Opinion
No. CV08 501 55 02 S
January 7, 2009
MEMORANDUM OF DECISION
FACTS
On April 29, 2008, the plaintiffs, William Kumah and Keziah Kumah, filed this lawsuit against the defendants Leo G. Brown, Sparks Finance Company, Swift Transportation Company and the town of Greenwich (the town). In their ten-count complaint, the plaintiffs allege the following facts. On September 3, 2006, at approximately 1:50 a.m., Brown was operating a tractor trailer truck in a westerly direction on Interstate 95 in Greenwich, Connecticut. Brown proceeded to lose control of his tractor trailer truck, strike a jersey barrier and bridge railing, and then spilled diesel fuel on the highway. Following the accident, Brown's tractor trailer truck came to a stop positioned in the right and center lanes of the roadway.
The plaintiffs further allege that Brown was operating this vehicle in the scope of his employment with Sparks Finance Company and Swift Transportation Company. Following the accident, Robert Lucas, a member of the Cos Cob Fire Police Patrol, a volunteer company that operates under the structure of the town's fire department, responded to the scene. While assisting with the accident cleanup, Lucas, acting within the scope of his employment or official duties, parked a fire truck owned by the town diagonally across the center and right lanes of the highway. Lucas then placed road safety cones to the east of the parked fire truck intending to alert oncoming vehicles to the lane closures. At this point in time, William Kumah was driving his automobile west on Interstate 95 when he collided with the town's fire truck and struck a bridge railing, sustaining serious personal injuries, including paraplegia.
In the complaint, William Kumah alleges negligence in counts one through four against each of the defendants and nuisance in count five against the town. Specifically, the complaint alleges that the town was negligent and careless in that the fire truck and lane closures were inadequately marked, and, as a result, William Kumah suffered numerous physical injuries that have required multiple surgeries, as well as lost wages and diminution of earning capacity. The complaint also alleges that the positioning of the fire truck constituted a nuisance. In counts six through nine, Keziah Kumah alleges loss of consortium as a derivative claim of the negligence causes of action against each of the defendants. In count ten, she further alleges the loss of consortium against the town as a derivative claim of the nuisance cause of action.
As the sole moving party on this motion to strike, only the counts relevant to the town will be discussed herein.
On September 19, 2008, the town filed a motion to strike counts four, five, nine, ten and a supporting memorandum of law. As grounds, the town claims that counts four and nine in negligence are barred by governmental immunity, and therefore the derivative claim of loss of consortium in count nine also must be stricken. As to counts five and ten, the town claims that the plaintiffs have failed to allege sufficient facts to state a nuisance claim, and likewise, the derivative claim of loss of consortium in count ten also must be stricken. On October 21, 2008, the plaintiffs filed a memorandum of law in opposition, and the town filed a reply memorandum on November 7, 2008. The matter was heard at the short calendar on November 24, 2008.
DISCUSSION
"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). Consequently, "[t]he proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial." Gutlack v. Gutlack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993), citing Practice Book § 10-39. In a motion to strike, "the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Therefore, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). On the other hand, the moving party "does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). Finally, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).
Initially, this court must address the issue of whether the town may raise the defense of governmental immunity in the context of a motion to strike. It is the plaintiffs' position that since it cannot be determined from the face of the complaint whether the defense is applicable, it is inappropriate for the town to raise the claim of governmental immunity via a motion to strike. Consequently, the plaintiffs argue that the town should have to raise governmental immunity as a special defense so the plaintiffs can plead facts in avoidance.
As a general rule, the defense of governmental immunity should not be raised on a motion to strike. Our Supreme Court has "previously determined that governmental immunity must be raised as a special defense in the defendant's pleadings . . . Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] . . . The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway . . . Nevertheless, [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." (Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).
In the present case, the plaintiffs allege that Robert Lucas, a firefighter employed by the town, negligently parked a town fire truck on Interstate 95 and placed safety cones on the roadway while assisting with an accident cleanup. By its plain language, the plaintiffs' complaint therefore alleges that employees of the town were acting in their role as firefighters when they engaged in these activities. Under longstanding Connecticut precedent, "[i]t 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." (Citations omitted.) Brook-Hall Dairy Co. v. New Haven, 122 Conn. 321, 324, 189 A.2d 182 (1937). More recent Connecticut Supreme Court cases have held that the operation of a police department is a governmental function; Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185 (1988); and that a city fire marshal and fire chief were engaging in a governmental function when they allegedly failed to properly enforce building codes. Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989).
Given this case law, it is apparent that this complaint alleges that Lucas and the other town employees were engaged in governmental functions when they committed the alleged malfeasances. Indeed, the plaintiffs implicitly acknowledge that they have alleged governmental acts in paragraph sixteen of the complaint, where they allege that "[t]he actions of Lucas and other agents, servants and/or employees of the Town of Greenwich were ministerial to the extent there exist prescribed standards, regulations, rules and/or procedures requiring the Town firefighters and other municipals officials to perform their duties in securing a traffic accident scene in a prescribed manner without the exercise of judgment or discretion." As will be discussed, the dichotomy between discretionary and ministerial acts is only relevant when determining if a municipality is immune from liability for its governmental acts. Accordingly, since it is apparent from the face of this complaint that the plaintiffs have alleged that employees of the town were engaged in governmental acts, this court can consider the defense of governmental immunity on a motion to strike.
I GOVERNMENTAL IMMUNITY
In its memorandum of law in support of the motion to strike, the town argues that "the acts complained of are governmental acts that require the exercise of judgment or discretion; and . . . the identifiable person-imminent harm exception does not apply to the town or to the facts as plead[ed]" and the plaintiffs have not named a town employee. In addition, the town argues that the complaint fails to specify any standards, regulations or procedures that could establish that the town's employees breached a ministerial duty. In response, the plaintiffs counter that in the event that the court does find that the town's immunity argument can be heard at the motion to strike stage, the complaint properly alleges the breach of a ministerial duty and, even if some of the plaintiffs' allegations are deemed discretionary, they have pleaded facts tending to establish the identifiable person/imminent harm exception. As a result, the plaintiffs maintain that the motion to strike should be denied.
"[General Statutes § ]52-557n abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property." Tryon v. North Branford, 58 Conn.App. 702, 721, 755 A.2d 317 (2000). It provides in relevant part: "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." General Statutes § 52-557n(a).
Under § 52-557n, "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 . . . The hallmark of a discretionary act is that it requires the exercise of judgment . . . 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 omitted.) Violano v. Fernandez, supra, 280 Conn. 318. "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." (Internal quotation marks omitted.) Durrant v. Board of Education, 284 Conn. 91, 106, 931 A.2d 859 (2007).
Our Supreme Court's opinion in Evon v. Andrews, supra, 211 Conn. 501, is instructive in determining whether a complaint alleges that a town's municipal officials are engaged in discretionary or ministerial acts. In that case, where the town fire marshal and fire chief were defendants, our Supreme Court noted that the plaintiffs "allege that the defendants failed to make reasonable and proper inspections of the premises . . . They further claim that the defendants failed to conduct adequate inspections . . . While an inspection by definition involves a checking or testing of an individual against established standards . . . what constitutes a reasonable, proper or adequate inspection involves exercise or judgment. Further, no matter how objective the standard, an inspector's decision as to whether a building falls below a standard and whether remedial orders are therefore required involves the exercise of his or her judgment." (Citation omitted; emphasis in original; internal quotation marks omitted.) Evon v. Andrews, supra, 506.
An examination of the allegations found in the complaint in the present matter reveals that they are similar to those in Evon. In count five, the plaintiffs allege that following the accident involving the tractor trailer truck, Lucas and other members of the Cos Cob Fire Police Patrol, a volunteer fire company operating under the structure of the town, responded to the accident scene. The complaint directly alleges that these firefighters were town employees acting within the scope of their employment. Once at the scene, the firefighters positioned the fire truck diagonally across the travel lanes of Interstate 95 "in a manner which it knew or should have known would increase and/or create danger to oncoming motorists . . ." and "in a manner that violated recognized and/or prescribed safety standards, rules, procedures, and/or regulations." Moreover, the complaint alleges that Lucas and the town's employees "failed to use a sufficient number of traffic cones to provide adequate warning for oncoming motorists" and "failed to set traffic cones at a sufficient distance to provide an adequate warning for oncoming motorists." Finally, the plaintiffs allege that the firefighters "failed to provide adequate lighting so as to warn oncoming motorists of the danger and/or injury."
By their very nature, decisions regarding where to place a fire truck on the roadway, how many road cones to put out and where to put them, and how to light an accident scene are discretionary. Each of these actions required Lucas and the other firefighters to consider the situation at the accident scene and decide upon an appropriate course of action, which is the essence of discretion. While the plaintiffs argue that their allegations that the firefighters failed to follow prescribed safety standards, procedures and regulations makes the duty ministerial, most courts have disagreed in the context of public safety workers As summarized by Judge Sheedy, "[w]hile 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." Gloriso v. Police Dept, 49 Conn.Sup. 200, 205, 867 A.2d 160 (2004), citing Evon v. Andrews, supra, 201 Conn. 505; Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185 (1988); Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982); Sestito v. Groton, 178 Conn. 520, 527, 423 A.2d 165 (1979); Stiebitz v. Mahoney, 144 Conn. 443, 446, 134 A.2d 71 (1957); Alexander v. Vernon, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 02 0078935 (May 3, 2004, Sferrazza, J.). This court therefore applies the general rule that firefighters engage in discretionary acts when they are in the line of duty.
Since the firefighters engaged in discretionary acts, the town is entitled to immunity so long as no exception applies. "There are three exceptions to discretionary act immunity. Each of these exceptions represents a situation in which the public official's duty to act is [so] clear and unequivocal that the policy rationale underlying discretionary act immunity to encourage municipal officers to exercise judgment — has no force . . . First, liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure . . . Second, liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . Third, liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . ." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 319-20.
The only applicable exception is number three, the identifiable person/imminent harm exception. The Supreme Court has "construed this exception to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims." (Internal quotation marks omitted.) Durrant v. Board of Education, supra, 284 Conn. 100. "In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim . . . Other courts, in carving out similar exceptions to their respective doctrines of governmental immunity, have also considered whether the legislature specifically designated an identifiable subclass as the intended beneficiaries of certain acts . . . whether the relationship was of a voluntary nature . . . the seriousness of the injury threatened . . . the duration of the threat of injury . . . and whether the persons at risk had the opportunity to protect themselves from harm." (Internal quotation marks omitted.) Id., 101. To invoke this exception, a plaintiff must demonstrate: "(1) imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm." Doe v. Petersen, 279 Conn. 607, 616, 903 A.2d 191 (2006). "[T]he core requirements of the imminent harm exception are analyzed conjunctively. To prevail, the plaintiff must demonstrate that [he] was an identifiable person and was subject to imminent harm and that a public officer's conduct subjected her to that harm, despite the apparent likelihood of harm to [him]." (Emphasis in original; internal quotation marks omitted.) Id., 620.
The town first argues that the identifiable person/imminent harm exception cannot apply in this matter because no town employees are individually named in the complaint. In support of this argument, the town points to a footnote in our Supreme Court's opinion in Pane v. Danbury, 267 Conn. 669, 677-78 n. 9, 841 A.2d 684 (2004), which states "[w]e note that there is an exception to the doctrine of qualified immunity from liability as it applies to a municipal employee, as distinct from the municipality itself, where the circumstances make it apparent to the public officer that his or her failure act would be likely to subject an identifiable person to imminent harm . . ." (Emphasis in original.) Id. In response, the plaintiffs contend the Supreme Court has subsequently analyzed this exception in later cases where only the municipality was a defendant. See Doe v. Petersen, supra, 611 n. 2 (analyzing, but ultimately rejecting, the exception in a case where the plaintiff had dropped the count against the town employee, leaving the municipality as the only defendant). Given that our Supreme Court did apply the identifiable person/imminent harm exception in a case where only the municipality remained a defendant, the exception is equally applicable to the plaintiffs here without having named a municipal official as a defendant.
Nevertheless, in the present case, the plaintiff driver does not qualify as an identifiable person subject to imminent harm. In cases where our Supreme Court has applied this exception, the focus has been on the plaintiff's compelled presence at the location where the tort occurred. One such example is school children who are at school during school hours. See, e.g., Burns v. Board of Education, 228 Conn. 640, 649-51, 638 A.2d 1 (1994). The reason for students being foreseeable victims of the negligence of school officials is that they are statutorily mandated to attend school. By contrast, William Kumah was simply one of many individuals driving on an interstate highway, presumably without a statutory mandate to do so. Indeed, our Appellate Court has held that a plaintiff who was injured when a rotten tree limb fell on her automobile was not an identifiable victim because "[t]he plaintiff has not cited any statute, regulation or municipal ordinance that compelled her to drive her car on the . . . [street] where the accident occurred. She has not shown that her decision to take that particular route was anything but a voluntary decision that was made as a matter of convenience. We therefore cannot conclude that she was required to use the portion of the roadway where the accident occurred." (Internal quotation marks omitted.) Deconti v. McGlone, 88 Conn.App. 270, 275, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005). Similarly, the plaintiffs' complaint in this matter does not allege any facts that show why William Kumah's presence on Interstate 95 should have been foreseeable to the town's employees. Like the plaintiff in Deconti, the plaintiffs in the present case have failed to demonstrate that William Kumah's decision to drive on Interstate 95 at the time of the accident was for any reason other than convenience, and therefore he cannot invoke the identifiable person/imminent harm exception to governmental immunity. As a result, the town's motion to strike count four is granted. Since count nine is Keziah Kumah's derivative claim for loss of consortium, the town's motion to strike count nine is also granted.
II NUISANCE
The town also moves to strike counts five and ten sounding in nuisance. As a threshold matter, the town first argues that the facts alleged in counts five and ten must be one for a public nuisance claim since the plaintiffs do not allege that they were injured in relation to any right arising out of the ownership of an interest in land. Next, the town asserts that the allegations in count five are simply a repetition of the allegations found in count four. According to the town, the plaintiffs do not allege any facts beyond a mere claim of negligence. Specifically, the town argues that the plaintiffs have failed to properly allege that the position of the town's fire truck had a natural tendency to create danger or that the town engaged in a positive act to create the nuisance. In response, the plaintiffs argue that they have stated sufficient facts to make out all of the elements of a nuisance claim.
A town may be liable for creating a nuisance pursuant to § 52-557n(a)(1)(c), which provides in relevant part that "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 . . ." In order to recover in a public nuisance action, the plaintiff must demonstrate that "(1) the condition complained of has a natural tendency to create danger and inflict injury upon person or property; (2) the danger created is a continuing one; (3) the use of the land is unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiff's injuries and damages." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 469 (2002). Moreover, "in order to overcome the governmental immunity of municipal defendants where it applies, the plaintiff must prove that the defendants, by some positive act, intentionally created the conditions alleged to constitute a nuisance." Elliott v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27 (1998). "A nuisance is created intentionally if the creator of the condition intends the act that brings about the condition . . . [or] knows that it is resulting or is substantially certain to result from [its] conduct." (Citation omitted; internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 163, 676 A.2d 795 (1996).
If viewed in a light most favorable to the plaintiffs, the allegations found in the complaint are sufficient to plead a cause of action for public nuisance. The complaint alleges that "the [t]own failed to properly position the fire truck so as to ensure that its warning lights were sufficiently visible to oncoming motorists, such as the Plaintiff" and "the town failed to set traffic cones at a sufficient distance to provide an adequate warning for oncoming motorists." As further alleged in the complaint, the town's diagonal positioning of the fire truck across two lanes of traffic and placement of the traffic cones violated safety regulations. Finally, the plaintiffs contend that the accident scene was inadequately lit for a driver to see that he was coming upon an accident scene and that these actions caused William Kumah to hit the town's fire truck. Since the town's employees affirmatively placed the fire truck and road cones on the road, the intent to commit an action alleged to constitute a nuisance element is met.
The more difficult question, however, is whether the town's actions had a natural tendency to create a continuing danger, and therefore if it was substantially certain that a nuisance would result from the actions of the town's employees. In making this determination, it is helpful to keep in mind that "even though the city acted pursuant to the proper and lawful purpose of safeguarding traffic . . . this would not necessarily excuse it from liability, for towns will not be justified in doing an act lawful in itself in such a manner as to create a nuisance, anymore than individuals. And if a nuisance is thus created, whereby another suffers damage, towns like individuals are responsible." (Internal quotation marks omitted.) DeLahunta v. Waterbury, 134 Conn. 630, 634, 59 A.2d 800 (1948). In DeLahunta, the Supreme Court held that a municipality can be liable for a public nuisance when it places an obstruction such as a traffic stanchion at an intersection on the roadway. Id., 632-33. Although Connecticut requires a continuing danger causing the harm, this does not mean an exposure of another or his property to danger over a long period of time. For example, the court in Warren v. Bridgeport, 129 Conn. 355, 358, 28 A.2d 1 (1942) held that the city created a nuisance by operating a poorly lit dark city vehicle on a highway for a period of time on one night.
In the present case, the plaintiffs allege that the town's employees placed the fire truck diagonally across the traveled lanes of Interstate 95 in violation of safety procedures and inadequately marked the accident scene with poor lighting and insufficient use of traffic cones. Given that Interstate 95 is a heavily traveled roadway with high speed vehicles and this accident occurred at night, a jury could conclude that such allegations, if proven at trial, constituted a threat to public safety. While the town argues that the plaintiffs have failed to allege a continuous nuisance, Connecticut law does not require that a public nuisance exist for an extremely long time. It is reasonable to infer from the complaint that any threat to safety caused by the town's fire truck would have continued for at least as long as it took for the town's employees to cleanup the accident scene. Accordingly, the plaintiffs have alleged sufficient facts to state a claim for public nuisance in count five. As a result, Keziah Kumah's derivative claim for loss of consortium in count ten alleges sufficient facts for that cause of action.
CONCLUSION
For the reasons stated above, the town's motion strike counts four in negligence on the ground of governmental immunity and count nine on the ground that loss of consortium is a derivative claim is granted. The town's motion to strike counts five and count ten, the derivative claim, are denied, because the plaintiffs have alleged sufficient facts to state a claim of nuisance and loss of consortium respectively.