Opinion
No. CV-04-0489728 S
March 8, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The plaintiff, Donna Moran, has brought this action against the defendants, the town of East Haven (town) and two of its employees, Kevin White and Louis Pane. In the operative five-count amended complaint dated April 13, 2005, the plaintiff alleges that at all times relevant to this suit, the town owned, possessed, controlled and/or maintained the Momauguin Sports Complex (the property), and that both White and Pane were employed by the town. The plaintiff claims that on May 6, 2002, she fell and sustained injuries while walking on a pathway that people using a field on the property created as a means of ingress and egress to and from the parking areas.
In the first count, the plaintiff alleges that the town is liable for her injuries pursuant to General Statutes § 52-557n because it was negligent in the following ways: failure to provide adequate access to the playing fields from the parking areas, violation of the Americans With Disabilities Act (the ADA), the state of Connecticut building code (state code) and the Council of American Building Officials National Property Maintenance Code (BOCA), which Connecticut has adopted in the state code; failure to provide such access although it was reasonably foreseeable that such access was required; constructing or permitting the property to be constructed without such access; failure to inspect the property; and failure to warn the plaintiff of the defective access or remedy the condition although it knew or should have known of its existence. Counts two and four are negligence claims against White and Pane, respectively, based on the same allegations. Counts three and five are indemnification claims against the town pursuant to General Statutes § 7-465, for the conduct of White and Pane, respectively.
General Statutes § 52-557(a)(1) provides in pertinent 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 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 the creation or participation in the creation of a nuisance . . . (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."
BOCA is a national building code that is issued by the Building Officials and Code Administrators International, Inc.
General Statutes § 7-465 provides in relevant part: "(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 . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded 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 arid 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."
The defendants have filed a motion to strike each count of the complaint. "[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.) Larobina v. McDonald, 274 Conn. 394, 400, 876 A.2d 522 (2005). "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." (Internal quotation marks omitted.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
A "motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). On the other hand, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Larobina v. McDonald, supra, 274 Conn. 400.
The defendants move to strike counts one, two and four on the ground that the plaintiff's allegations are barred by the doctrine of governmental immunity under § 52-557n(a)(2) in that the conduct in which the plaintiff alleges they engaged involved the exercise of discretion. They claim that the plaintiff's references to the ADA and the state code fail to transform the conduct at issue from discretionary to ministerial because the plaintiff fails to refer to any provision in the code or in the ADA that requires the construction of stairways or ramps as a means of access to playing fields and the state code only applies to buildings and structures. The defendants also contend that count four should be stricken because the plaintiff fails to allege facts that show that Pane owed a duty of care to her. The defendants move to strike counts three and five, the plaintiff's indemnification claims, on the ground that they are a derivative of the plaintiff's allegedly legally deficient claims against White and Pane.
In response, the plaintiff contends that a plain reading of her amended complaint shows that the conduct in question is ministerial and her claims are exempt from immunity under § 52-557n(a)(1). Furthermore, the plaintiff argues that the state code, through its adoption of the BOCA code, required that the town provide adequate means of access to the fields. Further, she argues that the language of the state code supports a finding that it applies to playing fields in that the term playing field fits within the dictionary ordinary meaning of the terms buildings and structures. See Merriam-Webster Dictionary (1997). The plaintiff also argues that the determination of whether an act or omission is discretionary or ministerial is normally a question of fact and that it is therefore inappropriate for a motion to strike. Finally, the plaintiff contends that whether Pane owed her a duty of care is also a question of fact.
As the plaintiff correctly states, "[g]overnmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded . . . Thus, a motion to strike ordinarily is an improper method for raising a claim of governmental immunity. [The Appellate Court has] recognized, however, that 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." (Citation omitted; internal quotation marks omitted.) Doe v. Board of Education, supra, 76 Conn.App. 299 n. 6.
Therefore, the first issue is whether the plaintiff's allegations, as a matter of law, are premised on discretionary governmental conduct by the defendants. "Section 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." Segreto v. Bristol, 71 Conn.App. 844, 850, 804 A.2d 932, cert. denied 261 Conn. 941, 808 A.2d 1132 (2002). "Subdivision (2) of § 52-557n(a) lists two exceptions to the statutory abrogation of governmental immunity. The exception relevant to this appeal provides: `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)(2)(B)." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 48, 881 A.2d 194 (2005). As to the liability of White and Pane, in this case, as in Martel, "[b]ecause the parties assume that the immunity provided by § 52-557n(a)(2)(B) is identical to a municipal employee's qualified immunity for discretionary acts at common law, we also assume, without deciding, that § 52-557n(a)(2)(B) codifies the common law." Id.
In this context, "[g]overnmental 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." (Citation omitted; internal quotation marks omitted.) Id., 48-49. As the Appellate Court explained in Segreto v. Bristol, supra, 71 Conn.App. 844, a municipality's actions in maintaining property are not always ministerial. Id., 851. "[T]he relevant case law on governmental immunity does not demonstrate that a municipality's failure to maintain its property in a reasonably safe condition is, as a matter of law, a ministerial function. Instead . . . the determination as to whether governmental immunity may successfully be invoked by a municipality to prevent liability for failure to maintain its property turns not on the plaintiff's theory of negligence but, rather, on the character of the act or omission complained of in the complaint." (Citations omitted; internal quotation marks omitted.) Id., 854.
For example, in Violano v. Fernandez, 88 Conn.App. 1, 10, 868 A.2d 69, cert. granted, 273 Conn. 936, 875 A.2d 544 (2005), the plaintiff, whose property was destroyed in a robbery, alleged that the defendant was negligent in that he "failed to install `adequate' locks, failed to monitor `adequately' who received keys to the building, failed to supervise `adequately' the security of the property and failed to make `reasonable and proper' inspections of the property." The court analyzed her allegations and noted that they all "implicate the exercise of judgment, and thus are discretionary acts." Id., 10. The court specifically noted that "[t]here is no mention in the complaint of a policy or directive instructing [the defendant] in the manner in which he was obligated to ensure the security of the property." Id., 9. Therefore, the Appellate Court concluded that the "[defendant] was entitled to qualified governmental immunity, and that such a defense, under these facts and circumstances, properly was raised by a motion to strike." Id.
Similarly, in Martel v. Metropolitan District Commission, supra, 275 Conn. 49, the plaintiff alleged that "the defendants were negligent in their: (1) design, supervision, inspection and maintenance of the trail on which the plaintiff was injured; (2) failure to warn recreational users of the trial's dangerous and unsafe condition; and (3) failure to barricade or close the trail." Id., 49. The court analyzed the plaintiff's allegations and noted that "[t]he plaintiff, in its opposition to the defendants' motion for summary judgment, did not present any evidence demonstrating that a policy or directive existed requiring the defendants to perform these duties. Absent evidence of such a policy or directive, we conclude that the [defendants] were engaged in duties that inherently required the exercise of judgment." Id., 50. The Supreme Court concluded "that the defendants' allegedly negligent acts were discretionary in nature as a matter of law and that, therefore, the trial court properly rendered summary judgment in favor of the defendants." Id., 52
In contrast, in Kolaniak v. Board of Education, 28 Conn.App. 277, 610 A.2d 193 (1992), where the plaintiff brought a negligence claim against the defendant after she fell on a snow covered walkway, the evidence showed that "the board had issued a bulletin to all custodians and maintenance personnel indicating that the walkways were to be inspected and kept clean on a daily basis." The Appellate Court held that the trial court was correct in concluding, as a matter of law, that the defendant's failure to clear the snow and ice from the walkway was a ministerial function that should not be afforded the protection of governmental immunity. The court stated that "the board of education's bulletin to all custodians and maintenance personnel was clear — they were to keep the walkways clear of snow and ice. We will not equate the act of clearing snow and ice by maintenance workers, in accordance with a directive by the policymaking board of education, with the policy decisions that are usually afforded protection by the doctrine of governmental immunity." Id., 281.
In the present case, the plaintiff's allegations that the defendants were negligent in that they failed to provide adequate access, failed to inspect the property, failed to warn the plaintiff of the lack of adequate access and to remedy this defect all involve conduct by the defendants that is, like the conduct in Martel and Violano, discretionary in nature. In these same counts, however, the plaintiff also specifically alleges, like the plaintiff in Kolaniak, that the defendants' conduct in regard to the pathway violated particular "policies or directives," i.e., the ADA and particular provisions of the state code. If the defendants' conduct was controlled by at least one of these provisions, it would involve a ministerial function. It is clear that the ADA and the state code apply to the town, General Statutes 29-269(a) provides, in relevant part that the state code shall be revised "to be in substantial compliance with the provisions of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. 12101 . . ." In addition, General Statutes § 29-252-1c of the Regulations of Connecticut State Agencies provides in relevant part: "The BOCA National Building Code . . . except as amended, altered or deleted by this Connecticut Supplement, are hereby adopted by reference as State Building Code." and the defendants do not argue otherwise. It is also clear that the code contains provisions that pertain to the access that must be provided to structures. BOCA § 1103.1; from parking areas; BOCA § 1104.1; between facilities at a single site; BOCA § 1104.2; in parking lots; and BOCA § 1105.1.
Pursuant to General Statutes § 29-253(a), "[t]he State Building Code, including any amendment to said Code . . . shall be the building code for all towns, cities and boroughs."
What is not clear is whether the ADA and the state code apply to the Connecticut amendments to BOCA, which states that its purpose is to regulate "the design, construction and use of buildings or structures to be erected, and the alteration of buildings and structures already erected, and make such amendments thereto as the state building inspector and the codes and standards committee deem necessary or desirable." BOCA § 105.6.
The code does not define the term "structure." The defendants argue that it does not apply here because playing fields are clearly not structures. The plaintiff, relying on the ordinary meaning of the terms as found in a dictionary, argues that the sports complex is both a structure and a facility as those terms are used in the code.
In Hendryx Co. v. New Haven, 104 Conn. 632, 134 A. 77 (1926), our Supreme Court used the plaintiff's approach in discussing the term as it was used in the New Haven building code. In that case, the issue was whether the plaintiff was required to obtain a permit to erect an overhead conveyor. The code required permits for erecting, constructing or altering any structure or building. As stated by the court: "One of the definitions of `structure' in Webster's New International Dictionary is `something constructed or built, as a building, a dam, a bridge.' In its widest sense the Century Dictionary says it includes `any production or piece of work artificially built up, or composed of parts and joined together in some definite manner.' . . . Under this definition a fence was held to be a structure . . . it was held that structure as . . . in accordance with this definition, to include anything which is built or constructed, an edifice or building of any kind, any piece of work artificially built up or compose of parts joined together in some definite manner. . . . While a building is always a structure, all structures are not buildings." (Citations omitted) Hendryx Co. v. New Haven, supra, 104 Conn. 639-40, where structure has been used in this wide sense. "We think it was so used in this ordinance. The purpose of the ordinance is to protect life and body, and preserve property. If structure as used in connection with building meant an independent building . . . the purpose of the building code of New Haven would be largely defeated. The inspector of buildings would have no supervision over the many forms of structures which are attached to buildings which are not in any strict sense independent buildings, as, for example, bay windows, signs attached to the sides or roof of a building, passways, bridges or arches between buildings Without such supervision the fire risk would be greater, the danger to life and body increased and a larger police protection required. The ordinance must be presumed to attempt to carry out the provisions of the charter." Hendryx Co. v. New Haven, supra, 104 Conn. 641.
The court also explained, "[t]here are numerous other instances in the authorities where structure has been used in this wide sense. We think it was so used in this ordinance. The purpose of the ordinance is to protect life and body, and preserve property. If structure as used in connection with building meant an independent building the purpose of the building code of New Haven would be largely defeated. The inspector of buildings would have no supervision over the many forms of structures which are attached to buildings which are not in any strict sense independent buildings, as, for example, bay windows, signs attached to the sides or roof of a building, passways, bridges or arches between buildings Without such supervision the fire risk would be greater, the danger to life and body increased and a larger police protection required. The ordinance must be presumed to attempt to carry out the provisions of the charter." Hendyx Co. v. New Haven, supra, CT Page 4642 104 Conn. 641.
As noted recently in Dalton v. Bau, 47 Conn.Sup. 645, 647, 822 A.2d 392 (2003), the "wide" definition of the term is in accord with Black's Law Dictionary (7th Ed. 1999) which defines "structure" as "[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together."
With these definitions in mind, one of the policies upon which the plaintiff relies on could apply to the defendants' conduct. It is therefore not clear on the face of the complaint that the plaintiff's allegations are premised solely on conduct by the defendants that was discretionary. Given that possibility, which can not be excluded from a fair reading of the plaintiff's complaint, the court will deny the defendants' motion to strike, based on governmental immunity grounds, counts one, two and four as well as her derivative claims for indemnification in counts three and five.
The defendants also argue that count four should be stricken because the plaintiff fails to allege sufficient facts to establish that Pane, as the athletic director of the town's recreation department, owed her a duty. The defendants correctly state that one of the essential elements of a negligence claim is that the defendant owes the plaintiff a duty of care. See Tarnowsky v. Socci, 271 Conn. 284, 288, 856 A.2d 408 (2004). "[The requisite duty] to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982).
In count four, the plaintiff alleges that Pane was negligent in that he, among other things, failed to provide adequate access, failed to inspect the property, failed to warn the plaintiff of the lack of adequate access, allowed the construction of the property without adequate access, and failed to remedy this defect. Implicit in these allegations is the claim that Pane had a duty to perform these functions. As the Supreme Court has stated, "[w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization v. King, 277 Conn. 238, 246 (2006).
The defendants submit a copy of the town's charter which, they contend, establishes that another town department is responsible for maintaining the town's parks and recreational fields. It is well settled, however, that in ruling on a motion to strike, the trial court is limited "to a consideration of the facts alleged in the complaint. A `speaking' motion to strike (one imparting facts outside the pleadings) will not be granted." Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988).
For the foregoing reasons, the defendants' motion to strike counts one through five of the plaintiff's amended complaint is denied in its entirety.