Opinion
CV176029293S
08-07-2018
Tiyana BOYD v. NEW LONDON HOUSING AUTHORITY
UNPUBLISHED OPINION
OPINION
Calmar, J.
In a substituted complaint filed on February 20, 2018, the plaintiffs, Tiyana Boyd, Kalilah Hightower, Serenity and Skye Reels, through their mother and next friend Sharanda Rickea Dockery, and Sharanda Rickea Dockery, individually, assert claims against the defendants, the New London Housing Authority (Housing Authority), the city of New London (city) and Sue Shontell (Shontell), the Executive Director of the Housing Authority. The plaintiffs’ claims for negligence, public nuisance and bystander emotional distress against the city were previously stricken on February 6, 2018 . The plaintiffs now assert against the city claims for negligence, private nuisance and bystander emotional distress. On March 22, 2018, the city filed a motion to strike counts three, four, five, eight, nine, ten and eleven of the plaintiffs’ substituted complaint on the grounds that it owes no duties to the plaintiffs, the complained acts and omissions required the exercise of discretion, and the plaintiffs have failed to allege that it, by a positive act, created the condition alleged to be a nuisance. The plaintiffs filed an opposing brief on May 9, 2018, to which the city filed a reply on May 16, 2018. The motion was argued on May 21, 2018.
Tiyana Boyd was a minor at the time the incident alleged by the plaintiffs occurred.
The plaintiffs will be primarily referred to collectively as "the plaintiffs," but to the extent necessary, individual references by first name will be used.
The claims asserted against the Housing Authority and Shontell are not a part of the present motion to strike.
For present [motion to strike] purposes, the court takes the facts to be those alleged in the complaint, construed in favor of its legal sufficiency. See New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012); see also Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010) (necessarily implied allegations are accepted as true; complaint is construed broadly and realistically). All well-pleaded facts and all necessarily implied facts are taken as admitted. Coe v. Board of Education, 301 Conn. 112, 116-17, 19 A.3d 640 (2011). A motion to strike does not admit legal conclusions or the correctness of opinions. Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Viewing the allegations of the plaintiffs’ substituted complaint in this light, the essential facts of this case are as follows.
On May 25, 2015, a shooting between unknown assailants took place in the playground area of the Thames River Apartments (premises), which are owned, controlled and managed by the Housing Authority. During this incident, Tiyana and Serenity were struck by bullets, Tiyana in the arm and Serenity in the leg. Their mothers, Kalilah and Sharanda, respectively, as well as Serenity’s sister Skye, witnessed the shooting, injuries and subsequent emergency treatment. The shooting and the resulting injuries were due to the city’s failure to provide an adequate police response to emergency calls and reports of criminal activity. Further, the city failed to take steps to prevent known criminals and trespassers from loitering in the playground area, allowing the criminal activity and dangerous behavior to continue to exist. The plaintiffs’ injuries and losses are alleged to be a result of the city’s conduct.
DISCUSSION
A motion to strike contests the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, the court takes "the facts to be those alleged in the [complaint] ... and construe[s] the [complaint] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Nantes, supra, 303 Conn. 747. A motion to strike a complaint is confined to the facts alleged in the complaint. Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005). A complaint which alleges conclusions of law that are unsupported by the facts alleged may be stricken. Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).
Although governmental immunity must ordinarily be raised as a special defense, "[w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321-22, 907 A.2d 1188 (2006).
I
The city argues that the plaintiffs’ negligence claims in counts three and eight fail to state a claim upon which relief may be granted because it is entitled to discretionary act immunity pursuant to General Statutes § 52-557n(a)(2)(B) and no exception applies. The plaintiffs counter that they have alleged sufficient facts to establish that the identifiable person, imminent harm exception to governmental immunity applies.
The plaintiffs’ substituted complaint, like their previous amended complaint, alleges acts and omissions that involved the exercise of judgment and discretion. See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988) ("the general deployment of police officers is a discretionary governmental action as a matter of law"). The single allegation of a ministerial duty is a mere legal conclusion, in which the plaintiffs allege that the pattern of violence which occurred at the premises, along with "police procedures and protocols regarding response to reports of criminal activity," created a ministerial duty to act. This allegation does not sufficiently plead the existence of a ministerial duty. See Duford v. Oxford, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-16-6020466-S (March 31, 2017, Stevens, J.).
Moreover, the plaintiffs once again do not contend that they have alleged a ministerial duty but, rather, argue solely that their substituted complaint sufficiently alleges a duty of care because their allegations establish that they were identifiable victims subject to imminent harm. As noted previously, because the plaintiffs do not brief the issue of discretionary versus ministerial, the court considers any claim to the contrary abandoned. See Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (courts are not required to review issues or claims that are inadequately briefed).
In their objection to the city’s motion to strike, the plaintiffs argue that they constitute an identifiable class of foreseeable victims, namely, tenants who resided at the premises. No allegations in the substituted complaint, however, alter this court’s prior determination that the plaintiffs are not an identifiable class of foreseeable victims. Indeed, as this court has already found, established case law precludes such a finding. See St. Pierre v. Plainfield, 326 Conn. 420, 437-38, 165 A.3d 148 (2017). The only identifiable class of foreseeable victims recognized by our Supreme Court is that of schoolchildren attending public school during school hours, in large part because they are legally required to attend. Id., 436. Beyond the schoolchildren context, our appellate courts have declined to broaden the definition by recognizing any additional classes of foreseeable victims. See, e.g., Grady v. Somers, 294 Conn. 324, 356, 984 A.2d 684 (2009) (permit holder injured at refuse transfer station owned by town was not member of class of identifiable persons despite being paid permit holder and resident of town); Durrant v. Board of Education, 284 Conn. 91, 104, 108, 931 A.2d 859 (2007) (mother picking up child from optional after-school day care program not member of class of identifiable persons because program voluntary); Prescott v. Meriden, 273 Conn. 759, 763-65, 873 A.2d 175 (2005) (parent voluntarily attending high school football game not member of class of identifiable persons).
In accordance with the principles expressed in these cases, this court too declines to broaden the definition and recognize tenants of an apartment building as a class of identifiable persons. A contrary conclusion would threaten to swallow the rule, broadening it beyond that which is desirable, given the policy behind discretionary act immunity. See, e.g., Prescott v. Meriden, supra ; Evon v. Andrews, 211 Conn. 501, 508, 559 A.2d 1131 (1989). Thus, the plaintiffs are not members of a class of identifiable persons.
The plaintiffs’ allegations are likewise insufficient to establish that Tiyana and Serenity were identifiable persons. "An 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." (Internal quotation marks omitted.) Cotto v. Board of Education, 294 Conn. 265, 276, 984 A.2d 58 (2009). There are no allegations that distinguish Tiyana and Serenity from any other tenant in the playground area or that establish them as potential victims of a specific harm, as opposed to some unspecified harm that may be caused by the unspecified criminal activities and trespassing occurring on the premises. See id., 279. ("If the plaintiff was identifiable as a potential victim of a specific imminent harm, then so was every participant and supervisor in the [youth] program who used the bathroom ... [A]ny person using the bathroom could have slipped at any time." [Emphasis in original.] ). The plaintiffs are not identifiable persons and the city is entitled to governmental immunity.
Accordingly, the defendant’s motion to strike counts three and eight is granted.
II
Private Nuisance
The city argues that the plaintiffs’ private nuisance claims in counts four and nine fail to state a claim upon which relief may be granted because the plaintiffs do not allege a positive act but, rather, allege omissions or a failure to act. The plaintiffs counter that they have sufficiently alleged that the city’s failure to respond to reports of criminal activity and its knowledge that trespassing and dangerous behavior was occurring resulted in the creation and maintenance of a nuisance condition.
Under the common law, "[l]iability [could] be imposed on the municipality only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality ... Indeed, [our Supreme Court] [has] stated that failure to remedy a condition not of the municipality’s own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality." (Citations omitted; internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996). Section 52-557n(a)(1)(C) codified the well-established common-law positive act requirement. Picco v. Voluntown, 295 Conn. 141, 989 A.2d 593 (2010). In Picco, our Supreme Court was called upon to interpret the meaning of the term "acts," as used in § 52-557n(a)(1)(C) ("acts of the political subdivision which constitute the creation or participation in the creation of a nuisance"). "Common usage does not equate a failure to act with an act ... Notably, the definition of the word ‘act’ does not denote something not done by a person. The latter appropriately falls within the meaning of the word ‘omission,’ which is defined as ‘something left out, not done, neglected ... This distinction is particularly significant in the present case because the statutory provision at issue references only ‘acts,’ whereas, in other provisions of the same statute, the legislature uses the phrase ‘acts or omissions.’ ... We conclude that the legislature’s use of different phrases within the same statute evidences a deliberate decision on its part to exclude omissions, or a failure to act, from the realm of municipal liability for nuisance." (Citations omitted; emphasis in original.) Id., 148-49. The court thus concluded that a municipality may be held liable in nuisance pursuant to § 52-557n(a)(1)(C) only when it "does something" to "cause" the alleged nuisance. Id., 150.
The plaintiffs allege in their substituted complaint that the city (a) failed to provide police response to reports of criminal activity; (b) ignored reports and complaints of criminal activity; (c) failed to take steps to prevent known criminals and trespassers from loitering; (d) failed to respond to repeated complaints of illegal activities and trespassing; (e) failed to respond to 911 calls in a timely manner; and (f) allowed a dangerous condition to exist. These allegations detail omissions and even taken as true, would not support a cause of action in private nuisance against the city as a matter of law. Simply put, alleging that municipal officials were aware of the condition, but ignored or failed to address it, is insufficient to state claim for nuisance against a municipality. See, e.g., Picco v. Voluntown, supra, 295 Conn. 149-52; Geanuracos v. Farmington, Superior Court, judicial district of Hartford, Docket No. CV-07-5013679-S (April 23, 2013, Vacchelli, J.); Tebbets v. Oliver Group, Superior Court, judicial district of New London, Docket No. CV-09-5013052-S (July 14, 2010, Cosgrove, J.).
The plaintiffs argue that courts have held that a defendant need not actually create a nuisance by its own conduct for there to be a positive act and rely on two cases: Wheaton v. Putnam, 126 Conn. 330, 11 A.2d 358 (1940) and Marchitto v. West Haven, 150 Conn. 432, 190 A.2d 597 (1963). The plaintiffs thus argue that the city’s behavior in ignoring the complaints constituted a positive act which allowed the criminal activity and trespassing to continue. This proposition is in direct conflict with established case law. See, e.g., Picco v. Voluntown, supra, 295 Conn. 151; Keeney v. Old Saybrook, supra, 237 Conn. 164; Perry v. Putnam, 162 Conn.App. 760, 767-68, 131 A.3d 1284 (2016). It has been repeatedly stated that "failure to remedy a condition not of the municipality’s own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality." Keeney v. Old Saybrook, supra, 164; Lukas v. New Haven, 184 Conn. 205, 209-10, 439 A.2d 949 (1981); Brennan v. West Haven, 151 Conn. 689, 692, 202 A.2d 134 (1964); see also Picco v. Voluntown, supra ("[a] failure to act to abate a nuisance does not fall within the meaning of the term ‘acts,’ as used in § 52-557(a)(1)(C), because inaction does not create or cause a nuisance; it merely fails to remediate one that had been created by some other force"). The acts giving rise to the dangerous condition of which the plaintiffs complain are those of third parties, namely, the alleged "known criminals," and trespassers engaging in criminal, dangerous, and illegal activities. None of these activities are attributable to the city. The city cannot be said to have created this nuisance and maintenance of a condition not of its own making by failing to abate said condition is not the equivalent of the positive act the plaintiffs must plead to state a claim for nuisance. See Sheeler v. Waterbury, 138 Conn. 111, 115-16, 82 A.2d 359 (1951).
The plaintiffs’ reliance on Wheaton and Marchitto is misplaced. Those two cases involved fires from the burning of trash and other debris in public dumps. The plaintiffs contend that because the fires were not started by the municipalities, the city in the present case can be held liable even though it was third parties engaging in the activities complained of. Neither Wheaton nor Marchitto stands for this proposition. Although the plaintiff in Wheaton complained of noxious smoke and gas from the burning of dump material; Wheaton v. Putnam, supra, 332-33; and the plaintiffs in Marchitto complained that a fire burning in the town dump spread and damaged their property; Marchitto v. West Haven, supra, 435-36, the fires were simply part of the overall nuisance: the creation and maintenance of the public dumps. Marchitto v. West Haven, supra, 436-38; Wheaton v. Putnam, supra, 334-35. The dumps were the nuisance and the municipalities had engaged in positive acts in creating and maintaining the same. The present case is in no way analogous to Wheaton or Marchitto and these cases do not support the plaintiffs’ contention that they have sufficiently alleged a positive act. The plaintiffs have failed to allege that the city, by any positive act, created the nuisance complained of and, therefore, counts four and nine fail to state a claim for nuisance.
III
Bystander emotional distress is a derivative cause of action. See Drew v. William W. Backus Hospital, 77 Conn.App. 645, 669-70, 825 A.2d 810 (2003) (finding that judgment properly rendered in defendants’ favor with regards to medical malpractice claims and, therefore, judgment properly rendered with respect to derivative bystander emotional distress claims). As the negligence claims are barred by governmental immunity and the private nuisance claims are legally insufficient, the bystander emotional distress claims must also fail. The defendant’s motion to strike counts five, ten and eleven is therefore granted.
CONCLUSION
For the foregoing reasons, the defendant’s motion to strike is granted in its entirety.