Opinion
CV146049550S
11-06-2015
Janice Flemming v. City of Hartford et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANTS' MOTIONS TO STRIKE
A. Susan Peck, J.
The plaintiff, Janice Flemming, filed an eight-count substituted complaint on March 4, 2015, against the defendants, the City of Hartford (city), Officer Pethigal, Linda Kurylowski, and Donna Thompson. Counts one and two allege false imprisonment against the city and Pethigal, respectively. Counts three and four allege negligent false imprisonment against the city and Pethigal, respectively. Counts five and six allege malicious prosecution and slander, respectively, against Kurylowski. Counts seven and eight allege malicious prosecution and slander, respectively, against Thompson. The city, Pethigal and Kurylowski move to strike counts one through five. Thompson moves to strike count seven. The counts alleging slander are not addressed. The plaintiff alleges the following facts.
The original complaint was filed March 18, 2014.
The Hartford Police Department was originally a defendant, but the allegations against it were dismissed from the case on February 13, 2014. See docket entry #101.86.
The city is a municipal corporation organized and existing under the laws of the state of Connecticut. Pethigal is an agent of the city. On or about February 24, 2012, the plaintiff alleges that her " physical liberty was restrained by the defendants for four and a half (4 1/2) hours when she was detained in the lobby of the apartment building where she resides, questioned, handcuffed, taken into custody and transported to the Hartford Police station by Officer Pethigal and then photographed, fingerprinted, booked and placed in a cell." The plaintiff alleges in counts one and two that the restraint by the defendants was against the plaintiff's will. The plaintiff further alleges that the officer was acting upon inaccurate, incomplete, or misleading information or was otherwise acting inappropriately when restraining the plaintiff. The plaintiff alleges in counts three and four that such actions also constitute negligent false imprisonment.
As to malicious prosecution, the plaintiff alleges that Kurylowski complained of and stated to a prosecuting attorney for geographical area no. 14 of the Superior Court that the plaintiff had committed the crime of breach of peace in that the plaintiff had engaged in loud and threatening behavior and had grabbed and caused pain to the right finger of Kurylowski. As a result of such complaint, the plaintiff was arrested. The plaintiff further alleges that the charge against her was dismissed, and she was discharged. The complaint and charges were in fact false and absent Kurylowski's fraudulent corroboration of her claim, there was no reasonable or probable cause for the prosecution. The plaintiff further alleges that due to the fraudulent claim by Kurylowski, the plaintiff was requested to reimburse Kurylowski for medical expenses purported to have been incurred and to participate in anger management counseling.
The city, Pethigal and Kurylowski filed their motion to strike, with a memorandum in support, on April 10, 2015. Thompson filed her motion to strike, with a memorandum in support, on April 17, 2015. The plaintiff filed objections to the motions on July 13, 2015, and the defendants filed separate replies on August 3 and August 7, 2015. This matter was heard at short calendar on July 13, 2015.
" 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). " [T]here are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike. Specifically, 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." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 116 n.4, 19 A.3d 640 (2011). " [A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It 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. Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Coppola Construction Co. v Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
The defendants city and Pethigal have moved to strike counts one and three against the city and two and four against Pethigal alleging false imprisonment and negligent false imprisonment, on the grounds that the plaintiff has not alleged a lack of probable cause in the complaint and suit against the city is barred by governmental immunity. The defendants city and Pethigal have also moved to strike counts three and four on the ground that negligent false imprisonment is not a recognized cause of action in the state of Connecticut. Lastly, the defendants Kurylowski and Thompson, in separate motions, have moved to strike counts five and seven on the grounds that the plaintiff has not satisfied the element of malicious prosecution that the underlying criminal matter terminated in the plaintiff's favor. The plaintiff challenges each of the foregoing grounds.
In terms of organization, the defendants' motion to strike (#132), is somewhat jumbled. Therefore, this memorandum follows the counts of the complaint rather than the motion of the defendants City, Pethigal and Kurylowski.
A. Counts One and Two--False Imprisonment
The tort of false imprisonment requires that an individual be accused of committing the actions that form the basis of the claim. Rivera v. Double A Transportation, Inc., 248 Conn. 21, 31-32, 727 A.2d 204 (1999) (defining false imprisonment as " the unlawful restraint by one person of the physical liberty of another.") The city is a political subdivision and not a person. Further, General Statutes § 52-557n(a)(2) states that " [e]xcept as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by:
(A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct ; or (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." (Emphasis added.)
" Wilful misconduct is intentional misconduct; " Pane v. City of Danbury, 267 Conn. 669, 685, 841 A.2d 684 (2004). False imprisonment is an intentional tort. See Rivera v. Double A Transportation, Inc., supra, 248 Conn. 31. Therefore, pursuant to § 52-557n(a)(2)(A), the city is shielded from liability as to the plaintiff's claim of false imprisonment. Surprisingly, the defendants move to strike count two on the ground that the plaintiff has failed to sufficiently allege that Officer Pethigal lacked probable cause to arrest her. However, the court notes that the summons and return of service reflect that Officer Pethigal has been sued only in his official capacity, and therefore, the city is also shielded from liability for damages, pursuant to § 52-557n(a)(2)(A), as to any act or omission of Officer Pethigal, which constitutes intentional conduct. " It is well settled law that an action against a government official in his or her official capacity is not an action against the official, but, instead, is one against the official's office and, thus, is treated as an action against the entity itself." Avoletta v. Torrington, 133 Conn.App. 215, 222, 34 A.3d 445 (2012). Therefore, for this reason alone, the motion to strike count two must be granted.
As to the issue of probable cause, in count two brought against Pethigal, General Statutes § 54-1f(a) " authorizes police officers to arrest an individual without a warrant, for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others . . . Additionally, a warrantless misdemeanor arrest must be supported by probable cause." (Citations omitted; internal quotation marks omitted.) State v. Santiago, 224 Conn. 494, 498, 619 A.2d 1132, 1134 (1993). False imprisonment requires the plaintiff to bear the burden of proving that there did not exist probable cause at the time of the arrest. See Beinhorn v. Saraceno, 23 Conn.App. 487, 490-91, 582 A.2d 208 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991). An objective, reasonable person test is employed to determine whether, on the basis of the totality of the circumstances, there exists probable cause to believe that a crime had been committed. State v. Jenkins, 82 Conn.App. 111, 116, 842 A.2d 1148 (2004).
B. Counts Three and Four--Negligent False Imprisonment
The plaintiff alleges negligent false imprisonment in counts three (city) and four (Pethigal) of her substitute complaint. Negligent false imprisonment is not a cause of action that is recognized in the state of Connecticut. " That false imprisonment is an intentional tort . . . is well settled. [F]alse imprisonment is the unlawful restraint by one person of the physical liberty of another . . . False imprisonment comes within the category of intentional torts for which the remedy at common law was an action of trespass . . . A person is not liable for false imprisonment unless his act is done for the purpose of imposing a confinement, or with knowledge that such confinement will, to a substantial certainty, result from it . . . Nothing less than a rather extreme brand of recklessness will substitute for the standard requirement of intention in false imprisonment cases." (Citations omitted; quotation marks omitted.) Rivera v. Double A Transportation, Inc., supra, 248 Conn. 31-32. The plaintiff has not pleaded an " extreme brand of recklessness, " but has only stated that the officer failed to use " ordinary care" in various ways. Although the Supreme Court did not reach the issue of whether " such a creature" as a cause of action for negligent false imprisonment exists, the reference to such a claim as " a creature" suggests, at the very least, that the Court is skeptical. In any event, based on Rivera, as well as this court's view that an act of negligence is inconsistent with the other elements of this particular tort, the court finds that counts three and four fail to state a claim upon which relief can be granted. See Practice Book § 10-39.
Further, to the extent that the plaintiff seeks to sidestep the exclusion from liability in § 52-557n(a)(2)(A), of intentional conduct by couching counts three and four in terms of negligence, these claims are based on the discretionary acts of a police officer and are also excluded from municipal liability by § 52-557n(a)(2)(B). The actions a police officer performs while conducting an investigation or arrest are discretionary. See Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 180, 544 A.2d 1185 (1988) (" [i]t is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality"). " Police officers are protected by discretionary act immunity when they perform the typical functions of a police officer . . . The policy behind discretionary act immunity for police officers is based on the desire to encourage police officers to use their discretion in the performance of their typical duties." (Citation omitted; internal quotation marks omitted.) Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011). Therefore, the motion to strike must be granted.
General Statutes § 52-557n(a)(2)(B) states that " [e]xcept 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."
C. Count Five and Seven--Malicious Prosecution
In counts five and seven, respectively, Kurylowski and Thompson have separately moved to strike the counts against them alleging malicious prosecution. " An action for malicious prosecution against a private person requires a plaintiff to prove that: (1) the defendant initiated or procured the institution of criminal proceedings against the plaintiff, (2) the criminal proceedings have terminated in favor of the plaintiff, (3) the defendant acted without probable cause; and (4) the defendant acted with malice, primarily for a purpose other than that of bringing an offender to justice." (Citations omitted.) Bhatia v. Debek, 287 Conn. 397, 404, 948 A.2d 1009 (2008). The defendants move to strike the plaintiff's claims of malicious prosecution on the grounds that the plaintiff has not properly alleged that the underlying criminal prosecution terminated in her favor. Notably, however, counts five and seven allege that " [t]he plaintiff was arrested and brought before the court . . . The charge against the [plaintiff] was dismissed, and the [plaintiff] was discharged." Further, " Connecticut law adopts a liberal understanding of a favorable termination for purposes of a malicious prosecution." Roberts v. Babkiewicz, 582 F.3d 418, 421 (2d Cir. 2009). See also See v. Gosselin, 133 Conn. 158, 48 A.2d 560 (1946).
" 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); see also Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, supra, 309 Conn. 350. The plaintiff alleges that the criminal complaint was " dismissed, " and that she was " discharged." Viewing these allegations in a light most favorable to sustaining her claims of malicious prosecution, the motion to strike five and seven must be denied. Further, " Connecticut law adopts a liberal understanding of a favorable termination for purposes of a malicious prosecution." Roberts v. Babkiewicz, 582 F.3d 418, 420 (2d Cir. 2009). See also See v. Gosselin, 133 Conn. 158, 48 A.2d 560 (1946) (there is a sufficient termination to meet requirements of action for malicious prosecution where prosecution is abandoned either by the prosecuting attorney or the complaining witness).
CONCLUSION
Accordingly, for all the foregoing reasons, the motion to strike counts one through four is hereby granted and the motions to strike counts five and seven are hereby denied.
" Probable cause to arrest exists if (1) there is probable cause to believe a crime has been committed; and (2) there is probable cause to believe that the person to be arrested committed that crime." (Internal quotation marks omitted.) State v. Robinson, 105 Conn.App. 179, 190-91, 937 A.2d 717, 724 (2008), aff'd, 290 Conn. 381, 963 A.2d 59 (2009). Statements of alleged victims and witnesses are sufficient to establish probable cause. See State v. Colon, 272 Conn. 106, 151-52 n.15, 864 A.2d 666 (2004); cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005); McBride v. New Haven, United States District Court, Docket No. 3:97CV1475 (AWT) (D.Conn. March 30, 2000). The plaintiff's complaint asserts that " the police were acting upon inaccurate, incomplete or misleading information or were otherwise acting inappropriately when restraining the plaintiff." Although there is no allegation in count two that the plaintiff was arrested without probable cause, in counts three and four, the plaintiff does allege that Officer Pethigal arrested her " without first obtaining a warrant . . ." While an arrest with a warrant requires a finding of probable cause; State v. Heinz, 193 Conn. 612, 616-17, 480 A.2d 452 (1984); no such finding is made upon an arrest without a warrant until the case presented to the court. In addition, elsewhere in the complaint, the plaintiff alleges that the case against her was dismissed. Viewing the complaint in light most favorable to sustaining its legal sufficiency, including the facts which may be implied therefrom, the motion to strike to count two would necessarily be denied. See Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, supra, 309 Conn. 350.