Opinion
No. CV 03 0197324 S
March 9, 2005
MEMORANDUM OF DECISION
FACTS
The Plaintiffs, Godfrey Burton and Peninah Burton bring this action against the City of Stamford to recover for injuries and damages they claim to have sustained in an automobile accident of October 11, 2002.
On that date, Godfrey Burton was operating a motor vehicle owned by his wife Peninah eastbound on Main Street near its intersection with Clinton Avenue, in the City of Stamford.
The plaintiffs' vehicle collided with a police cruiser operated by Stamford Police Officer James Grabinski, who at the time of the accident was operating the cruiser within the scope of his employment as a police officer for the City of Stamford.
Officer Grabinski is not a named defendant in this action.
The city filed an answer to the plaintiffs' complaint, along with a special defense, on February 4, 2004.
Also included in the city's answer was a counterclaim, in which the city seeks to recover for damage to the police cruiser.
The City of Stamford, in its counterclaim, alleges that the negligence of Godfrey Burton was the proximate cause of the accident, and that the police vehicle was damaged, to the extent that it was a total loss.
The plaintiff's filed a reply pleading on February 11, 2004, denying the allegations contained in the defendant's special defense, and also filed an answer and special defense addressed to the city's counterclaim.
The City of Stamford now moves to strike the special defense filed in response to its counterclaim.
The City claims that the negligence of Officer Grabinski cannot be imputed to the municipality, and further claims that the negligence of a non-party cannot be alleged, pursuant to § 52-572b of the General Statutes.
STANDARD OF REVIEW
A motion to strike tests the legal sufficiency of a pleading. Ferryman v. Groton, 212 Conn. 138, 142 (1989). The court, when determining a motion to strike, must weigh all facts most favorably to the non-moving party. Rowe v. Godou, 209 Conn. 273, 278 (1988).
The inquiry is limited to the facts alleged, and if those facts as pled are legally sufficient, a motion to strike must be denied. Waters v. Autuori, 236 Conn. 820, 825-26 (1996).
SPECIAL DEFENSE IS NOT BARRED BECAUSE OFFICER GRABINSKI IS NOT A PARTY TO THE ACTION
The City of Stamford claims that the doctrine of comparative negligence does not apply to its claim for property damage, and that any negligence attributable to its employee, Officer Grabinski, cannot be used to defeat or diminish its recovery.
It further claims that the fact that Officer Grabinski is not a party to the action prevents the plaintiffs from asserting that negligence against the city.
These claims are not well taken.
Municipalities, at common law, were generally immune from liability for tortuous acts. Although municipal officials and employees were liable for their own torts, the municipality could not be held vicariously liable. Sanzone v. Board of Police Commissioners, 219 Conn. 179, 193 (1991).
However, the immunity enjoyed by a municipality at common law may be abrogated by statute. Ryszkiewicz v. New Britain, 193 Conn. 589, 593 (1984).
Section 52-557n(a) of the General Statutes has abrogated common-law immunity, and provides for a cause of action directly against the municipality. The section reads:
. . . 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 other duties.
It is not necessary, in order to maintain a cause of action, for the plaintiff to name the municipal employee as a party. The action may proceed directly against the municipality. Spears v. Garcia, 263 Conn. 22, 37 (2003).
Municipalities are specially chartered corporations. They can only act through their agents and employees, in the same manner characteristic of other stock and non-stock corporations.
In recognition of this reality, the clear language of § 52-557n, CGS, indicates the legislature's intention to abrogate governmental immunity which the common law accorded to a municipality, with respect to vicarious liability. Spears v. Garcia, 66 Conn.App. 669, 678-79, n. 4 (2001).
The City of Stamford is therefore liable for the negligent acts attributable to Officer Grabinski, committed within the scope of his employment or other duties.
Because principles of vicarious liability apply, the city is not assisted by the provisions of § 52-572h(f) of the General Statutes.
Section 52-572h "(f) The jury or, if there is no jury the court, shall specify . . . the percentage of negligence that proximately caused the . . . damage to property in relation to one hundred percent, that is attributable to each party . . ."
Instead, it is subject to the provisions of § 52-183, which imposes liability for the negligent operation of a motor vehicle upon the owner of the vehicle.
Section 52-183 "In any civil action brought against the owner of a motor vehicle to recover damages for the negligent or reckless operation of the motor vehicle, the operator, if he is other than the owner, of the motor vehicle, shall be presumed to be the agent and servant or the owner of the motor vehicle, and operating in the course of his employment . . ."
The defendant City of Stamford's motion to strike is DENIED.
RADCLIFFE, J.