DocketNumber: No. LPL-CV-97-0479186S
Citation Numbers: 1997 Conn. Super. Ct. 8784, 20 Conn. L. Rptr. 451
Judges: LAGER, J.
Filed Date: 9/29/1997
Status: Non-Precedential
Modified Date: 4/17/2021
The Fiores filed a motion to strike, dated June 4, 1997. The principal ground of the motion is that the plaintiffs have misjoined their claims against the Ingenitos with the claims against the Fiores, requiring the entire complaint to be stricken. In the alternative, the Fiores challenge the legal sufficiency of the seventh and thirteenth counts alleging negligence per se, the ninth and fifteenth counts alleging nuisance, the tenth and sixteenth counts alleging breach of warranty of habitability, and the eleventh and seventeenth counts alleging recklessness.
I. Misjoinder
The Fiores argue that the entire complaint should be stricken CT Page 8785 because the claims against them are improperly joined with those against the Ingenitos. A motion to strike is the proper way to raise this claim. Practice Book §§ 152, 198.
The parties agree that the Fiores' claim of misjoinder is governed by the provisions of Practice Book § 133. Practice Book § 133 is premised on the language of General Statutes §
Different causes of action are properly joined in one complaint "if both arose out of the same transaction, or if, while one arose out of one transaction and the other out of another, both these transactions were `connected with the same subject of action.'" Craft Refrigerating Machine Co. v.Quinnipiac Brewing Co., supra,
The Fiores maintain that each period of residency alleged in the complaint constitutes a separate and distinct transaction. The plaintiffs contend that even if the claims arise out of separate transactions, "successive and . . . cumulative lead poisonings of a single individual" may still be joined in the same complaint because they are connected with the same subject matter. They also argue that for policy reasons the court should permit joinder of claims against successive landlords in cases alleging exposure to lead-based paint. The plaintiffs' policy arguments are persuasive. CT Page 8786
Historically, the Connecticut courts have taken a liberal view of the joinder statute and rules. In a case decided only a few years after the 1879 enactment of the predecessor to §
we think that it is in harmony with our practice . . . and with the spirit of the Practice Act, and that it promotes speedy, complete, and inexpensive justice, without placing any obstruction in the way of any defendant in protecting his rights. Each carries his own burden only; he is not made to carry that of any of his associates. Therefore the complaint, so far forth as this objection is concerned, is sufficient.
Evergreen Cemetery Association v. Beecher,
Thus, in deciding whether to permit or deny joinder, the court should consider the interests of judicial economy. The plaintiffs aptly point out that "if successive lead exposures are not allowed to be joined . . . it will greatly increase the number of lawsuits where injurious lead exposure is alleged."1 Moreover, it can reasonably be anticipated that prior or subsequent landlords will be cited into these cases for apportionment purposes, see General Statutes §§
Additionally, as the plaintiffs have pointed out, separate cases involving an individual's successive lead exposures are likely candidates for consolidation, on the court's own motion, pursuant to Practice Book § 84A. Separate trials of these actions would involve a substantial duplication of effort on the part of the plaintiff and the court. For example, separate trials would require the plaintiff's medical expert, as well as any other necessary expert witnesses, to testify more than once about essentially the same subject matter. Moreover, any potential confusion arising from the presence of more than one landlord defendant in a case can easily be remedied through the court's instructions to the jury.
There appears to be no prejudice to the Fiores in being joined for trial with the Ingenitos. As the Supreme Court stated in Broderick v. Mcguire,
II. Negligence per se
The Fiores claim that the seventh and thirteenth counts are legally insufficient because they only allege violations of statutes and the statutes do not provide an independent basis for a separate cause of action. This court has previously rejected similar arguments and sustained the legal sufficiency of similar counts. See Martinez v. Maturna, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 473382 (March 17, 1997, Lager, J.); Lovick v. Nigro, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 543473 (Feb. 21, 1997, Lager, J.); Sanchez v. General UrbanCorp., Superior Court, judicial district of New Haven, Docket No. 378774 (Feb. 6, 1997, Lager, J.). The court will not revisit its prior rulings. The motion to strike the seventh and thirteenth counts is denied.
III. Nuisance CT Page 8788
The Fiores have moved to strike the ninth and fifteenth counts sounding in nuisance. The plaintiffs have conceded that the court has previously stricken identical claims. See Lovick v.Nigro, supra; Sanchez v. General Urban Corp., supra. Accordingly, the motion to strike the ninth and fifteenth counts is granted.
IV. Warranty of Habitability
The Fiores have moved to strike the tenth and sixteenth counts, arguing that damages for personal injuries are not recoverable under a theory of breach of implied warranty of habitability. This court has previously concluded otherwise.Lovick v. Nigro, supra. Accordingly, the motion to strike the tenth and sixteenth counts is denied.
V. Recklessness
The Fiores have moved to strike the eleventh and seventeenth counts claiming that the plaintiffs have simply added the words "willful, wanton and/or reckless disregard" to the factual allegations supporting the negligence counts. "The mere use of the words `reckless' and `wanton' is insufficient to raise an actionable claim of reckless and wanton misconduct. Kostiuk v.Queally,
The eleventh count incorporates paragraphs one through six of the seventh count and the seventeenth count likewise incoporates paragraph one through six of the thirteenth count. The essence of those allegations is that the minor plaintiffs were exposed to lead because hazardous levels of lead paint existed before and during their occupancy of the Standish Street property from January 1, 1993 to November 1, 1995. In the eleventh and seventeenth counts, it is further alleged that the defendants received actual notice, on October 16, 1995, that the property contained lead paint hazards from municipal officials (¶ 7) and then did not take any steps to put the premises into habitable condition (¶ 8). The plaintiffs maintain that the additional facts alleged in paragraphs seven and eight are sufficient to state an actionable claim of recklessness and distinguish these counts from the negligence counts, which allege constructive notice only. CT Page 8789
While a failure to act under certain circumstances can constitute recklessness for some purposes, see Tessman v. TigerLee Construction Co.,
Under §
The existence of a duty is always a question of law for the court. See e.g., Jaworski v. Kiernan,
VI. Conclusion
For the reasons stated above, the motion to strike the entire complaint on the ground of misjoinder is denied. The motion to strike the seventh, tenth, thirteenth and sixteenth counts is denied. The motion to strike the ninth, eleventh, fifteenth and seventeenth counts is granted.
LINDA K. LAGER, JUDGE
Pollack v. Gampel , 163 Conn. 462 ( 1972 )
Goggins v. Fawcett , 145 Conn. 709 ( 1958 )
Broderick v. McGuire , 119 Conn. 83 ( 1934 )
Veits v. Hartford , 134 Conn. 428 ( 1948 )
Stevens v. Yale , 101 Conn. 683 ( 1925 )
Jackson v. Conland , 171 Conn. 161 ( 1976 )