Opinion
No. X04 CV 04 5000090 S
November 3, 2005
MEMORANDUM OF DECISION
The plaintiff Nichole Majette, on behalf of herself and others, filed an amended complaint dated July 22, 2005, containing eighteen counts. The underlying incident is a fall which Ms. Majette allegedly experienced on June 8, 2003, while a tenant in the Thames River Apartments, which was owned and operated as low income housing by the defendant New London Housing Authority ("authority"). She alleges that she slipped on an area made slippery and wet by urine puddles. In addition to asserting a conventional claim of negligence, Ms. Majette has expanded the complaint to include claims for injunctive relief including orders for the provision of safe housing and the demolition of the Thames River Apartments, and an order to provide members of a requested class with safe and affordable low income housing through the construction of new housing units. Defendants include the authority, individual commissioners of the authority, several employees of the authority, the city of New London, its police chief and its director of public health.
Several defendants have moved to strike a number of counts of the complaint. The motions will be considered individually, and the specific allegations of the counts in issue will be discussed in more detail in the course of the individual consideration. The standards for deciding motions to strike are well known and need not be recited at length. In sum, in deciding a motion to strike on the ground of whether a claim has been stated on which relief may be granted, the court must confine itself to the allegations of the pleading, both express and necessarily implied, and must accept as true those allegations. See, e.g., Gazo v. Stamford, 255 Conn. 245, 260 (2001); see also Liljedahl Bros, Inc. v. Grigsby, 215 Conn. 345, 348 (1990). The pleadings will be construed in favor of the pleader if there is any ambiguity as to whether relief could be granted under the pleading. Doe v. Marselle, 38 Conn.App. 360, 364 (1995).
I. Governmental immunity (#168).
The individual commissioners of the housing authority, its executive director and the foreman of its maintenance department at the time of the incident have moved to strike the first, second, eighth, seventeenth and eighteenth counts insofar as the counts apply to them. Those counts purport to allege causes of action sounding in negligence, public, nuisance, civil rights, injunctive relief and class action certification, respectively. The defendants claim they are entitled to governmental immunity and have no "personal liability" for the claims asserted. The memorandum in support of the motion to strike these counts as to these defendants cites two general grounds: common law immunity and limited responsibility pursuant to § 52-557n of the General Statutes. The objection to the motion (#173.75) argues that governmental immunity is not available in the circumstances of this claim.
Subject to several exceptions, municipal employees are protected by a form of governmental immunity in the performance of governmental acts. See, e.g., Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165-72 (1988); Evon v. Andrews, 211 Conn. 501, 505 (1989). The moving defendants claim that they are employees, in effect, of a municipality, and rely on Norwich v. Housing Authority, 216 Conn. 112 (1990), for that proposition. The plaintiffs urge that the Middletown Housing Authority is not a municipal agency and that the individual defendants are not, therefore, eligible for protections afforded by the doctrine of qualified governmental immunity.
The commissioners and employees, not the authority itself, are claiming governmental immunity in this motion. The analysis nonetheless depends of the status of the authority.
The question whether a housing authority is a municipal agency does not have a clear-cut answer. Housing authorities are authorized by Chapter 128, §§ 8-38 et seq. of the General Statutes. Section 8-40 provides for the creation of a housing authority, in each municipality which locally determines the need, as "a public body corporate and politic . . ." Each housing authority has various powers as a corporate body, including the power to own and operate housing projects. It may issue bonds to finance projects, which bonds are not necessarily backed by the municipality. Though the municipality appoints the commissioners, and, at least in some circumstances, can abolish an authority; see Norwich, supra; the authority is nevertheless an independent body and not an agency of the city. Gordon, supra. Specific statutory authority provides for the authority's indemnification of its employees; see § 8-41a of the General Statutes; and the ability to sue and be sued. See § 8-44(a)(1). The legislature quite apparently intended to provide for the creation of independent, largely autonomous public corporate bodies. Housing authorities are not, at least in the first instance, dependent upon taxes for revenue and they have the ability to insure against losses. Section 8-44(a)(4) of the General Statutes.
The General Statutes do not expressly state whether there is a legislative intent to confer governmental immunity on housing authorities. A housing authority, as noted above, is not an agency of the municipality in the sense of, for example, a police department. In the definitions section of Chapter 128, a "municipality" is defined as "any city, borough or town;" § 8-39(1) of the General Statutes; a housing authority is not in itself a municipality. There is no specific binding authority, but there is a decision of the Superior Court, Quinones v. New Britain Housing Authority, 1992 Ct. Sup. 9815, 7 CSCR 1277 (Wagner, J.) (1992), which holds that a housing authority is not an entity enjoying governmental immunity. Judge Wagner reasoned that various statutory sections addressed the liability of housing authorities for defective premises, including § 8-44(a) and § 8-67 (injured person may sue, with proper notice), none mentioned immunities, and the legislature has not deemed a housing authority to be a "political subdivision" of the state. He concluded, then, that there was no legislative intent to bestow governmental or municipal immunity on housing authorities.
Judge Wagner's decision has existed for almost twenty-five years and there has been no legislative effort to address the question of immunity. It appears to me that the case of Norwich v. Housing Authority, supra, simply holds that the municipality has the power to create and implicitly to abolish housing authorities, but it does not thereby render the housing authority a municipal agency. It appears that the housing authority is an independent corporate body.
Housing authorities have revenue streams independent of municipal taxes, so that some of the rationale for extending governmental immunity in these circumstances is ameliorated. It also perhaps could be argued that the provision of housing is not a traditionally necessary governmental function performed for the public benefit as a whole and thus perhaps may be considered proprietary rather than governmental. It also could be argued that a public benefit is conferred by the creation and operation of housing authorities. Compare Richmond v. Norwich, 96 Conn. 582, 588 (1921). In any event, I specifically do not decide the case on the basis of any governmental-proprietary dichotomy, however.
Further, a housing authority does not enjoy legislatively created immunity pursuant to § 52-557n of the General Statutes. That section applies to "political subdivision[s] of the state." Section 52-557n(a)(1) of the General Statutes. A housing authority, as noted above, is not a political subdivision of the state. The motion to strike on the ground of governmental immunity is, then, denied.
Perhaps more specifically, the defendants argued that § 52-557n(c) of the General Statutes confers qualified immunity on the individuals. That section provides for limited immunity as to "[a]ny person who serves as a member of any board, commission, committee or agency of a municipality . . . shall not be personally liable . . ." (Emphasis added). Again, the housing authority is technically not a municipality.
Compare, for example, the Special Act creating the Metropolitan District Commission as a "political subdivision of the state." 20 Spec. Acts 1204, No. 511 (1929); see also Martel v. Metropolitan District Commission, 275 Conn. 38, 41 (2005).
The defendants further argue that public policy, as stated in statutes such as § 52-557n, favors removal of the fear of being sued from volunteer commissioners. This may be so. Much of the same practical purpose is already accomplished by § 8-41a of the General Statutes, which provides for indemnification.
II. Claim for Class Certification (#164).
Count eighteen of the complaint seeks injunctive relief for a class of the approximately 280 tenants of the Thames River Apartments. It realleges a number of ways in which the defendants are claimed not to have performed their duties to the tenants. The count alleges that various of the defendants have statutory duties to provide safe and habitable housing for qualified tenants. The count then alleges that Majette is representative of all Thames River Apartments tenants, and the requirements of § 9-7 of the Practice Book are paraphrased. The count does not allege that common issues are predominant or that a class action is superior to other forms of relief. See § 9-8 of the Practice Book.
The defendants move to strike the eighteenth count both because the two elements of § 9-8 have not been alleged; see Connecticut Cooling Total Air, Inc. v. Connecticut Natural Gas Corp., 46 Conn.Sup. 82, 84 (1999); and because certification has not been sought in a timely manner. As to the latter claim, the defendants suggest that because Connecticut courts frequently look to the federal courts for guidance on class action issues; see Collins v. Anthem Health Plans, Inc., 275 Conn. 309, 322-23 (2005); and federal courts require early certification; see Rule 23(c)(1)(A) of the Federal Rules of Civil Procedure; then this action should be stricken because certification was not sought prior to filing the action. The second ground does not provide an adequate basis for striking the complaint, because the applicable federal rule provides only for certification "at an early practicable time" and does not appear to require certification as a prerequisite to filing a complaint.
The plaintiffs stated in oral argument that it was not necessary to allege the requirements of § 9-8 of the Practice Book. I believe it is the better practice to require such pleading, and the plaintiff bears the burden of proof to show that the requirements of both § 9-7 and § 9-8 have been met. Anduini v. Automobile Ins. Co. Of Hartford, CT, 23 Conn.App. 585, 589 (1990). In the recent case of Collins v. Anthem Health Plans, Inc., supra, the predominance requirement was held to be critical and, in many situations, difficult to satisfy.
The underlying difficulty, however, is that the procedure for dealing with class actions, especially the relationship between the pleadings and the motion for certification, has not been clearly expressed in Connecticut. See, e.g., Stephenson's Connecticut Civil Procedure (3d Ed.), §§ 229 et seq. (2002). There is no expressly stated requirement for a motion for certification even to be filed, though the custom has become obligatory. See, e.g., Collins, supra. The implementation of class actions would likely be impossible without such a motion. I have found no authority, however, that differentiates between what must be alleged in the complaint and what must be alleged in a motion for certification.
It seems to me that, partly in the exercise of the court's inherent powers of case management, the following procedure should be adopted, bearing in mind that we are only at the motion to strike stage of the pleadings. A motion for certification should be filed, and the motion should be drafted with an eye toward §§ 9-7 and 9-8 of the Practice Book. Draft orders should be submitted in anticipation of §§ 9-9 and 9-10. A hearing on the motion to certify should be scheduled at an early mutual convenience. One or more counts of the complaint should state the underlying facts showing the elements of any causes of action that the class, if certified, intends to prove. The motion to strike the eighteenth count is, then, granted.
III. Public Nuisance (#161).
The defendants have moved to strike the second and tenth counts of the plaintiffs' complaint, which purport to allege public nuisance. The tenth count has previously been stricken by Judge Jones, who held that the parent-child loss of consortium claim was not recognized in this jurisdiction. I affirm his holding as the law of the case.
The second count alleges that the plaintiff Nichole Majette slipped on a wet surface, dampened by urine, in the Thames River Apartments and that she suffered serious injury as a result. She claims that the defendants at least indirectly created, both negligently and by positive act, the condition which caused the defect in the premises. There is no claim, of course, that the defendants actually dampened the surface on which she fell, but rather the plaintiff claims that the defendants created, or allowed to continue to exist, a slum. The connection, not entirely illogical, seems to be that adverse conditions, including substandard policing, maintenance, tenant selection and the like, created an environment of crime and neglect in which puddles of urine occur. The plaintiff alleges that the slum condition caused her bodily injury.
The defendants have moved to strike the count on two grounds: that the elements of public nuisance have not been adequately alleged, and neither has a positive act on the part of a municipality been alleged. I first consider whether the count states a cause of action in public nuisance on which relief can be granted.
Our jurisprudence has classified nuisances into two categories, public and private. A private nuisance exists only when one's interest in land is adversely affected by a neighboring use, and quite clearly has nothing to do with the circumstances of this case. A public nuisance is one in which the defendant interferes with rights common to the public. The plaintiff's complaint states that she "was lawfully on the defendants' premises as she was a tenant of the building." (¶ 7 of the first count, incorporated by reference as ¶ 7 of the second count). As such, she was not injured as a member of the general public but rather as an invitee or one with similar rights. The situation is governed by language in Webel v. Yale University, 125 Conn. 515 (1939):
One who enters premises at the express or implied invitation of a tenant does not come upon them in the exercise of any public right, but is there by reason of a right extended to him by the tenant; and, if injured, the visitor to the premises cannot base his right to recover upon the existence of a public nuisance. A private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land. Webel v. Yale University, 125 Conn. 515, 524-25 (1939).
A tenant, of course, is further removed from the category of the general public than an invitee of a tenant.
The plaintiff suggests that the above language in Webel is only dictum and need not be followed. The Supreme Court has itself frequently followed the dictum, however; see, e.g., Elliot v. Waterbury, 245 Conn. 385, 421 (1998); see also Higgins v. Connecticut Light Power Co., 129 Conn. 606, 611 (1943); and the "dictum" has become more or less entrenched as black letter law.
I find, then, that a public nuisance has not been alleged and that the motion to strike the second count is granted. There is no need to decide the second ground, that is, that a positive act on the part of the defendants to create the nuisance is a required element.
IV. Injunctive Relief (#163).
The final motion for resolution at this time is the motion to strike count seventeen, which asserts a claim for injunctive relief. In count seventeen, the plaintiffs incorporate from other counts, paragraphs which state the status of the parties, the condition(s) causing the fall, and so forth. They further allege (¶ 32) that the plaintiffs are a "family of low or moderate income" as defined in § 8-39(f) of the General Statutes, that the defendants are "statutorily and legally" required to provide them with "safe and habitable living quarters" pursuant to §§ 8-38 et seq. and 47a-1 and have not so provided. They allege that they live in an "unsanitary and unhealthy building which daily poses a threat to their health and welfare." They finally allege that they have no adequate remedy at law and suffer irreparable harm. They seek the affirmative relief of being afforded safe and habitable housing.
The defendants have moved to strike the count on the ground that a mandatory injunction may not be granted on these allegations. The parties are generally in agreement that an affirmative injunction ought not issue unless the plaintiffs have alleged and proved that: "(1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." Bahramian v. Papandrea, 184 Conn. 1, 3 (1981). The mandatory and nondiscretionary duty to which the plaintiffs refer is purportedly the duty of the defendants to provide safe and adequate housing. Although such clearly is the goal of the authority, both as stated in the statutory statement of purpose expressed in § 8-38 and in the argument of the authority to this court, the statutory goal is not conceivably the sort of ministerial duty the performance of which may be compelled by mandamus. See Archembault v. Water Pollution Control Authority, 10 Conn.App. 440 (1987).
Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes . . . It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear legal right to have the duty performed; and (3) there is no other specific adequate remedy." (Citations omitted; internal quotation marks omitted.)
Miles v. Foley, 54 Conn.App. 645, 653 (1999).
The statutory scheme in issue is replete with discretionary features. The decision even to create a housing authority is discretionary. See § 8-40 of the General Statutes. The authority has been granted broad powers to try to accomplish its statutory goals. Section 8-44. The authority "shall have the power to establish a housing authority police force"; § 8-44b; but it is not required to. It "may establish criteria and consider relevant information" concerning the background of tenants; § 8-45a; but it is not required to. It may construct housing units and issue bonds for the undertaking, as urged by the plaintiffs in a claim for relief; § 8-44; but it is not required to. In sum, the circumstances are such that the duties are not ministerial, and no specific obligations to which the plaintiffs have a "clear legal right" have been alleged.
Equally importantly, it is plain at this point that the actual adult plaintiff, Nichole Majette, no longer lives in the Thames River Apartments or, for that matter, in the state of Connecticut. At the argument on this matter, answers to interrogatories were produced which showed that the plaintiff now lives in the state of New York. The attorney for the plaintiff agreed that she no longer lives in Connecticut. It would appear that she does not have a right to compel the New London Housing Authority to perform any ministerial act; further, the action for an injunction may well be moot because no practical relief can be afforded to her.
The mootness question in this case is controlled by Chimblo v. Monahan, [ 265 Conn. 650] (2003). "Mootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve . . . It is . . . well-settled . . . that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow . . . An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal . . . When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot . . . The determination of whether a claim has become moot is fact sensitive, and may include the representations made by the parties at oral argument." (Citation omitted; internal quotation marks omitted.) Id., 655.
Connecticut Automobile Coverage, Inc. v. American International Group, Inc., 87 Conn.App. 820, 823 (2005).
Because she is not living in the Thames River Apartments, it is difficult to see how she has a direct and specific personal interest in the subject matter different from that of the community as a whole, and it is difficult to see how Ms. Majette has standing to pursue the injunctive relief she seeks. See, e.g., State Medical Society v. Board of Examiners in Podiatry, 203 Conn. 295, 299-300 (1987); State v. Ross, 272 Conn. 577, 597 (2005). Injunctive relief, even if granted, would not likely affect her.
In any event the motion to strike the seventeenth count is granted.