Opinion
No. CV99 0268007-S
August 19, 2003
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #122
I PROCEDURAL HISTORY
The plaintiff, Ramon Ruiz,, filed a revised complaint on January 14, 2002. In all five counts of the complaint, the plaintiff alleges the following facts. On May 7, 1997, the plaintiff was a student at Francis T. Maloney High School (school) in Meriden and was participating in a class on swimming pool safety and rescue techniques. As part of a safety drill, the plaintiff was to play the part of a drowning victim while a classmate acted as a rescuer. While pulling the plaintiff from the pool, the classmate slipped and fell, causing the plaintiff's head, face and jaw to hit the hard surface of the pool's perimeter. As a result, the plaintiff suffered injuries to his face, neck, teeth and jaw. The first three counts of the complaint sound in negligence against Leanne Hesseltine, Stewart French and Elizabeth Ruocco, respectively. In the fourth count, the plaintiff alleges that the defendant town of Meriden (town) and the defendant board of education (board) are liable pursuant to General Statutes § 7-465. The fifth count is also brought against the town and the board, and alleges that the "foregoing acts, conduct and conditions constitute a nuisance."
The other defendants, Elizabeth Ruocco and Leanne Hesseltine, are not parties to the present motion for summary judgment. For purposes of this memorandum, the term "defendants" refers to Stewart French, the town of Meriden, and the board of education of the town of Meriden.
This action was originally commenced by Dinalda Soto as next friend for her son Ramon Ruiz. On July 8, 1999, Ruiz filed a motion to be substituted as plaintiff, which the court, Levine, J., granted on August 13, 1999. In this memorandum, the term "plaintiff" refers to Ramon Ruiz.
The complaint is labeled "third revised complaint."
The plaintiff has misspelled Ruocco's name as "Rocco" in the summons and throughout the proceedings in this action. The proper spelling of the name is apparent from Ruocco's affidavit submitted in support of the motion for summary judgment.
On January 3, 2003, the defendants filed a motion for summary judgment supported by a memorandum of law, an affidavit from Ruocco and an unsworn letter from the board's assistant superintendent to its risk manager. In their memorandum of law, the defendants argue that French is entitled to summary judgment on count two because he was not principal of the school, had no responsibilities regarding maintenance of the pool, and was not involved in the incident in which the plaintiff was injured. The defendants further argue that the town and the board are entitled to summary judgment on count four because the plaintiff did not file notice of his intent to sue as required by General Statutes § 7-465, and on count five because the plaintiff has not set forth a valid claim of public nuisance. On February 13, 2003, the plaintiff filed a memorandum of law accompanied by several unsworn documents in opposition to the motion for summary judgment. The defendants filed a reply memorandum on April 21, 2003.
II DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Gould v. Mellick Sexton, 263 Conn. 140, 146, 819 A.2d 216 (2003). "[T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995).
Count Two
The defendants argue that French is entitled to summary judgment on count two because he was not principal of the school, had no responsibilities regarding maintenance of the school's pool, and was not involved in the incident in which the plaintiff was injured. In support of that assertion, the defendants have submitted the affidavit of Elizabeth Ruocco, the superintendent of schools for the city of Meriden. Ruocco states in the affidavit that French was a clerk at the school, was never the school's principal, and had no teaching or supervisory duties regarding students or teachers. The plaintiff, who apparently named French as a defendant based on a misapprehension that French was the school's principal, acknowledges in his memorandum of law that he "has no ground on which to argue against . . . French's claim" that he is not principal. In addition, the plaintiff conceded at oral argument that the motion for summary judgment should be granted as to count two. Accordingly, the motion for summary judgment is granted as to count two.
In the original complaint filed on June 8, 1999, the original plaintiff alleged that French was the principal and chief officer of the school, in which capacity he was responsible for the supervision of the school and its agents, servants, employees and students.
Count Four
The defendants assert that the town and the board are entitled to summary judgment on count four because the plaintiff did not file notice of his intent to sue as required by General Statutes § 7-465. The defendants have not submitted any evidence demonstrating the alleged lack of notice. The evidence submitted in support of the defendants' motion relates solely to count two of the complaint. As stated, "the party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." (Emphasis added.) Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, supra, 231 Conn. 796. Because the defendants have not provided any evidence in support of their assertion that the plaintiff did not provide notice pursuant to § 7-465, they have failed to carry their burden of demonstrating the absence of any genuine issue of material fact. Therefore the motion for summary judgment is denied as to count four.
Count Five
The defendants contend that the town and the board are entitled to summary judgment on count five because it fails to set forth a valid claim of public nuisance. As stated previously, Ruocco's affidavit does not contain any statements related to count five of the complaint. Instead, the defendants' motion for summary judgment as to count five is based solely on the allegations of the complaint. Specifically, the defendants argue that the plaintiff has failed to allege facts in his complaint that would support a conclusion that (1) the town or the board, by some positive act, intentionally created the conditions alleged to constitute a nuisance, (2) the danger created was a continuous one, (3) the use of the land was unreasonable or unlawful and (4) the existence of the nuisance was the proximate cause of the plaintiff's injuries and damages. In response, the plaintiff argues that he has alleged a valid nuisance claim because the town and the board intentionally built the swimming pool without installing abrasive, non-slip materials or mats around the perimeter. The plaintiff further argues that the motion for summary judgment should be denied as to count five because the defendants have not presented any evidence demonstrating that the plaintiff does not have a valid nuisance claim. In their reply, the defendants argue that their motion challenges the legal sufficiency of the allegations set forth in count five of the complaint and, accordingly, does not require the submission of any supporting evidence.
As an initial matter, it is noted that a motion to strike, rather than a motion for summary judgment, is ordinarily the proper procedural vehicle for challenging the legal sufficiency of a complaint. See Practice Book § 10-39(a); see also Galgano v. Metropolitan Property Casualty Ins. Co., 64 Conn. App. 25, 27-28 n. 3, 779 A.2d 229 (2001). "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
Our appellate case law does not clearly establish whether a motion for summary judgment may also be used to challenge the legal sufficiency of the allegations of a complaint. In Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 279 A.2d 540 (1971), our Supreme Court stated: "The proper way to have tested the legal sufficiency of the complaint would have been by demurrer before the pleadings were closed or, after an answer had been filed, by a motion for summary judgment . . . if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Id., 409. More recently, the Appellate Court stated: "While recognizing Boucher, the fact that it was decided in 1971 and has not been cited for that proposition to this date, leads us to the conclusion that it is anomalous." Burke v. Avitabile, 32 Conn. App. 765, 772 n. 9, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993); see also Gould v. Mellick Sexton, 66 Conn. App. 542, 554 n. 12, 785 A.2d 265 (2001), rev'd on other grounds, 263 Conn. 140, 819 A.2d 216 (2003). Nevertheless, the Appellate Court, citing to Boucher, has also stated that a defendant's motion for summary judgment is a proper way to test the legal sufficiency of a complaint. Drahan v. Board of Education, 42 Conn. App. 480, 498 n. 17, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996).
"The motion to strike . . . replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading." (Internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).
"At the time Boucher was decided, a motion for summary judgment could be filed only when all of the pleadings were closed. Now, a motion for summary judgment can be filed at any time." Gould v. Mellick Sexton, 66 Conn. App. 542, 554 n. 12, 785 A.2d 265 (2001), rev'd. on other grounds, 263 Conn. 140, 819 A.2d 216 (2003); see also Practice Book § 17-44.
There is a split of authority in the Superior Court regarding whether a motion for summary judgment may also be used to test the legal sufficiency of a complaint. Some judges have concluded that a motion for summary judgment may not be used to challenge the sufficiency of a complaint. See, e.g., Czahur v. Koeller, Superior Court, judicial district of New Haven, Docket No. CV 01 0456412 (February 14, 2003, Harper, J.); Pinson v. Citizens Bank of Connecticut, Superior Court, judicial district of Hartford, Docket No. CV 99 0594735 (March 21, 2001, Wagner, J.T.R.). Others, relying on Boucher and Drahan, have determined that a motion for summary judgment may be used for that purpose. See, e.g., Lewczyk v. Dept. of Public Health, Superior Court, judicial district of Hartford, Docket No. CV 00 0596677 (December 10, 2002, Hennessey, J.) ( 33 Conn.L.Rptr. 681, 683); Moss v. East Haven, Superior Court, judicial district of New Haven, Docket No. CV 97 0407351 (August 8, 2001, Fracasse, J.).
In between those two ends of the spectrum is a third group of judges, who have concluded that a motion for summary judgment may be used to challenge the sufficiency of the complaint, but that the motion should be granted only if it meets the standard for a motion for summary judgment, not for a motion to strike. See, e.g., Arnone v. Connecticut Light Power Co., Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 98 0168276 (March 22, 2002, Hodgson, J.) ( 32 Conn.L.Rptr. 58, 60); Truglio v. Hayes Construction Co., Superior Court, judicial district of Ansonia-Milford, Docket No. 98 0064191 (May 29, 2001, Nadeau, J.) ( 29 Conn.L.Rptr. 540, 541 n. 1). That approach seems consistent with the statement in Boucher that the legal sufficiency of a complaint may be challenged "by a motion for summary judgment . . . if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Emphasis added; internal quotation marks omitted.) Boucher Agency, Inc. v. Zimmer, supra, 160 Conn. 409. This court adopts the latter approach.
As stated previously, the evidence submitted by the defendants in support of their motions for summary judgment relates solely to the second count of the complaint. The defendants have not submitted any evidence demonstrating the absence of a genuine issue of material fact with regard to the fifth count. Consequently, the defendants have failed to carry their burden of demonstrating that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law. Accordingly, the motion for summary judgment is denied as to the fifth count.
III CONCLUSION
The defendants' motion for summary judgment is granted as to the second count of the January 14, 2002 complaint, and denied as to the fourth and fifth counts.
BY THE COURT
Peter Emmett Wiese, Judge