Opinion
No. CV 99-0151152
August 3, 1999
MEMORANDUM RE: MOTION TO DISMISS #102
The plaintiff Celia Pacheco brings this action on behalf of her minor son, Jeffren Suarez, (plaintiff) to recover damages he sustained at the East Farms Elementary School, in Waterbury, where a fellow student allegedly injured him. The plaintiff has only named the City of Waterbury(City) as a defendant and complains that his injuries were caused by the agents and employees of the City, but fails to name the individual employees. The plaintiff claims that the City is liable to him under § 7-465 and 7-101a of the Connecticut General Statutes. The defendant City brings this Motion to Dismiss, asserting; that the court lacks subject matter jurisdiction; that it owed no duty to the plaintiff; that it is immune under the doctrine of governmental immunity and; that § 7-465 does not provide legislative authority to sue. Since governmental immunity unlike sovereign immunity does not involve subject matter jurisdiction, this Motion to Dismiss attacking subject matter jurisdiction is improper. "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody. N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996). "Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded." Westport Taxi Service v. Westport Transit Authority, 4235 Conn. 1, 24, 664 A.2d 719 (1995). The defendant City has only made a claim based on subject matter jurisdiction, therefore the court will not dismiss the complaint.
In Novicki v. City of New Haven, 47 Conn. App. 734, 709 A.2d 2 (1998). the court upheld the trial court's decision granting the defendant City of New Haven's motion to dismiss on the ground of sovereign immunity. The court decided that the plaintiff did not comply with the provisions of the defective highways statute, General Statutes § 13a-149, because the New Haven board of education, under General Statutes § 10-220 (a), was the party bound to repair the walkway where the plaintiff fell. The plaintiff should have sued the New Haven Board of Education, not the city. In its decision, the court relied on Amore v. Frankel, 228 Conn. 358, 364 636 A.2d 786 (1994), in which the court upheld the commissioner of transportation's motion to dismiss on the ground of sovereign immunity. See Novicki v. City of New Haven, supra, 47 Conn. App. 741 ("since "there in no material difference in the obligation imposed on the state by § 13a-144 and that imposed on municipalities by § 13a149; Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970); the Aniore case is instructive") The Amore case, however, did not address whether a municipality could claim sovereign immunity, but rather whether the plaintiff overcame the commissioner's sovereign immunity by disputing the commissioner's supporting affidavits, which demonstrated that employees of the University of Connecticut, and not the commissioner of transportation, were responsible for maintaining the roadways on the university's Storrs campus where the plaintiff was allegedly injured. Because the court found that the plaintiff failed to dispute the commissioner's affidavits, the court ruled that the plaintiff also failed to comply with the provisions of General Statutes §§ 13a-144 and 13b-30, and, therefore, could not overcome the commissioner's claim of sovereign immunity. Furthermore, the Novicki court did not distinguish between the sovereign immunity of the state, which a claimant may overcome by complying with a statute that expressly abrogates such immunity, and the governmental or limited immunity to suit accorded to municipalities. See Westport Taxi Service v. Westport Transit District, 235 Conn. 1, 26, 664 A.2d 719 (1995) (Citations omitted; internal quotation marks omitted.) ("Unlike the state, municipalities have no sovereign immunity from suit. . . . Rather, municipal governments have a limited immunity from liability."); Burns v. Board of Education, 228 Conn. 640, 650, 638 A.2d 1 (1994) ("Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct. . . . The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees."); Heigl v. Board of Education of New Canaan, 218 conn. 1, 4, 587 A.2d 423 (1991) ("[w]e have long recognized the common-law principle [of sovereign immunity] that the state cannot be sued without its consent. . . . [a]t common law, Connecticut municipalities enjoy governmental immunity, in certain circumstances, from liability for their tortious acts." (Citations omitted; internal quotation marks omitted.); Giannitti v. City of Stamford, 25 Conn. App. 67, 78, 593 A.2d 140, cert. denied, 220 Conn. 918, 597 A.2d 333 (1991) ("the governmental immunity afforded a municipality and the sovereign immunity enjoyed by the state are different in historical origin, scope and application").
The other arguments advanced by the City that it owed no duty to the plaintiff and that the it had no obligations under 7-465 since the plaintiff has not named any employees as defendants is really a challenge to the legal sufficiency of the complaint. The court will therefor address the City's claim of misjoinder and the nonjoinder of the Board of Education and the individual municipal employees as a Motion to Strike. McCutcheon Burr. Inc. v. Berman, 218 Conn. 512, 590 A.2d 438 (1991); see also Anderson v. Schieffer, 35 Conn. App. 31, 37-38, 645 A.2d 549 (1994). "The purpose of the 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.) Peter-Michael v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "The role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "[T]he court is limited to facts alleged in the complaint, [which] must be construe[d] most favorably to the plaintiff." Faulkner v. United Technologies Corp. , 240 Conn. 576, 580, 693 A.2d 293 (1997).
For the present purposes, the practical difference between the motion to dismiss and the motion to strike is "that if the motion to strike is granted, the party whose pleading is stricken is given an opportunity to replead in order to avoid a harsh result." Pratt v. Savbrook, 225 Conn. 177, 185, 621 A.2d 1322 (1993).
The City, in its memorandum of law, argues that the governmental immunity doctrine shields it from common law negligence claims. It further argues that the plaintiffs failure to allege a statutory exception to the governmental immunity doctrine denies the court subject matter jurisdiction. In response, the plaintiff relies on Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998), arguing that a municipality may lose its governmental immunity "where circumstances make it apparent that failure to act is likely to subject an identifiable person to imminent harm." (P. 1. Mem. of Law, 4/21/99, p. 2.) The plaintiff further argues that he has identified a statutory exception to Waterbury's governmental immunity in General Statutes § 7-465.
"[I]it is the settled law of this state that a municipal corporation is not liable for negligence in the performance of a governmental function. . . . [A] municipality itself was generally immune from liability for its tortious acts at common law. . . . Thus, the general rule developed in our case law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity." (Citations omitted; internal quotation marks omitted.) Williams v. City of New Haven, 243 Conn. 763, 766-67, 707 A.2d 1251 (1998). See generally, e.g., General Statutes § 13a-149 (municipal liability for property damage or personal injuries caused by defective roads and bridges) and § 52-557n (general principles of municipal liability and immunity). General Statutes §§ 7-465 and 7-101a also provide for municipal indemnification, under certain circumstances, of its officers, agents and employees on whom liability is imposed for personal injuries caused in the course of their official conduct. Therefore, the governmental immunity doctrine will shield the City from the present common law negligence claim unless the plaintiff has identified a statute limiting or abrogating that immunity.
Providing public education is a basic governmental function. Board of Trustees v. Freedom of Information Comm., 181 Conn. 544, 554. 436 A.2d 266 (1980).
"Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct. . . . The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees." (Citations omitted; internal quotation marks omitted.) Purzvcki v. Town of Fairfield, 244 Conn. 101, 107, 708 A.2d 937 (1998). One exception to the governmental immunity afforded municipal employees is "the exception permitting a tort action in circumstances of likely imminent harm to an identifiable person." Purzycki v. Town of Fairfield, supra, 244 Conn. 101, 108. Thus, the City is generally immune from tort liability, while its employees may be liable for certain acts if those acts are likely to cause imminent harm to an identifiable person. However accurate the plaintiffs statement of this proposition may be, he cannot take shelter under this exception for he has sued only the municipality. Whether or not a particular City employee has immunity from suit does not materially affect whether or not the City may assert the doctrine of governmental immunity as a bar to direct liability in a common law negligence action.
The plaintiff has failed to identify any such statute in his complaint. Rather, he anchors his common law negligence claim against the City on language contained in § 7-465. See General Statutes § 7-465 (a) ("governmental immunity shall not be a defense in any action brought under this section"). Sections CT Page 11545 7-465 and 7-101a cannot serve as a basis for the City's direct liability, however, as these are municipal indemnification statutes which do not create a direct cause of action against the municipality. "A plaintiff bringing suit under General Statutes § 7-465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town's liability by indemnification." (Emphasis in original; internal quotation marks omitted.) Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987); see also LeClaire v. Town of Vernon, Superior Court, judicial district of Tolland at Rockville, Docket No. 044254 (August 1, 1990, Potter, J.) ("a complaint brought under Section 7-465 should be in two counts; one alleging facts essential to the legal liability of the employee, and the other facts essential to the legal liability of the municipality under this section"). The municipality's liability is derived from the liability of its employee. Kave v. Manchester, 20 Conn. App. 439, 443-44, 568 A.2d 459 (1990). "Thus, in a suit under 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual." Wu v. Fairfield, supra, 204 Conn. 438. The City of Waterbury, however, is the only named defendant in the present action. Reciting an indemnification statute such as §§ 7-465 or 101a cannot serve as a basis on which the City is directly liable for Suarez's injuries, nor, in the absence of a municipal employee or the board of education as defendants, can it overcome the municipality's entitlement to governmental Immunity. For these reasons, the court will Strike the complaint for the failure to state a claim upon which relief may be granted.
PELLEGRINO, (J)