Opinion
FSTCV166028506S
07-17-2017
Victor Figueroa-Nazario v. Owen Montague
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#144.00)
Kenneth B. Povodator, J.
Background/Procedural Posture
The basic facts, as alleged by the parties and not seemingly in dispute, are that the plaintiff was working on power lines in an elevated bucket truck, in the course of his employment. The work vehicle was located on or immediately adjacent to a public road in Greenwich. The individual municipal defendants were directing traffic in the vicinity of the worksite, inferentially for purposes of maintaining a separation between traffic on the road and the work site. A vehicle driven by defendant Montague, an employee of defendant Gault, somehow became entangled in a rope being utilized by the plaintiff, causing the plaintiff to sustain injuries.
The plaintiff has sued the defendant operator of the vehicle and his employer, based on negligence in the operation of the motor vehicle. The plaintiff also has sued the individual municipal defendants, claiming that they were negligent in failing to maintain separation between moving vehicles and the plaintiff, with the town being sued as the employer claimed to be responsible under General Statutes § 52-557n. Defendants Montague and Gault, in turn, have filed a cross complaint against the municipal defendants, asserting common-law indemnification (active-passive negligence), pursuant to Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 207 A.2d 732 (1965) and its progeny. There are three counts, one directed to each municipal defendant, and the specifications of negligence are essentially identical.
The sole apparent difference is that the pronoun used as to each individual is " he" whereas the pronoun used in connection with the claimed liability of the Town based on the conduct of the individual municipal defendants is " they."
Previously, the municipal defendants had moved to strike the plaintiff's complaint, claiming governmental immunity; that motion was denied. They also have moved to strike the cross complaint filed by the operator defendants, also based on governmental immunity, and it is that motion that presently is before the court.
The court will not recite the well-established standards for a motion to strike. The court notes, however, that of particular relevance is that the non-moving party is entitled to the benefit of all reasonable inferences. The court further notes that the court is limited to issues actually raised by the moving parties in determining legal sufficiency.
Discussion
I. The pleadings
Our appellate courts have often stated that it is appropriate to address the issue of governmental immunity by way of motion to strike; see, e.g., DeConti v. McGlone, 88 Conn.App. 270, 869 A.2d 271 (2005). The problem, from a pleadings perspective is that a plaintiff (or party asserting a counterclaim or cross claim) is not obligated to refute, in advance, anticipated defenses. Therefore, because of the procedural posture, the " defense" of governmental immunity has not been raised in the pleadings, and the corresponding pleading in avoidance--a reply--potentially asserting the identifiable victim exception (or any other possible exceptions) also has not been raised in the pleadings.
The court notes that even when the pleadings are closed, plaintiffs often rely on a general denial to a defense of governmental immunity, rather than pleading the exception in avoidance. See, e.g., Haynes v. City of Middletown, 306 Conn. 471, 50 A.3d 880 (2012), describing such a situation; the Haynes line of cases was discussed in connection with the denial of the earlier motion to strike. The court notes that the defendants' brief in connection with this motion, notes the absence of anything in the cross complaint that attempts to refute, in advance, governmental immunity, but inferentially, the defendants were aware of the likelihood of reliance on the frequently-invoked identifiable victim exception.
Particularly given its frequent invocation and the plaintiff's reliance on the identifiable victim exception, the court believes that that exception properly is before the court. However, as noted earlier, the court is limited to consideration of issues raised by the parties. The municipal defendants have attempted to " amend" their motion to strike the cross complaint on an additional basis, but the court declines to consider the amendment on its merits, for the following reasons.
First, the court generally interprets the rules of practice as not permitting " rolling" motions, with additional issues being raised as the parties " discover" them while an initially-filed motion remains pending. This court has explicitly ruled in such a fashion in connection with a motion to dismiss, Bell v. Greenwich Hospital, J.D. Stamford/Norwalk at Stamford, FSTCV146022806S (March 5, 2015) [59 Conn.L.Rptr. 901, ]. Such an interpretation in the context of a motion to strike is far less consequential than in connection with a motion to dismiss--notwithstanding the failure to have an issue addressed by way of motion to strike, the issue can still be raised by way of summary judgment or at a trial on the merits, whereas a waivable jurisdictional issue that has not been raised in a timely manner cannot be raised at any subsequent time.
Additionally, it appears that the amended motion was prompted by an order of the court, intended for a wholly-different purpose. As recited in the memorandum in support of the amended motion (#157.00), the court issued an order (#144.00) indicating that " the cross claim plaintiffs should be prepared to articulate their good faith basis for asserting that negligence in the operation of a motor vehicle--the general scope of the allegations of negligence asserted by the plaintiff against the cross claim plaintiffs--can be characterized as 'passive' for purposes of common-law indemnification . . ."
The court was not intending to suggest arguments to be advanced by other parties. The court was concerned as to whether there had been an appropriate recognition of the limits on claims that can be made, consistent with the principle articulated by Rule 3.1 of the Rules of Professional Conduct: " A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." See, also, Practice Book § 4-2(b) (" The signing of any pleading [or] motion . . . shall constitute a certificate that the signer has read such document [and] that to the best of the signer's knowledge, information and belief there is good ground to support it . . ."). The court appreciates that a client is entitled to a zealous defense, but the rules articulate a need for a good faith basis for claims being asserted, and the court perceived there to be at least a question as to whether that arguably-minimal threshold had been satisfied here--the operator of the only moving vehicle involved in a motor vehicle accident claiming to be a purely passive participant in the incident. (Under Kaplan and its progeny, a party claiming common-law indemnification must allege and prove that its conduct was purely passive and the other party's negligence was active; Chicago Title Ins. Co. v. Accurate Title Searches, Inc., 173 Conn.App. 463, 482 n.12 (2017).) " It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom, " American National Fire Insurance Co. v. Schuss, 221 Conn. 768, 778, 607 A.2d 418 (1992), and the court could not ignore the dissonance of a statement to the effect that the driver of the only moving vehicle involved in an accident was passive in connection with an accident in which he is claimed to have been negligent in the manner in which he operated the motor vehicle.
Somewhat related is the element of control: " [T]he third party was in control of the situation to the exclusion of the [p]laintiff] seeking reimbursement . . ." 173 Conn.App. at 482 n.12. A police officer directing traffic (or supposed to be directing or controlling traffic) may have some control of the situation, but the operator of a motor vehicle would not appear to be excluded from some level of control.
As stated in the Preamble to the Rules of Professional Conduct, " [t]he Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons." The municipal defendants clearly are not using the rules themselves as weapons, but they are attempting to use a " by-product" of the rules as a weapon, and while the court cannot fault them for trying to do so, neither can the court ignore the source and timing of this amendment.
Accordingly, the court will limit its discussion to the issues raised in the municipal defendants' original motion and supporting brief, augmented by a discussion of the implied issue of the identifiable victim exception.
II. The Merits
A. Ministerial Duties
In response to the claim of governmental immunity, the operator defendants assert that notwithstanding the claim of the municipal defendants that the duties allegedly breached were discretionary in nature, the operator defendants contend that the duties properly are characterized as ministerial. The appropriate starting point, then, would seem to be the actual allegations--the specifications of negligence identified in the cross claim filed against the municipal defendants.
As to each municipal defendant, the operator defendants contend:
a. He failed to properly mark off or cone the work scene in order to adequately protect Plaintiff in the elevated truck bucket;
b. He failed to properly station himself by the work scene in order to adequately protect Plaintiff in the elevated truck bucket;
c. He failed to keep a proper and reasonable lookout for the safety of Plaintiff working on the utility lines in the elevated truck bucket on the roadway before moving vehicles;
d. He failed to direct the motor vehicle to the left or to the right so as to avoid entanglement with the rope line;
e. He failed to be attentive to his surroundings as to motor vehicles in proximity to the work scene; and
f. He failed to give a timely warning of the impending danger.
Briefly returning to the ethical issues discussed above: To the extent it was or might be suggested that the police officers might have directed the operator to drive his vehicle into the plaintiff and his equipment (in an affirmative-mandatory sense), there is no such claim asserted--all of the allegations state what the officers did not do (" failed" to do).
All of these specifications involve some level of discretion or judgment--most of them explicitly invoke a concept of adequacy or propriety or reasonableness of conduct. A failure to be attentive is no different than a failure to be adequately or properly attentive, absent a claim of total abandonment of the assigned task. In Strycharz v. Cady, 323 Conn. 548, 567, 148 A.3d 1011, 1022 (2016), the court discussed the distinction between a duty to ensure that an obligation was performed and the manner in which the task was performed (including follow-through on the adequacy of performance). In that case, an administrator had the obligation to assign other personnel to certain tasks. The court held that the administrator had no obligation to ensure that the assigned tasks, themselves, were being performed properly or at all; it sufficed that the administrator had assigned staff members to do perform the functions--assuming that the duty to assign, itself, was ministerial. More generally, the case identified the proposition that the existence of a ministerial duty generally requires some established mandate that some task be performed or that a task be performed in a prescribed manner.
Furthermore, the plaintiff has not pointed to anything in the record that can be construed as a directive establishing such a ministerial duty. See Violano v. Fernandez, 280 Conn. 310, 323, 907 A.2d 1188 (2006) (ministerial acts are acts required by city charter provision, ordinance, regulation, policy, rule or other directive). Strycharz v. Cady, 323 Conn. 548, 567, 148 A.3d 1011, 1022 (2016).
The essence of a ministerial function is that there must be a prescribed manner for performance of the function. " In order to create a ministerial duty, there must be a city charter provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner." (Internal quotation marks and citation, omitted.) DiMiceli v. Town of Cheshire, 162 Conn.App. 216, 224, 131 A.3d 771, 777 (2016). There is no identified directive, nor can the court infer the existence of a directive prescribing how these claimed duties were to be performed without the exercise of judgment and discretion, e.g., how a police officer is expected to be attentive. This may be mostly common sense, but even allowing the non-moving party the benefit of all reasonable favorable inferences from well-pleaded facts, the court cannot discern any mandated means of performing the identified functions, consistent with any recognized concept of ministerial.
Accordingly, the court concludes that the cross claim plaintiffs have not alleged any ministerial duty but rather they have alleged discretionary functions, alleged deficiencies in the degree to which the individual officers performed their functions at the work site. The question then becomes possible applicability of an exception.
B. Exception to Governmental Immunity
What remains for resolution, then, is the issue of applicability of the identifiable victim exception to governmental immunity arising from the performance of discretionary functions. The court already has concluded that the named plaintiff was sufficiently identifiable and at sufficiently imminent risk of harm to defeat the motion to strike filed by the municipal defendants as to his claims. The ultimate issue here, then, is whether the status of plaintiff Figueroa as an identifiable victim is sufficient for purposes of the claim by the defendant operator and his employer, in pursuing the claim of common law indemnification, or whether some other standard must be utilized.
At the outset, the court notes that there is no requirement that the cross-claim plaintiffs allege the existence of any duty owed by the municipal defendants directly to the operator defendants; Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 702, 694 A.2d 788, 792 (1997). (No such duty is alleged.) However, that does not negate the fact that the cross complaint is, for most if not all purposes, the equivalent of an independent action against the municipal defendants. Common-law indemnification is not limited to being raised in the proceeding in which a plaintiff asserts claims against the parties to the cross complaint, and parties may move for summary judgment on a cross complaint as if it were an independent action, Practice Book § 17-44. General Statutes § 52-598a provides a limitations period for asserting indemnification that starts with the entry of judgment (or settlement) of the underlying claim. A court may well deny a belated effort to implead a third party based on indemnification, recognizing that the denial does not preclude an independent assertion of the right to indemnification. In other words, the court must and does reject any suggestion that the indemnification claim is inexorably linked to and intertwined with the underlying claim, such that independent analysis is prohibited.
This is somewhat analogous to the independent status of a counterclaim. Just recently, the Appellate Court determined that the fact that an appeal from a judgment in favor of a plaintiff had become moot did not necessarily render moot a counterclaim or the appeal from a judgment relating to that counterclaim; Friedman v. Gomez, 172 Conn.App. 254, 259-60, 159 A.3d 703 (2017).
The point of this exercise is that for purposes of their indemnification claim, the operator defendants are acting as--and therefore must be treated as--plaintiffs, asserting a claim for monetary compensation directed to municipal employees. It is a claim of liability based on the alleged negligence of those municipal employees, with the derivative claim of liability of the municipality itself based on claimed negligence of its employees--the realm of applicability of General Statutes § 52-557n and, by extension, the judicially-recognized exceptions to such liability. Whatever liability a factfinder may determine applies to the operator defendants with respect to the claim of the plaintiff, the operator defendants are claiming that the municipal defendants should reimburse them for any such award of damages based on the claimed active negligence of the municipal defendants.
It must be recognized that the identifiable victim exception is an exception to what is sometimes referred to as the public duty rule--a municipal employee's breach of a duty to the public at large generally is not actionable. Only to the extent that the focus can be narrowed to a particular member of the public, identified or identifiable, at imminent risk of harm, will an exception be recognized; Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979). This general analysis, based on the prototypical pattern, breaks down when applied (or attempted to be applied) to the alleged facts in this case.
The class of motorists on the road generally is deemed the public, for purposes of this analysis; Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982); such that an injury to a member of the general public typically is not actionable. Further, even if the concept of identifiable were to be stretched so as to allow each of the dozens or hundreds or thousands of motorists who might pass the plaintiff's worksite in a given day to be deemed identifiable, there are no facts stated or implied by which each of those dozens or hundreds or thousands of motorists might be characterized as being at imminent risk of harm. That deficiency is accentuated by the recent emphasis on what " imminent" means in the context of the exception to governmental immunity.
In Haynes v. Middletown, 314 Conn. 303, 101 A.3d 249 (2014), the court stated:
Accordingly, the proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm. 314 Conn. at 322-23.
To be sure, Haynes facially is distinguishable, as it was a case involving a related but distinct exception for members of an identifiable class of victims at imminent risk of harm, but the same controlling language has been used in identifiable victim--not class of victim--cases, prior to Haynes. Haynes is technically distinguishable, but it is of a piece with the analysis properly applicable here. Over the years, the same formulation has been used repeatedly in identifiable victim cases.
For example: " This would run counter to the purpose of governmental immunity, which is to protect a municipality from liability arising from a municipal officer's negligent, discretionary acts unless the officer's duty to act is clear and unequivocal." Coley v. City of Hartford, 312 Conn. 150, 168, 95 A.3d 480, 492 (2014), in turn, quoting from Edgerton v. Clinton, 311 Conn. 217, 228 n.10, 86 A.3d 437 (2014). Edgerton, in turn, cited Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d 191, 197 (2006), wherein the court stated:
We have identified three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official's " duty to act is [so] clear and unequivocal" that the policy rationale underlying discretionary act immunity--to encourage municipal officers to exercise judgment--has no force.Doe, in turn, cited and quoted Shore, supra, 187 Conn. 153.
Other cases, not in this line of citations, also used similar formulations; see, e.g., Brooks v. Sweeney, 299 Conn. 196, 221-22 n.18, 9 A.3d 347, 364 (2010); Bonington v. Town of Westport, 297 Conn. 297, 307, 999 A.2d 700, 708 (2010).
In a sense, then, Haynes was intended to apply the same language and standard used in identifiable victim cases to identifiable class of victim cases, where a different standard had been applied for approximately 20 years, starting with Burns v. Board of Education, 228 Conn. 640, 638 A.2d 1 (1994) and Purzycki v. Fairfield, 244 Conn. 101, 708 A.2d 937 (1998). Haynes overruled Burns and Purzycki to the extent that they had relied on a temporal limitation as a dominant part of the concept of imminent as used in the identifiable class of victim analysis.
The policy behind the exception is vindicated to the extent that the plaintiff may establish imminence of harm and thereby recover against the municipal defendants. The possibility of secondary liability to another tortfeasor, however, does not serve the same purpose. The injured plaintiff will be fully compensated, with a duly allocated/apportioned percentage attributed to any culpable municipal defendants--the need to take action in the face of an unequivocal duty to act would be fully vindicated, without anything further.
The court has been unable to find any case on point. In Williams v. Macky Two, LLC, J.D. Middlesex at Middletown, No. MMX CV 136009247, 2016 WL 1621655, at *6 (Conn.Super.Ct. Apr. 6, 2016), the court granted summary judgment for the municipality on an analogous indemnification claim, but the court previously had determined that the municipality was entitled to governmental immunity, and the motion was granted based on the premise that the existence of immunity precluded indemnification liability.
More generally, exceptions or limitations to governmental immunity are to be narrowly construed, Rawling v. New Haven, 206 Conn. 100, 112, 537 A.2d 439, 446 (1988); Ahern v. City of New Haven, 190 Conn. 77, 82, 459 A.2d 118, 121 (1983). Although these cases relate to statutory exceptions themselves, there is no reason why judicially-recognized exceptions to statutory immunity should be treated any differently. This is especially so given the express recognition that the identifiable victim exception, itself, should be given a narrow application, Grady v. Town of Somers, 294 Conn. 324, 353, 984 A.2d 684, 703 (2009).
In a supplemental submission (#158.00), the operator defendants as cross claim plaintiffs cite and rely upon two trial court decisions, Valadez v. Peruta, No. HHDCV106012594S, 2012 WL 6965408 (Conn.Super.Ct. Dec. 28, 2012), and Rokicki v. Putnam Fish & Game Club, Inc., No. WWMCV116003596S, 2012 WL 4377816 (Conn.Super.Ct. Aug. 28, 2012). The court finds the cases distinguishable substantively and procedurally.
In both cases, the discussion solely focused on whether the " real" plaintiff was an identifiable victim for purposes of the identifiable victim exception to immunity. The court believes--and has discussed above--that the initial question that must be answered relates to identification of the proper plaintiff for purposes of the analysis. In an indemnification claim, the functional plaintiff is the party filing the indemnification claim, not the technical plaintiff who initiated the initial tort proceeding. Neither decision addressed the implications, if any, of the independent nature of a cross complaint or other method of seeking indemnification.
Further, this case presents the issue in cleaner or starker terms. In Rokicki, the primary plaintiff was deemed not to have been an identifiable victim with respect to a direct claim against the police officers. The practical effect is that the court concluded that there could not be indirect (indemnification) liability if there was no possible direct liability to the actually-injured plaintiff.
Valadez presents the opposite situation. The police were involved precisely because the named defendant--now acting as a plaintiff seeking indemnification--had brought the police into the scenario by specific request for their assistance. The named defendant's liability was directly related to the involvement of the police.
A further refinement is that both cases appear to have focused on identifiability of a potential victim/plaintiff, without regard to imminence of harm. In Rokicki, there really was no need to explore imminence given the absence of an identifiable victim and the intertwined nature of the two concepts (and the limited scope of applicability):
Sestito appears, however, to be limited to its facts, as the remainder of the case law indicates that this exception has been applied narrowly, because " [a]n allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person." Grady v. Town of Somers, 294 Conn. 324, 353-54, 984 A.2d 684, 703 (2009).
In Valadez, the court relied on language in a Supreme Court footnote articulating a proposition of questionable applicability when the statement was made and clearly superseded since:
Under Connecticut case law, " imminent harm" is that which relates to and arises from a " temporary hazardous condition" that is limited in " duration and geographical scope." (Internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 618 n. 10, 903 A.2d 191 (2006). Valadez v. Peruta, No. HHDCV106012594S, 2012 WL 6965408, at *5 (Conn.Super.Ct. Dec. 28, 2012).
To be sure, footnote 10 in Doe does contain the quoted language, citing and relying upon, inter alia, Burns and Purzycki . Those cases, however, were identifiable class of victim cases, not identifiable victim cases, and in any event, as discussed above, Haynes overruled Burns and Purzycki to the extent that the cases recognized a temporal limitation on imminent harm, instead returning the focus to unequivocal duty to act. The court notes that appellate courts have recognized a distinction between identifiable victims and members of a class of identifiable victims; see, e.g., Jahn v. Board of Education, 152 Conn.App. 652, 99 A.3d 1230 (2014).
In sum, then, the defendant operator's authorities did not discuss the specific issue here, are distinguishable, and at least in part rely on appellate authority that since has been overruled.
The municipal defendants, in turn, have relied upon a trial court decision, claimed to be analogous to the one at hand, claimed to warrant if not compel the granting of this motion. With respect to the claim of the plaintiff, the case was readily distinguishable, but it is closer to the current issue insofar as the court believes that the relevant identifiable victim, for purposes of indemnification, is not the plaintiff (who effectively is a third party to the indemnification claim) but rather the defendant operator and his employer:
There is no real question that the conduct the plaintiff complains of is governmental conduct that requires the exercise of discretion. The plaintiff relies upon the " identifiable individual imminent harm" exception to the doctrine of governmental immunity. She has not alleged that the defendants have acted with malice nor has she alleged the violation of a statute governing the defendants' conduct in this situation.
What is absent from the complaint are allegations of the facts that the plaintiff relies upon to establish these defendants were aware that the decedent was in a position of " imminent harm." The allegations that an individual is arrested and is unable to post bond are not sufficient to support inferences that self-harm is imminent. The allegations that the plaintiff was " standing with her back to the camera and her arms crossed" is also not sufficient to support an inference of " imminent harm." Estate of Kastancuk v. Town of East Haven, J.D. New Haven, CV040487437, (February 1, 2008); affirmed, 120 Conn.App. 282, 991 A.2d 681 (2010).
In Kastancuk, the described/identified conduct could be characterized either as purely innocuous or at best highly ambiguous with respect to the plaintiff, and that does not describe the situation as to the named plaintiff. As to the parties seeking indemnification wearing the " hat" of plaintiffs, however, it does. A failure of the police officers to maintain separation between motorists and the plaintiff would create an imminent risk of harm to an identifiable individual--the plaintiff. While motorists also might be at risk of harm, it would be somewhat more tenuous to claim that any particular motorist was an identifiable victim, Shore, supra, although at least an argument could be made that a particular motorist, actually observed approaching the work-site, might be deemed identifiable for purposes of this exception. But as noted earlier, the exception requires identifiability and imminence of harm, and there is no stated or implied basis for imminence as to each driver passing by--even assuming inadequate attention, inadequate required separation, etc.
The court is not relying on Kastancuk, but believes it to be appropriate to note that it is somewhat consistent with the court's resolution of the two motions to strike filed by the municipal defendants.
Conclusion
The issue before the court, distilled to its essence, is the possible availability of the identifiable victim exception with respect to governmental immunity as asserted by the municipal defendants. In passing, the court has noted the issues that may exist with respect to the required elements of common-law indemnification, but only to the extent that such seeming infirmities might inform the decision as to applicability of the exception can the court utilize such issues.
The defendant operator and his employer are not assignees or subrogees or otherwise entitled to stand in the shoes of the plaintiff. They are seeking a financial recovery for their own benefit, from the municipal defendants. The injured plaintiff will (depending on the nature and details of the verdict) obtain a full recovery from the operator defendants and/or the municipal defendants, in whatever proportions the jury determines to be appropriate. But that leads to the necessary recognition that the immunity claimed with respect to the cross claim for indemnification is directed to the defendant operator, not the plaintiff. Why should the operator be able to invoke the status of the plaintiff, for purposes of attempting to abrogate a claim of immunity directed to the operator and not the plaintiff? Conversely, the balance between governmental immunity for discretionary functions and the need for accountability in cases of identifiable victims at imminent risk of harm is amply vindicated by allowing the directly-injured plaintiff to pursue an action against the municipal defendants; there is no such vindication arising from allowing the operator defendants to transfer their possible allocated liability to the municipal defendants.
Again, neither side has identified any authority specifically on point. In light of the focus of immunity on the claimant, the requirement of narrow application/interpretation of exceptions to immunity in general and as specifically identified with respect to the identifiable victim exception (Grady, supra ), and the lack of particularity of identifiability of a motorist on a public street who, only in hindsight, might have been identifiable and somehow distinct from the numerous if not quite uncountable members of the public who did or might happen by the scene that day, the court concludes that the operator defendants--as cross claim plaintiffs--were not identifiable victims at imminent risk of harm. As drivers approached the scene, there was nothing that could support a contention that " it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm" to the operator of this (or any) approaching vehicle, except with the benefit of hindsight.
In oversimplified terms, the court interprets applicable principles to require the court to consider the circumstances of the particular party asserting an exception. The status of the plaintiff as a plausibly identifiable victim allows the case to proceed on his behalf. The status of the defendant operator, however, precludes characterization as an identifiable victim for purposes of this motion to strike. The court must accept well-pleaded facts, but is not required to accept conclusions without sufficient factual (as alleged) basis. (The operator defendants, of course, can attempt to plead over, if they believe that additional facts could be asserted that would cure the defects identified in this decision.)
The issue has a standing-like quality--on what basis can the defendant operator invoke the status and rights of the plaintiff, with respect to an independent claim by the operator and his employer against the municipal defendants? " The general rule is that one party has no standing to raise another's rights." Exley v. Connecticut Yankee Greyhound Racing, Inc., 59 Conn.App. 224, 235, 755 A.2d 990, 996 (2000); cert. denied, 254 Conn. 939, 761 A.2d 760 (2000). While perhaps not rigorously applicable, the operator defendants have not identified a basis on which they should be allowed (entitled) to take advantage of the status of the plaintiff as a means of defeating otherwise-applicable immunity.
The status of the pleadings, discussed above, has created a context of ill-defined parameters for the discussion of governmental immunity and the related exception of identifiable victim. Although not seemingly argued, the court has considered the status of the defendant operator as a possible identifiable victim as well as the actually-invoked status of the plaintiff as the identifiable victim of concern. The court cannot conclude that the defendant operator has sufficiently identified a possible basis for application of the identifiable victim exception to immunity to be applicable to the operator defendants' claim for indemnification, as directed to the municipal defendants.
For all these reasons, then, the court grants the municipal defendants' motion to strike, based on governmental immunity and the inapplicability of the identifiable victim exception to immunity to claims asserted by the defendant operator and his employer.