Opinion
No. CV 06 5001963S
October 10, 2006
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE
The defendants have moved to strike Counts One through Nine, Counts Twelve through Fourteen and Counts Seventeen through Nineteen of the plaintiffs' Revised Complaint dated May 3, 2006 on the basis that the allegations contained therein are legally insufficient, and, therefore, the court cannot grant the relief sought. The plaintiffs are Roseann Caruso and her husband Joseph Caruso. For the purposes of this motion, the named defendants are the Town of Westport (Westport), Elliot Landon (Landon) Superintendent of the Westport Public Schools, Mary Parmelee (Parmelee) Chairwoman of the Westport Board of Education, the Westport Board of Education (Board). Counts Ten, Eleven, Fifteen and Sixteen alleging similar causes of action against the "John Doe Custodial and Maintenance Company" (John Doe) are not the subject of this motion to strike.
The revised complaint consists of nineteen counts. Counts One, Two and Three allege negligence against the Board of Education, Landon and Parmelee, respectively. Counts Four, Five and Six allege negligence pursuant to General Statutes § 10-220 as against the Board of Education, Landon and Parmelee. Counts Seven, Eight and Nine allege indemnification pursuant to General Statutes § 7-465 as against the Town of Westport, regarding the claims alleged against the Board of Education, Landon and Parmelee, as listed above. Count Ten alleges negligence against John Doe. Count Eleven alleges recklessness as to John Doe. The plaintiff in each of the first ten counts is Roseann Caruso. Counts Twelve through Nineteen contain the claims of the plaintiff Joseph Caruso, husband of plaintiff Roseann Caruso. Count Eleven through Sixteen are claims for a loss of consortium as against the Board of Education, Landon, Parmelee, and John Doe. Counts Seventeen, Eighteen and Nineteen are claims for indemnification against the Town of Westport pursuant to General Statutes § 7-465, relating to the claims for a loss of consortium, as they relate to those claims filed against the Board, Landon and Parmelee.
General Statutes § 10-220(a)(4) reads in relevant part as follows:
(a) Each local or regional board of education shall maintain good public elementary and secondary schools, implement the educational interests of the state as defined in section 10-4a and provide such other educational activities as in its judgment will best serve the interests of the school district; provided any board of education may secure such opportunities in another school district in accordance with provisions of the general statutes and shall give all the children of the school district as nearly equal advantages as may be practicable; shall provide an appropriate learning environment for its students which includes . . . (3) proper maintenance of facilities . . .
Sec. 7-465 reads in relevant part as follows:
(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . .CT Page 18329
No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose and written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. Governmental immunity shall not be a defense in any action brought under this section . . . As used in this section, "employee" includes (1) a member of a town board of education and any teacher . . .
There are two-counts for a loss of consortium filed by Joseph Caruso as against John Doe. Those counts are Counts Fifteen and Sixteen.
The revised complaint alleges jurisdiction over the defendants pursuant to General Statutes § 7-465, § 10-220, § 13a-149, § 52-57 and § 52-557n.
Counts seven, eight, nine, seventeen, eighteen and nineteen are brought pursuant to Sec. 7-465.
Counts four, five and six are brought pursuant to Sec. 10-220.
General Statutes §§ 13a-149, 52-57 and 52-557n are not pleaded as relating as to any specific count. Rather, they are set forth in a thirteen paragraph statement, which precedes Count One. This statement sets forth information identifying parties to the action, factual background and0 a statement regarding "jurisdiction over the defendants."
I Standard of Law
The law regarding a motion to strike is well-settled. "The purpose of a 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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra. 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
II Factual Summary
The plaintiff alleges that on March 15, 2005, at approximately 7:00 p.m., she was attending a school-sanctioned concert at the Staples High School in Wesport, Connecticut. The plaintiff was driven to the high school by her husband Joseph Caruso. Upon the plaintiff's arrival at the high school, they were directed by a police officer to park in an adjacent parking lot at the Bedford Middle School, and the plaintiffs subsequently parked on the left hand side of the middle school parking lot. The complaint alleges that the parking lot was inadequately illuminated in this area due to the fact that the lights were off. Thereafter, the plaintiff Roseann Caruso exited their vehicle from the passenger side and immediately slipped and fell to the ground on a sheet of accumulated ice and/or snow, which caused her to sustain physical injuries.
Roseann Caruso alleges to have filed a written notice of claim with the Westport Town Clerk on April 21, 2005, describing her injuries and the time, place and cause of her injuries.
III Counts One, Two and Three
The defendants argue that Counts One through Three purport to set out negligence causes of action against the Board, Landon and Parmelee, respectively. The defendants correctly state that these counts do not specifically plead an authorizing statute. However in paragraph seven of a thirteen-paragraph introduction which immediately precedes the nineteen-count complaint, the plaintiffs plead jurisdiction pursuant to §§ 13a-149, 52-557n, 10-220 and 52-57. General Statutes § 10-220 and § 52-57 do not authorize a cause of action against a municipality. Thus, the defendants have analyzed the Counts One through Three within the context of § 13a-149 and § 52-557n.
Sec. 13a-149. Damages for injuries by means of defective roads and bridges reads as follows:
Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby.
Sec. 52-557n. Liability of political subdivision and its employees, officers and agents. Liability of members of local boards and commissions.
(a)(1) 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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (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.
(b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: (1) The condition of natural land or unimproved property; (2) the condition of a reservoir, dam, canal, conduit, drain or similar structure when used by a person in a manner which is not reasonably foreseeable; (3) the temporary condition of a road or bridge which results from weather, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe; (4) the condition of an unpaved road, trail or footpath, the purpose of which is to provide access to a recreational or scenic area, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe; (5) the initiation of a judicial or administrative proceeding, provided that such action is not determined to have been commenced or prosecuted without probable cause or with a malicious intent to vex or trouble, as provided in section 52-568; (6) the act or omission of someone other than an employee, officer or agent of the political subdivision; (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety; (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances; (9) failure to detect or prevent pollution of the environment, including groundwater, watercourses and wells, by individuals or entities other than the political subdivision; or (10) conditions on land sold or transferred to the political subdivision by the state when such conditions existed at the time the land was sold or transferred to the political subdivision.
(c) Any person who serves as a member of any board, commission, committee or agency of a municipality and who is not compensated for such membership on a salary or prorated equivalent basis, shall not be personally liable for damage or injury occurring on or after October 1, 1992, resulting from any act, error or omission made in the exercise of such person's policy or decision-making responsibilities on such board, commission, committee or agency if such person was acting in good faith, and within the scope of such person's official functions and duties, and was not acting in violation of any state, municipal or professional code of ethics regulating the conduct of such person, or in violation of subsection (a) of section 9-369b or subsection (b) or (c) of section 1-206. The provisions of this subsection shall not apply if such damage or injury was caused by the reckless, wilful or wanton misconduct of such person.
See note 1.
Sec. 52-57 regarding the manner of service reads in relevant part as follows:
(a) Except as otherwise provided, process in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his usual place of abode, in this state.
(b) Process in civil actions against the following-described classes of defendants shall be served as follows: (1) Against a town, upon its clerk, assistant clerk, manager or one of its selectmen; (2) against a city, upon its clerk or assistant clerk or upon its mayor or manager; (3) against a borough, upon its manager, clerk or assistant clerk or upon the warden or one of its burgesses; (4) against a school district, upon its clerk or one of its committee; (5) against a board, commission, department or agency of a town, city or borough, notwithstanding any provision of law, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the board, commission, department or agency; (6) against any other municipal or quasi-municipal corporation, upon its clerk or upon its chief presiding officer or managing agent; and (7) against an employee of a town, city or borough in a cause of action arising from the employee's duties or employment, upon the clerk of the town, city or borough, provided two copies of such process shall be served upon the clerk and the clerk shall retain one copy and forward the second copy to the employee . . .
The defendants argue that Section 13a-149 authorizes a cause of action against a municipality for injuries resulting from a defective road or bridge and that General Statutes § 13a-149 is the sole remedy for a person injured as a result of a defective highway or bridge and that the plaintiffs cannot seek relief pursuant to § 52-557n. In Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001), the Connecticut Supreme Court stated:
We have construed § 52-557n, the statute under which the plaintiff initially brought his claim, to provide that, in an action against a municipality for damages resulting from a highway defect, the defective highway statute is the plaintiff's exclusive remedy . . . see also General Statutes § 52-557n(a)(1)(c) ("no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149"). In addition, because § 7-465(a) requires a municipality to indemnify its officers for their negligent acts, § 52-557n also bars a joint action seeking damages against a municipality and its officer for damages resulting from a highway defect.
Id. at 341.
The defendants reason that based upon the plaintiffs' allegations that Roseann Caruso fell on an accumulation of ice and snow in the parking lot of a school, the plaintiffs may be able to state a cause of action against the Town or the Board under the defective highway statute. However, the defendants state that the complaint fails to plead the requisite elements of this type of action. Specifically, the complaint does not include allegations: (1) that the municipal defendant was the party responsible for maintaining the parking lot; (2) that the defendant had notice of the defect; and (3) that the defect was the sole proximate cause of the plaintiffs' injuries. The court disagrees.
These three conditions relate to the plaintiffs' burden of proof. There are two components that must be met to trigger the application of § 13a-149: (1) the plaintiff must have sustained an injury by means of a defective road or bridge; and (2) the party whom the plaintiff is suing must be the party bound to keep the location where the injury was sustained, in repair. Novicki v. City of New Haven, 47 Conn.App. 734, 739-40 (1998).
The plaintiffs, in opposing the motion to strike Counts One, Two and Three, argue that they are not limited to § 13a-149, the defective highway statute, as their sole remedy because whether or not a parking lot is covered by § 13a-149 is a question of fact and not a question of law. Baker v. Ives, 162 Conn. 295, 302, 294 A.2d 290 (1972).
In Baker, supra, 162 Conn. 295, the action was commenced pursuant to General Statutes § 13a-144 authorizing suits against the state highway commissioner. The plaintiff parked her automobile perpendicular to the sidewalk located in front of 285 Main Street (route 17A) in the town of Portland, in an area generally used for public parking. The plaintiff alighted from her car, walked toward the sidewalk, and, when she had reached a point approximately nineteen inches from the sidewalk, she was caused to fall due to an accumulation of unsanded snow and ice.
The plaintiffs also rely on Norlander v. New Milford, Superior Court, judicial district of Litchfield at Litchfield No. CV 04 0093313-S (July 14, 2005, Trombley, J.) 39 Conn. L. Rptr. 689, for the proposition that a motion to strike cannot be utilized to determine the issue of whether § 13a-149 is triggered in an action alleging injuries from a defective parking lot, as a fact-based test had to be applied by the trier of fact to determine whether a fall in a municipal parking lot was or was not covered by § 13a-149. Id. (Emphasis in original.) It is noted by the court that in Norlander v. New Milford, the first count of the plaintiff's complaint was based upon an alleged violation of the statutory duty imposed by General Statutes Sec. 13a-149, and a second count of the plaintiff's complaint brought pursuant to General Statutes § 52-557n, alleged that the parking lot or area in which the plaintiff fell was the responsibility of "the agents, employees and officials" of the town. The plaintiff further alleged in the second count that those persons violated a statutory duty owed to her to keep the premises in reasonably safe condition which, she alleged they did not do, resulting in her fall and injuries.
The plaintiffs argue by virtue of their general jurisdictional statement relying on § 13a-149 and § 52-557n, which is set forth prior to any allegations set forth in Counts One through Three, they have sufficiently pleaded alternative causes of action. The difficulty with this argument is that despite the introductory jurisdictional statement preceding the allegations contained in the complaint, there is no specific reference as to the statutory authority the plaintiffs rely upon in Counts One through Three. Therefore, the court and the defendants are left to guesswork and speculation to determine which statute the plaintiffs rely upon, while the plaintiffs respond only that they rely upon both. As noted herein, Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001) and § 52-557n(a)(1)(C) state that § 13a-149 is the statutory remedy for an action against a municipality for a defective road or bridge.
The plaintiffs in opposition to the motion to strike argue that they have properly alleged five applicable statutes. The plaintiffs name the following statutes: (1) General Statutes § 52-557n (abrogates sovereign immunity such that a municipality is liable for damages to person or property caused by negligent acts or omissions of its employees, officers or agents acting within the scope of their employment or official duties); (2) General Statutes § 13a-149 (any person or property injured as a result of a defective road or bridge may recover damages from the party who is bound to keep it in good repair); (3) General Statutes § 10-220 (boards of education have a duty to care, maintain and operate the buildings, lands and other property used for school purposes); General Statutes § 7-465 (municipalities are required to indemnify employees acting within the scope of their employment from their negligent acts); and General Statutes § 52-57 (sets forth the method of service of process on a town, board or commission and employees of a town in a cause of action arising from the employee's duties or employment.
It is well established that the state or city is immune from suit unless it consents to be sued by appropriate legislation waiving sovereign immunity in certain prescribed cases. Baker v. Ives, supra, 162 Conn. 298. The legislature, however, has carved out certain statutory exceptions to the general rule of sovereign immunity and allowed governmental entities to be sued under certain limited circumstances Berger, Lehman Associates, Inc. v. State, 178 Conn. 352, 356, 422 A.2d 268 (1979) (sovereign immunity can be waived by appropriate legislative action); State v. Chapman, 176 Conn. 362, 364, 407 A.2d 987 (1978) (same). The highway defect statute, § 13a-149 is one of those exceptions, as is, General Statutes § 52-557n.
Practice Book Sec. 10-3(a) requires that "when any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number. Practice Book § 10-3 "is directory rather than mandatory, and its primary purpose is to ensure that a defendant is sufficiently apprised of the applicable statute during the proceedings." Florian v. Lenge, 91 Conn.App. 268, 274, 880 A.2d 985 (2005); Gilbert v. Beaver Dam Ass'n. Of Stratford, Inc., 85 Conn.App. 663, 671, 858 A.2d 860 (2004). If a party mentions a statute, or the concepts embodied therein, several times prior to trial, the opposing party is sufficiently apprised that the statutes applicability was claimed. Spears v. Garcia, 263 Conn. 22, 818 A.2d 37 (2003); Krevis v. Bridgeport, 80 Conn.App. 432, 435-36, 835 A.2d 123 (2003), cert. denied, 267 Conn. 914, 841 A.2d 219 (2004).
However, in Williams v. New Haven, 243 Conn. 763, 707 A.2d 1251 (1998), the Connecticut Supreme Court found that the failure of the plaintiffs to rely upon statutory authority granting an exception to governmental immunity was fatal to the plaintiff's negligence action. In Williams, the plaintiffs, unlike the plaintiffs in Spears v. Garcia, supra, never at any stage of the proceedings, relied on any statutory authority to abrogate governmental (municipal) immunity.
While the plaintiffs have cited in paragraph 7 of their introductory allegations, the various statutes upon which they rely, they do not specifically name which statute(s) apply to Counts One through Three alleging negligence against the Westport Board of Education, Landon and Parmelee. Unlike Spears v. Garcia, supra, where the defendants were notified prior to trial what statutes the plaintiff was relying upon, here, we are at an early stage of the proceedings, where the defendants must file a motion to strike prior to filing their answer to the complaint. Practice Book Sec. 10-6. The plaintiffs do have a separate count alleging § 13a-149 and a separate count alleging § 52-577n as was the case in Norlander v. New Milford, supra, Superior Court, judicial district of Litchfield at Litchfield No. CV 040093313-S (July 14, 2005, Trombley, J.) 39 Conn. L. Rptr. 689. They have not sufficiently apprised the defendants as to which statutory authority they rely upon as to Counts One through Three. Indeed, they respond that they rely upon both § 13a-149 and § 52-557n. The plaintiffs leave it to the defendants and the court to choose the plaintiffs' statutory authority for abrogating municipal immunity.
Sec. 10-6. Pleadings Allowed and Their Order
The order of pleading shall be as follows:
(1) The plaintiff's complaint.
(2) The defendant's motion to dismiss the complaint.
(3) The defendant's request to revise the complaint.
(4) The defendant's motion to strike the complaint.
(5) The defendant's answer (including any special defenses) to the complaint.
(6) The plaintiff's request to revise the defendant's answer.
(7) The plaintiff's motion to strike the defendant's answer.
(8) The plaintiff's reply to any special defenses.
The defendants argue, as well, that as the defendants Langdon and Parmelee, in Counts Two and Three, have been sued in their official capacities and not their individual capacities, these counts should be stricken as the municipality (Westport) or the Board of Education (Board) are the real parties at interest and Count One has been directed at the Board of Education. The court agrees.
Municipal employees, unlike municipalities, were not immune from liability at common law for their tortious acts, but faced the same personal tort liability as private individuals. Spears v. Garcia, supra, 263 Conn. 36.
"Over the years, however, [t]he doctrine of [qualified] immunity has provided some exceptions to the general rule of tort liability for municipal employees. Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion. A municipal employee's immunity for the performance of discretionary governmental acts is, however, 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 . . . Thus, [t]he presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties." (Citations and internal quotation marks omitted.)
Id.
"Accordingly, if the plaintiffs have sued the defendants in their individual capacities, the defendants would not be immune from liability, even in the performance of their governmental duties, because immunity does not apply where the alleged acts involved an intent to injure the plaintiffs. If, however, the defendants have been sued in their official capacities, the suit is, in effect, a suit against the municipality and the individual defendants are entitled to the protection of the municipality's immunity." Hadden v. Southern New England Telephone, Superior Court, judicial district of Waterbury, Complex Litigation Docket at Waterbury No. X06-CV-03-0183016 (Aug. 18, 2004, Alander, J.).
"A suit against a [government official] in his or her official capacity however is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the [government] itself." (Citations omitted.) Will v. Michigan Dept. Of State Police, 492 U.S. 58, 71 (1989). "As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity, it is not a suit against the official personally, for the real party in interest is the entity." (Citations omitted.) Kentucky v. Graham, 473 U.S. 159, 165-66 (1985).
A review of the complaint reveals that the allegations against the defendants Landon and Parmelee are based on their official capacities as Superintendent of Schools and Chairwomen of the Board of Education. The complaint is barren of any allegations that these two defendants are being sued in their individual capacities. See Hadden v. Southern New England Telephone, supra. "Moreover, the language that is used in each complaint evidences an intent to sue the defendants in their official capacities." Id. "These allegations plainly refer to the individual defendants in their official capacities and seek to impose liability on the town for their official actions. The right of the plaintiffs to recover is limited by the allegations of their complaints and the court must not countenance a variance which seeks to turn a suit against a government official in his official capacity into a suit against the individual personally. To do otherwise, would allow a plaintiff to subject an unsuspecting government official to personal liability." (Internal citations, internal quotations omitted.) Id.
Accordingly, for the reasons stated, the motion to strike Counts One, Two and Three are granted.
IV Counts Four, Five and Six
Counts Four, Five and Six allege negligence against the defendants Board of Education, Landon and Parmelee pursuant to General Statutes § 10-220. Section 10-220, noted earlier herein, sets forth the duties of a Board of Education in Connecticut. However, the defendants argue, § 10-220 does not authorize a cause of action against a municipality, as do § 13a-149, § 7-465 and § 52-557n.
See note 1.
Connecticut courts have held that a municipality is immune from liability unless authorized by statute.
The general rule developed in the case law is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity . . . Statutes that abrogate or modify governmental immunity are to be strictly construed . . . This rule of construction stems from the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction . . . The court is to go no faster and no further than the legislature has gone . . . A legislative intention not expressed in some appropriate manner has no legal existence . . . The legislature . . . has set forth general principles of municipal liability and immunity in General Statutes § 52-557n.
(Internal quotations and internal citations omitted) Segreto v. Bristol, 71 Conn.App. 844, 849-50, 804 A.2d 928 (2002), cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).
While General Statutes § 10-220 extensively sets forth the duties of boards of education, no language contained therein abrogates municipal immunity. Section 10-220 does not authorize a cause of action against a municipality or board of education. The same holds true for General Statutes § 52-57.
Sec. 1-2z. Plain meaning rule.
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
Accordingly, Counts Four, Five and Six are ordered stricken.
V Counts Seven, Eight and Nine
Counts Seven, Eight and Nine allege that the Town of Westport is obligated damages payable to the plaintiff Roseann Caruso on behalf of the Board of Education and the defendants Landon and Parmelee. These three counts seek indemnification pursuant to General Statutes § 7-465.
General Statute § 7-465 requires a municipality to indemnify its employees for damages and attorneys fees arising from the employees' negligent acts committed during their course of employment. Causes of action based upon § 7-465 are derivative in nature. In Wu, Administrator v. Town of Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987), the Supreme Court stated:
[General Statutes 7-465] establishes municipal liability for certain acts of employees. "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.) Sestito v. Groton, 178 Conn. 520, 527, 423 A.2d 165 (1979). "This is a personal liability requirement that calls for an inquiry independent of the statute itself, an inquiry into the factual matter of individual negligence. "(Emphasis added.) Id., 528. 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.
(Internal quotation marks and citations omitted.) Id. at 438.
As Counts Seven through Nine are derivative actions based on the preceding counts which have been stricken by the court. Accordingly, Counts Seven, Eight and Nine are also ordered stricken.
VI Counts Twelve, Thirteen and Fourteen
Counts Twelve, Thirteen and Fourteen are actions by the plaintiff Joseph Caruso for loss of consortium based on the claims of his wife, as set forth in counts that have been stricken. Loss of consortium claims are derivative claims. "As a derivative cause of action, loss of consortium is dependent on the legal existence of the predicate action . . . That is to say, if an adverse judgment bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well." (Internal citation and internal quotation marks omitted.) Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 76 n. 5 (2005) 882 A.2d 1254 (2005); United Services Automobile Ass'n. v. Kaschel, 84 Conn.App. 139, 147 n. 9, 851 A.2d 1257, cert. denied, 271 Conn. 917, 859 A.2d 575 (2004).
As Counts Twelve, Thirteen and Fourteen are predicated upon previous counts that have been stricken, Counts Twelve, Thirteen and Fourteen are also ordered stricken.
VII Counts Seventeen, Eighteen and Nineteen
Counts Seventeen, Eighteen and Nineteen purport to set forth claims for indemnification pursuant to General Statutes § 7-465 for the loss of consortium claims asserted in Counts Twelve through Fourteen. Again, loss of consortium claims are derivative claims. As the court has stricken the underlying previous counts asserted by the plaintiff Roseann Caruso, and the court has also stricken the loss of consortium claims asserted in Counts Twelve through Fourteen, the court additionally orders that Counts Seventeen, Eighteen and Nineteen be stricken.
VIII Summary of Orders
For the reasons set forth herein, Counts One through Nine and Counts Twelve, Thirteen, Fourteen, Seventeen, Eighteen and Nineteen are hereby ordered stricken.