From Casetext: Smarter Legal Research

Sussman v. Town of East Haven

Connecticut Superior Court, Judicial District of New Haven at New Haven
Jan 27, 2004
2004 Ct. Sup. 1227 (Conn. Super. Ct. 2004)

Opinion

No. CV 02-0468497

January 27, 2004


MEMORANDUM OF DECISION


Following the denial of the defendant's motion to strike, the defendant filed a motion for a memorandum of decision specifying the grounds upon which the denial was based. That motion appeared on the short calendar on November 3, 2003. The court grants the motion and treats it as a Motion for Reconsideration. Upon reconsideration of the issues, the court determines that the motion to strike Counts One, Two and Four should have been granted because the doctrine of governmental immunity bars those claims. Therefore, for reasons more fully set forth below the court grants the motion to strike Counts One, Two and Four and denies the motion to strike Count Three.

In September 2002 the plaintiffs, Arnold Susman, individually and as Executor of the Estate of John L. Susman; Ada Susman and Charles Susman, brought this action in a one-count Complaint against the Town of East Haven alleging that agents, servants or employees of the defendant had been negligent in the investigation of the disappearance and subsequent death of the decedent, John L. Susman. On December 15, 2002, the plaintiffs filed a Revised Complaint following a Request to Revise from the defendant. The Revised Complaint contains four counts: Count One alleges on behalf of the Estate of John L. Susman that the investigation of the disappearance of John L. Susman was conducted negligently resulting in the death of the decedent; Count Two, brought on behalf of the estate, alleges that the estate was delayed in or prevented from seeking redress from the person or persons responsible for the death of the decedent due to the negligence of the defendant and as a consequence suffered economic loss; Count Three of the Complaint alleges that the estate was denied legal redress as a result of acts of the defendant's employees and that such conduct constituted a pattern and practice well-known to policy-setting officials; and in Count Four, the plaintiffs claim that they, as individual plaintiffs suffered emotional distress as a result of the negligence of the defendant. Each of these counts relies, primarily upon the assertion that the defendant's employees mishandled the investigation of the case involving the disappearance and death of the plaintiffs' decedent.

The defendant moves to strike all four counts. First, the defendant argues that the entire action is barred by the doctrine of governmental immunity. Next, the defendant argues that none of the counts sufficiently plead negligence or wrongful death; a Section 1983 action; or an emotional distress claim. Finally, the defendant argues that Count One is barred because Connecticut does not recognize a common-law wrongful death claim.

The plaintiff opposes the motion to strike, asserting first that governmental immunity is an improper ground for granting the motion to strike because whether the acts in question were discretionary or ministerial requires a finding of fact. Next the plaintiff relies upon Section 52-555 for authority for pursuing the wrongful death action. Additionally, the plaintiffs argue that they have pled sufficient facts to state a Section 1983 claim. And, finally, the plaintiffs state that whether there is a viable cause of action for loss of filial consortium remains open to debate. The plaintiffs further assert that the defendant owed them a duty, and that they suffered actual injuries.

Addressing Count One, first, in their Brief in Opposition to the Motion, the plaintiffs make reference to Section 52-555 as statutory authorization for the wrongful death cause of action. No such citation appears in the pleading. Though the Court is bound by the allegations of the complaint, Connecticut Courts have held that the failure of the plaintiff to specifically cite the Wrongful Death Statute, Section 52-555, may be, but is not necessarily fatal to the claim. See, Devita v. Espisito, 13 Conn. App. 101, 104, 535 A.2d 364 (1987) cert. denied 207 Conn. 807, 540 A.2d 375 (1988); Durkin v. First Healthcare, Superior Court, judicial district of Hartford, Docket No. 350622, 2 Conn. L. Rptr. 743 (Freed, J., October 18, 1990); and Torres v. American Medical Response, Superior Court, judicial district of Hartford, Docket No. 0802360 (Peck, J., September 6, 2001). Therefore, the court must look to the allegations in the complaint to determine if they are sufficient to notify the defendant of the basis of the claim. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 25 (1992). Construing the allegations in the complaint in the light most favorable to the plaintiff, the court finds that the plaintiffs have sufficiently asserted a wrongful death action pursuant to Section 52-555.

Having found that the plaintiffs have sufficiently pled a wrongful death cause of action in Count One, the Court next turns to the question of whether the plaintiffs have provided sufficient statutory authorization for the causes of action asserted in Counts One, Two and Four which abrogates the defendant's sovereign immunity. Absent specific statutory authorization, a municipality is immune from suits claiming negligence under the sovereign immunity doctrine. Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984). Actions of municipal employees might be subject to immunity under the doctrine of qualified or governmental immunity, provided those acts were ministerial or governmental. However, this action is against a municipality, and not against specific municipal employees. Therefore, the court need not reach the question of whether the actions of the defendant's employees were ministerial or discretionary. The plaintiffs have failed to provide any statutory authorization for their claims in Counts One, Two and Four against the defendant in this case. Asserting a statutory wrongful death claim against the municipality is not sufficient to abrogate the defendant's immunity from liability. The plaintiffs have failed to cite any statute authorizing them to proceed on claims of negligence.

The plaintiffs would have prevailed in defeating the motion to strike Counts One, Two and Four had they cited or relied upon Section 52-557n. In Spears v. Garcia, 66 Conn. App. 669, 785 A.2d 1181 (2001) affirmed 263 Conn. 22, 818 A.2d 37 (2003) the Appellate Court held that the plaintiff should be allowed to proceed with a claim of negligence against a municipality, even though no statutory authorization was provided in the complaint, because the plaintiff had clearly and explicitly relied upon Section 52-577n at oral argument and in the memorandum in support of opposition. In Spears, the Appellate Court held that the defendants were sufficiently placed on notice that there was a statutory basis for the plaintiff's claim. See, also Savinelli v. East Haven Board of Education, Superior Court, judicial district of New Haven, Docket No. 020468383 (Arnold, J., April 28, 2003), (plaintiffs filed a Notice to the defendant invoking the provisions of Section 52-557n, after the release of the Supreme Court decision in Spears v. Garcia, in 2003. The Court deemed this sufficient to notify the defendant of the intention to rely upon the statutory authorization.)

The plaintiffs in the instant action have remained silent on the issue of statutory authorization. Plaintiffs' brief does not cite Section 52-577n or any other statutory authorization for their claims against the defendant in Counts One, Two or Four. While, in applying the reasoning of the Appellate and Supreme Courts, in Spears v. Garcia, this court would have found citation of 52-557n in the brief sufficient to defeat the motion to strike, absent some explicit statutory authorization, the motion to strike must be granted. Therefore, even though the plaintiffs have sufficiently pled a wrongful death cause of action, they have failed to provide statutory authorization to proceed against the defendant municipality. Accordingly, the court reverses its decision, and grants the defendant's motion to strike Counts One, Two and Four.

The remaining count, Count Three asserts, what the parties implicitly concede is a Section 1983 cause of action. As such, there is a statutory basis for the assertion of claims against the defendant in Count Three. The defendant argues that the court should strike this count because a cause of action asserting a violation of Section 1983 requires that the plaintiff prove that an official policy or governmental custom caused a deprivation of constitutional rights. The plaintiff alleges in Count Three that "the acts and omissions of the defendant's employees, servants and agents described above constituted a pattern and practice so well-known to the highest policy-setting officials of the defendant that they constituted the policy of the defendant."

". . . [T]he touchstone of [a] 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution . . . [M]unicipal liability under 1983 attaches where a deliberate choice to follow a course of action is made from among various alternatives by city policymakers . . . In addition, 1983 also authorizes suit for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the body's official decision making channels . . . Therefore, [our courts have] properly held that to state a valid cause of action under 1983, the plaintiff's complaint must allege a policy or custom that resulted in a deprivation of a constitutional right. (Citations omitted; internal quotation marks omitted.) Tedesco v. Stamford, 215 Conn. 450, 456-57, 576 A.2d 1273 (1990)." Violano v. Fernandez, Superior Court, judicial district of New Haven, Docket No. 010452897 (Licari, J., October 17, 2003).

In order to prevail on their claim that the defendant violated Section 1983, the plaintiffs will have to prove that a custom or policy resulted in their harm. But, to defeat the motion to strike, the plaintiffs need merely sufficiently make the allegation. While this court is skeptical, given the known facts of this case, that the plaintiffs will be able to present evidentiary facts to support their Section 1983 claim, such observation is irrelevant to the determination of the motion. The cause of action is sufficiently pled. The motion to strike Count Three is denied.

For the foregoing reason, the court reconsiders its original ruling and reverses its decision. The court orders that Counts One, Two and Four be stricken. The motion to strike Count Three continues to be denied.

ROBINSON, JUDGE.


Summaries of

Sussman v. Town of East Haven

Connecticut Superior Court, Judicial District of New Haven at New Haven
Jan 27, 2004
2004 Ct. Sup. 1227 (Conn. Super. Ct. 2004)
Case details for

Sussman v. Town of East Haven

Case Details

Full title:ARNOLD SUSSMAN v. TOWN OF EAST HAVEN

Court:Connecticut Superior Court, Judicial District of New Haven at New Haven

Date published: Jan 27, 2004

Citations

2004 Ct. Sup. 1227 (Conn. Super. Ct. 2004)