Opinion
No. 5001172
May 1, 2007
MEMORANDLTM OF DECISION
On June 6, 2006, the plaintiff, Kevin Crandall, filed an eight-count complaint against the defendants, Stonington Volunteer Ambulance Corp. (SVAC), Victor Lima, Iona Lyons, and the town of Stonington (town), for personal injuries allegedly sustained as a result of the gross negligence or negligence of the volunteer ambulance personnel who were summoned to aid the plaintiff after he was struck by lightning. In his complaint, the plaintiff alleges the following facts. On May 31, 2005, the plaintiff was working as a mason at 11 Main Street in Stonington when he was struck by lightning. SVAC was dispatched to the site in response to an emergency call. Upon reaching the site, Lima and Lyons, emergency medical technicians employed by SVAC, decided not to begin resuscitative measures, determining that the plaintiff had not been struck by lightning and had been dead for a lengthy period of time. Lima and Lyons canceled the responding paramedic unit from Lawrence and Memorial Hospital. Lima placed a blanket over the plaintiff and walked away. One or two Stonington police officers informed Lima that the plaintiff had in fact been struck by lightning and was alive prior to the ambulance's arrival, and that Lima should reassess his decision to withhold resuscitative measures. Upon reassessment by Lima, the plaintiff gasped for air and resuscitative measures began. The plaintiff suffered anoxic brain damage and other related injuries as a result of the way Lima and Lyons handled the call for emergency assistance.
The plaintiff alleges, inter alia, that his injuries were caused by the gross negligence and negligence of Lima (counts one and four, respectively); the gross negligence and negligence of Lyons (counts two and five, respectively); the gross negligence and negligence of SVAC under the doctrine of respondeat superior (counts three and six, respectively); and the negligence of SVAC (count seven). In count eight, the plaintiff alleges an indemnification claim against the town pursuant to General Statutes § 7-308.
Section 7-308 provides in relevant part: "(b) Each municipality of this state . . . shall pay on behalf of any paid or volunteer fireman or volunteer ambulance member of such municipality all sums which such fireman or volunteer ambulance member becomes obligated to pay by reason of liability imposed upon such fireman or volunteer ambulance member by law for damages to person or property, if the fireman or volunteer ambulance member, at the time of the occurrence, accident, injury or damages complained of, was performing fire or volunteer ambulance duties and if such occurrence, accident, injury or damage was not the result of any wilful or wanton act of such fireman or volunteer ambulance member in the discharge of such duties."
On August 28, 2006, the town filed a motion to strike count eight of the complaint (motion no. 111) on the ground that it is legally insufficient because the plaintiff fails to allege that the emergency medical technicians' actions were not "wilful and wanton" as required by § 7-308. The town filed a memorandum of law in support of its motion to strike.
On October 17, 2006, SVAC, Lima and Lyons filed a motion to strike counts one, two and three (motion no. 117) on the ground that they are legally insufficient because Connecticut does not recognize a cause of action in gross negligence. Alternatively, the defendants argue that even if this court determines that gross negligence is a cognizable cause of action in Connecticut, counts one, two and three must still be stricken because the plaintiff fails to adequately allege a gross negligence claim. A memorandum of law was submitted in support of the motion to strike.
SVAC, Lima and Lyons had also moved to strike counts four, five and six. In their reply memorandum filed December 18, 2006 and at oral argument on January 2, 2007, the motion to strike as to counts four, five, and six was withdrawn by the defendants.
On November 13, 2006, the plaintiff filed memoranda of law in opposition to both motions to strike (motion nos. 118, 118.50). On December 18, 2006, SVAC, Lima and Lyons, filed a reply memorandum (motion no. 120). The court heard oral argument on both motions to strike at short calendar on January 2, 2007. Subsequent to oral argument of the motions, the parties filed a series of supplemental briefs, the final of which was filed on March 27, 2007.
DISCUSSION
"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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], 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). "[W]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).
I COUNTS ONE, TWO AND THREE
In their memorandum of law, SVAC and the emergency medical technicians argue that Connecticut does not recognize degrees of negligence and, consequently, does not recognize the tort of gross negligence as a separate basis of liability. The defendants acknowledge that a split of authority exists among the trial courts as to whether the Good Samaritan Law, General Statutes § 52-557b, actually creates a statutory cause of action in gross negligence. The defendants argue that this court should follow those decisions that hold that the Good Samaritan Law was intended to confer immunity and does not create a cause of action. Furthermore, the defendants argue that even if this court determines that a cause of action in gross negligence is viable in Connecticut, the plaintiff's allegations do not rise to the level of gross negligence because the plaintiff fails to allege that Lima and Lyons acted with a reckless disregard for human life.In his memorandum in opposition to the defendants' motion to strike, the plaintiff argues that his complaint was pleaded in the alternative under two scenarios: either the Good Samaritan Law applies and, therefore, the gross negligence claims survive (counts one, two and three) or the Good Samaritan Law does not apply and the negligence claims survive (counts four, five and six). Only counts one, two and three are the subject of the defendants' motion to strike. See footnote 2.
The plaintiff argues that the Good Samaritan Law does not apply in the present case because Lima and Lyons acted "in the ordinary course of [their] employment or practice" as emergency medical personnel, therefore the defendants fall outside of the Good Samaritan Law by virtue of § 52-557b(a). The plaintiff argues that Lima and Lyons were not responders who happened upon the scene, but rather the defendants are emergency medical technicians who were acting in "the normal course of their practice" to respond to the scene. As such, § 52-557b does not offer immunity to these defendants and the ordinary negligence counts in counts four, five and six are proper. If, however, the Good Samaritan Law does apply, the plaintiff argues that claims of gross negligence are permitted by that statute, whether or not such claims exist in Connecticut common law.
In their reply memorandum, the defendants argue that Connecticut does not recognize different gradations of negligence. Accordingly, they argue that the exception in the Good Samaritan Law for gross negligence must be read together with the exceptions for wilful or wanton misconduct, amounting to a claim of recklessness.
The Good Samaritan Law provides that certain providers of emergency health care "shall not be liable to such person assisted for civil damages for any personal injuries which result from acts or omissions by such person in rendering the emergency care, which may constitute ordinary negligence." The statute, however, does not provide immunity for "gross, wilful or wanton negligence." Section 52-557b(a).
Neither our Supreme Court nor our Appellate Court has ruled upon whether, in a case where the Good Samaritan Law applies, the legislature has, by implication, created a cause of action for gross negligence. Our Superior Courts are divided on the issue. See Cordero v. American Medical Response, Superior Court, judicial district of New Haven, Docket No. CV 02 0458609 (April 23, 2004, Devlin, J.) [ 36 Conn. L. Rptr. 866]; compare Wattman v. New Hartford Volunteer Fire Dept Ambulance Services Inc., Superior Court, judicial district of Waterbury, Docket No. CV 00 0156795 (October 10, 2001, Rogers, J.) ( 30 Conn. L. Rptr. 554) ("[Section] 52-557b(b) must contain explicit language in order to create a cause of action in gross negligence, not implicit or implied language. [Section] 52-557b(b) does not explicitly create a cause of action for gross negligence."); with Hansen v. Mohegan Fire Company, Inc., Superior Court, judicial district of New London at Norwich, Docket No. CV 96 0111388 (October 1, 2001, Corradino, J.) ( 30 Conn. L. Rptr. 572) ("If § 52-577b(b) is applicable, an action in `gross negligence' must be permitted. Any other result would render the use of the word `gross' by the legislature, referring to negligence, totally meaningless").
In Glorioso v. Burlington Police Department, 48 Conn.Sup. 10, 826 A.2d 271 (2003) [ 34 Conn. L. Rptr. 472], the court ruled on a gross negligence count against the defendant hospital for failure to render emergency assistance to a person who became ill during Thanksgiving dinner. Id., 11. The court concluded that the plaintiff should have the opportunity to plead gross negligence to avoid the exception in the immunity statute. Id., 15. The court reasoned that "[a] plaintiff who seeks to make a claim under the exception from immunity for gross, wilful and wanton negligence faces a definite problem in pleading. If that plaintiff pleads only negligence, with the intention of proving that the acts or omissions actually constituted gross, wilful or wanton negligence, the claim is at risk under the immunity provision . . . If the plaintiff pleads the words of the exception . . . the response, made by the [defendant] in the present case, is that Connecticut does not recognize distinct causes of action for gross negligence."
"Gross negligence is merely a heightened form of negligence. Abundant appellate authority supports the conclusion that gross negligence is recognized in Connecticut jurisprudence, even though there are few occasions for characterizing the level of negligence in stating a negligence claim. In Martin v. Brady, 261 Conn. 372, 379, 802 A.2d 814 (2002), the Supreme Court explained that wanton, wilful, reckless, intentional misconduct is `more than gross negligence.' . . . The court made the same comparison in Shay v. Rossi, 253 Conn. 134, 181, 749 A.2d 1147 (2000). Our Supreme Court can hardly be expected to have been using gross negligence as a point of comparison if gross negligence does not exist." Id., 15-16. "[A] cause of action for negligence of various degrees, including gross negligence, exists at common law and that liability for gross negligence was not abolished by the Good Samaritan Law. The appellate courts continue to recognize that in some situations a plaintiff may demonstrate that a defendant engaged in a more blatant degree of negligence that the appellate courts refer to as gross negligence. The limits of the immunity provided in the Good Samaritan Law justify the plaintiff's pleading of gross negligence in order to assert that the plaintiff is claiming more than the level of negligence to which the statutory immunity applies." Id., 17.
This position is not in conflict with Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 337, 885 A.2d 734 (2005) ("Connecticut does not recognize degrees of negligence and, consequently, does not recognize the tort of gross negligence as a separate basis of liability"). When a plaintiff alleges gross negligence under the Good Samaritan Law, the plaintiff is not alleging gross negligence as a separate basis of liability. The cause of action is still common-law negligence, whether the tortfeasor's conduct is ultimately determined to be ordinary or gross negligence. The Good Samaritan Law, rather than creating a separate basis of liability, provides a limited grant of immunity only for ordinary negligence, but not gross negligence. Glorioso v. Burlington Police Department, supra, 48 Conn.Sup. 17.
The town argues gross negligence requires a showing of a reckless disregard for the rights of others. That definition more accurately describes the tort of reckless conduct. "[The Appellate Court] has noted that [i]n order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must provide, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Manifold v. Ragaglia, 94 Conn.App. 103, 115-16, 891 A.2d 106 (2006). " `[G]ross negligence is commonly defined as very great or excessive negligence, or as the want of, or failure to exercise, even slight or scant care or `slight diligence.' " Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 338, citing 57A Am.Jur.2d 296, Negligence § 227 (2004).
The plaintiff alleges that the emergency medical technicians' actions were grossly negligent under the exception to the Good Samaritan Law, if that law applies. The plaintiff is not attempting to create a new cause of action for gross negligence at common law, apart from the Good Samaritan Law. Whether the defendants acted grossly negligent or ordinarily negligent is an issue that the jury must determine. Accordingly, the plaintiff's allegations are sufficient to withstand a motion to strike.
II COUNT EIGHT
In its memorandum of law, the town argues that because § 7-308 states exceptions for indemnification where the injury was the result of a volunteer ambulance member's wilful or wanton act, the plaintiff must explicitly negate the exceptions in his pleading. The town contends that the plaintiff must specifically allege that the individuals did not engage in wilful or wanton conduct.
In his memorandum in opposition to the town's motion to strike, the plaintiff argues that the indemnification claim under § 7-308 is proper because no count in his complaint alleges wilful or wanton conduct. The plaintiff argues that gross negligence is less than wilful or wanton conduct.
General Statutes § 7-308(b) specifically authorizes municipalities to indemnify a volunteer ambulance member that is found liable in negligence for an injury that occurs in the discharge of his or her volunteer ambulance duties provided such injury "was not the result of any wilful or wanton act . . ." While no appellate authority analyzes the wanton or wilful exception under § 7-308, the Connecticut Supreme Court has analyzed the requirements of an analogous municipal indemnification statute, General Statutes § 7-465. "Section 7-465 of the General Statutes provides an indemnity to a municipal employee, except a fireman who is covered under § 7-308, for all sums which he becomes obligated to pay by reason of the liability imposed upon him by law for damage to person or property which occurs while he is acting in the performance of his duties and within the scope of his employment. The statute does not, however, provide any indemnity if the occurrence was the result of a wilful or wanton act of the employee, in order for the plaintiff in this case to establish the liability of the municipality under § 7-465, she must prove compliance with the requirements of the statute as to demand and notice and that the conduct of the employee of which she complains was not wilful or wanton." Martyn v. Donlin, 148 Conn. 27, 32, 166 A.2d 856 (1961).
"Where a cause of action is created by statute, the exceptions therein must be negated by the party attempting to take advantage of it in his pleading and proof . . . In order for the plaintiff in this case to establish the liability of the municipalities, he must allege and prove that the conduct of the employees of which he complains was not wilful or wanton. Martyn v. Donlin, [ supra, 148 Conn. 32]." (Citations omitted.) Shaw v. Industrial Safety Supply Co., 23 Conn.Sup. 149, 151, 178 A.2d 284 (1961).
In the complaint, the plaintiff alleges in counts one and two that Lima and Lyons acted grossly negligent and in counts four and five that Lima and Lyons were careless and negligent. The plaintiff's complaint does not allege that the emergency medical technicians' actions were wanton or wilful. Because wanton or wilful conduct is defined as "more than negligence, more than gross negligence;" Manifold v. Ragaglia, supra, 94 Conn.App. 115; the plaintiff's allegations of negligence and gross negligence imply that Lima and Lyons' actions were not wanton or wilful. Construed in this plaintiff's favor, the complaint alleges by implication that the emergency medical technicians' actions were not wanton or wilful. The plaintiff's allegations therefore properly allege a claim under § 7-308.
CONCLUSION
Based on the above foregoing reasons, SVAC and the emergency medical technicians' motion to strike counts one, two and three is denied. The town's motion to strike count eight is also denied.