Gagne v. James Ireland Equity Co., Inc.

Catherine Gagne v. James Ireland Equity Co., Inc. et al.

No. KNLCV196038188S

Superior Court of Connecticut, Judicial District of New London, New London

January 15, 2020

UNPUBLISHED OPINION

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Murphy, Shari A., J.

MEMORANDUM OF DECISION ON MOTION TO STRIKE COUNT ONE

Shari Murphy, J.

Background

The plaintiff, Catherine Gagne, filed a two-count revised complaint (operative complaint) on January 28, 2019. In count one, against defendant James Ireland Equity Company, Inc. (defendant), the plaintiff alleges liability based on the following facts. The defendant is the owner of real property located at 167 Broadway, Norwich, and was in possession and control of the premises, including the sidewalk adjacent to the city street. The city of Norwich is the owner of the sidewalk adjacent to 167 Broadway, Norwich, and was in possession and control of said sidewalk. On December 3, 2016 the plaintiff was walking on the sidewalk in front of the defendant’s property when she tripped and fell over the broken and uneven sidewalk, causing her to sustain injuries and damages. The complaint contains various other allegations of negligence as to the defendant, which will be addressed in more detail in the discussion section of this memorandum. On November 27, 2019, the defendant filed a motion to strike count one, arguing that as an abutting landowner, the defendant does not owe a duty of care to the plaintiff. The plaintiff filed an opposing memorandum on January 8, 2010 arguing that the defendant’s motion must be denied for the reason that a motion for summary judgment, as opposed to a motion to strike, is the proper procedural vehicle for raising the issue of whether the defendant owed a duty of care to the plaintiff. The motion to strike count one was argued on January 13, 2020.

DISCUSSION

Motion to Strike

The plaintiff raises a procedural argument in defense of the motion to strike. As such, it is appropriate to first address the use of a motion to strike pursuant to the Connecticut rules of practice. "A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of any complaint ... or of any one or more counts thereof, to state a claim upon which relief can be granted ..." Practice Book § 10-39. "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).

The plaintiff in this case alleges negligence against the defendant. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury ... Contained within the first element, duty, there are two distinct considerations ... First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty ... The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the [alleged tortfeasor] violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Doe v. Cochran, 332 Conn. 325, 338, 210 A.3d 469 (2019). In order for the plaintiff in this case to set forth a valid cause of action against the defendant grounded in negligence, the plaintiff must allege a duty on behalf of the defendant and a breach of that duty in relation to the plaintiff’s alleged injuries. The defendant, in its motion to strike, argues that the allegations set forth in count one fail to establish the requisite element of duty. Without allegations establishing the requisite duty, the cause of action fails as legally insufficient. Wherefore, the defendant appropriately presents its argument by way of a motion to strike. See generally Cyr v. VKB, LLC, 194 Conn.App. 871, 882 (2019); Fitzpatrick v. City of Norwich, Superior Court, judicial district of New London, Docket No. CV 12-6013516-S (September 5, 2013, Cole-Chu, J.) (2013 WL 5969466).

In deciding the defendant’s motion to strike, the court "admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party’s] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 755 A.2d 505 (2001). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "In ruling on a motion to strike, the court is limited to the facts alleged in the [challenged pleading]." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498. The court should "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2005).

Allegations of Negligence

In Cyr v. VKB, LLC, our Appellate Court recently summarized the substantive law applicable to injuries resulting from a...