Opinion
No. CV99 0068679S
January 3, 2001
MEMORANDUM OF DECISION (MOTION TO STRIKE)
This is an action commenced by the plaintiff against the defendant, Lisman, the Mayor of the City of Milford, and the defendant, City of Milford, for personal injuries alleged to have been sustained by the plaintiff. The plaintiff alleges that his injuries were caused when he tripped and fell on a one-inch lip separating the Town Clerk's vault from the Town Clerk's Office.
In Count One of the Complaint, the plaintiff alleges that the defendant Lisman had the duty to inspect the Town Clerk's Office and to ensure a reasonably safe premises, and that the defendant Lisman, as Mayor, was negligent in that he (a) failed to properly inspect or instruct city employees to inspect the Town Clerk's Office including the Town Clerk's vault; (b) he failed to properly maintain or instruct city employees to maintain a reasonably safe premises: (c) he failed to adequately warn or to instruct city employees to warn individuals of the dangerous and unsafe premises; and (d) he failed to remove or repair or to instruct city employees to remove or repair the one-inch lip protruding from the floor.
In the Second Count of the Complaint against the City of Milford, plaintiff makes a claim under Connecticut General Statutes § 7-465 , under which the City of Milford would be obligated to pay for all sums which an employee becomes obligated to pay by reason of liability imposed upon an employee for damages.
Sec. 7-465. Assumption of liability for damage caused by employees or members of local emergency planning districts. Joint liability of municipalities in district department of health or regional planning agency.
(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, and on behalf of any member from such municipality of a local emergency planning district, appointed pursuant to section 22a-601 all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as hereinafter set forth, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. This section shall not apply to physical injury to a person caused by an employee to a fellow employee while both employees are engaged in the scope of their employment for such municipality if the employee suffering such injury or, in the case of his death, his dependent, has a right to benefits or compensation under chapter 568 by reason of such injury. If an employee or, in the case of his death, his dependent, has a right to benefits or compensation under chapter 568 by reason of injury or death caused by the negligence or wrong of a fellow employee while both employees are engaged in the scope of their employment for such municipality, such employee or, in the case of his death, his dependent, shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was wilful and malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14-1. This section shall not apply to libel or slander proceedings brought against any such employee and, in such cases, there is no assumption of liability by any town, city or borough. Any employee of such municipality, although excused from official duty at the time, for the purposes of this section shall be deemed to be acting in the discharge of duty when engaged in the immediate and actual performance of a public duty imposed by law. Such municipality may arrange for and maintain appropriate insurance or may elect to act as a self-insurer to maintain such protection. o action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued. Governmental immunity shall not be a defense in any action brought under this section. In any such action the municipality and the employee may be represented by the same attorney if the municipality, at the time such attorney enters his appearance, tiles a statement with the court, which shall not become part of the pleadings or judgment file, that it will pay any verdict rendered in such action against such employee. o mention of any kind shall be made of such statement by any counsel during the trial of such action. As used in this section, "employee' shall include (1) a member of a town board of education and any teacher, including a student teacher doing practice teaching under the direction of such a teacher, or other person employed by such board and (2) a member of the local emergency planning committee from such municipality appointed pursuant to section 22a-601. othing in this section shall be construed to abrogate the right of any person, board or commission which may accrue under section 10-235.
(b) Bach town, city or borough which has joined with other towns, cities or boroughs to form a district department of health, pursuant to chapter 368f, or a regional planning agency, pursuant to chapter 127, shall jointly assume the liability imposed upon any officer, agent or employee of such district department of health or such regional planning agency, acting in the performance of his duties and in the scope of his employment, under, and in the manner and in accordance with the procedures set forth in, subsection (a) of this section. Such joint assumption of liability shall be proportionately shared by the towns, cities and boroughs in such district or regional planning agency, on the same basis that the expenses of such district are shared as determined under section 19a-243, or such regional planning agency as determined under section 8-34a.
In the Third Count, the plaintiff makes a direct action against the City of Milford based upon Connecticut General Statute § 52-557(n) . Within this Third Count, the plaintiff makes essentially the same negligence allegations directly against the City of Milford as the plaintiff did against the defendant Lisman.
52-557n. Liability of political subdivision and its employees, officers and agents. Liability of members of local boards and commissions.
(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; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) 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. (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: (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.
(b) otwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: (1) The condition of natural land or unimproved property: (2) the condition of a reservoir, dam, canal, conduit, drain or similar structure when used by a person in a maimer which is not reasonably foreseeable: (3) the temporary condition of a road or bridge which results from weather, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe; (4) the condition of an unpaved road, trail or footpath, the purpose of which is to provide access to a recreational or scenic area, if the political subdivision has not received notice and has not had a reasonable opportunity to make the condition safe; (5) the initiation of a judicial or administrative proceeding, provided that such action is not determined to have been commenced or prosecuted without probable cause or with a malicious intent to vex or trouble, as provided in section 52-568; (6) the act or omission of someone other than an employee, officer or agent of the political subdivision; (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety; (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances; (9') failure to detect or prevent pollution of the environment, including groundwater, watercourses and wells, by individuals or entities other than the political subdivision; or (10) conditions on land sold or transferred to the political subdivision by the state when such conditions existed at the time the land was sold or transferred to the political subdivision.
(c) Any person who serves as a member of any board, commission, committee or agency of a municipality and who is not compensated for such membership on a salary or prorated equivalent basis, shall not be personally liable for damage or injury occurring on or after October 1, 1992, resulting from any act, error or omission made in the exercise of such persons policy or decision-making responsibilities on such board, commission, committee or agency if such person was acting in good faith, and within the scope of such person's official functions and duties, and was not acting in violation of any state, municipal or professional code of ethics regulating the conduct of such person. or in violation of subsection (a) of section 9-369b or subsection (b) or (c) of section 1-206. The provisions of this subsection shall not apply if such damage or injury was caused by the reckless, wilful or wanton misconduct of such person.
The defendants have filed a motion to strike each of the three counts of the Complaint arguing that the defendant, Lisman, in his position as Mayor of Milford, cannot be held liable for damages based on governmental immunity for discretionary acts, pursuant to Connecticut General Statutes § 52-227n(B). The defendants further argue that as the Second Count of the Complaint is brought under the provisions of Connecticut General Statutes § 7-465, against the City of Milford, it is derivative of the First Count and must also fail.
Lastly, as to the Third Count against the City of Milford, the defendants argue that the City of Milford is immune from liability, based on governmental immunity, and since its employees took part in discretionary acts, it is not subject to any of the exceptions to immunity.
I.
"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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn. App. 208, 211, S 35 A.2d 390 (1988)
A motion to strike "admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings" (Emphasis omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id.
"In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980)
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v CBS, Inc., 196 Conn. 91, 108-09, CT Page 141 491 A.2d 368 (1985).
II.
A municipal employee has qualified immunity in the performance of a governmental duty. The municipal employee may be liable if he misperforms a ministerial act as opposed to a discretionary act. The word ministerial "refers to a duty, which is to be performed in a prescribed manner without the exercise of judgment or discretion. . . ." Evon v. Andrews, 211 Conn. 501, 505 559 A.2d 1131 (1989)
The instant complaint alleges that the defendant, Lisman, in his capacity as the Mayor of Milford, had the duty to inspect the Milford City Hall, including the Town Clerk's Office to "ensure a reasonable safe premises." This duty, if it exists as alleged, would be a discretionary act. "An inspector's decision as to whether a building falls below a standard and whether remedial orders are therefore required, involved the exercise of his or her judgment." Evon v. Andrews, supra, 211 Conn. 506.
If an act is discretionary in nature, a plaintiff, to be entitled to recover must fall within one of the exceptions to a municipal employee's qualified immunity for discretionary acts. The first exception is where 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. The second exception is where a statute specifically provided a cause of action against a municipal officer or municipality for their failure to perform certain laws. Lastly, the third exception is where the acts of the municipal officer involve malice, wantonness or intent to injure, rather than negligence. Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d (1994). As the second and third exceptions stated herein, are not applicable to the present allegations as pleaded, an analysis of the first exception must follow.
The plaintiff, in his opposition to the motion to strike, argues that he was an identifiable person who was subjected to imminent harm due to the defendant Lisman's failure to act in his capacity as a public officer. The defendant relies in most on Burns v. Board of Education, 228 Conn. 640 (1994), where a school child fell on an icy courtyard of a school he attended, during school hours. The Supreme Court, in reversing the Appellate Court and the trial court, held that the plaintiff was one of a class of foreseeable victims to whom the superintendent of schools owed a duty of protection with the result that governmental immunity was no defense. The Supreme Court, in reaching its decision, reasoned that "[s]tatutes describe the responsibilities of school children to attend school. The presence of the plaintiff child on school premises where he was injured was not voluntary." The child was compelled to attend school, and, therefore, required special consideration when dangerous conditions were involved, such as the icy courtyard. Id. at 649, 650.
The Supreme Court also distinguished this case from Evon v. Andrews, supra 211 Conn. 501, by stating "this accident could not have occurred at any time in the future; rather, the danger was limited to the duration of the temporary icy condition in this particularly `treacherous' area of the campus. The potential for a fall on ice was significant and foreseeable, as it related to a student at the school.
In the case before this court, the plaintiff alleges that he was lawfully in the Town Clerk's Office and the Town Clerk's vault on December 4, 1998, during business hours when he tripped and fell on a one-inch lip separating the vault from the office area. He was a member of the public, voluntarily on the premises, and presumably was on the premises conducting his own business affairs. This court cannot agree that he was a readily identifiable victim, subject to imminent harm as a member of the general public, visiting a municipal office.
This case does not present the exceptions to the governmental immunity stated in Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979) and Burns v. Board of Education, supra 228 Conn. 640.
The court agrees that the defendant Mayor Lisman took part in a discretionary act in deciding whether or not the one inch lip separating the Town Clerk's Office from the Town Clerk's vault was safe for the general public. The fall alleged by the plaintiff could have occurred at any time in the future, if at all, and by any member of the general public who chose to visit the Town Clerk's vault. The court hereby grants the motion to strike the First Count against the defendant Lisman in his capacity as Mayor. The Second Count against the City of Milford, brought under Connecticut General Statutes § 7-465, based on the acts of its employee, Lisman, is also granted, as it is derivative of the First Count and must fail for the reasons stated herein.
As to the Third Count, the court agrees with the City of Milford, that it is immune from liability based on governmental immunity. The employee, Lisman, took part in discretionary acts, not subject to any exceptions to this immunity.
The existence of a duty of care, an essential element of negligence, is a matter of law for the court to decide. Shore v. Stonington, 187 Conn. 147, 152 (1982). It is the existence of a duty that is a dispositive factor concerning the motion to strike. To survive a motion to strike, the court must determine that the defendants owed a duty to the plaintiff. The existence of that duty is a matter for the court to decide, not a jury. Gordon v. Bridgeport Housing Authority, 208 Conn. 1671, 170-171, 544 A.2d 1185 (1988)
Accordingly, the motion to strike the First, Second and Third Counts is granted.
The Court
By Arnold, J.