Dennison v. Klotz

Decision Date10 November 1987
Docket NumberNo. 5056,5056
Citation532 A.2d 1311,12 Conn.App. 570
CourtConnecticut Court of Appeals
PartiesMazie DENNISON, Administratrix (ESTATE OF David DENNISON) v. Lewis KLOTZ et al.

William F. Gallagher, with whom, on the brief, was Evelyn A. Barnum, New Haven, for the appellant (plaintiff).

Kevin M. Tepas, Bridgeport, for the appellee (defendant Andrew Priest).

Barbara N. Bellis, Shelton, with whom, on the brief, was Jack V. Genovese, New Haven, for the appellee (defendant Denise Zemke).

Before BORDEN, SPALLONE and DALY, JJ.

BORDEN, Judge.

In this wrongful death action, the plaintiff appeals from judgments rendered in favor of three defendants following the granting of the defendants' motions to strike the plaintiff's complaint. 1 The principal issue of the appeal is whether a passenger in a car owes a legal duty to take action to prevent harm to a fellow passenger who is about to be or has been injured by the conduct of the driver of the car.

The plaintiff raises claims of both procedural and substantive error by the trial court. We find error in the rendering of judgment in favor of the defendant Andrew Priest, and no error with respect to the rendering of judgment in favor of the defendants Jeff Kosky and Denise Zemke.

The plaintiff's original complaint alleged that the plaintiff's decedent, David Dennison, was a passenger in a car being operated by David Martorelli. The defendants, Lewis Klotz, Denise Zemke, Jeff Kosky, and Andrew Priest, were also passengers in that car when it collided with a tree, throwing Dennison out of the rear hatchback window and onto the ground behind the car. Thereafter, the driver of the car ran over Dennison, causing his death. In its first count, the original complaint alleged that Dennison's death was proximately caused by the negligence of the defendant passengers in various enumerated ways. In its second count, the complaint set out a claim of negligent infliction of emotional distress.

Priest filed a motion to strike the original complaint, claiming that the complaint failed to state a claim upon which relief could be granted. By memorandum of decision dated September 11, 1984, the trial court, Fishman, J., granted the motion to strike as to the defendant Priest. On September 21, 1984, the plaintiff filed a motion to extend the time within which to replead through October 22, 1984. No action was taken by the court in response to this motion.

On February 18, 1985, the plaintiff filed a request for leave to file a substitute complaint as to all the defendants. The substitute complaint claimed (1) negligence on the part of the four passenger defendants, (2) reckless and wanton misconduct on the part of the four defendants, (3) negligence on the part of the four defendants in that they knew of, or should have known of, the driver's reckless and wanton misconduct, and (4) wrongful infliction of emotional distress. 2 No objections to the request for leave to file a substitute complaint were filed by any of the defendants.

Priest did not file a responsive pleading to the substitute complaint. Instead, on March 1, 1985, Priest filed a motion for judgment on the court's September 11, 1984 order striking the original complaint as to him. The plaintiff timely objected to the motion for judgment. On June 26, 1985, the trial court, D. Dorsey, J., granted the motion for judgment.

Thereafter, the defendants Kosky and Zemke each filed a motion to strike the substitute complaint. They claimed that the substitute complaint attempted to state a cause of action between two passengers in a motor vehicle for injuries received by one of the passengers as a result of the operation of the motor vehicle by the driver, and that no such cause of action is recognized in Connecticut. After these motions were granted by the court, Byrne, J., judgment was rendered by the court, Hale, J., for these defendants. This appeal followed. 3

I

We first consider the rendering of judgment in favor of Priest. The plaintiff raises several claims of error, some of which are procedural in nature while others are more properly viewed as substantive. Because we find procedural error in the court's rendering of judgment necessitating further proceedings, we confine our discussion of the plaintiff's claims, as they relate to this defendant, to the dispositive procedural issue.

The trial court granted Priest's motion for judgment, filed on March 1, 1985, because the plaintiff had failed to replead within the fifteen day period prescribed by Practice Book § 157, 4 or within the period referred to in her motion for extension of time. The court held that the plaintiff's attempt to replead thereafter through a request for leave to file a substitute complaint pursuant to Practice Book § 176, was improper, notwithstanding the fact that Priest had not filed an objection to the plaintiff's request. The plaintiff contends that the court erred in granting Priest's motion for judgment. We agree.

Practice Book § 176 provides in pertinent part that "a party may amend his pleadings ... at any time ... (c) [b]y filing a request for leave to file such amendment, with the amendment appended...." (Emphasis added.) If no objection to the request is filed within fifteen days of the date of the filing of the request, the amendment is deemed to be filed with the consent of the adverse party, and the trial court has no discretion to deny the request. Practice Book § 176; Darling v. Waterford, 7 Conn.App. 485, 487, 508 A.2d 839 (1986).

Practice Book § 157 does not preclude an attempt to replead under § 176 after the expiration of the fifteen day period following the granting of a motion to strike. Section 157 provides that where no new pleading is filed within the fifteen day period, the court "may upon motion" render judgment against the party whose pleading has been stricken. The use of the phrase "may upon motion" demonstrates that judgment does not enter automatically after the failure to replead during the time period set out in § 157. Since further action is required to obtain judgment, the party against whom judgment is sought may avail herself of the opportunity to request leave to file an amended or substitute complaint pursuant to § 176 at any time prior to the rendering of judgment.

This view of Practice Book § 176 is consistent with the policy underlying General Statutes § 52-121(a). That statute provides that "[a]ny pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of court until the court has heard any motion for judgment by default or nonsuit for failure to plead which has been filed in writing with the clerk of court in which such cause is pending." See also Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 221 (1980).

When the court in this case considered Priest's motion for judgment upon the plaintiff's original complaint, that complaint had been replaced by the substitute complaint, which was deemed to have been filed with the consent of Priest in the absence of his objection thereto. Since the original complaint was no longer in the case, and Priest had never pleaded in response to the substitute complaint, it was error to render judgment upon the original complaint. See Wooster v. Jerome, 131 Conn. 266, 38 A.2d 683 (1944). The plaintiff's case against Priest must therefore be remanded for further proceedings upon the substitute complaint. 5

II

We next consider whether the plaintiff stated a cause of action in her substitute complaint against the remaining defendants, Kosky and Zemke, both fellow passengers of the plaintiff's decedent. The plaintiff alleged that these defendants were negligent and engaged in reckless or wanton misconduct by failing to maintain a proper lookout and in overcrowding the Martorelli car; in failing to warn the operator of the car that Dennison had been thrown out of the car and was in danger, "when they had the actual ability and authority to control the driver's action by reasonable instructions"; in permitting their faculties to become so impaired by the use of alcohol that they could neither observe Dennison being thrown from the car nor warn the driver of Dennison's peril; and in failing to stop "and render any kind of assistance to their fellow passenger when the same was reasonably necessary under the circumstances" after Dennison was injured by the driver's operation of the car.

It is important to note what the substitute complaint does not allege. It does not allege any facts from which it might be determined that the parties were in any relationship, other than as fellow passengers. The complaint does not allege that the defendants engaged in any affirmative action which inflicted harm on Dennison, either by way of direct conduct or by way of encouragement or participation.

The plaintiff claims that the court erred in granting the motions to strike the substitute complaint, filed by the defendants Kosky and Zemke. We disagree.

A motion to strike challenges the legal sufficiency of the allegations of a complaint, and is appropriately granted where there is no basis upon which relief can be granted. Practice Book § 152(1). "It is axiomatic that, in passing on a motion to strike based on a claim of failure to state a cause of action, we must take the facts alleged favorably to the pleader and view those facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly probable under them." Schmidt v. Yardney Electric Corporation, 4 Conn.App. 69, 74, 492 A.2d 512 (1985). The trial court determined that the plaintiff's substitute complaint failed to state a cause of action in that the plaintiff "failed to allege a relationship between the decedent and the [defendants] 'by which the latter owes a duty to former.' Neal v....

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