Opinion
No. CV 08 5007541
May 20, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #114
At issue before the court is whether to grant the plaintiffs' motion to strike the defendants' special defenses.
FACTS
This action involves a claim to recover for damage to the plaintiffs' stone wall which was allegedly caused by blasting during the course of installing sewers and drains in their road from 2001 to 2003. The plaintiffs' amended complaint includes four counts alleging negligence, strict liability, nuisance and fraud, respectively. In their answer, dated September 12, 2008, the defendants set forth several special defenses to each count of the plaintiffs' complaint. On September 22, 2008, the plaintiffs filed their amended motion to strike several of the defendants' special defenses. Oral argument was heard on this matter on January 5, 2009.
The parties affirmed at oral argument that the amended complaint dated August 27, 2008, and the answer dated September 12, 2008, are the operative pleadings.
DISCUSSION
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 771, 802 A.2d 44 (2002). "In . . . ruling on the . . . motion to strike, the trial court recognized its obligation to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
1. Failure to state a claim upon which relief may be granted.
The defendants' first special defense to all four counts of the complaint states in full: "The plaintiffs fail to state a claim upon which relief may be granted. The plaintiffs were made aware that remediation of damages to the plaintiff's property as a result of the Sandy Point Lateral Sewer Extension and Roadway Project [was] the responsibility of Baltazar Contractor's, Inc. On February 14, 2001, the Town of Waterford notified the plaintiffs that Baltazar Contractors, Inc. [was] fully responsible for any damage to private property." The plaintiffs move to strike this special defense arguing that a defendant may not escape liability simply by declaring that another person is liable. The defendant has not cited any law or authority for the novel proposition that a party may escape tort liability by simply informing the injured party that a third party is responsible, and a thorough search has revealed no such authority. Moreover, Practice Book § 10-50 defines a special defense as setting forth "[f]acts which are consistent with [the plaintiff's statement of facts] but show, notwithstanding, that the plaintiff has no cause of action . . ." The facts alleged in the defendants' first special defense do not show that the plaintiffs have no cause of action against the defendants; they show only that the defendants claimed that the plaintiffs have no cause of action against them.
The plaintiffs also seem to say that the first special defense is insufficient because it does not include citations to any supporting law. Practice Book § 10-1 simply calls for fact pleading and does not require supporting law to be included with special defenses.
The defendants nevertheless argue that a claim of failure to state a claim upon which relief may be granted is a valid special defense. Practice Book § 10-39 provides that "[w]henever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." There is a split in Superior Court decisions as to whether failure to state a claim upon which relief may be granted may also be raised by way of a special defense. Goodspeed Airport v. East Haddam, Superior Court, judicial district of Tolland, Docket No. CV 01 0076811 (September 12, 2002, Sferrazza, J.). The Supreme Court and Appellate Court of Connecticut have not approached the question. In his 2002 decision, Judge Sferrazza opined, "[t]urning to the viability of a special defense of failure to state a claim upon which relief may be granted, the court agrees with the plaintiffs that such an assertion as a special defense is both unnecessary and serves no legitimate pleading purpose. It is simply a legal conclusion unescorted by any factual allegation. Under Practice Book § 10-50, special defenses allege `[f]acts which are consistent with [the plaintiff's allegations] but show, notwithstanding, that the plaintiff has no cause of action.' A mere expression of the deficiency of the plaintiffs' statements fails to assert facts which show that the plaintiffs have no cause of action.
"Special defenses fall into two categories: matters of discharge, such as payment; and matters of justification or excuse, such as self-defense. A bare claim that the plaintiffs' complaint fails to state a valid cause of action cannot be categorized as a defense of discharge, justification, or excuse. This sort of pleading calls for no response by the plaintiff.
"Such a special defense is also superfluous. The plaintiff always bears the onus of alleging and proving a cognizable cause of action. A defendant has no obligation to attempt to address or rectify the failure of a plaintiff in this regard by motion, demurrer or otherwise. The defendant can raise this defect by way of summary judgment, evidentiary objection, or motion during or after trial." (Citations omitted; internal quotation marks omitted.) Goodspeed Airport, LLC v. East Haddam, Superior Court, judicial district of Tolland, Docket No. CV 01 0076811 (September 12, 2002, Sferrazza, J.).
For the reasons stated above, the plaintiffs' motion to strike the defendants' first special defense to each count is therefore granted.
II. Statute of limitations
In the second special defense to each of the plaintiff's four counts, the defendants allege that the respective claim is barred by certain statutes of limitation. The defendants make use of three separate statutes of limitations that they claim bar the filing of this suit: General Statutes §§ 52-584, 13a-149 and 52-577. Section 52-584 calls for a two-year statute of limitations for negligence claims generally. Section 13a-149 is a two-year statute of limitations for any person or property injured because of a defective road or bridge. Section 52-577 is a three-year statute of limitations for actions founded upon a tort.
Count I, Negligence
To the plaintiffs' count for negligence, the defendants cite §§ 52-584 and 13a-149 by way of special defense. In their motion to strike, the plaintiffs argue that § 52-584 applies to negligence cases against physicians or medical personnel and is therefore not applicable in this case. This is an incorrect reading of the statute. A plain reading of the statute reveals that it applies to negligence claims generally, including those against a physician. The use of this statute as a special defense is therefore proper and the plaintiffs' motion to strike the use of this special defense is denied as to count one.
Section 52-584 states: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed." (Emphasis added.)
The defendants also cite § 52-584 as a special defense against counts one and three of the plaintiffs' complaint.
As to the use of the second statute, § 13a-149, the plaintiffs argue that since it is limited in scope to persons or property damaged by defective roads or bridges and the action in this case involves property damage that resulted from the construction of sewers, it is not applicable. "Whether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law which may be determined on a motion to strike." Sanzone v. Board of Police Commissioners, 219 Conn. 179, 201, 592 A.2d 912 (1991). Connecticut courts have come to construe the application of this statute, and other defective highway and bridge statutes, broadly. "[A] highway is defective within the meaning of § 13a-149 when it is not reasonably safe for public travel, and the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel." Novicki v. New Haven, 47 Conn.App. 734, 740, 709 A.2d 2 (1998). For instance, where a person was injured by tripping over a severed steel signpost while exiting a bus the court found the plaintiff's exclusive remedy to be under a defective highway statute. Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001).
The application of § 13a-149 and similar defective highway and bridge statutes, however, have been confined to exclude causes of action where the injury is to an abutting parcel of land unless the statute explicitly includes such injury. For instance, where an abutting landowner brought suit for damages to his land from a defective highway under a statutory provision imposing liability in the nature of a penalty on municipal corporation bound to keep a highway in repair, the court held that such a cause of action does not fall within the defective highway statute. Aerotec Corp. v. Town of Greenwich, 138 Conn. 116, 82 A.2d 356 (1951). Further, a city was found not liable under a highway and bridge statute for damage to the basement of a house abutting a highway after leaving the earth insufficiently packed when repairs were made, allowing rainwater to pass through the excavation. Salzman v. City of New Haven, 81 Conn. 389, 71 A. 500 (1908). In the same vain, damage to a stone wall caused by construction to an abutting roadway does not fall within this defective highway and bridge statute. For the foregoing reasons, the plaintiffs' motion to strike the defendant's use of § 13a-149 as a special defense is granted as to count one.
The defendants also cite § 13a-149 in counts two through four. Plaintiffs move to strike the use of this statute as a special defense in each count. For the reasons stated herein, plaintiffs' motion to strike § 13a-149 in each count is granted.
Count II, Strict Liability
To the plaintiffs' count for strict liability, the defendants cite §§ 13a-149 and 52-577. The plaintiffs only move to strike § 13a-149 from this special defense, they do not contest the use of § 52-577. For the reasons stated above, plaintiffs' motion to strike § 13a-149 is granted as to count two.
CT Page 8360
Count III, Nuisance
To the plaintiffs' count for nuisance, the defendants cite all three statutes as special defenses. The plaintiffs move to strike §§ 13a-149 and 52-584 from this special defense, they do not contest the use of § 52-577. With regards to § 13a-149, the plaintiffs argue that the statute is limited in scope to exclude the issues contained in their complaint. As discussed above, the present action for damage to an abutting parcel of land is not encompassed by § 13a-149. This conclusion does not change with regards to a claim for nuisance. For the foregoing reasons, the plaintiffs' motion to strike § 13a-149 as a special defense against their claim for nuisance is granted as to count three.Section 52-584 provides the time limitation for claims of nuisance predicated upon negligence; Johnson v. North Branford, 64 Conn.App. 643, 648 n. 10, 781 A.2d 346 (2001); and the plaintiffs' nuisance claim in the present case incorporates all of the allegations of negligence set forth in count one. Accordingly, for the reasons stated above under count one, the plaintiffs' motion to strike § 52-584 is denied as to count three.
Count IV Fraud
The defendants cite §§ 13a-149 and 52-577 as a bar to the plaintiff's claim in count four, a claim for fraud. For the reasons stated above, plaintiffs' motion to strike § 13a-149 as a special defense is granted.
As for the use of § 52-577, the plaintiffs claim that it is improper in that they have alleged fraudulent inducements on the part of the defendants continuing into 2007. "The question of whether a party's claim is barred by the statute of limitations is a question of law . . . The issue, however, of whether a party engaged in a continuing course of conduct that tolled the running of the statute of limitations is a mixed question of law and fact." (Internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 139, 907 A.2d 1220 (2006). "Parties are customarily able to avail themselves of that doctrine if they can demonstrate either that there was . . . later wrongful conduct of a defendant that was related to the prior act." Nieves v. Cirmo, 67 Conn.App. 576, 581, 787 A.2d 650 (2002).
The defendants deny the portions of the plaintiffs' complaint that allege fraudulent inducements at any time, including into 2007. The defendants may not, nor do they, allege any facts different from those in the plaintiffs' complaint in conjunction with their statute of limitations claim. That being said, although Practice Book § 10-50 generally requires a special defense to set forth matters that are consistent with the plaintiffs' allegations, the same rule goes on to provide that "the statute of limitations . . . must be specially pleaded . . ." Given that this defense is required to be specially pleaded, it is unavoidable that in some cases the defense will contradict some of the plaintiffs' allegations. To strike this special defense based upon facts which remain in dispute would rob the defendants of the ability to raise the issue of timeliness at trial. Furthermore, the plaintiffs' argument that the defendants' statute of limitations defense should be stricken because the defendants' conduct continued into 2007 does not specifically contest the legal sufficiency of that special defense. The court may not, upon motion to strike, decide facts which remain in dispute as to whether the defendants' alleged fraudulent conduct continued into 2007. "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). For the foregoing reasons, the plaintiffs' motion to strike § 52-577 is denied as to count four.
The drafters of § 10-50 apparently contemplated that, notwithstanding the general definition of a special defense, some of the defenses specifically enumerated in the statute would require the pleading of facts inconsistent with the plaintiff's allegations. Specifically, the rule even expressly provides that payment must be alleged as a special defense even though nonpayment is alleged in the complaint.
III. Governmental Immunity under General Statutes § 52-557n
The defendants claim as their fourth special defense to each of the plaintiffs' first three counts that the claims are barred by the doctrine of governmental immunity pursuant to the common law and General Statutes § 52-557n. The plaintiffs move to strike this defense, arguing that § 52-557n actually provides consent for this type of suit.
The plaintiffs' motion also seeks to strike the third special defense to the fourth count, and addresses that defense as if it were also based on governmental immunity. That defense, however, relates to punitive damages, not governmental immunity. In fact, the answer dated September 12, 2008, does not include a governmental immunity defense to count four. The plaintiffs have offered no analysis or briefing of the punitive damages issue, and therefore the court will not consider whether the third special defense to count four should be stricken.
As applied to counts one and two, for negligence and strict liability respectively, § 52-557n states 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." "The determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to [General Statutes] § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint." Grignano v. Milford, 106 Conn.App. 648, 655, 943 A.2d 507 (2008). The installation and construction of sewers is a discretionary act of an official function of the government. See Martel v. Metropolitan District Commission, 275 Conn. 38, 881 A.2d (2005) (finding the maintenance of dirt pathways at a park is discretionary in nature); Elliot v. Waterbury, 245 Conn. 385, 715 A.2d 27 (1998) (holding the decision not to close access to roads surrounding a reservoir land used for hunting was discretionary); Segreto v. Bristol, 71 Conn.App. 844, 804 A.2d 928 (2002) (holding the maintenance of a city stairway is a discretionary function). The use of this statute as a special defense for counts one and two of the plaintiffs' complaint is therefore legally sufficient and shall not be stricken. The plaintiffs' motion to strike the use of § 52-557n by the defendants as a special defense against counts one and two of the plaintiffs' complaint is denied.
As stated previously, count three of the plaintiffs' complaint is a claim that the defendant's construction in the Sandy Point lateral sewer extension and roadway project caused a nuisance by which the plaintiffs were harmed. The defendants cite § 52-557n, as a special defense against the claim for nuisance. The defendants do not respond to the plaintiffs' motion to strike this special defense with respect to the count for nuisance. The relevant language as contained in § 52-557n(a)(1)(C) states: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: . . . acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149." "It is, of course, true that, independently of § [13a-149], a municipality may be held liable for a nuisance existing in a highway . . . That liability exists not only as to travelers but also as to owners of real property whose property is damaged as a result of the existence of the nuisance . . . Such liability exists, however, only for those nuisances which have been created by positive act. There is no liability where the condition of the highway which is dangerous has come into being simply because of the failure of the town to take remedial steps." Aerotec Corp. v. Town of Greenwich, 138 Conn. 116, 120, 82 A.2d 356 (1951). (Citations omitted.) The plaintiffs' claim for nuisance in the present matter is based on alleged blasting by the defendants during construction of the Sandy Point lateral sewer extension and roadway project, a positive act. Therefore, the defendants' use of § 52-557n as a special defense against the plaintiffs' claim for nuisance is not legally sufficient. The plaintiffs' motion to strike § 52-557n as a special defense to count three is granted.
CONCLUSION
For the foregoing reasons, the plaintiffs' motion to strike is granted as to the defendants' first special defense to each count of the amended complaint. The motion is granted as to the defendants' second special defense to each count to the extent that they allege that § 13a-149 bars the plaintiffs' claims; the motion is otherwise denied as to the second special defense. Finally, the court denies the motion as to the fourth special defenses to counts one and two, and grants the motion as to the fourth special defense to count three.