Opinion
No. CV 05-4011875 S
April 27, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE ( # 109)
On October 11, 2005, the plaintiff, Andrew D'Agostino, filed a ten-count revised "FIRST AMENDED COMPLAINT," against the defendants, the town of Orange (town), Mitchell Goldblatt in his official capacity as the town's first selectman, and Joseph Dooley, in his official capacity as the town's chief of police. This action sounds in breach of contract, negligent misrepresentation, fraud and promissory estoppel.
The plaintiff alleges in his revised complaint that he was a former police officer for the town and resigned in May 2003, prior to the completion of an internal police department investigation of him for misconduct. The plaintiff asserts that he and the defendants entered into a negotiation whereby they agreed that if he resigned from the police department, the investigation would cease and he would begin receiving his pension payments on December 1, 2004. He further claims that the town's finance department informed him in September 2004 that his pension payments would not begin on December 1, 2004, because he has not completed twenty years of service.
In counts one through four, the plaintiff alleges breach of contract against the defendants for the town's failure to begin paying his pension on December 1, 2004. In counts five and six, the plaintiff alleges negligent misrepresentation against the defendants for providing the plaintiff with false information about its willingness or ability to begin paying his pension on December 1, 2004, that he relied on this information, and as a result he suffered pecuniary loss. In count six, the plaintiff also alleges that Goldblatt and Dooley were responsible for directing all representations and offers made by the town's attorney. In counts seven and eight, the plaintiff asserts claims of fraud. Counts nine and ten sound in promissory estoppel. On December 6, 2005, the defendants filed a motion to strike counts five through eight accompanied by a memorandum in support. On February 16, 2005, the plaintiff filed a memorandum in opposition and conceded in its memorandum that counts seven and eight should be stricken. The defendants filed a reply on March 22, 2006. At short calendar on April 3, 2006, the plaintiff agreed with the defendant that counts seven and eight should be stricken. Accordingly, the court will address only counts five and six in this memorandum.
"[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.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005). "It is fundamental that in 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." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
The Appellate Court has recognized "that 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 . . . may attack the legal sufficiency of the complaint through a motion to strike." Doe v. Board of Education, 76 Conn.App. 296, 299 n. 6, 819 A.2d 289 (2003).
The defendants move to strike counts five and six on the ground that the plaintiff's claims are barred by the doctrine of governmental immunity in that the acts or omissions alleged therein are discretionary. The defendants argue that the plaintiff has not alleged that his negligence claims are brought under a statute that provides for a cause of action against a municipality or its employees, or that purports to abrogate immunity. Rather, they maintain that counts five and six allege common-law negligence claims and that under the doctrine of governmental immunity, municipalities and their employees who have been sued in their official capacities are generally immune from liability in tort. They further maintain that because the factual allegations in the plaintiff's revised complaint establish that the defendants' acts were governmental acts that required the exercise of judgment or discretion, they are immune from liability.
The plaintiff counters that governmental immunity may be abrogated where there is an exercise of discretion and that the "discrete person/imminent harm" exception to governmental immunity is applicable to counts five and six. Under the imminent harm exception, the plaintiff asserts that he is an identifiable person and that the harm he suffered was definite and immediate. Relying on LeStrange v. Korowotny, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 94 0046929 (November 4, 1997, Corradino, J.) ( 21 Conn. L. Rptr. 5), the plaintiff also argues that courts have allowed governmental immunity to be abrogated in negligent misrepresentation cases. Finally, the plaintiff maintains that although he did not bring his claims under a statute that abrogates governmental immunity, his failure to do so, under Connecticut case law, is not fatal to his claims.
In his memorandum in opposition, the plaintiff improperly refers to the doctrine of governmental immunity as sovereign immunity. Sovereign immunity applies to the state, whereas governmental immunity applies to municipalities. See St. George v. Gordon, 264 Conn. 538, 564 n. 4, 825 A.2d 90 (2003). Accordingly, the court will infer that the plaintiff meant to reference the doctrine of governmental immunity.
The plaintiff's assertion is correct. "[A]lthough a plaintiff should plead a statute in a complaint that abrogates governmental immunity, failing to do so will not necessarily bar recovery as long as the defendants are sufficiently apprised of the applicable statute during the course of the proceedings." (Emphasis in original.) Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003). Since the plaintiff cites General Statutes § 52-557n in its memorandum in opposition, the defendants have been sufficiently apprised of the statute.
"[A] municipality itself . . . [is] generally immune from liability for its tortious acts at common law . . . [Our Supreme Court has] also recognized, however, that governmental immunity may be abrogated by statute . . . 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 . . . [T]his language clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents . . .
"Subdivision (2) of § 52-557n(a) lists two exceptions to the statutory abrogation of governmental immunity. The exception relevant to this . . . [case] provides: Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) 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." (Citations omitted; internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47-48, 881 A.2d 194 (2005).
"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 . . . Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint." (Citations omitted; internal quotation marks omitted.) Id., 48-49.
In count five, the plaintiff alleges negligent misrepresentation against the defendants and the town's police department for providing him with false information about their willingness or ability to begin paying his pension and that they knew or should have known that the plaintiff would not begin receiving his pension on December 1, 2004. The plaintiff does not contest the defendants' assertion that the defendants' alleged acts were discretionary. Moreover, it is apparent from the complaint that the defendants' actions were discretionary and not ministerial because the plaintiff has alleged that the defendants were exercising judgment when they provided the plaintiff with information concerning his pension payments. Specifically, in paragraph twelve of the plaintiff's revised complaint, which was incorporated in count five, the plaintiff alleges that "the [t]own, in seeking to avoid the publicity and expense of a public investigation and dismissal proceeding, promised [the plaintiff] that it would not interfere with [the plaintiffs] right to begin collecting his pension or about December 1, 2004." As the defendants correctly state, "a determination of what should be offered to the plaintiff to enable the [t]own to `avoid the publicity and expense of a public investigation and dismissal proceeding' required the exercise of discretion and judgment." (Defendant's Memorandum, p. 8.) Accordingly, unless another exception to governmental immunity applies to the allegations in count five, the defendants are immune from liability.
In his brief, the plaintiff argues that the imminent harm exception to governmental immunity applies to both counts five and six. "A municipal employee's immunity for the performance of discretionary governmental acts is . . . qualified by three recognized exceptions: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003).
The first exception described above applies only to municipal employees, not municipalities themselves. "[T]here is an exception to the doctrine of qualified immunity from liability as it applies to a municipal employee, as distinct from the municipality itself where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm." (Internal quotation marks omitted.) Pane v. Danbury, 267 Conn. 669, 677 n. 9, 841 A.2d 684 (2004). The imminent harm exception to governmental immunity therefore, would not apply to the plaintiff's claims against the town in count five because that exception applies only to municipal employees. As the allegations in count five consist of discretionary acts by the town and its police department, governmental immunity applies and, accordingly, count five must be stricken.
The allegations in count six are the same as those in count five except that the plaintiff also alleges that Goldblatt and Dooley, two municipal employees, were responsible for directing all representations and offers made by the town's attorney. The court, therefore, must determine whether the "imminent harm" exception to governmental immunity applies to count six. As discussed above, the doctrine of governmental immunity does not apply "where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . ." Spears v. Garcia, supra, 263 Conn. 36. The plaintiff contends that he is an identifiable person and that, relying on the defendants' promise about his pension, he suffered immediate harm by giving up his right to defend himself against allegations of misconduct and by resigning from the police department. In order to demonstrate that the imminent harm exception to the governmental immunity doctrine applies, a plaintiff must allege physical harm. See, e.g., Rossetti v. Middlefield, Superior Court, judicial district of New Haven, Docket No. CV 01 0452129 (May 11, 2004, Arnold, J.) ( 37 Conn. L. Rptr. 129, 135) (since plaintiff did not allege physical harm, imminent harm exception did not apply to plaintiff's claim for negligent misrepresentation). "The applicable [Connecticut] case law applies the `imminent harm' exception to personal injury cases involving physical harm . . . and [t]he court will not expand the exception to allegations involving negligent misrepresentations in a breach of contract case." Id., 136; see also Veechitto v. Meriden, Superior Court, judicial district of New Haven, Docket No. CV 05 5001311 (February 15, 2006, Licari, J.) (imminent harm exception does not extend beyond personal injury cases and does not apply to loss of property).
See also Pane v. Danbury, Superior Court, judicial district of Fairfield, Docket No. CV 97 0347235 (October 18, 2002, Rush, J.) ( 33 Conn. L. Rptr. 377), aff'd, 267 Conn. 669, 841 A.2d 684 (2004) (court refused to extend imminent harm exception to negligent infliction of emotional distress claim because defendant's action did not result in physical harm to plaintiff).
Relying on LeStrange v. Korowotny, supra, 21 Conn. L. Rptr. 5, the plaintiff argues that courts have allowed governmental immunity to be abrogated in negligent misrepresentation cases. LeStrange involved representations made by a town's building official concerning zoning approvals, which the plaintiff relied on in deciding to demolish a house so that he could build a new one. Id., 5. After the plaintiff demolished the house, a stop order was issued, which prohibited any further residential use of the property. Id., 5. The court held that the imminent harm exception to governmental immunity applied because "such an action is permitted where a person is injured after specific negligent acts are directed toward that person — here the allegation being that the official knew that a specific person was about to rely on his negligent representations about zoning regulations . . ." Id., 9-10.
LeStrange, however, was decided prior to Rossetti v. Middlefield, supra, 37 Conn. L. Rptr. 129, and the cases cited therein, in which the court held that the imminent harm exception will not be expanded to allegations involving negligent misrepresentations. Id., 135-36. Moreover, decisions of the trial court are not binding on any other court. See, e.g., West Norwalk Assn. v. Conservation Commission, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0165846 (June 17, 1999, Tierney, J.). Therefore, because the plaintiff has not alleged that he suffered physical harm as a result of the defendants' alleged negligent acts, the imminent harm exception is inapplicable to the plaintiff's claims in count six. Accordingly, the motion to strike count six must be granted.
For the foregoing reasons, the defendants' motion to strike is granted. CT Page 7799