Opinion
No. CV 11-6008331
September 26, 2011
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE, #120
This action arises out of damage to the property of the plaintiffs, Charles Perreault and Debra Smith, allegedly sustained as a result of a sewage backup from a sewer pumping station which is adjacent to the property known as 130 Blatchley Avenue, Southington, Connecticut, owned by the plaintiffs. The defendant, Town of Southington, has moved to strike counts twenty-one and twenty-two of the plaintiffs' amended complaint dated March 3, 2011. Counts twenty-one and twenty-two both allege a cause of action for trespass as to the Town of Southington.
Count twenty-one is in favor of Charles Perrault, and count twenty-two is in favor of Debra Smith. Although the counts are against the Town of Southington, the motion to strike is on behalf of all defendants: Town of Southington, Anthony J. Tranquillo, and John DeGioia.
"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). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Id. When deciding a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
Trespass is an intentional tort. Right v. Breen, 277 Conn. 364, 375, 890 A.2d 1287 (2006). The essential elements of an action for trespass are: "(1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion, entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." (Emphasis added.) Abington Ltd. Partnership v. Talcott Mountain Science Center, 43 Conn.Sup. 424, 427, 657 A.2d 732 (1994) [ 11 Conn. L. Rptr. 349], citing Avery v. Spicer, 90 Conn. 576, 579, 98 A. 135 (1916). "[I]n order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land." (Emphasis added; internal quotation marks omitted.) Id.
The plaintiffs have alleged in their complaint that the defendant is a municipality "organized and existing under the laws of the State of Connecticut." Count 21, ¶ 2. "It is axiomatic that a government subdivision can act only through natural persons as its agents or employees." (Citations omitted.) O'Connor v. Board of Education, 90 Conn.App. 59, 66, 877 A.2d 860, cert. denied, 275 Conn. 912 (2005). Furthermore, General Statutes § 52-557n(a)(2) provides in pertinent part, that "[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 constitutes criminal conduct, fraud, actual malice or wilful misconduct." A municipality cannot be held liable for an intentional tort. Pane v. City of Danbury, 267 Conn. 669, 685, 841 A.2d 684 (2004) (claim for intentional infliction of emotional distress barred by General Statutes § 52-557n(a)(2). "Under Connecticut law, the term willfulness is synonymous with intentional." Id. See also, O'Connor v. Board of Education, supra, 90 Conn.App. 59 (plaintiff's invasion of privacy claim was based on intentional conduct was barred by § 52-557n(a)(2).
The defendant's motion to strike counts twenty-one and twenty-two is granted.