Ledger v. Plunkett

• Decision Date: 17 March 2016
• Docket Number: WWMCV146008377S
• Court: Connecticut Superior Court
• Parties: Lillian Ledger v. Robert Plunkett dba McDonald's

Lillian Ledger v. Robert Plunkett dba McDonald's

No. WWMCV146008377S

Superior Court of Connecticut, Judicial District of Windham, Putnam

March 17, 2016

UNPUBLISHED OPINION

MEMORANDUM (MOTION TO STRIKE, #129, SHORT CALENDAR JANUARY 11, 2016)

Harry E. Calmar, J.

The plaintiff argues that the court should strike paragraphs (a) and (b) of the first special defense of the defendants' amended answer and special defense on the ground the paragraphs are legally insufficient because they only allege legal conclusions, unsupported by any facts. Second the plaintiff asserts the court should strike the second special defense of the defendants' amended answer and special defense entirely on the ground that it is barred by the parental immunity doctrine.

On January 5, 2016, the minor plaintiff, Lillian Ledger (minor plaintiff), through her mother, next best friend and legal guardian, Amy Ledger (plaintiff, and collectively with the minor plaintiff, the plaintiffs), and the plaintiff individually, filed a first amended complaint (amended complaint) against the defendants, Robert Plunkett d/b/a McDonald's (Robert), Janet Plunkett d/b/a McDonald's (Janet), and Robans Enterprises, LLC d/b/a McDonald's (Robans, and collectively with Robert and Janet, the defendants), alleging the following facts.^[1] On April 17 2012, the minor plaintiff was lawfully at a McDonald's, a restaurant located at 796 Norwich Road in Plainfield Connecticut (McDonald's), owned and/or controlled by one or more of the defendants, with the plaintiff, her siblings and a friend. The minor plaintiff attempted to exit the women's restroom at the McDonald's whereupon the door suddenly and forcefully shut on her left middle finger causing her to suffer a severe crush injury to her left middle finger, which was caused by one or more of the defendants, their agents, employees, and/or servants, negligence and carelessness. Moreover, the plaintiff incurred monetary expenses for the minor plaintiff's treatment and care, and both parties seek monetary damages.

The defendants filed an amended answer and special defense on September 18, 2015, which: (1) denies that Janet or Robert owned or controlled the McDonald's; (2) admits that Robans owned and operated the McDonald's; and (3) denies or leaves the plaintiffs to their proof on the remaining allegations. The first amended special defense (first special defense) alleges the minor plaintiff was contributorily negligent in one or more of the following ways: " a. She failed to exercise that degree of care as may be reasonably expected of children of similar age, judgment and experience; b. She failed to use that degree of care that may reasonably be expected of children of similar age, judgment and experience for her own safety under the circumstances and conditions present; c. She was inattentive and/or failed to make proper and reasonable use of her faculties as would reasonably be expected of children of similar age, judgment and experience; and d. She failed to be watchful and careful of her surroundings." See Am. Answer & Special Defense, pp. 2-3. The second special defense (second special defense) alleges the plaintiff was contributorily negligent for failing to properly supervise the minor plaintiff and for failing to accompany her to the restroom.

The plaintiffs filed a motion to strike the special defenses and a supporting memorandum of law on October 14, 2015, on the grounds that paragraphs (a) and (b) of the first special defense are legally insufficient because they allege legal conclusions, unsupported by any facts, and the second special defense is legally insufficient on the ground that it is barred by the parental immunity doctrine. In response, the defendants filed an objection to the motion to strike on January 7, 2016. The objection does not address the plaintiffs' motion to strike paragraphs (a) and (b) of the first special defense, but counters that the parental immunity doctrine does not bar the defendants from asserting the second special defense, and the motion to strike should be denied. This matter was heard at short calendar on January 11, 2016.

DISCUSSION

" A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of any answer to any complaint . . . or any part of that answer including any special defense contained therein." Practice Book § 10-39. " Generally speaking, facts must be pleaded as a special defense when they are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456, 876 A.2d 535 (2005). " [T]he trial court recognize[s] its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). " A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint [or special defense] 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).

" [A]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense . . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph [or paragraphs] in a count . . . However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph [or paragraphs] attempts to state a cause of action . . . [O]nly an entire count of a counterclaim or an entire special defense can be subject to a motion to strike, unless the individual paragraph [or paragraphs] embodies an entire cause of action or defense." (Internal quotation marks omitted.) Weingarden v. Milford Anesthesia Associates P.C., Superior Court, judicial district of New Haven, Docket No. CV-11-6016353-S, (May 30, 2013, Wilson, J.) .

In Coe v. Board of Education, 301 Conn. 112, 121 n.5, 19 A.3d 640 (2011), the court cited favorably Cook v. Stender, Superior Court, judicial district of Middlesex, Docket No. CV-04-0104110-S (December 22, 2004, Silbert, J.) (38 Conn. L. Rptr. 439, 440, *3), and quoted parenthetically: " Prior case law 'ought not to be read for the proposition that clearly improper allegations upon which relief may not be granted as a matter of law must remain in a complaint indefinitely, leading to confusion for the court, the parties and the jury, just because there are aspects of the complaint that are otherwise valid. If the motion to strike has merit as to certain allegations of the complaint . . . the proper course for the court is to strike those allegations only . . .'" Coe v. Board of Education, supra, 121 n.5. Similarly, the court quoted parenthetically the following language from Nordling v. Harris, Superior Court, judicial district of Fairfield, Docket No. 329660 (August 7, 1996, Levin, J.) (17 Conn. L. Rptr. 296, 298, *2, n.1): " 'Under prior case law and earlier versions of the Practice Book, it was generally improper to [move to strike] a paragraph of a complaint unless the paragraph purported to state a separate cause of action . . . Since 1978, however, the Practice Book has not contained such a constraint.'" (Citations omitted.) Coe v. Board of Education, supra, 121 n.5.

A. First Special Defense

The plaintiffs argue that paragraphs (a) and (b) of the defendants' first special defense allege legal conclusions of the minor plaintiff's contributory negligence and fail to set forth plain and concise statements in accordance with Practice Book § § 10-1 and 10-50. The defendants did not object to the motion to strike these paragraphs of the first special defense. See Objection to Motion to Strike, p. 1. The court will consider whether it is appropriate to strike only part of a count and consider the motion to strike paragraphs (a) and (b) of the first special defense, even though they do not embody separate causes of action.^[2]

As to the merits of the plaintiffs' argument concerning the first special defense, paragraph (a) alleges the minor plaintiff " failed to exercise that degree of care as may be reasonably expected of children of similar age judgment and experience, " and paragraph (b) alleges the minor plaintiff " failed to use that degree of care that may reasonably be expected of children of similar age, judgment and experience for her own safety under the circumstances and conditions present." " Contributory negligence in the case of children is a question of fact to be determined by the jury, taking into consideration all the circumstances and the age, experience and judgment of the child." DiLeo v. Dolinsky, 129 Conn. 203, 205, 27 A.2d 126 (1942). Where contributory negligence is plead as a special defense, Practice Book § 10-53^[3] provides in relevant part " the defendant shall specify the negligent acts or omissions on which the defendant relies." These paragraphs, as alleged, include no specific facts of acts or omissions as to the minor plaintiff's age, experience and judgment and do not explain how the minor plaintiff was negligent. Legal conclusions expressed in the pleadings are not deemed to be admitted when the legal sufficiency...