Opinion
No. HHD CV 05-4013928S
May 16, 2006
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE
This is an action involving a collision the plaintiff, Paul R. Himmelstein, a biker, had with a radar trailer which is placed in the road to discourage speeding violations. The defendants, Town of Windsor, Windsor Police Department, Windsor Chief of Police, Kevin Searles, and a "John Doe," (an unidentified employee of the police department), have moved to strike a portion of the first count and the entire second, third and fourth counts of the plaintiff's complaint dated June 24, 2005.
I Factual and Procedural Background
The plaintiff alleges that on July 20, 2004, he was operating his bicycle in the northbound travel portion of Palisado Avenue in the Town of Windsor when he collided with a Windsor police department radar trailer which had been parked, stored or placed in the travel portion of the road by the agents, servants and/or employees of the town and/or the town's police department. The actual location of the radar trailer was in the street in front of a house numbered 224 Palisado Avenue in the area of the street between the curb, or edge, of the road and the white fog line. Plaintiff avers that the radar trailer was "parked, placed, erected and/or stored" in the roadway without the placement of warning lights, hazard flashers, orange cones or barrels, signs or any other warning devices to indicate the location of said radar trailer. He claims he collided with the radar trailer and sustained serious personal injuries, losses and damages.
In the first, second and third counts, plaintiff specifies a number of ways in which the town and/or its employees breached a duty of care: (1) they parked, placed, erected and/or stored the trailer in a manner that constituted a hazard and danger to persons lawfully using the highway breakdown lane; (2) they failed to place warning lights, hazard flashers, cones or barrels, signs or any other warning devices to alert and warn persons; (3) they failed to adequately illuminate the trailer; (4) they failed properly to redirect traffic away from the location of the trailer; (5) they failed to move the trailer off the travel portion of the road and place it where it would not impede or endanger persons using the highway; (6) they failed to take other necessary and proper measures to ensure the safety of persons using the road.
The first count is brought against the town and the police department under General Statutes § 13a-149; the second count is against Kevin Searles, the town's Chief of Police, and sounds in common-law negligence; the third count is against a John Doe, who is alleged to be "a police officer and/or agent, servant and/or employee of the Town of Windsor Police Department and/or the Town of Windsor" and also sounds in common-law negligence; the fourth count is against the town and its police department and sounds in nuisance. Nuisance allegations in the fourth count state that the "placing, pricing, erecting or storing said Radar Trailer in the travel portion of said roadway . . . created and maintained a condition which had a natural tendency to create danger and inflict injury upon the person or property of persons lawfully using said roadway." Plaintiff further alleges that the nuisance was a continuing one which had existed from some time prior to the collision.
The defendants claim that the second, third and fourth counts of the complaint fail to state a cause of action upon which relief may be granted for the reasons that the radar trailer is a highway defect, as a matter of law, and thus, the causes of actions sounding in common-law negligence and nuisance against the town, its police department and any town employees are barred by the exclusivity of the remedy available to persons using the highway pursuant to General Statutes § 13a-149. Defendants further claim that the third count alleged against an unnamed "John Doe," and the claims against the Windsor Police Department in the first and fourth counts are legally invalid because neither a "John Doe" nor a town police department can be properly named as a party.
II Standard of Review CT Page 8989
"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." Practice Book § 10-39(a). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "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.) Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 328, 743 A.2d 622, cert. denied, 252 Conn. 951, 748 A.2d 299 (2000). The court must "take the facts to be those alleged in the complaint . . . and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency." Fields v. Giron, 65 Conn.App. 771, 774, 783 A.2d 1097, cert. denied, 258 Conn. 936, 785 A.2d 230 (2001). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. Moreover . . . [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." (Citations omitted.) Gazo v. City of Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). "A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 694, 748 A.2d 834 (2000). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).III Discussion A. Plaintiff's Claim That The Motion To Strike Is Not In Proper Form
The plaintiff claims that the defendant's motion fails to comply with the requirements of Practice Book § 10-41. Plaintiff cites Morris v. Hartford Courant Co., 200 Conn. 676, 683 n. 5, 513 A.2d 66 (1986). The court finds the defendants have complied with the Practice Book rule. They specify that "there is a failure to state a claim upon which relief can be granted," pursuant to Practice Book § 10-39(a)(1), identify the four counts being challenged and enumerate, in five specific paragraphs, each of their bases for claiming the various counts are legally insufficient or invalid. The plaintiff points to references in the motion requesting that the "complaint" be stricken as fatally defective, but these appear to be nothing more than a scrivener's error. While the defendants don't identify the number of the count being referred to in any of the five paragraphs describing the claimed insufficiencies, they do identify in each of those paragraphs the nature of the claim contained in that count or the name of the particular defendant named in that count. The court had little trouble determining to which counts the claimed insufficiencies pertain. Certainly, the plaintiff had no difficulty objecting to and arguing against all of the defendant's claims. The motion to strike adequately sets forth a separate claim of insufficiency and distinctly specifies the reason or reasons for each claimed insufficiency. The authorities relied on by the plaintiff are cases where no basis whatsoever was stated in the text of the motion. That is not the case here.
Practice Book § 10-41 states, "Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding section shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency."
B. Claims Against The Windsor Police Department In The First And Fourth Counts
In the first and fourth counts of his complaint, the plaintiff alleges a direct cause of action against the Town of Windsor Police Department for failure to remedy a defective road condition and for creating and maintaining a public nuisance. However, the plaintiff cannot maintain a direct cause of action against a police department of a town.
"In order to confer jurisdiction on the court, [a party] must have an actual legal existence, that is he or it must be a person in law or a legal entity with legal capacity to sue [or be sued.]" Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 600, 490 A.2d 1024 (1985). Entities which have no legal existence cannot sue or be sued. Id.
The Connecticut General Statutes contain no provision establishing municipal departments, including police departments, as legal entities separate and apart from the municipality they serve, or providing that they have the capacity to sue or be sued. See Weitz v. Greenwich Police Dept., Superior court, judicial district of Stamford/Norwalk at Stamford, Docket No. CV-04-0200464S (January 10, 2004, Jennings, J.); Levine v. Fairfield Fire Dept., Superior Court, judicial district of Waterbury, Complex Litigation Docket No. X01-CV89-0146670S, (April 9, 1999, Hodgson, J.). Rather, pursuant to Connecticut enabling legislation, it is the municipality itself which possesses the capacity to sue and be sued. Id. "Unless department within municipal government constitute distinct "bodies politic" under state law, the proper defendant is the municipality itself, not an administrative subdivision." Levine v. Fairfield Fire Dept., supra. Accordingly, those Connecticut courts addressing this issue have held that municipal police departments do not constitute an independent legal entity amenable to suit. See also Warren v. Streater, Superior Court, judicial district of New Haven at New Haven, Docket No. 304012 (January 20, 1995, Fracasse, J.); Disabella v. Town of West Hartford, Superior Court, judicial district of Hartford at Hartford, Docket No. CV04-0832044S, (June 9, 2005, Keller, J.). Thus, the first and fourth counts, insofar as each purports to state a cause of action against the Windsor Police Department fail as a matter of law and may be stricken. See Practice Book § 10-45.
Plaintiff argues that the court cannot strike the first and fourth counts as to the police department because they contain a viable action, at least against the town. The court disagrees. Practice Book Section § 10-45 states, in pertinent part, "Whenever the judicial authority grants a motion to strike the whole or any portion of any pleading or count which purports to state an entire cause of action . . . and such pleading or portion thereof states of constitutes a part of another cause of action . . . the granting of that motion shall remove from the case only the cause of action . . . which was the subject of the granting of that motion, and it shall not remove such pleading or count or any portion thereof so far as the same is applicable to any other cause of action . . ."
C. Claim Against "John Doe" In The Third Count
In the third count, the plaintiff alleges a direct cause of action against John Doe, a police officer of the Town of Windsor Police Department and/or Town. In addition, the writ and summons names "John Doe, Windsor Police Department" as a defendant in this action.
Although the issue has yet to be addressed by any Connecticut Appellate court, the majority of trial courts which have addressed the issue of naming a "John Doe" defendant have refused to recognize such a cause of action as valid. The use of "John Doe" defendants is disfavored because "in order to protect the rights of unknown defendants, [those defendants] must have actual notice of the institution of the action, know they are proper defendants and not be misled or prejudiced by the use of the fictitious name." Tremblay v. Webster, Superior Court, judicial district of New London at New London, Docket No. 530898 (February 22, 1995, Hurley, J.). In Douglas v. Town of Hartford, 542 F.Sup. 1267, 1270 (1982), the court granted a "John Doe" police officer's motion to dismiss for lack of service of process. In doing so, the court noted: "[t]his court has consistently taken the view that use of fictitious names in a pending litigation causes uncertainty and possible prejudice to the unnamed defendants. Plaintiffs . . . are expected to conduct some preliminary investigation to determine the legal basis, if any, for an action against a particular person or entity." In Brock v. A-1 Auto Service, Inc., 45 Conn.Sup. 525, 728 A.2d 1167 (1998), the trial court noted, "The difficult is not overcome by making the unknown ones parties under a false name, but by dispensing with them altogether, if the suit can proceed without them, or by praying a discovery for the purpose of bringing them before the court." Id., 530. (Citation omitted; internal quotation marks omitted.) Either of these alternatives could have been followed in this case. The plaintiff, having sued the town almost a year ago, could have learned the name or names of the unknown town employees responsible for the radar trailer through formal or informal discovery. Once the identities were ascertained, a proper action could have been commenced. In addition, this lawsuit will be able to proceed without "John Doe" (or his sister, "Jane"), as parties.
There is a likelihood, as well, that "John Doe" would be immune from the negligence claim asserted against him, as the allegations lodged against him point to his performance of a discretionary as opposed to a ministerial act. See Elliott v. Waterbury, 245 Conn. 385, 411, 715 A.2d 27 (1998).
"[T]he majority of Connecticut Superior Courts have maintained that the naming of an unidentifiable `John Doe' defendant in a complaint and a summons is improper because Connecticut does not have a fictitious name statute, nor is it authorized by the Practice Book." Mills v. Ansonia Community Action, Inc., Superior Court, judicial district of Waterbury, Docket No. 128715 (June 7, 1996, Pellegrino, J.) ( 17 Conn. L. Rptr. 253). See also Johannessen v. Renna, Superior Court, judicial district of Waterbury at Waterbury, Docket No. CV 98-0144633 (October 13, 1998, Pellegrino, J.); Hackett v. State, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 352161 (November 28, 1990, Stengel, J.). In Mills v. Ansonia Community Action, Inc., supra, the court struck a count in an apportionment complaint that set forth a claim against an unknown and unserved "John Doe." The plaintiff has provided no authority in his objection and accompanying memoranda that establishes any legal basis for maintaining his fourth count, other than to ask the court to infer from the Supreme Court's refusal to consider the issue in Ayala v. Smith, 236 Conn. 89, 90, 671 A.2d 345 (1996) as a show of support for lawsuits against unknown "John Does." The court declines to take the suggested leap of faith. The fourth count must be stricken.
C. The Claim That The Second, Third And Fourth Counts Should Be Stricken Because the Plaintiff's Exclusive Remedy Is An Action Under General Statutes § 13a-149The defendants claim that the second count, which sounds in common-law negligence against Searles, the town of Windsor police chief, the third count, also a common-law negligence claim against an unknown police officer and employee of the town, and the fourth count, which sounds in nuisance against the town and its police department, should be stricken because the plaintiff's exclusive remedy is a suit against the town pursuant to the municipal highway defect statute, General Statutes § 13a-149.
Generally, a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating such immunity. See Williams v. City of New Haven, 243 Conn. 763, 767, 707 A.2d 1251 (1998). The legislature has set forth the general principles of municipal liability and immunity in General Statutes § 52-557. Subsection (a)(1)(C) of that statute provides that "no cause of action shall be maintained for damages resulting from any injury to any person or property by means of a defective road or bridge except pursuant to [General Statues] § 13a-149. Section 13a-149, also known as the highway defect statute, provides, in relevant part: "[a]ny person injured in person or property by means of a defective road or bridge may recover damages by the party bound to keep it in repair."
In Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991), the Connecticut Supreme Court held, "[W]e construe § 52-577n to provide that an action under the highway defect statute, § 13a-149, is a plaintiff's exclusive remedy against a municipality or other political sub-division for damages resulting from injury to any person or property by means of a defective road or bridge. The decision as to whether the facts alleged by the plaintiff, if true, would amount to a highway defect under the statute is a question of law for the court. Id., 201. A highway defect is defined as "[a]ny object in, upon or near the traveled path which would necessarily obstruct or hinder one in the use of the road for purpose of traveling thereon or which, from its nature and position, would be likely to produce that result . . ." Id., 202; Comba v. Ridgefield, 177 Conn. 268, 271, 413 A.2d 859 (1979); Ferreira v. Pringle, 255 Conn. 330, 341, 766 A.2d 400 (2001). An object which has a necessary connection with the roadbed or the public travel thereon and which may expose a danger to a person as a traveler on the highway is a defective condition for purposes of the highway defect statute. See Sanzone v. Board of Police Commissioners, supra, 219 Conn. 202. Defects which are located within a road shoulder constitute a highway defect pursuant to § 13a-149. See Ferreira v. Pringle, supra, 255 Conn. 347.
The plaintiff specifically alleges that his injuries were caused by the subject radar trailer because it had been parked, placed, erected and/or stored in the travel portion of the roadway, namely in the area between the road edge/curb and the white fog line. He alleges it was not properly lit or signed so travelers approaching it would be appropriately warned. He alleges no police officers were positioned to direct traffic around it and alleges that it should have been moved away from the traveled portion of the roadway. He further alleges that it was a hazard to persons lawfully using the road and breakdown lane, a hazard and a danger to persons lawfully operating vehicles on the road and an impediment or danger to traffic lawfully using the road. The plaintiff's first count is brought under the highway defect statute and he has alleged a proper cause of action against the town, pleading the requisite notice, pursuant to § 13a-149.
The town defendants argue that the plaintiff may not seek to circumvent the exclusivity of the highway defect statute as his remedy by invoking a nuisance claim as set forth in the fourth count, or common-law negligence claims, as set forth in the second and third counts.
In Sanzone, the Supreme Court held that nuisance claims against a municipality for injuries caused by means of a defective road are specifically precluded by General Statutes § 52-557n. The Court reasoned that to allow a claim involving a defective highway to proceed under a nuisance theory "would render [§ 52-557n] a nullity . . . [t]he legislature could not have intended [such a result]." Sanzone v. Board of Police Commissioners, supra, 219 Conn. 191. Subsequent to its ruling in Sanzone, the Court has consistently reaffirmed its holding that §§ 52-557n and 13a-149 bar an action sounding in nuisance for injuries caused by a highway defect. See Cook v. Turner, 219 Conn. 641, 643, 593 A.2d 504 (1991); Wenc v. New London, 235 Conn. 408, 412-13, 667 A.2d 61 (1995).
In Ferreira v. Pringle, supra, the plaintiff brought suit against various municipal employees for common-law negligence. The plaintiff in that case argued that his injuries were "directly and proximately caused by the negligence of the defendants . . . in the course of their contractual obligations or employment . . ." The plaintiff in this case, in the third and fourth counts, alleges that the town Chief of Police, his officers, agents, servants and/or employees and a "John Doe" police officer, were negligent and careless, in their official capacities as agents, servants and/or employees of the town, in exactly the same manner in which he alleges the town of Windsor breached its statutory duty pursuant to § 13a-149 in the first count. It is clear here that the plaintiff's claims arise out of the individual defendants' conduct in the course of their employment. The Supreme Court in Ferreira affirmed the trial court's decision that the highway defect statute was the plaintiff's exclusive remedy against the towns and their officials and that the plaintiff could not make a claim directly against the municipal officers which was in reality a claim for a defective highway. The Court "refused to separate the municipality from its employees," insisting that the allegations against the employees were asserted for the purpose of imposing liability on the town. Ferreira v. Pringle, supra, 255 Conn. 330, 334.
The plaintiff in this case makes no allegations in his complaint that he has sued these town employees as individuals in their individual capacities. The second count is asserted against Searles, the "Chief of Police, an agent, servant and/or employee of the Town of Windsor, and as such . . . the administrative head of the Police Department of the Town of Windsor . . . responsible for directing the activities and operations . . . of the Police Department of the Town of Windsor." Clearly, paragraph 9 of the second count attempts to establish Searle's official capacity. In paragraph 11, when the plaintiff alleges that Searles was negligent and careless, he reiterates Searle's official status. In the third count, alleged against a "John Doe" "of the Town of Windsor, Windsor Police Department," Doe is described as "a police officer and/or agent, servant and/or employees of the police department and/or the Town of Windsor." In paragraph 10, plaintiff alleges that Doe, as a police officer, was working in the area of the incident on the day and question and in paragraph 12, plaintiff asserts that Doe's actions were ministerial not discretionary. In paragraph 13, when the plaintiff describes Doe as negligent and careless, he reiterates his official status. In his brief, plaintiff notes that the alleged "positive acts of negligence" of any employee, agent or servant of the town were "ministerial." (Plaintiff's Memorandum dated November 10, 2005, p. 12). In addition, service on Searles and an attempt at service on the unknown Doe was made at Windsor's town hall, their alleged place of employment.
In asserting the employees of the town were working in their employment capacities and engaged in "ministerial" acts, it is clear the plaintiff seeks to establish a basis for imposing liability on the town, not the individual employees. His allegations of "ministerial" acts by these employees, as opposed to "discretionary" acts, is an invocation of a permissible abrogation of municipal immunity contained in General Statutes § 52-577n(a)(2)(B), which states, in pertinent part, "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . negligent acts of omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." Thus, the second and fourth counts are in reality claims against the town.
It is clear, therefore, that if a court finds the allegations of negligence, as a matter of law, constitute a highway defect, the plaintiff's exclusive remedy against either the municipality or its employees acting in their official capacities is a suit pursuant to the highway defect statute. See id., 354. See also Estate of Larry Robishaw v. New England Central Railroad, Superior Court, judicial district of Tolland, Complex Litigation Docket No. X07CV990071617S, (September 21, 2001, Bishop, J.); Hodge v. Town of Old Saybrook, Superior Court, judicial district of Middlesex at Middletown, Docket No. CV99-0088746 (December 20, 2001, Shapiro, J.).
The final issue to be resolved is whether the facts alleged, if true, would give rise to a highway defect claim under § 13a-149. Again, this is a question of law. The complaint alleges in all four counts that the location of the radar trailer with which the plaintiff alleges he collided was in the roadway, in the area between the curb/edge and the white fog line, (an area which could also be considered the breakdown lane.) It further alleges in all four counts that the Town of Windsor is bound to keep that area in repair. The plaintiff claims that the radar trailer cannot be indisputably established as constituting a "defect" within the meaning of the statute, and therefore, he is allowed to plead alternative causes of action.
"A court must look to the facts alleged and determine if a highway defect is being alleged despite the labels the plaintiff has chosen to put on his or her counts. Monteiro v. Town of East Hartford, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 534950 (January 12, 1995, Corradino, J.) ( 13 Conn. L. Rptr. 285). If the determination of whether the radar trailer that allegedly caused injury to the plaintiff was a highway defect within the meaning of § 13a-149 involves factual issues, it is not properly decided on a motion to strike. See Whitfield PPA v. Town of Enfield, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV97-0572428 (March 10, 1998, Teller, J.) "Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law . . ." Sullivan v. Norwalk, 28 Conn.App. 449, 453, 612 A.2d 114 (1992); Sanzone v. Board of Police Commissions, supra, 219 Conn. 201. In Sanzone, the court found that a malfunctioning traffic light was a highway defect within the meaning of the statute, but the court acknowledged that the cause of an accident may not be discernible as a matter of law. "Unquestionably, a malfunctioning traffic light, although not a physical impediment at street level, is, as a matter of law, such a highway defect, or in the language of the statute, part of a defective road." (Internal quotation marks omitted.) Id., 203.
In this case, the plaintiff does not allege that anything other than the failure of the town and/or its employees to remedy or warn him of the position of the radar trailer was the proximate cause of his injuries. He clearly alleges that a physical impediment at street level, in the traveled portion of the roadway, rendered the roadway not reasonably safe for travel. While the word "defective" does not include anything a traveler might encounter on a highway for purposes of liability under § 13a-149, it has been made clear that the statute was intended to make it the duty of town to keep the highway clear of . . . obstructions in or so near the roadbed as to "seriously impede the public travel." Hewison v. City of New Haven, 34 Conn. 136, 142 (1867).
Therefore, the court concludes, as a matter of law, that the allegations as to the radar trailer in the plaintiff's complaint bring it within that class of objects "in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from [their] nature and position, would be likely to produce that result," that constitute defects in the highway. Id.; Sanzone v. Board of Police Commissioners, supra, 219 Conn. 202. In cases such as this, the use of the road necessarily "cooperates with the nuisance in producing the injury; neither the use of the way, nor the nuisance, will, of itself have that effect. If the two combined will necessarily, or probably, result in harm, it seems fair to presume that it was the intention of the legislature to make the town responsible for the removal of such a nuisance" pursuant to § 13a-149. Hewison v. City of New Haven, supra, 34 Conn. 142-43. Even if the obstruction is necessary with reference to the business for which it was erected and maintained, it must also be reasonable with reference to the right of the public to have a road safe for travel, and if the obstruction is maintained in a condition that renders the highway unsafe, it is deemed a defect. See Wallace v. New Haven, 82 Conn. 527, 531, 74 A. 886 (1909) (curb) and Wenc v. New London, supra, 235 Conn. 408 (utility pole). "[I]f there is a defective condition . . . that is a menace to travel over the way and so susceptible to protection and remedial measures which could be reasonably applied within the way that the failure to employ such measures would be regarded as lack of reasonable repair," the town is liable under the highway defect law. Comba v. Ridgefield, supra, 177 Conn. 271.
Accordingly, since the radar trailer constitutes a highway defect, the plaintiff's exclusive remedy is an action pursuant to § 13a-149.
Conclusion
Admitting all facts well pleaded and construing the complaint in the manner most favorable to sustaining its legal sufficiency, the court finds that the first count, insofar as it is alleged against the Town of Windsor police department, and the second, third and fourth counts in their entirety are legally insufficient. The defendants' motion to strike the first count is granted insofar as it names the Town of Windsor Police Department as a defendant. The motion to strike the second, third and fourth counts is granted. The plaintiff's objection is overruled.