Opinion
No. CV 04-0834117S
July 18, 2005
MEMORANDUM OF DECISION ON MOTION TO STRIKE (No. 108)
The plaintiff is a Glastonbury police officer who, on January 11, 2004 investigated a motor vehicle accident between the defendant and another driver not a party to this action. While plaintiff was working at the scene of the accident, the battery in the defendant's car exploded while it was being disconnected, injuring the plaintiff.
In his complaint, plaintiff alleges that the accident in question was caused by the defendant's negligence and that this negligence caused the subsequent battery explosion and injuries. Plaintiff has included in his prayer for relief a claim for double or treble damages under Conn. Gen. Stat. § 14-295.
The defendant has moved to strike the complaint in its entirety, contending that plaintiff has failed to state a claim upon which relief may be granted. Alternatively, he has moved to strike the claim for damages under § 14-295, claiming that plaintiff has failed to allege sufficient facts to state a cause of action under that statute.
Error! Main Document Only. The defendant has not stated any specific grounds on the face of the motion. "Practice Book § 10-41 requires that a motion to strike raising a claim of insufficiency shall distinctly specify the reason or reasons for each such claimed insufficiency. Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted." (Emphasis added; internal quotation marks omitted.) Barasso v. Rear Still Road, LLC., 64 Conn.App. 9, 13 (2001). Because the plaintiff has not objected to the plaintiff's noncompliance with Practice Book § 10-41, the court may ascertain the specific grounds for the motion by referring to the defendant's memorandum of law.
Defendant's first argument is that plaintiff's claim violates the public policy of this state. This is essentially a claim that the "firefighter rule" should be expanded by the Court so as to apply to this situation, even though this is obviously not a premises liability case. In Levandoski v. Cone, 267 Conn. 651, 661 (2004), our Supreme Court made it clear that it does not favor expanding the "firefighter rule" beyond premises liability situations. "Because the firefighter's rule is an exception to the general rule of tort liability that, as between an innocent party and a negligent party, any loss should be borne by the negligent party, the burden of persuasion is on the party who seeks to extend the exception beyond its traditional boundaries. The history of and rationales for the rule persuade us, however, that it should be confined to claims of premises liability." Id. This Court sees no reason why the "firefighter rule" should be expanded so as to bar this claim.
This is not to say, however, that plaintiff has alleged a viable claim against the defendant under the facts alleged. "To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries. The first component of legal cause is causation in fact which is the purest legal application of legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct . . . Legal cause also includes proximate cause. Our Supreme Court has often stated that the test of proximate cause is whether the defendant's conduct is a substantial factor in producing the plaintiff's injury. The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence. In applying this test we look from the injury to the negligent act complained of for the necessary causal connection." (Citation omitted; internal quotation marks omitted.) Poulin v. Yasner, 64 Conn.App. 730, 735, cert. denied, 258 Conn. 911 (2001). "It is elementary that in order for a plaintiff to recover damages in a negligence case, the plaintiff must plead and prove that the negligent conduct alleged proximately caused the injury claimed . . . To properly plead proximate cause, the allegations of the complaint must equate to a damage to the plaintiff that is not overly remote to the conduct of the defendant and establish a causal relationship between the harm and the conduct that is not conjectural." (Citation omitted; internal quotation marks omitted.) Johnson v. Burns, Superior Court, J.D. of Windham at Putnam, Docket No. CV 04 4000144 (April 28, 2005) (Foley, J.). "The test is whether the defendant's conduct was a substantial factor in causing the plaintiff's injuries . . . To be such a factor the cause must have continued down to the moment of the damage, or, at least, down to the setting in motion of the final active injurious force which immediately produced or preceded the damage." (Citation omitted.) Ferndale Dairy, Inc., v. Geiger, 167 Conn. 533, 538 (1975). In this case, the plaintiff has failed to plead any facts establishing a casual link between the defendant's negligence in operating the automobile and the car battery subsequently exploding and causing the plaintiff's injuries. These allegations do not amount to a damage to the plaintiff that is not overly remote to the negligent conduct of the defendant and establish a causal relationship between the harm and the conduct that is not conjectural. The Motion to Strike the Complaint is therefore granted.
Miller, J.