Opinion
No. CV 07-5013408
June 16, 2008
MEMORANDUM OF DECISION RE MOTION TO STRIKE #115
FACTS
On August 21, 2007, the plaintiff, Michael Padula, on his own behalf and as administrator of the estate of his wife, Gladys Padula, filed a four-count complaint against the defendants, the city of West Haven, Jay Masi, Mark D'Amico and Steven Viele. The individual defendants are all West Haven police officers. On January 16, 2008, the plaintiff filed a revised and amended fourteen-count complaint, which is the operative complaint.
Only counts one through six are relevant to the motion currently before the court. Counts seven through fourteen bring direct claims against apportionment defendants Highwatch Association, Inc. and Metro North Commuter Railroad Company, and sound in nuisance, negligence and loss of consortium.
The plaintiff alleges the following facts in the operative complaint. On August 27, 2006, before 10:45 p.m., defendant Masi arrived to help a driver stuck at an underpass. Masi observed that water levels at the underpass were rising, and he asked the driver to meet him at a nearby school in order to take his statement. Within minutes of Masi's departure, Gladys Padula was operating her vehicle in a northwesterly direction towards the underpass. Due to a decline in visibility, she was unaware that the underpass was flooding; she became submerged under water and ultimately drowned. Defendants D'Amico and Viele were at the scene where the decedent was submerged under water. The plaintiff alleges that the defendant officers caused the decedent's injuries, losses and death, in that they failed to block and/or close a dangerous area of roadway, failed to secure the area in violation of due care and police procedures, failed to warn other members of the public as to the dangerous roadway and failed to rescue the decedent. According to the complaint, the officers were acting within the scope of their employment at all relevant times.
In count one, the plaintiff alleges negligence against the officers, and further alleges that West Haven is liable for the officers' negligence pursuant to General Statutes § 7-465, which is an indemnification statute. In count three, directed solely against West Haven, he alleges municipal liability for the officers' negligent acts and omissions pursuant to General Statutes § 52-557n(a)(1)(A), while count five contains allegations that West Haven is liable under General Statutes § 13a-149 for maintaining a defective roadway. Counts two, four and six are all loss of spousal consortium claims based on the immediately preceding counts.
On February 7, 2008, West Haven and the defendant officers filed a motion to strike counts one, two, three, four and six on the grounds that those counts are foreclosed by both the exclusivity of General Statutes § 13a-149 and governmental immunity pursuant to § 52-557n. The plaintiff filed a memorandum in opposition to the motion on April 10, 2008, in which he agreed that count six should be stricken because a consortium claim is not allowed for damages caused by a highway defect, but contested the motion to strike counts one through four. The defendants then filed a reply memorandum. The court heard oral argument on April 14. The issue of whether a failure to rescue claim is subsumed by the highway defect statute appears to be one of first impression in Connecticut.
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). "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.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "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). "[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).
I. Highway Defect Statute
General Statutes § 13a-149, commonly referred to as the highway defect statute, states in relevant part that "[a]ny person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair." Additionally, General Statutes § 52-557n(a)(1) establishes that while a municipality can be liable for damages to persons or property in many instances, "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." Relying on the foregoing statutes, the defendants assert that the plaintiff's complaint alleges only injuries stemming from a defective roadway, that West Haven is the "party bound to keep [the roadway] in repair," and that § 13a-149 therefore provides the plaintiff's exclusive remedy for his negligence and loss of consortium claims against West Haven and its police officers.
General Statutes § 13a-149 states the following in its entirety: "Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby."
"[A] highway defect is `[a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and position, would be likely to produce that result . . .'" Sanzone v. Board of Police Commissioners, 219 Conn. 179, 202, 592 A.2d 912 (1991).
The plaintiff counters that while his allegations that the officers failed to block, secure, close and warn people regarding the dangerous area of roadway fall within the highway defect statute, his allegations related to the officers' failure to rescue the decedent fall outside the statute's ambit. Specifically, he asserts that the officers had a duty to rescue the decedent regardless of whether the highway was defective, and that the damages alleged stem not from the defective highway but from the officers' failure to rescue.
The defendants cite numerous cases in which the courts have determined that negligence claims were foreclosed by the highway defect statute. These cases, however, all involve incidents in which the defendants allegedly failed to keep the roadway in proper repair or to warn people of the roadway defect, not situations in which the defendants allegedly witnessed the victim's misfortune but failed to act. See, e.g., Ferreira v. Pringle, 255 Conn. 330, 335, 766 A.2d 400 (2001) (plaintiff alleged that the defendant town was involved in the creation of nuisance by not painting a protruding signpost and allowing passengers to disembark by the dangerous signpost); Petner v. Electrical Contractors, Inc., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 04 4002631 (March 8, 2007, Beach, J.) (plaintiff alleged that faulty traffic control signals and inappropriate placement of a construction cone resulted in his collision with a car while riding his bicycle); Larkin v. 176 Water Street Condominium Association, Superior Court, judicial district of New London, Docket No. CV 04 4000062 (October 13, 2005, Jones, J.) (plaintiff allegedly slipped and fell on snow or ice on a negligently maintained sidewalk); Estate of Metzermacher v. National Railroad Passenger Corp., 472 F.Sup.2d 230, 236-37 (D.Conn. 2007) (plaintiff alleged that defendants' decision to build a gate system rather than an overpass at a railroad crossing resulted in a fatal collision at the crossing).
Indeed, the defendant's own research highlights the fact that the scenario currently before the court is entirely distinct from the traditional cases involving a highway defect. In Robishaw v. Murphy, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 00 0073137 (September 20, 2001, Bishop, J.), the plaintiff alleged that the defendant's failure to enforce various zoning regulations regarding a railroad crossing rendered the crossing unsafe and caused a fatal collision. The court observed that "[t]he plaintiffs allege that the claims against the defendant arise out of his failure to carry out his job rather than a highway defect. However, it is not the failure to do his job that gives rise to a cause of action, but the consequence of an allegedly defective highway." (Emphasis added.) Id.; see also Petner v. Electrical Contractors, Inc., supra, Superior Court, Docket No. X04 CV 04 4002631 (noting that actions against municipalities based on "negligent or nuisance-creating behavior" that "precipitate[s] the existence of [a highway] defect" are foreclosed by the highway defect statute). Here, however, there is no nexus between the police officers' alleged failure to assist the decedent and the defective state of the highway; the defective highway is not a consequence of the alleged failure to rescue. Accordingly, the court is persuaded that a failure to rescue claim is not subsumed by the highway defect statute and is instead a separate cause of action.
In light of this finding, to the extent that counts one through four are based on failure to rescue, they are not foreclosed by the highway defect statute. The plaintiff acknowledges, however, that the other negligence allegations contained in those counts can only support a cause of action based on § 13a-149. Moreover, the operative complaint reflects that defendant Masi left the scene before the decedent arrived; it does not allege that Masi failed to assist or rescue the decedent. Therefore, the motion to strike counts one (negligence against the officers and West Haven) and two (the loss of consortium claim against the officers and West Haven based on negligence) is granted with respect to Masi only.
As the defendant correctly notes, the Connecticut Supreme Court has explained that because § 13a-149 "is a plaintiff's exclusive remedy against a municipality or other political subdivision for `damages resulting from injury to any person or property by means of a defective road or bridge,'" it "precludes a joint action seeking such damages against a municipality and its officer pursuant to § 7-465(a)." Sanzone v. Board of Police Commissioners, 219 Conn. 179, 192, 592 A.2d 912 (1991). More recently, in Ferreira v. Pringle, supra, 255 Conn. 343-44, the Court determined "that the claims asserted against the defendants in their individual capacities serve as a veiled attempt to impose liability on the municipality" and could "be construed only as a claim under the defective highway statute." In this case, the plaintiff has sued not only the officers, but also West Haven pursuant to both § 7-465(a) and General Statutes § 52-557n(a)(1)(A). As explained above, however, in alleging failure to rescue, the plaintiff is not seeking a remedy for injuries stemming from a highway defect. Therefore, the plaintiff in this instance is not making a "veiled attempt to impose liability" in an impermissible fashion, and Sanzone's and Ferreira's exhortations are inapplicable to the court's analysis.
II. Governmental Immunity
The defendants also present the alternative argument that governmental immunity pursuant to General Statutes § 52-557n(a)(2)(B) bars the plaintiff's negligence claims against the municipality. That section 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." In Fleming v. Bridgeport, 284 Conn. 502, 531-32, 935 A.2d 126 (2007), our Supreme Court explained that "a municipal official is otherwise generally immune from liability for discretionary — as opposed to ministerial — acts, unless the plaintiff can show that the circumstances fit under one of three exceptions: `first, 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 . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.'" The plaintiff does not dispute that his failure to rescue claim falls under the umbrella of discretionary acts. He contends, however, that the defendant officers, and by extension, the municipality, are not entitled to immunity because the "imminent harm" exception applies. Not surprisingly, the defendants advance the opposite conclusion. The court agrees with the plaintiff.
Although General Statutes § 52-557n(a)(2)(B) does not expressly articulate the "imminent harm" exception, the Appellate Court has explained that the exception nevertheless applies to analyses of governmental immunity under that section. See Colon v. Board of Education, 60 Conn.App. 178, 183-84, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000).
In order for the "imminent harm" exception to apply, there must be "(1) an 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). The defendants assert that travelers on the road are not identifiable persons for purposes of assessing the "imminent harm" exception to governmental immunity. Once again, however, the cases they rely on do not appear to involve allegations that municipal employees actually witnessed the victim's distress and therefore should have alleviated it. See e.g., Shore v. Stonington, 187 Conn. 147, 150-51, 156, 444 A.2d 1379 (1982) (no "imminent harm" exception where officer allegedly pulled over and cautioned a driver, who subsequently collided with and killed another driver after the officer departed); DeConti v. McGlone, 88 Conn.App. 270, 273-74, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005) (no "imminent harm" exception where plaintiff claimed that she was an identifiable individual because she lived near the rotted tree that fell on her automobile and was required to drive by the tree due to her home's location).
At oral argument, the defendants cited Connors v. Old Saybrook, Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 05 4005160 (January 29, 2007, Beach, J.), in which a plaintiff sued a municipality and its employees for terminating services of a dive team, among other things. The Connors court declined to apply the "imminent harm" exception to governmental immunity, noting that "[t]he persons who are supposedly identifiable and subject to imminent harm would have to be anyone who might need diving services, which is an obviously ill-defined group" and that "there presumably was nothing imminent at the time the decision was made." Id. The court further added that "[n]either of the defendants nor the town by extension knew of any risk to the plaintiff at the time the decisions were made." Id. These facts are inapposite to Padula's complaint, which alleges an obvious imminent harm to a specific individual witnessed by municipal employees.
By contrast, Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979), is much more relevant to the current case. In Sestito, an administratrix sued a police officer and a municipality for negligence after her decedent was fatally wounded in a shooting witnessed by the defendant officer. Id., 521-23. More specifically, the officer had driven by and seen a group of men, including the decedent, arguing and scuffling in a parking lot, but did not intervene. Id., 523. Next, the officer heard gunshots and called the police station. Id. By the time he entered the lot, however, the decedent had been shot; the decedent died the next day. Id.
The trial court granted directed verdicts for the defendants. Id., 522. On appeal, the Supreme Court ordered a new trial. The Sestito Court observed that "[t]he plaintiff alleged that [the defendant officer] was aware of a disturbance of some proportions and did not immediately attempt to stop it; nor did he try to intervene when the opportunity to do so existed." Id., 526. It further remarked that "[e]ven as a matter of common law negligence, it is conceivable that [the defendant officer] had a duty to the decedent to act as a skilled policeman under the circumstances, and breached this duty. Because the jury also could have found that the defendant . . . was acting within the scope of his employment, the town could have been found liable under General Statutes 7-465. Thus, counts two and three also should have been submitted to the jury." Id., 528; see also Carangelo v. FCT, LLC Sliders Sports Bar Grill, Superior Court, judicial district of Waterbury, Docket No. CV 04 0183954 (November 7, 2007, Upson, J.) (44 Conn. L. Rptr. 495, 497-98) (minor plaintiff, who crashed and was injured after a police officer allowed him to continue driving after citing him for speeding, may qualify as an "identifiable victim" facing "imminent harm" under Sestito if the officer knew the minor was intoxicated). The allegations currently before the court are markedly similar to the facts of Sestito, in that the plaintiff has alleged that while acting within the scope of their employment, officers D'Amico and Viele were at the scene when the decedent was in distress, but did not intervene.
In light of Sestito, the court is convinced that the plaintiff's complaint properly outlines "(1) an 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. 616. The motion to strike on the ground of governmental immunity is therefore denied.
III. Loss of Consortium
Because counts one and three survive based on the failure to rescue allegation, counts two and four, the related loss of consortium claims, also survive the motion to strike, with the aforementioned exceptions for defendant Masi. As both the plaintiff and defendants agree, however, count six, which alleges loss of consortium based on the highway defect statute, must be stricken. See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 198, 592 A.2d 912 (1991) ("in providing that `no cause of action' shall be maintained in nuisance or negligence that might be brought under the highway defect statute, the legislature eliminated the victim's spouse's right to recover for loss of consortium").
CONCLUSION
For the foregoing reasons, the defendants' motion to strike count six is granted, and the motion to strike counts one and two is also granted with respect to defendant Masi only. The motion to strike counts one through four is denied with respect to all other defendants.