Romero v. Khondker, No. Cv93 0529408 (Nov. 4, 1994)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE On September 14, 1993, the plaintiffs, Miriam Romero and Janira Romero filed a two-count complaint sounding in negligence against the defendants, Sufian Khondker and Alfred Mendelson.

In Count One the plaintiffs allege that Khondker, while operating his vehicle, negligently collided with the vehicle operated by Miriam Romero in which Janira Romero was a passenger.

In Count Two of the complaint, the plaintiffs allege that Mendelson, while operating a third vehicle, negligently collided with the vehicle operated by Khondker, which in turn, created a chain reaction and caused the Khondker vehicle to collide with the vehicle operated by Miriam Romero.

On May 6, 1994, Mendelson filed a special defense in which he alleges that "[i]f the plaintiffs sustained any injuries and losses as a result of the incident alleged in their complaint, such incident, injuries and losses were the direct and proximate result of plaintiff Miriam Romero's own negligence. . . ."

On June 2, 1994, plaintiff Janira Romero filed a motion to strike Mendelson's special defense for failure to state a claim upon which relief can be granted against her, since she was a passenger and no acts of negligence were alleged against her.

A special defense is used to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action. Grant v. Bassman, 221 Conn. 465, 472-73, (1992). Practice Book § 164. The negligence of the operator of an automobile cannot ordinarily be imputed to CT Page 11200 one who is a passenger in it. Silverman v. Silverman,145 Conn. 663, 668, (1958); Sullivan v. Krivitsky, 100 Conn. 508,510, (1924). In Caciopoli v. Acampora, 30 Conn. App. 327, the Appellate Court held that the alleged contributory negligence of a passenger was relevant in considering whether to bar his recovery where certain acts of negligence on the passenger's part were alleged.

In the present action, no acts of negligence are alleged against the passenger Janira Romero, and as to her the motion to strike is granted.

Wagner, J.