Summary
In Bombriant v. New Haven, 25 Conn. Sup. 339, 341 (1964) the court found that defendant municipal employee had no standing and was not entitled to join in codefendant municipality's motion to strike a court of the amended complaint that was directed solely against the municipality.
Summary of this case from Finley v. TortoraOpinion
File No. 101045
In a count directed against a municipality under § 7-465, providing for municipal liability for damage by municipal employees, it is necessary to allege that the conduct of the employee was not wilful or wanton. A municipal employee cannot properly join in a demurrer to a count which purports to state a cause of action against the municipality but not against him. The municipality and the employee should be represented by separate counsel.
Memorandum filed April 6, 1964
Memorandum on demurrer to second count of plaintiff's amended complaint. Demurrer sustained as to named defendant.
John J. Resnik, of New Haven, for the plaintiff.
Alfred F. Celentano, of New Haven, for the defendants.
At the threshold of the discussion to follow, reference is made to the two opinions of our Supreme Court of Errors in the case of Martyn v. Donlin, the first of which is reported in 148 Conn. 27 (1961), and the second in 151 Conn. 402, decided February 25, 1964. The Martyn opinions, and the case at bar, concern municipal liability for damage caused by a municipal employee under circumstances arising out of § 7-465 of the General Statutes, enacted as Public Acts 1957, No. 401, § 1.
Plaintiff has brought the within action to recover damages for injuries alleged to have been suffered when a car he was operating on a New Haven highway on March 25, 1962, was struck by a car owned by the defendant city of New Haven and operated at the time by its employee, the defendant Anthony Mastriano, within the scope of his employment. The first count of the amended complaint is directed against the defendant Mastriano and alleges various specifications of negligence on the part of this defendant as constituting the proximate cause of the collision and of the plaintiff's resulting injuries. The second count of the amended complaint, after incorporating by reference the allegations of the first count, purports to state a cause of action against the defendant municipality under § 7-465 of the General Statutes. That statute, under certain conditions, imposes liability on a municipality for damage caused by an employee "if the employee . . . was acting in the performance of his duties and within the scope of his employment, and if . . . [the] injury . . . was not the result of any wilful or wanton act of such employee in the discharge of such duty."
The defendants have interposed a joint demurrer to the second count of the amended complaint on the sole ground that it lacks an essential allegation, namely, that it does not affirmatively allege that the conduct of the defendant Mastriano "was not wilful or wanton," an allegation necessary to impose a statutory liability on the defendant municipality.
The statute (§ 7-465) is designed to change the common-law immunity accorded a municipality for the negligence of its employees. Jabs v. Burlington, 23 Conn. Sup. 158, 160. As against the defendant municipality, the second count, in the nature of indemnity, must comply with the statutory requirements, including the allegation that the conduct of the defendant employee of which complaint is made was not wilful or wanton. Martyn v. Donlin, 148 Conn. 27, 32. The requisite pleading by a plaintiff under the "dog-bite" statute (§ 22-357) presents an analogy. See Schonwald v. Tapp, 142 Conn. 719, 722; Duell v. Coyle, 22 Conn. Sup. 332, 333.