Opinion
CV156051680
02-26-2018
Tina Craggett v. City of New Haven et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Vitale, Elpedio N., J.
MEMORANDUM OF DECISION IN RE DEFENDANT CITY OF NEW HAVEN’S MOTION TO STRIKE PLAINTIFF’S AMENDED COMPLAINT (#111)
Vitale, J.
Pursuant to Practice Book § 10-39 et seq., the City of New Haven, Board of Education of the City of New Haven, Joseph Canzanella, Peggy Moore, Jeff Farrell, and Tracy Malicki move to strike the plaintiff’s Amended Complaint dated July 28, 2017 in its entirety. The amended revised complaint alleges negligence as to all of the defendants and indemnification against the municipal defendants. The motion to strike asserts that the plaintiff fails to state a cause of action upon which relief can be granted because (1) the defendants are entitled to governmental and qualified governmental immunity as the acts complained of are discretionary and the plaintiff does not fall within any exceptions to governmental immunity, and (2) the plaintiff cannot claim indemnification by the municipal defendants if the individual defendants are entitled to qualified governmental immunity.
The plaintiff objects to the motion and argue that the issue of whether the plaintiff has alleged discretionary or ministerial acts and omissions by defendants is not apparent on the face of plaintiff’s amended complaint, and as a result, the " issue is a question of fact to be decided by the trier of fact" and not properly decided on a motion to strike. Plaintiff also argues that the defendants engaged or failed to engage in specific ministerial conduct, actions that are not covered by governmental immunity.
Nature of the Proceedings
On July 28, 2017, the plaintiff, Tina Craggett, filed an amended revised complaint (amended complaint) against the defendants, the City of New Haven (New Haven), the Board of Education of New Haven (Board of Education), Joseph Canzanella, Peggy Moore, Jeff Farrell, and Tracy Malicki. In counts one and eight, the plaintiff alleges negligence pursuant to General Statutes § 52-557n against the Board of Education and New Haven, respectively. In counts six and seven, the plaintiff claims indemnification pursuant to General Statutes § 7-465 against the Board of Education and New Haven, respectively. In counts two, three, four, and five, the plaintiff alleges negligence against Canzanella, Moore, Farrell, and Malicki, respectively, as agents, servants, and/or employees of the Board of Education and/or New Haven.
The court will hereafter refer to New Haven, the Board of Education, Canzanella, Moore, Farrell, and Malicki, collectively, as the defendants, and individually by name where appropriate.
In count one of her amended complaint, the plaintiff alleges the following facts, which are common to all counts in her amended complaint. New Haven owns the property known as Wilbur Cross High School (the property), and is responsible for the maintenance and upkeep of the property. The Board of Education is the manager of the property, and is responsible for the care, maintenance, and upkeep of the property. While attending the Thanksgiving football game at the property, the plaintiff " was caused to fall and injure herself due to the dangerous condition" of the property. Amend. Compl., Count One, ¶8. The plaintiff’s fall was caused by the negligence of the Board of Education and/or its agents, servants, and/or employees, inter alia, " in that they allowed to exist an unmarked step-down at the Mitchell Drive exit to the football field," ; amend. compl., count one, 9a and; " in that they either knew or should have known of the unmarked step-down, yet failed to take any steps to repair, replace, or modify this condition." Amend. Compl., Count One, ¶9b.
In counts two through five, the plaintiff alleges that during the Thanksgiving football game, Canzanella, Moore, Farrell, and Malicki were either responsible for the safety of the participants and spectators or for maintaining a safe environment on the property.
On August 31, 2017, the defendants filed a motion to strike the plaintiff’s entire amended complaint on the ground that it fails to state causes of action upon which relief can be granted. The defendants filed a supporting memorandum on the same day. On November 9, 2017, the plaintiff filed a memorandum in opposition to the motion to strike. Oral arguments were heard on November 13, 2017.
Practice Book § 10-40(a) provides: " Any adverse party shall have thirty days from the filing of the motion to strike to respond to a motion to strike filed pursuant to sections 10-39 by filing and serving in accordance with Sections 10-12 through 10-17 a memorandum of law in opposition." " [W]hile there is no direct appellate authority on this issue, a majority of decisions have concluded that the failure to file a timely opposing memorandum will not necessarily be fatal and that the court, in its discretion, may address the merits of the motion to strike." (Internal quotation marks omitted.) LYS Global Technology, LLC v. Bonarrigo, Superior Court, judicial district of Hartford, Docket No. CV-15-6061764-S (May 13, 2016, Dubay, J.) " [S]ome of the decisions in the majority have stressed the absence of an objection from the moving party, while others have waived the [then existing] five-day requirement of § 10-42(b) [now thirty days in § 10-40(a)]." (Internal quotation marks omitted.) McDuffie v. Schaffer Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV-08-5024230-S (May 27, 2010, Wilson, J.). The defendants have not objected on the basis of untimeliness.
DISCUSSION
As a general rule, the defense of governmental immunity cannot be addressed in a motion to strike because " governmental immunity must be raised as a special defense in the defendant’s pleadings ... Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] ... The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).
Nonetheless, " there are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike. Specifically, where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116 n.4, 19 A.3d 640 (2011).
The defendants argue that counts one and eight as to the Board of Education and New Haven and counts two through five as to Canzanella, Moore, Farrell, and Malicki should be stricken because the defendants are entitled to qualified immunity as it is apparent from the complaint that their acts were discretionary as opposed to ministerial. Moreover, the plaintiff does not fall within any of the exceptions to governmental immunity.
The defendants also argue, and the plaintiff’s do not dispute, that the plaintiffs claims for indemnification pursuant to General Statutes § 7-465 are invalid since Canzanella, Moore, Farrell, and Malicki are entitled to protection from liability on the basis of governmental immunity. It is unclear whether governmental immunity is applicable in this case, and given the court’s conclusion that it is not apparent on the face of the complaint that the defendants’ actions were discretionary in nature, the court need not consider this portion of the defendants’ argument.
The plaintiff counters that it is not clear from the face of the complaint whether the defendants’ conduct was discretionary. Moreover, whether the conduct is discretionary or ministerial is a question of fact for the jury, and should not be decided on a motion to strike. ,
In the alternative, the plaintiff argues that if the court finds it appropriate to address whether the defendants’ conduct was ministerial or discretionary, the court should find that the plaintiff has sufficiently alleged ministerial conduct, and that governmental immunity is inapplicable. In support of her argument that the defendants’ actions were ministerial, the plaintiff points to the Life Safety Code of the National Fire Protection Association § 7.2.2. that was adopted as the Connecticut Fire Safety Code, and which requires that stairs have obvious visual cues, such as illumination delineated noisy edges, tactile cues, warning signs, and/or contrast in surface colors. Pl.’s Mem., 6. However, there is no mention of the Connecticut Fire Safety Code anywhere in her amended complaint. The plaintiff argues that the court may consider the Connecticut Fire Safety Code because while Practice Book § 10-3 requires that the plaintiff specifically plead statutes if a complaint is grounded on one, case law has interpreted the requirement as directory, rather than mandatory. Id. The plaintiff cites to Caruso v. Milford, 95 Conn.App. 95, 101, 815 A.2d 167 (2003). The court declines to consider the applicability of the Connecticut Fire Code for two reasons. First, " [i]t is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ... We are limited ... to a consideration of the facts alleged in the complaint." (Internal quotation marks omitted.) Zirinsky v. Zirinsky, 87 Conn.App. 257, 268-69 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). The court, therefore, may not consider the Connecticut Fire Code because the plaintiff asserts its applicability in her supporting memorandum only, as opposed to both her supporting memorandum and her amended complaint. Second, Caruso is readily distinguishable from the present case. Caruso involved an appeal from a trial court’s decision to grant the defendant board of education’s motion for summary judgment on the ground that the board of education was entitled to governmental immunity. Caruso v. Milford, supra, 75 Conn.App. 98-99. In Caruso, the plaintiff failed to cite General Statutes § 52-557n in her pleadings or memorandum. Id. Our Appellate Court held that the plaintiff’s failure to cite the specific statute in her pleadings or in her memorandum in opposition to summary judgment so as to apprise the board of education of the statutory basis for abrogating the board’s government immunity to suit was fatal to the plaintiff’s claim, which was barred by governmental immunity. See id., 102-03. Thus, Caruso involved failure to plead § 52-557n, the basis for abrogating the defendant’s claim for governmental immunity. The situation in Caruso is different than the situation in the present case where the plaintiff has failed to plead a fire safety statute which, as she claims, amounts to evidence of the defendants’ ministerial duty. Moreover, Caruso was decided in the context of a motion for summary judgment as opposed to a motion to strike.
In the present case, it is undisputed that the Board of Education was an agent of New Haven. Our Supreme Court has held that " [a] town board of education can be an agent of the state for some purposes and an agent of the municipality for others." Heigl v. Board of Education, 218 Conn. 1, 3-4, 587 A.2d 423 (1991). For purposes of the instant motion, the court assumes, without deciding, that the Board of Education is an agent of the municipality of New Haven.
" The [common-law] doctrines that determine the tort liability of municipal employees are well established ... Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts ... Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature ... The hallmark of a discretionary act is that it requires the exercise of judgment ... In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion ...
" Discretionary act immunity reflects a value judgment that- despite injury to a member of the public- the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury ... In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion ... This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318-19, 907 A.2d 1188 (2006).
" The tort liability of a municipality has been codified in § 52-557n." Violano v. Fernandez, supra, 280 Conn. 320. General Statutes § 52-557n(a)(1) provides in relevant part: " Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties ..." " Section 52-557n(a)(2)(B) extends, however, the same discretionary act immunity that applies to municipal officials to the municipalities themselves ..." Violano v. Fernandez, supra, 280 Conn. 320. General Statutes § 52-557n(a)(2)(B) provides that municipalities will not be liable for damages caused by " negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." See Violano v. Fernandez, supra, 280 Conn. 320.
In Tango v. New Haven, 173 Conn. 203, 204, 337 A.2d 284 (1977), the plaintiff brought an action in negligence against New Haven and several employees to recover damages for personal injuries arising out of a sledding accident on a golf course. The plaintiff alleged the following: " Said occurrence alleged in Paragraph 1 was due to the carelessness and negligence of the defendants, city of New Haven, Alphonse J. Cukierski, Carl A. Nastri, Joseph Lobasz, and Landon Winchester, in one or more of the following ways: (a) In that they caused or allowed and permitted members of the public to use said golf course in the area of the Ninth Fairway for purposes of sled riding without providing any supervision whatsoever for the safety of those using the property for said purpose; (b) In that they caused or allowed and permitted said property to be used by members of the public for sled riding without erecting any safeguards to determine courses of travel; (c) In that they caused or allowed and permitted the indiscriminate use of said property for sled riding by children and adults when, under the circumstances, such use caused an unreasonable risk of harm to the children using said property; (d) In that they caused or allowed and permitted said property to be used by children for sled riding without providing any safety measures for such children; (e) In that they failed to warn the plaintiff of the aforesaid condition; (f) In that they failed to make proper and reasonable inspection; and (g) In that they maintained said property in the aforesaid condition." (Emphasis added.) Id., 205 n.1. " The defendants demurred to the complaint on the ground that since the defendants were performing governmental functions and only discretionary acts were alleged against them the doctrine of governmental immunity barred recovery." Id., 204. The lower court sustained the demurrer. Id. Our Supreme Court held that " [t]he allegations of the complaint [were] broad and formulated in the alternative, i.e., ‘caused, or allowed and permitted.’ As they stand they would permit proof of facts which would establish that the defendants failed properly to discharge ministerial functions. The demurrer, therefore, should have been overruled and the plaintiffs allowed an opportunity to prove that the acts or omissions which led to the injuries to the minor plaintiff were ministerial and not discretionary or supervisory." (Footnotes omittes.) Id., 205-06.
" The purpose and scope of a motion to strike are identical to those of a demurrer under the old rules of practice." (Internal quotation marks omitted.) Nine State Street, LLC v. Planning & Zoning Commission, 270 Conn. 42, 49 n.6, 850 A.2d 1032 (2004). The court will, therefore, apply Tango no differently than any other appellate authority concerning motions to strike.
Ruiz v. Gauthier, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-97-0342869-S (August 8, 2005, Tobin, J.) involved a plaintiff who was allegedly injured when the parked car in which he was sitting was struck by a car owned by and driven by the defendants. The plaintiff claimed that at the time of the accident, the car in which he was seated was parked in a parking space adjacent to an access road in a city park and beach. In count three of an amended complaint, the plaintiff alleged that the parking lot in the park was in a dangerous and defective condition as a result of the acts of the city through its agents, servants and employees. Specifically the plaintiff alleged " 1) improper design of the parking lot; 2) failure to correct a dangerous condition in the parking lot; 3) failure to provide traffic calming measures; 4) failure to warn; 5) failure to inspect; 6) failure to patrol; 7) failure to adequately light; 8) failure to discover and remedy." Id. The court denied the defendant’s motion to strike count three of the amended complaint, and held that " [c]onstruing the allegations of the complaint in the manner most favorable to sustaining its legal sufficiency, the court cannot negate the possibility that some of the City’s alleged actions were required under a policy or directive and were therefore ministerial. acts." Id.
Other Superior Courts have held similarly. See Bonilla v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-04-0489846-S (November 2, 2004, Zoarski, J.T.R.) (motion to strike denied because complaint was ambiguous on issue of whether the omission to act was ministerial); see also Pagliaro v. Middletown, Superior Court, judicial district of Middlesex, Dockt No. CV-05-5000161-S (September 12, 2006, Dubay, J.) (Motion to strike denied; court construed allegations broadly).
In comparison, in Evon v. Andrews, 211 Conn. 501, 502, 559 A.2d 1131 (1989), our Supreme Court reaffirmed a trial court’s decision to grant the defendants’ motion to strike the plaintiffs’ complaint because the plaintiffs’ allegations were discretionary in nature. In Evon, plaintiffs brought an action against Waterbury and various city officials for negligence after their decedents died in a multifamily apartment house fire. Id. " The plaintiffs [did] not allege that the defendants failed to inspect the dwelling. They [alleged] that the defendants failed ‘to make reasonable and proper inspections’ of the premises ... They further [claimed] that the defendants failed ‘to conduct adequate inspections .’ ... While an inspection by definition involves ‘a checking or testing of an individual against established standards’; Webster, Ninth New Collegiate Dictionary; what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment. Further, no matter how objective the standard, an inspector’s decision as to whether a building falls below a standard and whether remedial orders are therefore required involves the exercise of his or her judgment." (Emphasis in original.) Id., 506.
In the present case, it is not " apparent from the face of the complaint that the [defendants were] engaging in a governmental function while performing the acts and omissions complained of by the plaintiff." Coe v. Board of Education, supra, 301 Conn. 116 n.4. In other words, it is not apparent from the face of the complaint that the defendants’ actions were discretionary, and that governmental immunity is applicable. The plaintiff’s allegations are not sufficiently similar to the allegations made in Evon . While the plaintiff alleges that the defendants were negligent " in that they failed to adequately inspect the premises to discover the dangerous condition" ; amend. compl., count one, ¶9c.; this is just one allegation among several others which do not make any reference to the words " adequate," " reasonable," or " proper." In a complaint with several allegations, one allegation which makes reference to the defendants’ failure to adequately or properly act does not necessarily make it clear that the defendants’ conduct was discretionary. See e.g., Tango v. New Haven, supra, 173 Conn. 205 n.1; Ruiz v. Gauthier, supra, Superior Court, Docket No. CV97-0342869S.
The plaintiff alleges that New Haven and the Board of Education were responsible for the maintenance and upkeep of the property. The plaintiff also alleges that the defendants " allowed to exist an unmarked step-down" ; (emphasis added) amend. compl., count one, 119a; and " failed to take any steps to repair, replace, or modify this condition." (Emphasis added.) Amend. Compl., Count One, ¶9b. The plaintiff’s allegations are similar to those allegations set forth in Tango and Ruiz because they are broad, and it is possible that some of the alleged actions were required under a policy or directive and were therefore ministerial acts. Moreover, as in Tango, as they " stand they would permit proof of facts which would establish that the defendants failed to discharge properly ministerial functions." Tango v. New Haven, 173 Conn. 205-06. Accordingly, the court concludes that the plaintiff’s allegations are sufficient to survive a motion to strike since it is not " apparent from the face of the complaint that the [defendants were] engaging in a governmental function while performing the acts and omissions complained of by the plaintiff" ; Coe v. Board of Education, supra, 301 Conn. 116 n.4. Therefore, the defendants’ motion to strike the plaintiff’s amended complaint is denied.