Cyclists injured on a bike path after running into a downed tree, could not recover because the association that assisted in taking care of the bike path owed no duty to the cyclists.

If there is no duty, there is no liability. Always check to make sure there really is a duty owed to someone before you start to claim or defend negligence actions.

Citation: DeLamar v. Fort Worth Mt. Biker’s Ass’n, 2019 Tex. App. LEXIS 466, 2019 Tex. App. LEXIS 466, 2019 WL 311517

State: Texas; Court of Appeals of Texas, Second District, Fort Worth

Plaintiff: Norman Delamar

Defendant: Fort Worth Mountain Biker’s Association

Plaintiff Claims: general negligence and gross negligence

Defendant Defenses: No Duty

Holding: For the Defendants

Year: 2019


City parks had an agreement with the local cycling group to assist in keeping the bike pats in good shape. The ultimate responsibility for the bike paths was still held by the city. An injured cyclist who ran into a downed tree could not sue the cycling group because they owed no duty to the cyclists because the association did not have the authority from the city and did not accept a duty with the agreement with the city.


On July 12, 2014, Norman was riding his mountain bike on a trail in Gateway, a park owned by the City, when he came upon a downed tree resting across the trail at head level. Although known to be a “really good rider,” Norman asserts that because he did not have time to stop or avoid the tree, the tree “clotheslined” his head and neck and knocked him off of his bicycle, causing him injuries.

Norman sued the City, asserting claims of general negligence and gross negligence. In a single pleading, the City filed an answer and identified the Association as a responsible third party because of an “Adopt-A-Park Agreement” (Contract) that made the Association “responsible for constructing and maintaining the bike trail in question.” Norman then amended his petition and added the Association as a defendant in the suit.

The city’s contract with the association outlined things the association was to do to assist the city in keeping the trail available and generally covered trail maintenance. The city did not give up its right to control and manage the park where the trails were located.

The trial court dismissed the plaintiff’s claims, and this appeal ensued.

Analysis: making sense of the law based on these facts.

The first issue the court reviewed was this, a negligence claim or a premises liability claim.

Although premises liability is a form of negligence, “[n]egligence and premises liability claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.”

The differences are subtle, but:

To prevail on a premises-liability claim, a plaintiff must prove (1) actual or constructive knowledge of some condition on the premises by the owner; (2) that the condition posed an unreasonable risk of harm; (3) that the owner did not exercise reasonable care to reduce or eliminate the risk; and (4) that the owner’s failure to use such care proximately caused the plaintiff’s injuries, whereas under the common law doctrine of negligence, a plaintiff must prove (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach.

The difference is, one is based on the actions of the defendant, and the other is based on a condition of the land.

While, theoretically, a litigant may maintain causes of action for both general negligence and premises liability, to be viable, the general negligence theory of recovery must be based not upon an injury resulting from the condition of the property, but upon the defendant’s contemporaneous activity. (analyzing claimant’s negligence and premises liability claims together). If the injury is one caused by a premises defect, rather than a defendant’s contemporaneous activity, a plaintiff cannot circumvent the true nature of the premises defect claim by pleading it as one for general negligence.

As similar as they may appear to be, you cannot recover on the same set of facts for both a negligence action and a premise’s liability action. Even the court stated understanding the differences could be “tricky.”

The trial court and appellate court found the plaintiff’s claims sounded in premise’s liability.

However, the court went on to discuss the plaintiff’s allegations that his claim was a negligence claim. The issue was whether the association had a legal duty to the plaintiff.

The question of legal duty is a “multifaceted issue” requiring courts to balance a number of factors such as the risk and foreseeability of injury, the social utility of the actor’s conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. “Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy considerations.”

Of the three, foreseeability as the dominant consideration, but not the sole consideration the court must review. Foreseeability alone is not sufficient to create a duty. “Foreseeability means that a person who possesses ordinary intelligence should have anticipated the danger that his negligent act would create for others.”

Although the association had some contractual responsibility for the trails, there was nothing the association could do about the trees. Only the city had the use of the chainsaws, and only the city could determine if a tree could be removed and then remove it.

And although it was foreseeable, a tree could fall on the trail; the issue required more analysis than that. The bike path was surrounded by thousands of trees. The plaintiff had ridden that path just two days earlier and admitted that the tree could have fallen two hours before he hit it. Although a tree falling was foreseeable, it was outside of the scope of something that you can do anything about, and on top of that the association had no authority to do anything about trees.

Finally, the agreement between the city and the association said nothing about the association agreeing to assume a legal duty to maintain the safety of the trails.

Based on our de novo review of the record, we hold that Norman failed to establish that the Association owed him a legal duty to protect him from the downed tree across the trail that the Association did not cause to fall, that may have fallen only hours-but no later than a day or two-before Norman struck it, and that the Association was not even authorized to unilaterally remove.

Because there could be no gross negligence if there was no general negligence, the plaintiffs gross and ordinary negligence claims were dismissed.

So Now What?

Foreseeability is a good thing for non-lawyers running a business or program to understand. Are your actions or inactions going to create a danger to someone.

The case does not state whether the city had any liability to the plaintiff, only the issues discussed in this decision were between the plaintiff and the defendant association.

More importantly, the court looked at trees falling as something that no one could really control. It was not liked anyone, the association or the city could come close to identifying trees that may fall in parks.

What do you think? Leave a comment.

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Assumption of the Risk to be a bar to a claim the defendant must not owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.

The old idea of you knew what you were doing could result in an injury, and you did it anyway does not necessarily prevent lawsuits now days.

Kindrich III et al., v. Long Beach Yacht Club et al., 167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705

State: California, Court of Appeal of California, Fourth Appellate District, Division Three

Plaintiff: Carl Kindrich, III, Barbara Kindrich, and Michael Kindrich

Defendant: Long Beach Yacht Club and Charles Fuller, skipper

Plaintiff Claims: negligent in their use and maintenance of both the boat and the dock, Barbara claimed loss of consortium, and Michael claimed emotional distress

Defendant Defenses: Assumption of the Risk

Holding: For the Plaintiff

Year: 2008

The facts in this case are easy, and to regular readers, sort of annoying. The plaintiff’s father died. The deceased had been a member of the defendant yacht club and wanted to be buried at sea. The yacht club loaned a boat and a skipper to the deceased family to take his ashes out to sea.

Boarding the boat, there was a set of stairs that allowed everyone to climb on the boat. Upon returning the stairs were removed. The Defendant/Skipper/Boat Captain asked the plaintiff to jump down to tie the boat up. He did, injuring his knee.

Free boat to carry out his father’s wishes, knowing the risk, and he still sues. The plaintiff sued the Yacht Club and the skipper, both of whom were donated for disposing the ashes of the plaintiff’s father.

Analysis: making sense of the law based on these facts.

The defendant yacht club filed a motion to dismiss based on assumption of the risk. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.

The court went through a detailed analysis of assumption of the risk in California. The basis of the analysis was the California Supreme Court decision in Knight v. Jewett, 3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870.

The court first started by defining when assumption of the risk is applied as a complete bar and the differences between primary and secondary assumption of the risk.

Assumption of risk that is based upon the absence of a defendant’s duty of care is called “‘primary assumption of risk.’ ” “First, in ‘primary assumption of risk’ cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable. Second, in ‘secondary assumption of risk’ cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable.”

Primary assumption of the risk is a complete bar to a claim. “Primary assumption of risk, “where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him”” (Knight v. Jewett, supra, 3 Cal.4th at p. 306), remains as a complete defense.”

The court stated that the decision in Knight changed how the court should view assumption of the risk. “Knight shifted the focus of assumption of risk from a plaintiff’s “subjective knowledge and awareness” of the risk to the nature of the activity in question.”

In cases involving ‘primary assumption of risk’–where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” Knight justified maintaining the defense in a sports setting because there “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself” and imposing liability “might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule”

The old definition looked at whether the plaintiff knew about the risk and voluntarily assumed the risk. Now the court looks at what was going on to determine what happened. Even if the plaintiff did not understand the activity or the risks, by engaging in the activity, they may still assume the risks. This in many senses is a broader definition which helps the defendant. However, when the activity is not a sport, it is a very narrow definition.

The court then looked at all the California cases that had determined that the defendant did not owe a duty to the plaintiff; therefore, the assumption of the risk was a complete bar to the plaintiff’s claims. From that it determined that the complete bar applied if the plaintiff was participating in a sport.

After reviewing a substantial number of cases applying primary assumption of risk to a variety of activities, the court concluded that “[c]ompiling all of the distinguishing factors, it appears that an activity falls within the meaning of ‘sport’ if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.”

Jumping off a boat is not a sport. It is a common everyday occurrence. As such the activity is not one where the plaintiff assumes the risk because the defendant might owe the plaintiff a duty. The existence of the stairs to begin the boat ride is proof that a duty may be owed. The case was reversed and sent back for further proceedings.

So Now What?

So I’ve posted a lot of cases looking at assumption of the risk. However, you need to make sure you understand that normally, assumption of the risk is not a complete bar to a lawsuit as in this case. For assumption of the risk to bar a plaintiff’s suit, the plaintiff must be involved in an activity or sport.

Here the plaintiff was jumping off a boat. Although the facts make it appear like the suit should be thrown out because when you jump from a boat, it is obvious you can be hurt. The rule states it only applies to how much the trier of fact thinks you were responsible for your injury not whether you assumed the risk as in the past.

Assumption of the risk may still be a complete bar to recovery. It will be dependent upon the state and how the jury sees the facts. However, that must be decided by the trier of fact, and cannot be decided by motions.

By that I mean if the plaintiff does not prove that the defendant was at least or 50 or 51% liable (dependent upon the state) for their injury the plaintiff loses. In some states, the percentage of the plaintiff’s fault only reduces the award to the plaintiff by that percentage the plaintiff is liable, so if the plaintiff is found to be 90% liable the plaintiff only recovers 10% of the damages.

The issue as to how assumption of the risk is to be applied to the facts is based on whether the defendant owed a duty to the plaintiff. In a sport, the defendant does not owe any duty unless the acts of the defendant are reckless or intentional, generally (varies by state). Here, the stairs that were there originally created a duty when they were removed.

The reasoning behind keeping assumption of the risk in some activities as a complete bar is, if the risks are removed from the sport, which the defendant would have to do if they were to protect themselves from suit, the sport would not exist. The risk is part and parcel of the sport. Alternatively, without the risks, the sport would not exist.

The controlling term is “sport”. It does not have to be a team sport or a contact sport, but it has to be more than couch surfing or jumping from a boat.

If you are engaging in the activity for a challenge, a thrill, or enjoyment and requires physical exertion, then assumption of the risk may be a complete bar to a claim by the plaintiff.

You could always put that in your release too………….. J

There is a dissent in this case that reasons that “No good deed goes unpunished” and the actions of the plaintiff fit the definition of assumption of the risk, and the older result should apply in this case.

How would they ever be able to tie the boat up if in this fact situation? If a passenger on the boat cannot jump off the boat to tie the boat up, the captain either has to hand over control of the boat to a passenger (see any problems here) or the boat must wait until someone comes down and brings a set of stairs.

Never thought I would write about a “Yacht Club.”

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Herbst et al. v. The Guilford Yatch Club Association, Inc. et al., 2009 Conn. Super. LEXIS 765

Herbst et al. v. The Guilford Yatch Club Association, Inc. et al., 2009 Conn. Super. LEXIS 765
Sharon Herbst et al. v. The Guilford Yatch Club Association, Inc. et al.
2009 Conn. Super. LEXIS 765
March 30, 2009, Decided
March 31, 2009, Filed

JUDGES: [*1] John F. Cronan, J.
OPINION BY: John F. Cronan
This personal injury action was commenced on August 14, 2008, by plaintiff Sharon Herbst, via service of writ, summons and complaint on the agents for service of defendants Guilford Yacht Club Association, Inc. and Unit Owners Association at Guilford Yacht Club, Inc. The plaintiff alleges that she suffered serious injuries when, as a business invitee of the defendants, she was thrown off of a malfunctioning bicycle owned and maintained by the defendants.
The plaintiff’s ten-count complaint alleges five counts against each defendant, with counts six through ten re-alleging the facts and claims in counts one through five. Counts one and six allege negligence for failure to inspect, maintain, house, and test the defective bicycle, failure to warn that the bike was unsafe, and failure to provide the plaintiff with a helmet or access to helmets. Counts two and seven allege loss of consortium on the part of Richard Herbst, husband of plaintiff Sharon Herbst. 1 Counts three and eight allege recklessness for the same acts or omissions described in counts one and six. Counts four and nine allege Connecticut Unfair Trade Practices Act (CUTPA) 2 violations [*2] on the ground that the defendants advertised free use of bicycles to increase business from transient club members while failing to take steps to ensure that the bicycles were safe for use, thus violating Connecticut public policy by placing profits ahead of safety and causing substantial injury to consumers and/or providing the defendant with an unfair advantage over competing marinas. Counts five and ten allege spoliation of evidence on the ground that the defendants repaired the bicycle in question while aware of the impending action.
1 Although Richard Herbst is a plaintiff in this action, the claims central to this motion solely involve Sharon Herbst and therefore the court will refer to her as “the plaintiff” for purposes of this decision.
2 Although the plaintiff fails to allege the violation of a particular statute in her complaint, both parties make arguments referring to the Connecticut Unfair Trade Practices Act, General Statutes §42-110a et seq., therefore the court will address their arguments under that statute.
On November 28, 2008, the defendants filed a motion to strike (# 117) paragraphs 12(e) and 12(f) of counts one and six, and counts three, four, eight and nine entirely. [*3] The defendants filed a memorandum of law in support (# 118). The plaintiff filed an objection to the motion to strike (# 120) and corresponding memorandum of law in opposition (# 121) on December 11, 2008. The parties presented oral arguments to the court on January 12, 2009.
[HN1] “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). “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.” (Internal quotation marks omitted.) Bernhard-Thomas Building Systems, LLC v. Dunican, 286 Conn. 548, 552, 944 A.2d 329 (2008). “[I]n determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
Counts One and Six
The defendants move to strike paragraphs 12(e) and (f) of counts one and six. These [*4] two paragraphs allege that the defendants negligently caused the plaintiff’s injuries “in that the defendant did not provide the plaintiff with a bicycle helmet when they could and should have done so” and “in that the defendant failed to make bike helmets visible and/or readily assessable [sic] to business invitees.” The defendants argue that “there exists no legal duty on the part of the defendants to provide and/or make available a bicycle helmet to an adult.” (Motion to Strike, p. 5.) The plaintiff responds that the defendant cannot move to strike only certain portions of a count, but rather only a count as a whole, and that, even if the court were to examine the merits of the defendants’ arguments, the plaintiff sufficiently pleaded a claim for common-law negligence on the ground that the defendants failed to maintain safe premises for business invitees by offering bicycles to visiting boaters without providing helmets. (Memorandum in Opposition, pp. 4-5.)
[HN2] “‘Although there is a split of [opinion], 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 [*5] of action or defense . . . [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 embodies an entire cause of action or defense . . . Prior to the 1978 Practice Book revision, a motion to strike . . . individual portions or paragraphs of a count did not lie if the count as a whole stated a cause of action . . . Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count . . . However, the weight of [opinion] in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action.’ (Citations omitted; internal quotation marks omitted.) Trimachi v. Workers’ Compensation Commission, Superior Court, judicial district of New Haven, Docket No. CV 97 0403037 (June 14, 2000, Devlin, J.) (27 Conn. L. Rptr. 681, 2000 Conn. Super. LEXIS 1548).” Wright v. 860 Main, LLC, Superior Court, judicial district of Hartford, Docket No. CV 06 5007079, (May 21, 2007, Tanzer, J.) (43 Conn. L. Rptr. 458).
The plaintiff alleges the breach of a variety of duties under its general claim of negligence in counts one and six. The plaintiff’s [*6] claims relating to the defendants’ alleged failure to provide bicycle helmets identifies a purported duty that may be properly recognized as a claim entirely distinct from the alleged duties pertaining to the maintenance of the bicycle. As such, this is an instance where it is appropriate to review the legal sufficiency of the identified individual paragraphs via a motion to strike.
The claims in paragraphs 12(e) and (f) of counts one and six are not legally sufficient to state a claim upon which relief can be granted, and therefore the court grants the defendant’s motion to strike those paragraphs. The plaintiffs claim that the defendants had a common-law duty to provide bicycle helmets to adults finds no support in Connecticut law. The only bicycle helmet statute in Connecticut, General Statutes §14-286d, requires protective headgear solely for children under the age of sixteen. 3 The plaintiff is older than sixteen and therefore the requirements of §14-286d are inapplicable.
3 The relevant portions of §14-286d state: [HN3] “(b) No child fifteen years of age or under shall operate a bicycle on the traveled portion of any highway unless such child is wearing protective headgear which conforms [*7] to the minimum specifications established by the American National Standards Institute or the Snell Memorial Foundation’s Standard for Protective Headgear for Use in Bicycling. Failure to comply with this section shall not be a violation or an offense. Failure to wear protective headgear as required by this subsection shall not be considered to be contributory negligence on the part of the parent or the child nor shall such failure be admissible in any civil action . . . (d) A person, firm or corporation engaged in the business of renting bicycles shall provide a bicycle helmet conforming to the minimum specifications established by the American National Standards Institute or the Snell Memorial Foundation’s Standard for Protective Headgear for Use in Bicycling to any person under sixteen years of age who will operate the bicycle if such person does not have a helmet in his possession. A fee may be charged for the helmet rental. Violation of any of the provisions of this subsection shall be an infraction.”
[HN4] “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular [*8] situation at hand . . . [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy . . . [W]e are not required to address the first prong as to foreseeability if we determine, based on the public policy prong, that no duty of care existed.” (Citation omitted; internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 217-18, 905 A.2d 1135 (2006).
The plaintiff has not identified any prior Connecticut court that recognizes the duty of a bicycle purveyor to provide a helmet to a would-be cyclist over the age of sixteen. Several superior court decisions have addressed the related question of whether there exists a duty [*9] to wear a bicycle helmet in the context of a special defense of contributory negligence. The court in Dubicki v. Auster, Superior Court, judicial district of New London at Norwich, Docket No. 107712 (March 8, 1996, Hendel, J.) (16 Conn. L. Rptr. 301, 1996 Conn. Super. LEXIS 671), considered the question of “whether an adult bicycle rider can be considered contributorily negligent for his or her failure to wear a bicycle helmet while riding his or her bicycle.” The court noted that the language of §14-286d, “as well as a review of the legislative history . . . reveals that the statute was primarily designed to encourage the use of headgear by children” and that “[t]here is no similar statute for adults.” Id., 302, 1996 Conn. Super. LEXIS 671. The court concluded that “[t]here being no statutory duty imposed on an adult rider to wear [a helmet], there can be no contributory negligence for an adult rider’s failure to do so.” Id.
In an analogous case, the court in Ruth v. Poggie, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 93 52750 (November 22, 1993, Klaczak, J.) [10 Conn. L. Rptr. 412, 1993 Conn. Super. LEXIS 3090], concluded that an injured motorcyclist could not be found contributorily negligent for failing to wear a helmet because “there is [*10] no duty, statutory or otherwise, for motorcycle operators in Connecticut to take the safety precaution to wear a protective helmet. Thus . . . it cannot be said that the failure to wear a motorcycle helmet amounts to negligence on the party of the rider.”
As this court agrees with those decisions holding that an adult cyclist does not have a duty to wear a helmet, and further observes that the legislature clearly decided to limit any such duty to children under the age of sixteen, this court now holds that a bicycle purveyor is under no duty to provide an adult bicyclist with a helmet. The practical reason for drawing this line is self-evident: an adult is fully capable of rationalizing the risks of riding a bicycle with or without a helmet, and may choose to act accordingly. The legislature’s policy of allowing each individual adult to choose whether to use a helmet is exemplified by the age cap on the protective headgear requirement for bicyclists in §14-286d as well as the legislature’s repeal of the so-called “motorcycle helmet law” in 1976. See General Statutes (Rev. to 1975) §14-289e; Ruth v. Poggie, supra, Superior Court, Docket No. CV 93 52750. As illustrated in this case, if [*11] the plaintiff was concerned about her lack of a helmet, she could have chosen not to ride the bicycle. The defendants did not owe the plaintiff a duty to provide a bicycle helmet and the court therefore grants the defendants’ motion to strike paragraphs 12(e) and (f) of counts one and six.
Counts Three and Eight
The defendants move to strike counts three and eight on the ground that the plaintiff has “failed to plead facts alleging malicious, wanton and/or reckless conduct on the part of the defendants” and “merely reiterate the claims made in the negligence counts.” (Motion to Strike, p. 9.) The plaintiff responds that “the specific facts alleged in the case at bar are sufficient to satisfy the elements necessary to support a claim for reckless conduct so as to survive a motion to strike.” (Memorandum in Opposition, p. 6.) The court agrees with the plaintiff and denies the defendants’ motion to strike counts three and eight.
[HN5] “Recklessness is a state of consciousness with reference to the consequences of one’s acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there [*12] must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . [S]uch aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . . Although there is a difference between negligence and a reckless disregard of the rights or safety of others, a complaint is not deficient so long as it utilizes language explicit enough to inform the court and opposing counsel that both negligence and reckless misconduct are being asserted.” (Citations omitted; internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).
The plaintiff utilizes language explicit enough to inform the court and the defendants that both negligence and reckless misconduct are being asserted. Furthermore, the plaintiff has alleged facts that, viewed in the light most favorable to sustaining the claim and treated as admitted for purposes of deciding this motion, support a claim for recklessness. The plaintiff’s detailed allegations regarding the purchase, [*13] maintenance and inspection of the bicycle are sufficient to sustain a claim of recklessness. The defendants’ motion to strike counts three and eight is therefore denied.
Counts Four and Nine
The defendants move to strike comas four and nine on the ground that the plaintiff’s CUTPA claims are legally insufficient because “(1) the alleged wrongful act was not conducted in the course of the defendant’s primary line of business; and (2) the plaintiffs cannot establish that Sharon Herbst suffered an ‘ascertainable loss’ as required by General Statutes §42-110g(a).” (Motion to Strike, pp. 14-15.) The plaintiff argues that she has established a prima facie CUTPA claim because she alleges in the complaint that the defendants operate a full service recreational facility that includes the advertising and provision of bicycles to increase business at the expense of competitors and that the solicitation of cycling business while providing unsafe bicycles offends public policy. (Memorandum in Opposition, pp. 10-11.) The plaintiff also argues that her personal injuries are an ascertainable loss recoverable in a claim for a CUTPA violation. Id. The defendants’ arguments rely on questions of fact not [*14] properly addressed at this juncture and therefore the court denies the motion to strike counts four and nine.
[HN6] “It is well settled that whether a defendant’s acts constitute . . . deceptive or unfair trade practices under CUTPA, is a question of fact for the trier . . . To establish a CUTPA violation, a claimant’s evidence must establish that the conduct at issue falls within one of three criteria. A court must decide whether the conduct (1) offends public policy, (2) is immoral, unethical, oppressive or unscrupulous or (3) causes substantial injury to consumers, competitors or other businessmen . . . Whether the defendant is subject to CUTPA is a question of law, not fact.” McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 520-21, 890 A.2d 140 (2006). “[A] CUTPA violation may not be alleged for activities that are incidental to an entity’s primary trade or commerce.” Id., 523. “[T]he touchstone for a legally sufficient CUTPA claim is the implication that the acts complained of have ‘an entrepreneurial or business aspect.'” Simms v. Candela, 45 Conn. Supp. 267, 273, 711 A.2d 778 (1998) [21 Conn. L. Rptr. 479], quoting Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 38, 699 A.2d 964 (1997).
Without [*15] evidence from either party, and accepting the facts as alleged in the complaint as true for purposes of resolving this motion, the court cannot say definitively that cycling is not a component of the defendants’ primary line of business. The plaintiff alleges that the defendant operated and managed a commercial boating marina but also repeatedly alleges that bicycling was a component of that operation. The court is unwilling to draw adverse factual inferences that the bicycling business was merely incidental to the marina business without additional facts not properly presented in a motion to strike. As such, the court cannot strike counts four and nine on this ground.
Similarly, the plaintiff alleges a variety of losses including those for physical injuries, medical care, lost wages, and the loss of enjoyment of life, and alleges that her damages resulted in part because of the defendants’ alleged CUTPA violations. Both parties acknowledge that there is a split of opinion in the superior court regarding whether damages for personal injuries may be recoverable under CUTPA. See, e.g., Rodriguez v. Westland Properties, Inc., Superior Court, judicial district of Ansonia-Milford at Milford, [*16] Docket No. CV 02 077228 (March 17, 2004, Upson, J.) (36 Conn. L. Rptr. 702, 2004 Conn. Super. LEXIS 615) (“[d]espite CUTPA’s broad language and remedial purpose, the plaintiff’s alleged [slip and fall] injuries do not satisfy the distinction alluded to in Haynes because they are personal, rather than economic”); Simms v. Candela, supra, 45 Conn.Sup. 274 (“[the plaintiff], like most personal injury plaintiffs, alleges that he has suffered economic losses, including medical expenses and lost wages, as a result of his fall. Assuming this allegation to be true, he is a ‘person who suffers [an] ascertainable loss of money’ “). Although the plaintiff’s claims may appear to be only tenuously derived from the defendants’ “entrepreneurial or business aspect”; see Haynes v. Yale-New Haven Hospital, supra, 243 Conn. 32-35; the plaintiff has adequately pleaded conduct and damages that could potentially be construed as ascertainable losses derived from a violation of CUTPA. The “issue as to whether this loss resulted from the CUTPA violation complained of . . . is a factual issue appropriately left to the judge or jury hearing the case.” Simms v. Candela, supra, 45 Conn.Sup. 274. The court therefore denies the defendants’ [*17] motion to strike counts four and nine.
For the foregoing reasons, the court grants the defendants’ motion to strike paragraphs 12(e) and 12(f) of counts one and six, and denies the motion to strike counts three, four, eight and nine.
The Court
Cronan, J.