Opinion
NNHCV126029737S.
01-03-2013
Dewlyne PONTEAU v. Elizabeth GARRETT et al.
David N. Rosen, Haven Corporation Counsel New, New Haven, for Elizabeth Garrett et al.
UNPUBLISHED OPINION
David N. Rosen, Haven Corporation Counsel New, New Haven, for Elizabeth Garrett et al.
WILSON, J.
FACTS
On May 23, 2012, the plaintiff, Dewlyne Ponteau, filed a three-count complaint against the defendants, her employer, the city of New Haven; Elizabeth Garrett; and First Student, Inc. In the complaint, the plaintiff alleges the following facts. On April 30, 2010, the plaintiff, while in the course of her employment as a police officer for the city of New Haven, was pursuing in her police cruiser a school bus that had been stolen by Garrett through the streets of New Haven. When Garrett and the plaintiff reached an intersection, Garrett, in an attempt to evade apprehension, backed the school bus into the front of the plaintiff's vehicle, causing the plaintiff numerous serious and permanent injuries.
On June 13, 2012, the city of New Haven filed a motion to intervene as a plaintiff in the action to recover the workers' compensation benefits it has paid, and will be obligated to pay to the plaintiff, for the injuries she allegedly suffered as a result of this incident. The court, Lager, J., granted the motion on June 20, 2012. The term plaintiff, as used herein, refers to Ponteau.
Although the plaintiff also alleges claims against Garrett and the city of New Haven, the motion before the court pertains only to those counts against First Student, Inc. Accordingly, only those facts relevant to determining the disposition of First Student's motion will be addressed herein.
In counts one and two of the complaint, the plaintiff alleges negligence claims against Garrett and the city of New Haven, respectively. The plaintiff alleges, in count three, that her injuries were caused by the negligence of First Student. Specifically, the plaintiff alleges the following. First Student owned or was in possession of the school bus at issue and maintained a property in New Haven, the purpose of which was to house, maintain, repair and otherwise store and service the buses that it owned or possessed. First Student failed to adequately secure its premises, failed to employ sufficient security personnel, failed to utilize adequate security devices and failed to leave buses stored on the property in a nonfunctional state. These failures, the plaintiff alleges, permitted Garrett to board, start and drive one of the buses off First Student's premises, which led to the incident in which the plaintiff sustained her injuries.
On August 16, 2012, First Student filed a motion to strike count three of the plaintiff's complaint on the ground that the plaintiff's claim is legally insufficient because it is barred by the " firefighter's rule." The motion was accompanied by a memorandum of law. The plaintiff filed a memorandum in objection to First Student's motion on September 5, 2012. Oral argument on the matter was held on October 15, 2012.
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). " [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." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). " [P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010). " If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
First Student argues that count three is legally insufficient because it is barred by the " firefighter's rule, " and that under the firefighter's rule, a police officer cannot bring a claim for negligence against a landowner if the landowner's negligence occasioned the officer's presence. Because the facts alleged in the plaintiff's complaint reveal that First Student's alleged negligence served as the reason for the plaintiff's response, First Student argues, the plaintiff is barred under the rule from recovering from First Student. In support of its motion, First Student cites to several cases originating both inside and outside of Connecticut that it asserts support the application of the firefighter's rule in these circumstances.
The plaintiff argues in response that the firefighter's rule only applies to premises liability cases and that since she has not brought any premises liability claims against First Student, the firefighter's rule is inapplicable. In support of her objection, the plaintiff argues that the cases cited by First Student have either been implicitly overruled or abrogated by statute.
" The common-law ‘ firefighter's rule’ provides, in general terms, that a firefighter or police officer who enters private property in the exercise of his duties occupies the status of a licensee and, therefore, is owed a duty of care by the property owner that is less than that owed to an ordinary invitee ... Thus, under the firefighter's rule, the landowner generally owes the firefighter or police officer injured on his property ‘ only the duty not to injure him wilfully or wantonly ...’ " (Citation omitted.) Levandoski v. Cone, 267 Conn. 651, 653-54, 841 A.2d 208 (2004); see also 2 Restatement (Second), Torts § 345(1) (1965) (" [T]he liability of a possessor of land to one who enters the land only in the exercise of a privilege ... is the same as the liability to a licensee"). " [T]he firefighter's rule adopted by this court ... applies to police officers who are injured by defective conditions on private property while the officers are present upon such property in the performance of their duties." (Citation omitted.) Furstein v. Hill, 218 Conn. 610, 620, 590 A.2d 939 (1991). " Because the firefighter's rule is an exception to the general rule of tort liability that, as between an innocent party and a negligent party, any loss should be borne by the negligent party, the burden of persuasion is on the party who seeks to extend the exception beyond its traditional boundaries. The history of and rationales for the rule persuade us ... that it should be confined to claims of premises liability. " (Emphasis added.) Id., at 661, 590 A.2d 939.
Our Supreme Court has specifically and expressly stated that " the [firefighter's] rule should not be extended to a nonpremises liability case ..." Id. " [T]he firefighter's rule is essentially a rule of premises liability. The distinction upon which it rests, namely, whether the plaintiff is an invitee or licensee, is itself a distinction that exists in our law only with regard to claims based upon premises liability, and the differing duties of care that emanate from those distinctions are cast in terms of a landowner's duty to persons on his or her land ... We have declined to extend the rule to a case in which the plaintiff firefighters sought to recover damages from the defendant alarm company for injuries and death sustained as a result of a collision caused by the negligent maintenance and failure of brakes on their fire engine while responding to a false alarm transmitted by the defendant. [ Lodge v. Arett Sales Corp., 246 Conn. 563, 585-86, 717 A.2d 215 (1998) ]. This essential link to a landowner's liability ... is the most compelling argument for the rule, because of the reasonable expectations of landowners, and because of the ensuing hardship that would be visited upon a landowner in the absence of the rule ... Indeed, we have reiterated that this is [t]he most compelling argument for the continuing validity of the rule ... [N]either the differing status of the plaintiff nor the reasonable expectations of the defendant are relevant if the plaintiff is not engaged in entering the land of the defendant. It would be anomalous, therefore, to extend the rule to a case in which the most compelling argument for the rule is inapplicable." (Citations omitted; internal quotation marks omitted.) Id., at 661-62, 717 A.2d 215.
The plaintiff's complaint does not allege that she suffered any injuries as a result of her presence on, or her response to an occurrence on, First Student's premises. Rather, the plaintiff alleges that First Student did not take adequate measures to secure the buses stored on its premises and that its failure to do so allowed Garrett to take the bus and drive it into a public area, where she ultimately injured the plaintiff. Consequently, applying the firefighter's rule to bar the plaintiff's claims in the present case would expand its scope beyond its current boundaries.
The Connecticut trial court cases cited by First Student, which in some instances arguably stand for the proposition that the firefighter's rule should not be limited exclusively to premises liability claims, all preceded the Supreme Court's ruling in Levandoski.
Judges of the Superior Court who have applied the firefighter's rule after Levandoski, including this judge, have acknowledged that the rule's applicability is limited to premises liability claims. See, e.g., Miles v. Delmonico, Superior Court, judicial district of New Haven, Docket No. CV 09 5030036 (April 13, 2012, Young, J.) (firefighter's rule is essentially one of premises liability); Correia v. Roach Davis Street, LLC, Superior Court, judicial district of New Haven, Docket No. CV 09 5026294 (December 7, 2009, Wilson, J.) (49 Conn. L. Rptr. 117, 119) (noting Supreme Court has declined to expand rule beyond premises liability claims); Gambardella v. Browning, Superior Court, judicial district of New Haven, Docket No. CV 06 5002244 (October 24, 2007, Thompson, J.) (44 Conn. L. Rptr. 406, 409) (" [T]he Supreme Court has indicated its reluctance to expand the firefighter's rule beyond its present scope ..."); Hollister v. Thomas, Superior Court, judicial district of Fairfield, Docket No. CV 05 5000539 (October 20, 2006, Rodriguez, J.) (firefighter's rule not applicable because plaintiff did not raise premises liability claim).
Furthermore, applying the firefighter's rule in the present case to bar the plaintiff's claim against First Student would not be consistent with the " most compelling argument for rule"; Levandoski v. Cone, supra, 267 Conn. at 662, 841 A.2d 208; namely, accommodating the reasonable expectations of landowners and preventing undue hardships from being imposed on them. Id. The firefighter's rule essentially recognizes that " firefighters and police officers often enter property at unforeseeable times and may enter unusual parts of the premises under emergency circumstances." Furstein v. Hill, supra, 218 Conn. at 616, 590 A.2d 939. In light of this fact, courts have recognized that it would be " unreasonable to require landowners to undertake the same standard of care for public officers whose presence the landowners can neither predict nor interdict." Id., at 617, 590 A.2d 939. In the present case, however, the plaintiff has alleged that she was injured on a public street, not on First Student's premises. Consequently, the important rationale underlying the rule is inapplicable. As previously noted, " neither the differing status of the plaintiff nor the reasonable expectations of the defendant are relevant if the plaintiff is not engaged in entering the land of the defendant. It would be anomalous, therefore, to extend the rule to a case in which the most compelling argument for the rule is inapplicable." Levandoski v. Cone, supra, 267 Conn. at 662, 841 A.2d 208.
Furthermore, permitting First Student to invoke the firefighter's rule for allegedly failing to secure its premises, and creating a public danger away from its premises, would not be sound public policy. This would deny the plaintiff a potential source of recovery for her injuries and losses. Moreover, " permitting the plaintiff to recover for the defendant's negligence will tend to reduce workers' compensation costs by permitting the plaintiff's employer to recoup those benefits." Id., at 664, 841 A.2d 208.
CONCLUSION
Because the firefighter's rule is applicable only to claims involving premises liability, and the plaintiff has raised no such claims, the defendant's motion to strike count three of the plaintiff's complaint is denied.
As for the cases cited by First Student from other jurisdictions that apply the firefighter's rule to nonpremises liability claims, in Levandoski our Supreme Court stated: " [W]e agree with those jurisdictions that have framed the rule as one that relates specifically to premises liability and defines the duty owed by an owner or occupier of land. " (Emphasis in original.) Levandoski v. Cone, supra, 267 Conn. at 664, 841 A.2d 208.