allege that Markle Investigations, Inc. is also responsible under the strict liability theory contained in C.G.S. Section 52-571g. In addition, Plaintiffs also allege that Markle Investigations, Inc. was a Connecticut corporation and that Defendant Daniel Markle was its president, director and acting as its agent, servant and/or employee of that corporation at the time of the incident. Plaintiffs also allege that Defendant Markle Investigations, Inc. was in joint control of the premises where the incident occurred.
Plaintiffs in the Third Count allege a negligence theory against Defendant Daniel Markle in which they claim that the death of Ethan Song was caused by the negligence of Defendant Daniel Markle as follows:
a. He stored and/or kept a gun on the premises;
b. He stored and/or kept an unsecured and/or improperly secured gun on the premises;
c. He failed to properly store, keep and/or secure a gun on the premises when he knew or should have known that minors might gain access to the gun;
d. He allowed his minor son access to a gun;
e. He improperly stored and/or kept a loaded gun on the premises in violation of Conn. Gen. Statute Section 29-37i;
f. He permitted minors to visit the premises when he was not present despite the fact that he stored and/or kept guns on the premises;
g. He failed to properly instruct or warn his son, Shane Markle on gun safety, including not to touch the guns stored and/or kept on the premises;
h. He failed to properly instruct or warn visitors on the premises on gun safety, including not to touch the guns stored and/or kept on the premises;
i. He failed to properly warn or inform his son, Shane Markle, that he stored and/or kept a loaded gun and/or guns on the premises;
j. He failed to properly warn or inform visitors on the premises that he stored and/or kept a loaded gun and/or guns on the premises;
k. He failed to properly warn or inform the parents of minors visiting the premises that he stored and/or kept a loaded gun and/or guns on the premises; and
l. He failed to properly warn or inform the parents of minors visiting the premises that he stored and/or kept a loaded gun and/or guns on the premises.
Plaintiffs in the Fourth Count also allege negligence against Defendant Markle Investigations, Inc. asserting the same theories as stated in paragraphs (a) to (l) of the Third Count.
In the Fifth and Sixth Counts, the Plaintiff assert claims in recklessness against both Defendants.
Plaintiffs in the Fifth Count claim that the death of Ethan Song was caused by the wanton and reckless misconduct of Defendant Daniel Markle, in that with knowledge that his conduct would involve a serious or a high degree of danger to others, including but not limited to Ethan M. Song, and/or with knowledge of facts that would disclose this danger to any reasonable person, he acted with wanton and reckless disregard for the safety of others.
More specifically in the Fifth Count at paragraph 9-they allege he was reckless in that:
a. He stored and/or kept on the premises a gun with a bullet(s) hidden inside the gun;
b. He stored and/or kept an unsecured and/or improperly secured loaded gun on the premises;
c. He failed to properly store, keep and/or secure a loaded gun on the premises when he knew or should have known that minors might gain access to the loaded gun;
d. He allowed his minor son access to a loaded gun in the presence of other minors;
e. He improperly stored and/or kept a loaded gun on the premises in violation of C.G.S. Section 29-37i;
f. He permitted minors to visit the premises when he was not present despite the fact that he stored and/or kept a loaded gun on the premises;
g. He failed to properly instruct or warn his son, Shane Markle, on gun safety, including not to touch loaded guns stored and/or kept on the premises;
h. He failed to properly instruct or warn visitors on the premises on gun safety, including not to touch loaded guns stored and/or kept on the premises;
i. He failed to properly warn or inform his son, Shane Markle, that he stored and/or kept on the premises a gun and/or guns with a bullet hidden inside;
j. He failed to warn or inform visitors on the premises that he stored and/or kept on the premises a gun and/or guns with a bullet hidden inside;
k. He failed to properly warn or inform the parents of minors visiting the premises that he stored and/or kept a loaded gun and/or guns on the premises; and
l. He failed to properly warn or inform the parents of minors visiting the premises that he stored and/or kept on the premises a gun and/or guns with a bullet hidden inside.
Lastly, in the Sixth Count, the Plaintiffs assert identical recklessness claims against Markle Investigations, Inc. as stated in the Fifth Count.
In their prayer for relief, the Plaintiffs seek both monetary damages and punitive damages.
MOTION TO STRIKE AND OBJECTION
By Motion to Strike dated August 15, 2018, the Defendants move to strike the Second, Fifth and Sixth Counts of the Plaintiffs’ Complaint for failure to state claims upon which relief may be granted along with the corresponding prayer for relief for punitive damages related to the Fifth and Sixth Counts.
The Defendants move to strike the Second Count as to the strict liability claims asserted against Defendant Markle Investigations, Inc. only, on the basis that neither Conn. Gen. Statutes Section 52-571g or C.G.S. Section 29-37i allow for civil causes of action against persons who are corporate defendants and not individual human beings. The Defendants argue that both statutes relating to improper storage of a firearm only hold liability against a "person"-as defined to be an individual human being and not any business or corporate defendant. The Defendants cite no case precedent or authority for their position-and conceded at oral argument on October 9, 2018 during short calendar that this issue appears to be a case of first impression in the Connecticut courts.
As to Fifth and Sixth Counts, the Defendants move to strike both counts of recklessness and the related prayer for relief for punitive damages, on the basis that the Plaintiffs have failed to allege facts that would permit the legal conclusion that either party was reckless as a matter of law. The Defendants claim the recklessness allegations are virtually identical to the negligence allegations and as such, the Connecticut case law would find these insufficient to support any theories of recklessness. They contend that Plaintiffs have not alleged any facts that could give rise to any finding or even inference of recklessness. The defense further argues that the Defendants’ alleged conduct does not rise to the level of any recklessness even if the court assumed all alleged facts are true.
By Objection dated August 31, 2018 and supporting Memorandum of Law dated August 31, 2018, the Plaintiffs dispute all arguments in the Motion to Strike and claim that Plaintiffs have properly plead causes of action in all three counts. (NOTE: Even though the Objection refers to Plaintiff Kristin Song only, for purposes of this Motion, the court will assume the Objection relates to both Plaintiffs.)
First, as to the Motion to Strike the Second Count, the Plaintiffs claim that the Defendants have failed to recognize the express definition of a "person" under Titles 29 and 53 of the Connecticut General statutes. And, Plaintiffs argue that the Defendants are ignoring the fact that a corporation can act through the actions of its agents. Plaintiffs argue that C.G.S. Section 53-3 provides instruction in that a "person" can be defined as an individual or as a public or private corporation, limited liability company, unincorporated association, partnership or a government or government instrumentality for criminal responsibility under the Connecticut penal statutes including the provisions of Title 29-37a(a) and then to C.G.S. Section 29-37i. Therefore, Plaintiffs urge the court to deny granting the Motion to Strike as to the Second Count. At oral argument, the Plaintiffs also conceded that there appears to be no reported case law that could be located on this issue and that this does present a case of first impression for the Connecticut courts.
Second, Plaintiffs claim that the Motion to Strike as to the Fifth and Sixth Counts should also be denied as the Defendants have ignored the additional facts plead by Plaintiffs that elevate their claims of negligence to recklessness along with the corresponding claim for punitive damages.
DISCUSSION
"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ... 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 ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). A complaint which alleges conclusions of law that are unsupported by the facts alleged may be stricken. Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).
"The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, supra, 301 Conn. 117. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).
"A motion to strike is the proper procedural vehicle ... to test whether Connecticut is ready to recognize some newly emerging ground of liability ... [W]hen the motion to strike is being, used to test a new cause of action, a trial court should permit the plaintiff to develop a factual basis for the claim ... Sometimes legal questions require a factual setting within which to be decided. Just because we have a pleading device called a motion to strike it [should not] be regarded as a straightjacket preventing a proper testing of new legal theories." (Internal quotation marks omitted.) Reilley v. Albanese, Superior Court, Judicial District of Ansonia Milford, Docket No. CV-15-6018220-S (December 14, 2015, Stevens, J.) (61 Conn. L. Rptr. 463, 464) (denying motion to strike claim for intentional interference with inheritance notwithstanding cause of action not recognized in Connecticut).
I.
Second Count-Claims against Defendant Markle Investigations, Inc.
The defendants argue that Connecticut General Statutes Section § 52-571g does not provide for a cause of action in strict liability against Markle Investigations, Inc. as a corporate entity, because the statute only authorizes a cause of action against "[a]ny person whose act or omission constitutes a violation of section 29-37i ..." General Statutes § 52-571g. Specifically, the defendants contend that the word "person" within both §§ 52-571g and 29-37i is limited to an individual and that § 52-571g does not authorize a plaintiff to bring an action against a corporate entity. The plaintiffs counter that the word "person" in §§ 52-571g and 29-37i is not limited solely to an individual, because General Statutes § 53a-3 defines "person" as including corporations and can be extended to a corporation through the acts of its agent and/or employee.
General Statutes § 52-571g provides in relevant part: "Any person whose act or omission constitutes a violation of section 29-37i shall be strictly liable for damages when a minor ... obtains a firearm, as defined in section 53a-3, and causes the injury or death of such minor, resident or any other person. For the purposes of this section, ‘minor’ means any person under the age of sixteen years."
General Statutes § 29-37i provides: "No person shall store or keep any loaded firearm on any premises under such person’s control if such person knows or reasonably should know that (1) a minor is likely to gain access to the firearm without the permission of the parent or guardian of the minor, (2) a resident of the premises is ineligible to possess a firearm under state or federal law, or (3) a resident of the premises poses a risk of imminent personal injury to himself or herself or to other individuals, unless such person (A) keeps the firearm in a securely locked box or other container or in a location which a reasonable person would believe to be secure, or (B) carries the firearm on his or her person or within such close proximity thereto that such person can readily retrieve and use the firearm as if such person carried the firearm on his or her person. For the purposes of this section, "minor" means any person under the age of sixteen years."
At issue is whether the word "person" as defined in §§ 52-571g and 29-37i encompasses corporations, not just individuals. As a matter of statutory interpretation, "[w]ords in a statute must be given their plain and ordinary meaning and be interpreted in their natural and usual meaning unless the context indicates that a different meaning was intended ... If the statutory language is clear and unambiguous, there is no room for construction." (Citations omitted; internal quotation marks omitted.) All Brand Importers, Inc. v. Dept. of Liquor Control, 213 Conn. 184, 194-95, 567 A.2d 1156 (1989); see also General Statutes § 1-2z. Neither §§ 52-571g nor 29-37i appears to provide a definition of the word "person"; and the defendants cite no authority in support of their argument. General Statutes § 1-1, however, defines "person" expansively to include "communities, companies, corporations, public or private, limited liability companies, societies and associations." See General Statutes § 1-1(k); see also Connecticut Breweries Co. v. Murphy, 81 Conn. 145, 149-50, 70 A. 450 (1908) (holding definition of person extends to corporations in liquor license statute); Rosenthal v. Dunphy, 18 Conn.Supp. 271, 272-73 (1953) (holding that action lies against corporation under statute providing that if "any person" sells alcoholic liquor to intoxicated person and such person injures another, seller shall be liable). Furthermore, General Statutes § 53a-3, titled "Definitions" under the general provisions of the penal code, defines "person" as follows:" ‘Person’ means a human being, and, where appropriate, a public or private corporation, a limited liability company, an unincorporated association, a partnership, a government or a governmental instrumentality ..." See General Statutes § 53a-3(1).
In light of the fact that §§ 1-1 and 53a-3 define "person" to include corporations and neither §§ 52-571g nor 29-37i expressly limit those statutes to individuals, this court finds that a corporation, such as Markle Investigations, Inc., can be considered a "person" pursuant to § 52-571g to the extent that a corporation can be considered to violate §§ 29-37i and 52-571g through its agents’ and employees’ actions and can be potentially liable under these statutes.
A review of the legislative history for both statutes does not shed definitive or direct guidance on this issue, but it does support the court’s conclusions. The legislators did not discuss the definition of "person" or whether they intended for only individuals to be held liable pursuant to § 52-571g for violations of § 29-37i. However, by reasonable inference, comments were made generally about the purpose of the statutes that are pertinent to the facts here. See Legislative History, 33 S.Proc., Pt. 5, 1990 Session, pp. 1623-33-Remarks of Senator Herbst; 33 H.R. Proc., Pt. 21, 1990 Session, pp 7454-558.
The legislators discussed the desire to ensure responsible gun ownership, to prevent the accidental deaths of minors who access unsecured loaded guns in homes, and to hold gun owners responsible when a minor is injured or killed because the gun owner did not properly store his/her/its firearms.
Although the legislative comments were made in the context of an incident in a residential home and individual gun owner, nothing suggests that the legislators would not also contemplate and support responsible gun ownership in other contexts, such as in the case at bar. Here, the Defendant Markle operates a business out of his home in a closely held corporate legal entity. It is alleged that Markle Investigations, Inc. is the owner, director, officer and operated as agent, employee and/or servant of said entity; and the corporate entity alleged jointly controlled the premises and the storage of the gun in question.
Therefore under these types of factual allegations, this court concludes that the legislative intent would support a civil cause of action in strict liability as plead in the Second Count against the Defendant Markle Investigation, Inc.
II.
Fifth and Sixth Counts-Common-Law Recklessness
The defendants argue that the plaintiffs have failed to sufficiently plead recklessness in both the Fifth and Sixth Counts, because they have restated the facts alleged in support of their negligence claims and then in a conclusory manner allege that the defendants were reckless.
The plaintiffs counter that they have alleged additional facts which are sufficient to set forth claims for recklessness.
In considering the recklessness claims against both Defendant Daniel Markle and Markle Investigations, Inc., the court is guided by the following. "Recklessness is a state of consciousness with reference to the consequences of one’s acts ... It is more than negligence, more than gross negligence ... [T]here 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 ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ... [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances ... Not only the action producing the injury, but the resulting injury must be intentional." (Citations omitted; emphasis added; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 532-33, 542 A.2d 711 (1988).
Recklessness involves "highly unreasonable conduct involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent" and not simply a lack of care due to inattention or mistake. Fricilli v. Town of Westport, 274 Conn. 266, 278, 823 A.2d 1172 (2003); see also Doe v. Hartford Roman Catholic Diocesan Corporation, 317 Conn. 357, 382-83 (2015).
"Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ... than that which is necessary to make his conduct negligent ... More recently, we have described recklessness as 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 ... Wanton misconduct is reckless misconduct ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Internal quotation marks omitted.) Doe v. Boy Scouts of America Corp., 323 Conn. 303, 330, 147 A.3d 104 (2016).
"Reckless conduct must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention ... or even an intentional omission to perform a statutory duty ... [In sum, 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." (Citation omitted; internal quotation marks omitted.) Northrup v. Witkowski, 175 Conn.App. 223, 248, 167 A.3d 443 (2017).
In the present case, the court recognizes that it is a very close call whether the plaintiffs have merely re-alleged their negligence allegations in the Fifth and Sixth Counts and merely added conclusory language describing the conduct as reckless and wanton. In fact, Plaintiffs conceded at oral argument that facts supporting the recklessness were "skimpy" due to the continued open pending criminal investigations related to this matter.
Plaintiffs contend that their allegations in the recklessness counts differ from their negligence counts, because they allege the additional facts that the Defendant Markle and Markle Investigations allowed the minor son access to a loaded gun in the presence of other minors; that the gun contained hidden bullets; and that both Defendants failed to warn the minors, other minors, or the minors’ parents of the presence of a gun and/or guns on the premises with hidden bullets.
Connecticut courts have found that "particular allegations may support both a negligence claim and a recklessness claim because facts that are sufficient to support recklessness may very often be sufficient to constitute negligence. Consequently, the question is not whether the factual specifications for a negligence claim and a recklessness claim are the same. The dispositive question is whether the factual specifications of the recklessness count are sufficient to state a cause of action for recklessness whether or not they are also used to support a negligence claim." (Emphasis in original.) McNeil v. Doane, judicial district of Ansonia-Milford at Derby, Docket No. CV-166022098-S (October 22, 2018, Stevens, J.).
Moreover, the factual allegations must be construed broadly and liberally in favor of the plaintiffs and in the manner most favorable to sustaining the complaint’s legal sufficiency. See Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 398.
In this case, the plaintiffs have alleged that the Defendants allowed the minor son access to a loaded gun in the presence of other minors when Defendant Markle was not home, failed to properly instruct his minor son on gun safety, and failed to inform or warn his son that the gun was loaded. Assuming the truth of these factual allegations as required and construing them broadly and realistically, this court finds that the plaintiffs have sufficiently alleged that Defendant Markle consciously disregarded the high degree of danger involved in allowing minors access to an unsecured loaded firearm while unsupervised and not properly educated on gun safety. As such, the court finds these allegations support claims for recklessness in both the Fifth and Sixth Counts.
CONCLUSION
On the basis of the foregoing, the court therefore DENIES the motion to strike as to the Second, Fifth and Six Counts of the Complaint dated March 27, 2018, and the court SUSTAINS the Plaintiffs’ Objections dated August 31, 2018.