DocketNumber: No. CV 98 0164524 S
Citation Numbers: 1998 Conn. Super. Ct. 11556
Judges: MINTZ, J.
Filed Date: 10/14/1998
Status: Non-Precedential
Modified Date: 7/5/2016
At some time prior to March 21, 1996, the defendant Crawford entered into an agreement with Cablevision whereby Crawford performed maintenance and repair work on the garage door in question. The complaint alleges that during the course of this maintenance, Crawford Door removed safety devices which were attached to the garage door. The complaint alleges that the removal and failure to replace these safety devices constituted reckless and wanton conduct on the part of the defendant Crawford Door. CT Page 11557
On June 18, 1998, the defendant, Crawford Door, filed a motion to strike the sixth, seventh, and eighth counts of the plaintiffs' complaint.1
"The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gulackv. Gulack,
The defendant, Crawford Door, argues that the court should strike counts six and eight of the plaintiffs' complaint because they "fail to allege sufficient facts to support a claim for either reckless or intentional conduct on the part of the defendant." The defendants argue that the plaintiffs "failed to allege any additional facts other than those originally alleged in the negligence count."
In opposition to the motion to strike, the plaintiffs argue that "[t]he [s]ixth count of the complaint alleges a count in reckless and wanton misconduct against the defendant . . ." Specifically, the plaintiffs argue that "[s]ubparagraphs (a)-(c) allege that the defendant permitted a dangerous and defective door to remain upon the premises, with reckless disregard for the consequences to persons such as . . . the plaintiff." Further, the plaintiff argues that "[s]ubparagraph (d) specifically alleges knowledge on the part of the defendant of the missing safety device [and that] subparagraph (f) alleges actual removal of the safety devices by the defendant Crawford . . ."
In Connecticut, "[i]t is well established that causes of action for negligence and wilful or malicious conduct' are CT Page 11558 separate and distinct causes of action. There is a substantial difference between negligence and wilful or malicious conduct, and a complaint should employ language explicit enough to inform the court and opposing counsel clearly that wilful or malicious conduct is being asserted." Warner v. Leslie-Elliot Contractors.Inc.,
The legal concepts of "wanton and reckless" and "wilful, intentional, and reckless" conduct are indistinguishable in the context of common-law tort actions. See Elliot v. Waterbury,
In the present case, the plaintiffs separately plead causes of action alleging negligence and recklessness on the part of Crawford. Specifically, the plaintiffs allege in count five that Crawford was negligent in, among other things, the manner in which it maintained and repaired the garage door in question. Count six alleges that the defendant acted "recklessly and wantonly [by] removing safety devices appurtenant to [the] door . . . with reckless disregard for the consequences to . . . the plaintiff." Similarly, count eight alleges that this reckless conduct on the part of the defendant "has . . . deprived [the plaintiff Felice Walls] of the society, consortium and services of her husband . . ."
The conduct alleged by the plaintiffs could be characterized by a trier of fact as "highly unreasonable conduct . . . involving and extreme departure from ordinary care . . ." Elliot v. Waterbury, supra,
There is no need for the plaintiffs to allege that the defendants intended to or made a "conscious choice" to injure the plaintiffs in order for the plaintiffs to maintain a cause of action sounding in recklessness. The plaintiffs' properly allege all of the elements necessary to establish a claim for recklessness. Accordingly, the sixth and eighth counts of the plaintiffs' complaint are legally sufficient, thus the defendant's motion to strike counts six and eight of the plaintiffs' complaint is denied.
The defendant also raises an alternative argument for striking count eight of the plaintiffs' complaint. The defendant argues that the court should strike count eight because "it is a loss of consortium claim alleging damages to a spouse resulting from the intentional misconduct of a third party." The defendant contends that "loss of consortium claims . . . are derivative from causes of action of the injured spouse based on common law negligence." In other words, the defendant argues that a loss of consortium claim cannot be based upon intentional misconduct.
The defendant's argument is without merit. Indeed, "[t]he action for loss of consortium developed at common law in the context of suits by the husband for damages stemming from interference the marital relationship. See 3 Blackstone, Commentaries. pp. 138-40. Interference with the husband's rights to his wife's services or society, whether of an intentional ornegligent nature, gave rise to a cause of action based on [loss of consortium] . . ." (Emphasis added.) Hopson v. St. Mary'sHospital,
Based on the foregoing, the court denies the defendant's motion to strike counts six, seven, and eight of the plaintiffs' complaint. CT Page 11560
MINTZ, J.