DocketNumber: No. 32 62 83
Citation Numbers: 1992 Conn. Super. Ct. 9006
Judges: ZOARSKI, J.
Filed Date: 9/24/1992
Status: Non-Precedential
Modified Date: 4/18/2021
On July 23, 1992 the defendants filed a motion to strike the second count of the plaintiff's revised complaint on the ground that in count two the plaintiff has failed to state a claim upon which relief may be granted because the plaintiff did not allege sufficient facts to support a claim for wilful or malicious assault. The defendants also filed a supporting memorandum of law. The plaintiff, however, has not filed a memorandum in opposition to the defendants' motion to strike.
The motion to strike tests the legal sufficiency of a pleading. Practice Book 152. If the facts provable under the allegations of a complaint "would support . . . a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc.,
The plaintiff in this case has not filed a memorandum in opposition to the motion to strike. Because the failure to file an opposing memorandum is not fatal, this court waives this requirement and proceeds to the substance of the motion to strike.
The only difference between counts one and two of the plaintiff's revised complaint is that in count one the plaintiff alleges that "defendant Robert Lockery negligently assaulted her" and in count two she alleges that "defendant Robert Lockery willfully or maliciously assaulted her." The defendants claim that because wilful or malicious conduct involves a conscious choice of action while negligent conduct does not, the plaintiff must plead additional facts to state a claim for wilful or malicious assault.
"Each pleading shall contain a full and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved. . . ." Practice Book 108. "`[A] pleading should allege the facts upon which the plaintiff proposes to rely in such a way as fairly to apprise the court and the opposing party as to the basis upon which he claims relief. . . .'" Lewandoski v. Finkel,
The plaintiff has clearly identified her theories of recovery as negligent assault in count one of the revised complaint and wilful or malicious assault in count two. More specific facts to show the conduct required for wilful or malicious conduct is more appropriately available through discovery. Felber v. Mazzella Wire Rope and Supply Co., 1 Conn. L. Rptr. 331-32 (March 5, 1990, Spada, J.) The defendants' motion to strike count two of the plaintiff's revised complaint is denied.
In addition the defendants move to strike the plaintiff's request for exemplary damages on the ground that exemplary damages are only available for wilful or wanton assault. See Markey v. Santangelo,
HOWARD F. ZOARSKI, JUDGE