Opinion
No. CV 07 5011334
April 9, 2008
MEMORANDUM OF DECISION MOTION TO STRIKE, NO. 118
The defendant, Lydia McOrmand moves to strike the fourth and eighth counts of the plaintiffs' complaint on the ground that a claim under General Statutes § 14-100a(c)(1) is legally insufficient because the statute giving rise to the claim prohibits the introduction of any evidence of the failure to wear or use a seat safety belt in any civil action. It is submitted that the court should deny the motion to strike both counts. The plaintiffs have not objected to the motion. The defendants, Richard Barnett, Roadlink USA New England, LLC and Road Link USA National, LLC, object to the motion to strike.
FACTS
On May 21, 2007, the plaintiffs, Dominic Landolfi, Kevin McOrmand, Zachary McNulty, Michael Landolfi and Michael McNulty filed a thirteen-count complaint against the defendants, Richard Barnett, Roadlink USA New England, LLC (New England), Roadlink USA National, LLC (National) and Lydia McOrmand, which alleges the following facts: On July 5, 2005, Dominic, Kevin and Zachary, all minors at the time, were passengers in a Chevrolet Blazer driven by McOrmand that was traveling in the far right-hand lane of I 95-Northbound near exit 46, approaching the Quinnipiac Bridge. Dominic and Kevin were not wearing seatbelts or any other motor vehicle passenger restraining device. As McOrmand began to slow and stop her vehicle, in response to heavy and slowing traffic traveling in front of her, a tractor trailer truck driven by Barnett and owned by New England and National failed to stop, and collided with McOrmand's vehicle. As a result of the collision, the vehicle operated by McOrmand rolled over on its right side and slid across the highway striking the side of a third-party vehicle traveling in the center lane. Dominic, Kevin and Zachary sustained injuries from the accident.
Dominic brings this action by Michael Landolfi, his father and next friend.
Kevin brings this action by Michael Landolfi, his guardian and next friend.
Zachary brings this action by Michael McNulty, his father and next friend.
On February 1, 2008, McOrmand filed a motion to strike the fourth and eighth counts of the complaint. The fourth and eighth counts were brought by Dominic and Kevin, respectively, against McOrmand, specifically alleging that she was negligent in that she failed to secure or cause to be secured in a seatbelt a passenger older than four years of age and under sixteen years of age in violation of General Statutes § 14-100a(c)(1). McOrmand moves to strike these counts on the basis that a claim under § 14-100a(c)(1) is legally insufficient because the statute giving rise to the claim prohibits the introduction of any evidence of the failure to wear or use a seat safety belt in any civil action. McOrmand submitted a memorandum of law in support of the motion. On February 20, 2008, Barnett, New England and National filed an objection to McOrmand's motion to strike, in accordance with Practice Book § 10-42(b).
McOrmand mistakenly referred to the fourth count of the plaintiffs' complaint as the fifth count throughout her motion to strike, as did Barnett, New England and National in their objection.
The remaining counts of the complaint which are not implicated in the present motion to strike, are: Counts one, two and three, in which Dominic alleges negligence against Barnett, New England and National, respectively; counts five, six and seven, in which Kevin alleges negligence against Barnett, New England and National, respectively; counts nine, ten, and eleven, in which Zachary alleges negligence against Barnett, New England and National, respectively; count twelve, in which Michael Landolfi alleges negligence against Barnett, New England, National and McOrmand, and is seeking to recover for expenses that he has incurred and that he will incur in the future for the medical treatment of Dominic and Kevin; and count thirteen, in which Michael McNulty alleges negligence against Barnett, New England and National, and is seeking to recover for expenses that he has incurred and that he will incur in the future for the medical treatment of Zachary.
Practice Book § 10-42(b) provides in relevant part that: " Any adverse party who objects to [a motion to strike] shall . . . file and serve . . . a memorandum of law." (Emphasis added.)
DISCUSSION
"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); see Practice Book § 10-39. "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, 765 A.2d 505 (2001). "A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006).
In support of her motion to strike, McOrmand argues that the plaintiffs fail to allege a legally sufficient claim under § 14-100a(c)(1) because this section, when taken as a whole, prohibits the introduction of the failure to secure a seat safety belt as evidence in any civil action. Furthermore, McOrmand argues that this policy applies whether the failure to use a seatbelt is directed to the injured plaintiff on the basis of either contributory negligence, failure to mitigate damages or it is directed to the failure to secure an individual in a seatbelt. Barnett, New England and National counter that McOrmand misinterprets the statute and that her motion is contrary to the plain language of the statute which puts a duty on operators and transporters of minors to restrain the minors.
Section 14-100a(c)(1), as in effect at the time of the accident, provides in relevant part: "Each operator [in a motor vehicle with a gross vehicle weight rating not exceeding ten thousand pounds] shall secure or cause to be secured in a seat safety belt any passenger four years of age or older and under sixteen years of age." Furthermore, subsection (c)(3) provides that: "Failure to wear a seat safety belt shall not be considered as contributory negligence nor shall such failure be admissible evidence in any civil action."
Section 14-100a(c)(1) was amended on October 1, 2005, by P.A. 05-58.
"A review of the text and legislative history of § 14-100a reveals that the purpose of subsection (c)(3) of that section is to prevent a defendant from introducing evidence of a plaintiff's violation of § 14-100a(c)(1) as a defense in a civil action to reduce the plaintiff's damage award; neither the text nor the legislative history contains any indication that it was intended to preclude a plaintiff from stating a claim against a defendant based on a violation of § 14-100a(c)(1)." (Emphasis added.) Ciccarelli v. Turner, Superior Court, judicial district of New London, Docket No. CV 06 5000551 (November 17, 2006, Hurley, J.T.R.) (42 Conn. L. Rptr. 399, 400). "By making evidence of the failure to wear a safety belt inadmissible, the legislature endorsed a policy that, despite the duty to wear a safety belt, a driver or passenger who was injured (while not wearing a safety belt) through the negligence of another should not have his or her recovery reduced." (Internal quotation marks omitted.) Bonelli v. Giguere, Superior Court, judicial district of Hartford, Docket No. CV 02 0819257 (October 15, 2003, Hale, J.T.R.).
"[T]he legislative history of § 14-100a(c)(3) clearly shows that the sole purpose of this evidentiary exclusion was to benefit plaintiffs by preventing defendants from using the seatbelt defense to reduce damage awards in civil cases. It was not intended to benefit defendants by preventing plaintiffs from proving that defendants' violations of § 14-100a(c)(1) caused or contributed to plaintiffs' injuries." Ciccarelli v. Turner, supra, 42 Conn. L. Rptr. 400. "To allow [§ 14-100a(c)(3)] to preclude allegations of a defendant's negligence based on his failure to adhere to the requirements of . . . § 14-100a(c)(1) would not be consistent with the legislative intent of the section." Ferentzy v. Ferentzy, Superior Court, judicial district of Fairfield, Docket No. CV 06 5004948 (September 5, 2007, Gilardi, J.) (44 Conn. L. Rptr. 119, 120).
Louisiana Revised Statutes § 32:295(F) has language that is similar to General Statutes § 14-100a(c)(3). Louisiana Revised Statutes § 32:295(F) provides: "In no event shall failure to wear a child passenger safety seat system be considered as comparative negligence, nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence, nor shall such failure be considered a moving violation." In Salaiman v. La. Casino Cruises, 835 So.2d 823, 825 (La.App. 2002), cert. denied, 836 So.2d 114 (La. 2003), the Louisiana Court of Appeals found that § 32:295(F) "protects children by precluding a tortfeasor from raising the fact that the child was not properly secured as a defense to recovery in the event that child is injured in an automobile collision." The court held that "the legislature added this provision to prevent a defendant from raising the issue of someone else's negligence (i.e., the parent) for failing to secure the child in a safety seat in order to reduce the child's recovery." (Emphasis added.) Id., 826. Further, the court held that "[the statute] does not immunize a defendant from liability arising from the defendant's failure to properly secure a child in a vehicle." Id. The Louisiana Court of Appeals interpreted the statute in a manner that protects the interests of the child over that of the defendant. In Ciccarelli v. Turner, supra, 42 Conn. L. Rptr. 399, a Connecticut court interpreted § 14-100a(c)(3) in a similar manner.
In Ciccarelli, the court denied a defendant's motion to strike a claim based on a violation of § 14-100a(c)(1) when the defendant did not secure a seatbelt for a plaintiff who was 15 years of age. The court held that to "[allow] the defendant to use § 14-100a(c)(3) to defeat the plaintiff's cause of action would be directly contrary to the purpose of the rule, which is to prevent defendants from using a plaintiff's failure to wear a safety belt to assert a special defense of contributory negligence." (Emphasis in original.) Ciccarelli v. Turner, supra, 42 Conn. L. Rptr. 400.
In the present case, McOrmand argues that the plaintiffs in the fourth and eighth counts do not allege a legally sufficient cause of action under § 14-100a(c)(1) because the statute prohibits the introduction of any evidence of the failure to wear or use a seat safety belt in any civil action. McOrmand's reading of § 14-100a(c)(3) is not consistent with the legislative intent or the case law discussed above. Allowing her to use this section of the statute to defeat the plaintiffs' cause of action would be directly contrary to the purpose of the rule. As stated above in Ciccarelli, "the sole purpose of [§ 14-100a(c)(3)] was to benefit plaintiffs by preventing defendants from using the seatbelt defense to reduce damage awards in civil cases. It was not intended to benefit defendants by preventing plaintiffs from proving that defendants' violations of § 14-100a(c)(1) caused or contributed to plaintiffs' injuries." Ciccarelli v. Turner, supra, 42 Conn. L. Rptr. 400.
McOrmand argues that Mullen v. Nania, Superior Court, judicial district of Tolland, Docket No. CV 97 65175 (April 16, 1998, Sullivan, J.), is analogous to the present case. In Mullen, the court granted the plaintiffs' motion to strike the defendant's special defense, in an action brought to recover for personal injuries and for medical bills incurred by the minors as a result of an automobile collision. The defendant argued that the children's mother was contributorily negligent for failing to use appropriate child restraints in violation of § 14-100a(d). This holding in Mullen, however, is not applicable to the present factual situation because the defendant negligent driver was attempting to shift his alleged liability to the children's mother. In the present action, it is the children who are alleging a claim of negligence against McOrmand, as well as the remaining defendants. Contrary to McOrmand's argument, there is no attempt to use § 14-100a(c)(1) as a "sword." Rather, the plaintiffs are instead using § 14-100a(c)(1) to put the duty on operators and transporters of minors to restrain and protect the minors.
Section 14-100a(d), as in effect at the time of the accident, provides in relevant part: "Any person who transports a child under the age of four years, weighing forty or more pounds, in a motor vehicle on the highways of this state shall either provide and require the child to use an approved child restraint system or require the child to use a seat safety belt . . . Failure to use a child restraint system shall not be considered as contributory negligence nor shall such failure be admissible evidence in any civil action." Section 14-100a(d) was amended on October 1, 2005, by P.A. 05-58.
For the foregoing reasons, the motion to strike counts four and eight of the plaintiffs' complaint is denied.