Bruce Park Ave. v. Plant Int.

Full title: BRUCE PARK AVENUE GREENWICH, LLC v. PLANT INTEGRATION ASSOCIATES HOME CARE…

Court: Connecticut Superior Court Judicial District of Waterbury at Waterbury

Date published: Oct 26, 2007

2007 Ct. Sup. 18749 (Conn. Super. Ct. 2007)

Opinion

Nos. X10 UWY CV 05-4010129 S, X10 UWY CV 06-5001465 S

October 26, 2007

MEMORANDUM OF DECISION RE: MOTIONS TO STRIKE (#155 in CV 05-4010129 S and #129 in CV 06-5001465S)

JANE S. SCHOLL, JUDGE.

I. Background

These consolidated cases arise out of an incident in which an operator of a dump truck with a plow allegedly struck a gas pipe, and/or gas meter, with his truck, causing a gas leak and subsequent explosion at 312 Davis Avenue in Greenwich. The Plaintiff, Bruce Park Ave Greenwich, LLC, is the owner of the property, and the Plaintiff, Elizabeth Kaplan, a former tenant. At the time of the accident the Defendant, Plant Integration Associates Home Care Solutions, transacted a plowing business, and the Defendant, Anderson Dasilva, was employed by them, and operated the truck which allegedly struck the gas pipe and/or gas meter. In the first case, in which Bruce Park is the Plaintiff, the Defendants, Plant Integration and Dasilva, filed an apportionment complaint against Connecticut Natural Gas (CNG). CNG then filed an apportionment complaint against Warzoha, the Town of Greenwich, and Fisher Controls International, LLC. In the second case, in which Kaplan is the Plaintiff, the Defendant Bruce Park filed an apportionment complaint against Anderson Dasilva, Plant Integration, and CNG. CNG then filed an apportionment complaint against Daniel Warzoha, the Town of Greenwich, and Fisher Controls.

Before the court is Warzoha's Motions to Strike Count One of CNG's apportionment complaints in both cases. In Count One of its apportionment complaints, CNG claims that Warzoha and the Town of Greenwich are or may be liable pursuant to General Statutes § 52-557n, and other applicable law, for a proportionate share of the Plaintiffs' damages, if any. CNG claims that at all times Warzoha was the Chief of the Greenwich Fire Department and was employed by the Town of Greenwich. CNG claims that if the Plaintiffs sustained injuries and/or damages they were caused by the negligence and carelessness and/or negligent omission of Warzoha in one or more of the following ways: "a. he failed to properly implement the Incident Command System decreed by OSHA; b. he failed to properly assess the scene as an IDLH atmosphere (i.e., one that poses an immediate threat to life, would cause irreversible or adverse health effects, or would impair an individual's ability to escape from a dangerous situation); c. he failed to require firemen to remain in close proximity to each other in order to maintain the visual and aural contact required in an IDLH atmosphere; d. he failed to abide by the `2-In-2-Out' provision of the OSHA Respiratory Standard; e. he failed to establish an effective Rapid Intervention Team outlined in the `2-In-2 Out' rule; f. he failed to ensure that firemen were wearing the proper equipment including but not limited to, self contained breathing apparatus, personal protective equipment and retrieving harnesses; g. he failed to timely utilize his fire apparatus airhorn to evacuate the building; h. he failed to comply with all other standard operating procedures and department guidelines that would have prevented and/or minimized the damage caused on or around December 5, 2003."

Warzoha has moved to strike CNG's apportionment complaints as to him because they are legally insufficient in that Warzoha owed no duty to the first-party Plaintiffs as a matter of law, and because, even if a duty existed, Warzoha is immune from liability for claims for property damage arising out of alleged firefighter malpractice under the doctrine of governmental immunity. CNG claims that Warzoha had a private duty to Bruce Park and Kaplan since the manner in which he directed the containment and extinguishment of the fire directly impacted the damages they suffered. CNG also argues that Warzoha is not entitled to governmental immunity because most of CNG's allegations against Warzoha are based on alleged breaches of ministerial duties.

II. Standard of Review

"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 . . . In ruling on a motion to strike, the court is limited to the facts alleged in the complaint . . . The court must construe the facts in the complaint most favorably to the plaintiff . . . Notwithstanding the procedural posture of a motion to strike, [our Supreme] court has approved the practice of deciding the issue of governmental immunity as a matter of law." (Internal quotation marks and citations omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1988). "Where 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." Violano v. Fernandez, 280 Conn. 310, 321 (2006).

III. Discussion

General Statutes § 52-557n, cited as the basis for Warzoha's liability in CNG's complaints, provides, in pertinent part: "(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law . . ."

"The [common law] doctrines that determine the tort liability of municipal employees are well established . . . Although historically [a] municipality itself was generally immune from liability for its tortious acts at common law; . . . [municipal] employees faced the same personal tort liability as private individuals . . . Over the years, however, [t]he doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees . . . Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." (Internal quotation marks and citations omitted.) Mulligan v. Rioux, 229 Conn. 716, 727 (1994).

The concepts of public/private duty and discretionary/ministerial acts set forth in General Statutes § 52-557 as well as the common law have been discussed often by our courts. Most recently in Durrant v. Board of Education of the City of Hartford, 284 Conn. 91, 105-06 (2007), the Court stated: "Section 52-557n, enacted in 1986; see Public Acts 1986, No. 86-338, § 13; specifically delineates circumstances under which municipalities and its employees can be held liable in tort and those under which they will retain the shield of governmental immunity. With respect to the latter, § 52-557n(a)(2) provides in relevant 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 . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.' Although the statute contains no express exceptions to governmental immunity for discretionary acts, this court has assume[d], without deciding, that § 52-557n(a)(2)(B) codifies the common law relating to circumstances in which immunity is abrogated . . . Prior to the enactment of § 52-557n, municipalities generally were immune for the discretionary acts of their officials . . . This court has explained the policy rationale for this immunity as follows: Municipal officials are immunized from liability for negligence arising out of their discretionary acts in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . Under its common-law authority, the court recognized limited exceptions to the discretionary acts immunity . . ." (Footnote, internal quotation marks, and citations omitted.) "In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts `to be performed in a prescribed manner without the exercise of judgment or discretion' . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Internal quotation marks and citations omitted.) Doe v. Petersen, 279 Conn. 607, 615 (2006).

CNG does not argue that its claims fall into any of the exceptions to discretionary acts immunity but instead argues that its claims are based on a violation of a ministerial duty. "A municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action . . . The public/private duty distinction and the ministerial/discretionary test may appear to overlap and this has resulted in a lack of consistent analysis by this state's courts . . . Whether a public or private duty is established, there is no potential liability if the act complained of is a discretionary act that does not fit into any of the narrow exceptions . . . The finding of a public duty is often, but not always, dispositive of whether the act is a discretionary one . . . In other cases, however, a breach of a public duty may still result in liability for the official if the act that he or she negligently performs is a ministerial act . . . Thus, although the public duty doctrine provides the starting point of the analysis, distinctions between discretionary acts and ministerial acts are often controlling without regard to whether the duty is ascertained to be public or private . . . the court looks to see whether there is a public or private duty alleged by the plaintiff . . . If a public duty exists, an official can be liable only if the act complained of is a ministerial act or one of the narrow exceptions to discretionary acts applies." (Footnote, internal quotation marks and citations omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167-70 (1988).

As to whether fire fighting is a public duty for the public benefit, in 1871 our Supreme Court stated that "the fire department of the city when engaged in extinguishing fires are exercising one of the functions of government for the general good." Jewett v. City of New Haven, 38 Conn. 368 (1871). "It is settled in this State that a municipal corporation is exercising a governmental function when maintaining and operating a fire department pursuant to legislative authority, and while in the exercise of that function is not liable for the negligent acts of its officers, agents and servants . . . In this respect, our law is in harmony with the great weight of authority elsewhere in this country . . . Under our rule, the principle of governmental immunity extends to the construction and maintenance of fire equipment as well as to its use for fire protection." Brook-Hall Dairy Co. v. New Haven, 122 Conn. 321 (1937). "A municipality engaged in the performance of a public duty for the public benefit, and not for its own corporate benefit, will be immune from liability for injuries done by it in the performance of such duty . . . A fire department engaged in extinguishing fires is performing a governmental duty for the general good. Under this principle, we held that a municipality was not liable for injury caused by the negligence of the driver of a hose cart while driving to a fire at a very rapid and dangerous speed . . . Again we held, that a municipality, when engaged in flushing out a hydrant for the sole purpose of determining whether it was in a suitable condition for use in extinguishing fires, was engaged in the performance of a public governmental duty and was not liable for negligence in the discharge of that duty . . ." (Citations omitted.) Vezina v. Hartford, 106 Conn. 378, 380 (1927). More recently, Judge Wagner noted that: "It is settled in this state that a municipal corporation is exercising a governmental function when maintaining and operating a fire department pursuant to legislative authority." Bailey v. Town of West Hartford, Superior Court Judicial District of Hartford at Hartford, Docket No. CV 05-4007549 (Jan. 20, 2006). Consequently, it is clear that the actions of Warzoha, as Chief of the Greenwich Fire Department and acting as such, as alleged in the complaints, while fighting the fire at the Bruce Park property, was involved in a governmental public duty for the benefit of the public at large and was not in the performance of any private duty owed to the Plaintiffs, Bruce Park or Kaplan. In the absence of allegations of fact which support the existence of a duty to Bruce Park or Kaplan, CNG has failed to state a cause of action in negligence against Warzoha. See, Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171 (1988).

In any event, "[o]n the basis of our case law, which construes the distinction between a public and private duty in light of the dispositive distinction between ministerial and discretionary acts, it is apparent that, even if a municipality and its official or employee owes a plaintiff a private duty, the municipality and its official or employee will be immune from liability for their negligence if the act complained of was discretionary in nature and does not fall within the three exceptions to discretionary act immunity." (Footnote omitted.) Violano v. Fernandez, 280 Conn. 310, 335 (2006). "A `ministerial' act, as opposed to a `discretionary' act, refers to [one] which is to be performed in a prescribed manner without the exercise of judgment or discretion . . ." (Internal quotation marks omitted.) Roman v. Stamford, 16 Conn.App. 213, 221 (1988). None of CNG's allegations meet this test. They refer to discretionary acts by Warzoha when they allege "he failed to properly" take certain action, or "he failed to require" or "failed to abide" by certain standards, or failed "to establish an effective Rapid Intervention Team" or "to ensure that firemen were wearing the proper equipment" or "to timely utilize his fire apparatus airhorn," and "he failed to comply with all other standard operating procedures and department guidelines that would have prevented and/or minimized the damage caused on or around December 5, 2003." These allegations clearly reference discretionary acts and inactions by Warzoha, ones involving the exercise of his judgment as called for by the circumstances. This court agrees with the statement by the court in Glorioso v. Police Dept., 49 Conn.Sup. 200, 205 (2004) [ 38 Conn. L. Rptr. 364]: "Negligence in failing properly to enforce applicable statutes, regulations and/or codes, to make reasonable and proper inspections of a multifamily rental unit for fire safety hazards, and to prescribe remedial action to be taken by owners, were acts [that] required in some measure the exercise of judgment by a municipal employee and were not ministerial . . . While it is so that statutes, regulations, and policies can create ministerial duties, . . . when they relate to fire, police, or other public safety services, they are most often held to create discretionary duties . . . The provision of emergency medical services to members of the public is a discretionary act . . . Thus, governmental immunity attaches absent an applicable exception to the qualified immunity of municipal agents engaged in discretionary acts." (Internal quotation marks and citations omitted.)

The claims of negligence alleged against Warzoha are not the types of actions that have been held to be ministerial by our courts. Examples of ministerial duties are the duty to quarantine a dog who has bitten a person for fourteen days as required by statute, and discussed in Wright v. Brown, 167 Conn. 464 (1975), or the duty of a town clerk to record an instrument which he has accepted for recordation in the land records, referenced in Pluhowsky v. New Haven, 151 Conn. 337 (1964). Decisions made by a firefighter in the midst of fighting a fire, although made in the framework of standards or regulations, cannot be held to be ministerial such as to divest the firefighter of discretion in the application of those standards and regulations. Such would be contrary to the public policy on which governmental immunity is based, that is, the broader public interest in having government employees be free to exercise judgment and discretion unhampered by fear of second guessing and retaliatory lawsuits.

Conclusion

For the reasons stated above, the Motions to Strike are granted.