Opinion
LLICV186019185S
03-06-2019
Robert KELLEY v. CITY OF DANBURY
UNPUBLISHED OPINION
Shaban, J.
PROCEDURAL HISTORY AND FACTS
The plaintiff, Robert Kelley (Mr. Kelley), commenced this action against the defendant, the city of Danbury (the City), by service of process on July 2, 2018. On July 31, 2018, the co-plaintiff, C.J. Fucci Construction, Inc. (Fucci), filed a motion to intervene (# 101), which was granted on September 7, 2018 (# 101.10). On August 23, 2018, Mr. Kelley moved to cite in (# 103) Jennifer Kelley (Mrs. Kelley) as a co-plaintiff to allege a derivative loss of consortium claim, which was granted on October 16, 2018 (# 103.10).
On November 15, 2018, the City filed an apportionment complaint (# 111) against the apportionment defendant, Gannett Fleming, Inc. (Gannet). On February 22, 2019, Mr. and Mrs. Kelley filed an apportionment complaint (# 120) against Gannet. Gannet is not relevant to the resolution of the present motion to strike. All references to "the defendant" hereinafter refer to the City.
On August 23, 2018, Mr. Kelley filed an amended complaint (# 104) against the City, the first count of which sounds in negligence against the City pursuant to General Statutes § 52-557n. He alleges the following facts. As a political subdivision of the state, the City had a duty to operate, control and maintain its water utility infrastructure, which is derived from and prescribed by sections 6 and 7 of the City’s charter and the Danbury Code of Ordinances, § § 21-2, 21-3, 21-4, and 21-5. The City received a pecuniary benefit from the operation, control and maintenance of its water utility infrastructure via payments from water customers. Prior to August 9, 2016, Fucci was hired by the City to work on a construction project involving water mains and valves below North Street in the City. This work "consisted of cutting out and capping a water main on the south side of an isolation valve." On August 9, 2016, Mr. Kelley was employed as a laborer for Fucci and, at approximately 10:00 a.m., was in a trench removing a portion of the water main when a valve failed, "causing an object to strike his knee, water to fill the trench, and causing him to hit his head as he exited the trench, resulting in ... injuries ..." He alleges that these injuries were caused by the negligence and carelessness of the City, its agents, servants or employees in any one or more of the following ways: (1) the City failed to determine that the valve was completely closed before authorizing Fucci to begin work, thereby exposing Mr. Kelley to an unreasonable risk of injury; (2) the City failed to maintain the valve in proper working order; (3) the City failed to inspect the valve in order to determine that it was properly connected and in proper working order; (4) the City authorized Fucci to begin work when it was unsafe to do so; (5) the City failed to shut off the water in the water main before authorizing Fucci to begin work. On August 9, 2016, Mr. Kelley was an identifiable victim subject to imminent harm and suffered damages as a result of the negligence and carelessness of the City.
Specifically, Mr. Kelley alleges that the public utilities division of the City’s public works department had this duty.
On August 9, 2016, and at all relevant times, Mrs. Kelley was the lawful wife of Mr. Kelley. After incorporating paragraphs 1 through 15 of the first count, the second count of the amended complaint alleges a derivative claim for loss of consortium by Mrs. Kelley.
On September 13, 2018, Fucci filed its intervening complaint (# 106), which seeks reimbursement from the defendant for amounts it paid to Mr. Kelley pursuant to its obligations under the Workers’ Compensation Act. Fucci alleges that on or about August 9, 2016, Mr. Kelley was employed by Fucci and on that date, the plaintiff was caused to suffer bodily injuries arising out of the course of his employment. Mr. Kelley’s employment was within the scope of Connecticut’s Workers’ Compensation Act and, as such, Fucci paid compensation to Mr. Kelley and may be required to expend further sums for medical payments or compensation in the future.
On October 26, 2018, the defendant filed a motion to strike (# 108) with a memorandum of law attached thereto, which sought to strike both the amended complaint and the intervening complaint. On December 27, 2018, Mr. and Mrs. Kelley responded by filing an objection (# 114) to the defendant’s motion to strike. On January 2, 2019, Fucci filed a motion to join and adopt (# 115) the Kelleys’ objection. On the same day, the defendant filed a reply memorandum (# 116) to the plaintiffs’ objection. On January 7, 2019, the court heard oral argument on the motion and ordered the parties to file supplemental briefs addressing what effect, if any, the recent case of Brooks v. Powers, 328 Conn. 256, 178 A.3d 366 (2018), had on the present case. The defendant filed its supplemental brief (# 117) on January 22, 2019. Mr. and Mrs. Kelley filed their supplemental brief (# 118) on February 4, 2019, which Fucci joins and adopts (# 119).
DISCUSSION
"[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ... [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... Moreover, [the court notes] that [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 ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
The defendant moves to strike on three grounds: (1) Mr. Kelley fails to allege sufficient facts to state a legally sufficient negligence claim; (2) Mr. Kelley fails to allege facts that abrogate governmental immunity; (3) Mrs. Kelley’s and Fucci’s derivative claims are legally insufficient because Mr. Kelley’s claim is legally insufficient. The plaintiffs, respond, arguing that Mr. Kelley alleges sufficient facts to state a legally sufficient negligence claim and alleges facts that abrogate governmental immunity, specifically through the proprietary interest exception.
A. Legal Sufficiency of First Count: Negligence
The defendant argues that Mr. Kelley’s negligence claim is legally insufficient because: (1) he fails to allege sufficient facts to show that the defendant owed Mr. Kelley a duty, and (2) even if he did, Mr. Kelley fails to allege facts that establish a nexus between the alleged duty and the alleged incident. The plaintiffs argue that a broad and realistic reading of the first count necessarily implies facts showing the defendant owed Mr. Kelley a duty and that a nexus is established between said duty and the alleged incident.
The issue of whether the defendant owed the plaintiff a duty of care is an appropriate one for a motion to strike because the question embodies a matter of law to be decided by the court. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988).
"The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury ... Contained within the first element, duty, there are two distinct considerations ... First, it is necessary to determine the existence of a duty, and then, if one is found, it is necessary to evaluate the scope of that duty ... The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand ... If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence ..." (Internal quotation marks omitted.) Jarmie v. Troncale, 306 Conn. 578, 589, 50 A.3d 802 (2012). "A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982).
In the first count of the amended complaint, Mr. Kelley alleges in ¶ 3 that the defendant had a duty to operate, control and maintain its water utility infrastructure. In ¶ 4 he alleges this duty is derived from and prescribed by § 6-7 of the Danbury Charter and § § 21-2, 21-3, 21-4, and 21-5 of the Danbury Code of Ordinances. ¶ 8 alleges that an employee of the defendant authorized Fucci to begin work "consisting of cutting out and capping a water main on the south side of an isolation valve." ¶ 9 alleges that while he was in the trench removing a portion of the water main, a valve failed, which caused an object to strike his knee. Water then filled the trench causing him to hit his head as he exited the trench, resulting in injuries. ¶ 11 alleges that Mr. Kelley’s injuries were caused by the negligence of the defendant or its agents, servants and employees in five distinct ways, set forth above. ¶ 12 alleges that the defendant’s negligence caused injuries, which resulted in damages as described in ¶ 13 through ¶ 15.
Given the allegations, Mr. Kelley has pleaded sufficient facts to maintain a negligence claim because the facts alleged, if true, satisfy all necessary elements of such a negligence claim: the defendant had a duty to maintain the water utility infrastructure, it breached that duty by being negligent in five specific ways, the negligence caused Mr. Kelley’s injuries, which resulted in damages. Jarmie v. Troncale, supra, 306 Conn. 589.
Nevertheless, the defendant argues that Mr. Kelley has failed to allege sufficient facts establishing that it owed a duty of care in maintaining its water utility infrastructure or that such a duty was breached. Specifically, the defendant contends that, while Mr. Kelley alleges that the defendant had a duty to operate, control and maintain its water utility infrastructure, no facts are alleged showing a nexus between that duty and the alleged incident. The defendant believes that the plaintiff is required to allege facts showing that it hired Fucci, it owned the property or roadway undergoing construction, had control over the work being performed by Fucci and had knowledge of the work being performed. "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 ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 398. A broad and realistic reading of ¶ 8 necessarily implies that the defendant owned the property Fucci was hired to work on and that the defendant had some degree of control over the work. Likewise, it is a reasonable inference from the various theories of negligence alleged in ¶ 11 that the defendant had some degree of oversight or control over the work being performed by Fucci and Mr. Kelley. The defendant or its agents were required to inspect and maintain the valve being worked on by ensuring that it was in proper working order and shut off the water to the water main prior to the work being done. These allegations, if true, show that the defendant had knowledge of the work being done, had authorized it and needed to take certain steps prior to the commencement of the work. Read together, the facts alleged are sufficient to establish a reasonable nexus between the defendant’s alleged duty to maintain its water utility infrastructure and the work allegedly performed.
B. Governmental Immunity
The defendant next argues that Mr. Kelley’s negligence claim is barred by governmental immunity because: (1) no facts are alleged to show that the defendant had a pecuniary interest in the operation of its water utility infrastructure; (2) any act by the defendant was discretionary; and (3) the identifiable person exception does not apply. The plaintiffs contend, to the contrary, that: (1) sufficient facts are alleged to show that the defendant derived a pecuniary benefit from the operation of its water utility infrastructure; (2) the defendant’s alleged acts were ministerial; and (3) the identifiable person exception applies.
Our Supreme Court has previously stated that "[a] municipality itself was generally immune from liability for its tortious acts at common law ... [But] ... also recognized, however, that governmental immunity may be abrogated by statute." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47, 881 A.3d 194 (2005), overruled on other grounds by Ventura v. East Haven, 330 Conn. 613, 637 n.12 (2019). "[General Statutes § ]52-557n abandons the common-law principle of municipal sovereign immunity and establishes the circumstances in which a municipality may be liable for damages." (Footnote omitted; internal quotation marks omitted.) Brooks v. Powers, 328 Conn. 256, 264, 178 A.3d 366 (2018). "[A] political subdivision of the state shall be liable for damages to person ... caused by ... negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit." General Statutes § 52-557n(a)(1)(B).
This statutory provision "codifies the common-law rule that municipalities are liable for their negligent acts committed in their proprietary capacity ..." (Internal quotation marks omitted.) St. Pierre v. Plainfield, 326 Conn. 420, 427, 165 A.3d 148 (2017).
"It is well established that a proprietary function is an act done in the management of [a municipality’s] property or rights for its own corporate benefit or profit and that of its inhabitants." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 53. "Public parks, playgrounds, swimming pools, and public baths or bathing houses are all examples of municipal functions undertaken for the public benefit, and unless maintained for the corporate profit of the municipality are within the rule of governmental immunity ... However, if property is not held and used by the city for municipal purposes exclusively, but in considerable part as a source of revenue, the city is responsible, as a private owner would be, for injury sustained through its negligence." (Citations omitted.) Carta v. Norwalk, 108 Conn. 697, 701, 145 A. 158 (1929). "The municipal operation of a water utility for corporate profit is a proprietary function ... A municipal entity is subject to liability pursuant to § 52-557n(a)(1)(B), however, only if its allegedly tortious conduct was inextricably linked to a proprietary function." (Citations omitted.) Martel v. Metropolitan District Commission, supra .
In Abbott v. Bristol, 167 Conn. 143, 147-48, 150, 355 A.2d 68 (1974), our Supreme Court did not disturb a trial court’s holding that, on the evidence admitted at trial, the construction of a water tank under the authority of municipal charter, through city’s board of water commissioners, was a proprietary function, which properly abrogated governmental immunity. In Hourigan v. Norwich, 77 Conn. 358, 363-65, 59 A. 487 (1904), our Supreme Court affirmed a trial court’s overruling of a defendant’s demurrer where the plaintiff alleged that the defendant municipality’s distribution and sale of water to city residents at a profit to itself through the operation of its waterworks reservoir was a proprietary function.
Normally, governmental immunity is not a proper ground for a motion to strike, unless it is apparent from the face of the complaint that the municipality engaged in a governmental function while performing the acts and omissions complained of by the plaintiff. Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).
Mr. Kelley alleges the following facts in the first count of the amended complaint. The defendant is a political subdivision of the state. Compl. ¶ 2. Through the "public utility division of [its] public works department," it has a duty to operate, control and maintain its water utility infrastructure. Id., ¶ 3. The defendant receives a pecuniary benefit from its operation, control and maintenance of its water utility infrastructure in the form of payments from water customers. Id., ¶ 5. Fucci was "hired to work on a construction project involving water mains and valves ..." (Emphasis added.) Id., ¶ 7. An employee of the defendant authorized Fucci to "begin work consisting of cutting out and capping a water main on the south side of an isolation valve." Id., ¶ 8. Mr. Kelley’s injuries were caused by the negligence of the defendant or its agents, servants and employees in five distinct ways: (1) it failed to determine that the valve was completely closed before authorizing Fucci to begin work, thereby exposing Mr. Kelley to an unreasonable risk of injury; (2) it failed to maintain the valve in proper working order; (3) it failed to inspect the valve in order to determine that it was properly connected and in proper working order; (4) it authorized Fucci to begin work when it was unsafe to do so; (5) it failed to shut off the water in the water main before authorizing Fucci to begin work. Id., ¶ 11.
It is apparent from the face of the amended complaint that the defendant is alleged to have been engaged in a governmental function, the operation of a water utility infrastructure, which permits the court to consider the second ground raised in the defendant’s motion to strike. Violano v. Fernandez, supra, 280 Conn. 321. Mr. Kelley alleges that the defendant received "payments from water customers." Interpreting this allegation broadly, realistically and in the light most favorable to sustaining the amended complaint’s legal sufficiency, the defendant is alleged to be acting similarly to a private water company, which implies that the payments resulted in a profit. Under our law, "[t]he municipal operation of a water utility for corporate profit is a proprietary function." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, supra, 275 Conn. 53. Furthermore, the amended complaint alleges that Mr. Kelley was injured as a result of the defendant’s negligence in repairing a portion of its water utility infrastructure. The upkeep of such infrastructure is realistically necessary to the defendant’s delivery of water to its water customers, without which, it would not receive payment or profit. As such, the defendant’s alleged acts and omissions are inextricably linked to Mr. Kelley’s injuries. Additionally, the facts alleged in the present case are substantively comparable to the facts in Abbott v. Bristol, supra, 167 Conn. 147-48, 150, and Hourigan v. Norwich, supra, 77 Conn. 363-65, where a municipality’s operation of water utility infrastructure for profit unquestioningly abrogated governmental immunity. The plaintiff has alleged sufficient facts to fall within the proprietary exception, which overcomes governmental immunity, as prescribed by § 52-557n(a)(1)(B).
The defendant, however, argues that the amended complaint is devoid of any facts that show that the defendant’s alleged tortious conduct is linked to the operation of its water utility infrastructure. Specifically, the defendant argues that Mr. Kelley fails to allege facts that show that either Fucci or Mr. Kelley engaged in labor for the defendant or took any action for the defendant’s benefit or for the benefit of the defendant’s water utility infrastructure. Nor were they in any way connected to the defendant’s proprietary function of operating its water utility infrastructure. It bears reiterating that "[i]t 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 ... Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 398. Such a reading of the allegations in the amended complaint show that Fucci was hired and given authorization by the defendant to work on a water main. Performing the alleged work on the water main is maintenance of the defendant’s water utility infrastructure. Such maintenance ensures the ability of the defendant to distribute and deliver water to its water customers. Those customers make payments to the defendant. The maintenance performed by Fucci and Mr. Kelley on the water utility infrastructure necessarily furthers the defendant’s pecuniary interest in receiving payment from its water customers. The defendant’s argument fails to support a defense of governmental immunity.
Because the plaintiff has alleged sufficient facts to abrogate municipal immunity under the pecuniary interest exception to municipal immunity as prescribed in § 52-557n(a)(1)(B), the court need not consider the other arguments raised by the parties. Specifically, the court need not determine whether the defendant’s alleged duty was discretionary or ministerial and, if discretionary, whether the identifiable person exception in danger of imminent harm exception to municipal immunity applies.
C. Derivative Claims
The defendant impliedly argues that Mrs. Kelley’s and Fucci’s claims are derivative of Mr. Kelley’s claim, and, as such, the legal sufficiency of these claims are dependent upon the legal sufficiency of Mr. Kelley’s negligence claim. Because the negligence claim is legally sufficient as alleged, the derivative claims are likewise legally sufficient.
CONCLUSION
For the foregoing reasons, the defendant’s motion to strike is denied.