2009 Ct. Sup. 11266
No. FST CV 05 4005458 SConnecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
July 6, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (122.00)
TAGGART D. ADAMS, SUPERIOR COURT JUDGE.
This case involves a two-count complaint alleging negligence against an individual youth hockey player and the team for which he played. The plaintiff Randy Zaritsky alleges he was severely injured while he was acting as a referee of a hockey game when he was struck in the mouth by a hockey stick “which was carelessly and negligently swung by `New’ or an unidentified player” of the Connecticut Yankees during a game on or about June 15, 2003. It is alleged that New was negligent in that, inter alia, “in the exercise of reasonable care, he knew or should have known that swinging a hockey stick at head level could cause serious injury and yet he failed to control his actions.” Complaint, First Count, ¶ 4(d). It is also alleged that the Connecticut Yankees were negligent for failing to properly supervise, or train or instruct its player as to the dangers of swinging a hockey stick. Id., Second Count, ¶ 4(a).
The defendants initially moved for summary judgment which was denied in early 2008. The defendants filed a request to revise the complaint in 2006, (107.00) but this was not pursued until early 2009 when objections to it were sustained on February 9, 2009. In November 2008 a pretrial conference was held and a scheduling order issued directing that the objections be put on short calendar for adjudication, that the pleadings be closed within thirty days after the objections to the request were decided, and setting a trial date of July 8, 2009. The defendant’s motion to strike now pending was filed on March 27, 2009.
The motion to strike contends that the complaint in negligence is insufficient as a matter of law relying primarily on Jaworski v. Kiernan, 241 Conn. 399 (1997) which held that as between participants in athletic contests the duty of care owed by one participant to another is the duty to refrain from intentional or reckless conduct. The defendants argue that since the plaintiff has not alleged reckless or intentional conduct by the defendants, the complaint should be stricken as a matter of law.
CT Page 11267 The plaintiff, in opposition, contends that Jaworski is inapposite because that case involved fellow competitors and not referees or officials.
Ordinarily, this court makes every effort to decide motions presented to it on the merits. In this case, however, the circumstances make such an approach inappropriate. The case is four years old and we are over six years past the incident giving rise to the complaint. Neither the parties nor counsel have made the necessary effort to resolve the significant legal issues presented in this motion to strike in a timely fashion. The motion to strike is precisely the means to adjudicate what is the proper duty of care to apply in this case, and it should have been filed in 2005 or at least 2006. See Practice Book §§ 10-6, 10-8. More importantly, in November 2008 a trial date was established and the pleadings ordered to be closed within thirty days of a decision on objections to a request to revise which themselves were filed seventeen months after the commencement of suit, and then languished for two more years. Therefore, the pending motion to strike was filed three weeks after a direct court order requiring a certificate of closed pleadings to be filed.
With this chronology of delay, the motion to strike is denied as untimely, and the case should be tried on the scheduled trial date.
CT Page 11268