Robbins Eye Center, P.C. v. Commerce Park Associates, Inc.

Robbins Eye Center, P.C. v. Commerce Park Associates, Inc. et al

No. FBTCV166059479S

Superior Court of Connecticut, Judicial District of Fairfield, Bridgeport

March 22, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Edward T. Krumeich, J.

Defendants Commerce Park Associates, Inc. (" CPA") and RDR Management, LLC (" RDR") have moved to strike claims brought by plaintiff Robbins Eye Center, P.C. (" REC") alleging common-law recklessness against CPA in the Third Count, alleging violation of the Connecticut Unfair Trade Practices Act (" CUTPA"), C.G.S. § 42-110a et seq., against CPA in the Fourth Count, and alleging a CUTPA violation by RDR in the Fifth Count. For the reasons stated below, the motion is denied.

The Standards for Deciding a Motion to Strike

" 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). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). On the other hand, " [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.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).

The Third Count States a Recklessness Claim Against CPA.

CPA owns a commercial office complex in Bridgeport known as Commerce Park. For over twenty years Dr. Kim P. Robbins has rented space at Commerce Park for her medical practice incorporated as REC. In addition to medical offices and examination rooms, REC offered a full range of services to eye care patients including an optical shop and a surgical suite for cataract removal, Lasik vision correction and other complex surgical procedures. Since at least 2008, RDR has performed property management services for CPA.

In 2007 Dr. Robbins leased the entire lower floor of the building, where REC's business is located, for the purpose of continuing the patient services described above. REC's use of the space for those purposes was known to CPA. Although REC was not the tenant, it spent approximately $1, 500, 000 to fit out the space, including the surgical suite, and paid the rent to CPA.

REC alleges that " [u]unbeknownst to Dr. Robbins . . . CPA had not maintained and did not maintain [the building], and was allowing it to fall into a state of substantial and structural repair because . . . CPA simply did not want to spend the funds required to repair" the building.

REC points to three key events which it alleges caused substantial damage to its business and ultimately led to the decision to surrender the space: (1) a flood on September 12, 2013, that was caused by a leaky roof and porous foundation, and exacerbated by faulty sump pumps, that forced REC to suspend operations for a period and resulted in a serious mold problem; (2) periodic toilet flooding in the floor above that resulted in urine and fecal matter dripping into REC's space; and (3) in April 2015, sewage flooded the REC space caused by overflowing sewage lines; upon inspection it was discovered that the sewer lines sagged which led to the sewage back-up into REC'S space; efforts by RDR to repair the sags broke the sewer pipe and raw sewage flooded the REC space, including the operating room. REC alleges that despite tenant complaints CPA failed to make the repairs needed to remedy the deteriorating building. REC alleged that the various incidents manifested a " high degree of danger caused by CPA's conduct . . ." REC alleged " CPA refused to expend the resources necessary to remedy the numerous issues with [the building] and simply did not care if its failure to maintain its building caused injury to those who utilized the building . . ."

CPA argues that these allegations do not constitute reckless misconduct by CPA but merely restated the allegations in the negligence count and added conclusory allegations about CPA's motivations without alleging subordinate facts to show reckless conduct. CPA correctly points out unsupported conclusory allegations and opinions do not suffice to withstand a motion to strike citing Angiolillo v. Buckmiller, 102 Conn.App. 697, 705, 927 A.2d 312 (2007) (" [m]erely using the term 'recklessness' to describe conduct previously alleged as negligence is insufficient as a matter of law"). REC counters by citing three cases in which courts upheld recklessness claims by a tenant against a landlord: Atelier Constantin Popescu, LLC v. JC Corp., 134 Conn.App. 731, 755-56, 49 A.3d 1003 (2012); Long v. Taranto, 2008 WL 5540484 *2 (Conn.Super. 2008), and Roache v. Rogers, 2008 WL 5540484 *2 (Conn.Super. 1999).

In Matthiessen v. Vanech, 266 Conn. 822, 832-33, 836 A.2d 394 (2003), the Supreme Court described the difference between negligent and reckless misconduct:

" Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent . . ." More recently, we have described recklessness as " a state of consciousness with reference to the consequences of one's acts . . ." It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . " While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Citations omitted; emphasis added.)

The Matthiessen Court upheld a jury instruction that stressed the difference between negligence and recklessness: " recklessness is a 'serious or extreme departure from ordinary or reasonable care, ' and requires 'a conscious choice of a course of action involving serious dangers to others, either with knowledge of that serious danger, or with knowledge of facts which a reasonable person would recognize as being a serious danger to others.' . . . 'Negligence is the failure to act prudently or to use ordinary and reasonable care under the circumstances, ' and emphasized that 'No be reckless means a person must recognize that his or her actions or missions involved a risk to others which is substantially greater than that which is necessary to make his or her conduct negligent.'" 266 Conn. at 832-34.

The key difference between negligence and recklessness depends on defendant's state of mind: " [r]ecklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent." Rubel v. Wainwright, 86 Conn.App. 728, 740-41, 862 A.2d 863 (2005). " One is guilty of reckless misconduct when knowing or having reason to know of facts which would lead a reasonable [person] to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result . . ." Craig v. Driscoll, 64 Conn.App. 699, 721, 781 A.2d 440 (2001).

In Atelier, 134 Conn.App. at 740-41, fire damaged a commercial structure being fitted out for tenant occupancy. The Appellate Court upheld a finding of recklessness based on the landlord's disregard of a warning that removal of certain ductwork without removal of a ceiling posed a fire hazard, and by instructing the work be done despite the fire hazard, and by leaving the premises after the work was done without further inspection although the landlord's agent had smelled " burnt metal, " which suggested there was a...