LLC BAB v. City of Stamford (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 103

FACTUAL BACKGROUND

On November 2, 2009, the plaintiffs, Blade Millworks, LLC, BAB Enterprises, Inc., Alfa Electric of Stamford, Inc., Christina Skuburdis, LLC, Design Solutions, Corp., CCS Investments, LLC, Haimerej Management II, LLC, Lafayette Auto Group, Inc., Lone Star Repair Service, Inc., Los Toros, Inc., Lotz, Inc., Mr. C's High Society Service, Inc., Narod, Inc., d/b/a Doran Bros. Worldwide Moving and Storage, and Razor's Auto Body & Service, LLC filed a fifty-six count complaint against the city of Stamford.   The case arises out of flooding in the Plaintiffs' businesses allegedly submerging the businesses in water, sewage, and filth.   The flooding was allegedly caused by clogging in the road drainage system which caused a condition in which the businesses flooded.   Specifically, the businesses were subject to flooding and thereafter a reversal of water flow which occurred after a bad rainstorm on October 11, 2007.   The defendant has filed a motion to strike dated February 9, 2010 to strike each of the causes of action and the claim for injunctive relief.   A memorandum in support of the motion to strike was filed with the motion.   The plaintiffs filed a memorandum in opposition to the motion on March 16, 2010.   The matter was heard at short calendar on April 19, 2010.

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).  “[T]he moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp. et al, 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994).  “If 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).  “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, supra, 498.   The court should “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).

The complaint names a single defendant for each of the four counts as to every plaintiff.   The sole defendant, the city of Stamford, argues that the court should grant a motion to strike each of the four causes of action that are pleaded identically by each of the fourteen plaintiffs.

COUNTS OF NEGLIGENCE

Each of the separate plaintiffs alleged that the city of Stamford is statutorily liable for negligence pursuant to C.G.S § 52-577n(a)(1)(A) and C.G.S. 7-465.   The defendant argues that the cause of action should be stricken for two reasons.   First, it argues that any duties of the city are discretionary and thus the city has governmental immunity.   Secondly, it argues that the plaintiffs have failed to name a specific employee pursuant to C.G.S. § 7-465 and thus there is no cause of action.

General Statute § 7-465 provides in part:  “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 infringement of any person's civil rights or for physical damages to person or property ․ if the employee, at the time of the occurrence, accident, physical injury or damage was not the result of any willful or wanton act of such employee in the discharge of such duty ․ The plaintiffs have included within each of the four counts a claim pursuant to General Statute § 7-465.   Although each of the claims pursuant to this statutory claim for indemnification should properly be a separate count, the court will analyze the legal claim of indemnification for purposes of the motion to strike and not strike the cause of action because of the procedural irregularity.¹  “A plaintiff bringing suit under General Statute § 7-465 first must allege in a separate count and prove the employee's duty to the individual injured and the breach thereof.   Only then may the plaintiff go on to allege and prove the town's liability by indemnification ․ Thus, in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality's employment relationship with that individual.”  (Emphasis in original, internal quotation marks omitted.)  Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987), Sestito v. Groton, 178 Conn. 520, 527, 423 A.2d 165 (1979).   In other words, “to prevail against a municipality under the indemnification provision of § 7-465, the plaintiff must also sue the employee or agent of the municipality, whose wrongful conduct forms the basis for liability in a separate count.”   Gaudino v. East Hartford, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV-010081310 (September 10, 2003, Sferrazza, J.) [35 Conn. L. Rptr. 448].

“While § 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment under certain prescribed conditions, it is quite clear that the municipality does not assume the liability in the first instance.”  (Internal quotation marks omitted.)   Fraser v. Henninger, 173 Conn. 52, 56, 376 A.2d 406 (1977), Altfeter v. Naugatuck, 53 Conn.App. 791, 799, 732 A.2d 207 (1999).

In the instant action, the plaintiff has named only one municipal defendant.   They argue that the complaint refers to various employees of the city and this suffices for purposes of the cause of action for statutory indemnification.   This argument must fail.   It is clear that before any liability attaches to the city defendant there must first be a finding as to a specific person to whom the city would be subject to indemnification provisions.   To name an office or position and add the term after the department, “through its director,” does not place any one individual to whom liability could attach.   Naming of certain heads of departments in a notice letter also does not satisfy this requirement because the individuals are not named or served as defendants to whom liability may attach.   Therefore, the court grants the motion to strike as to the allegations pursuant to § 7-465.   This ruling applies to each reference to § 7-465 in Counts one to fifty-six.

As to the causes of action for negligence pursuant to § 52-557n(a)(1)(A) alleged in each of the counts for every plaintiff, the defendant argues that it is entitled to governmental immunity in the performance of discretionary functions and therefore the motion to strike should be granted.   The defendant additionally argues that it would be immune because the exceptions to liability for identifiable person in imminent harm do not apply.   The plaintiff argues that there are sufficient allegations to support a cause of action for negligence pursuant to § 52-557n(a)(1)(A) and argues further that the maintenance, inspection, cleaning and repairing of the road drainage system as well as the cleaning catch basins, grates, piping, culverts, and storm-water drains and the management of the pump station are ministerial acts that preclude immunity.

“Section 52-557n, enacted in 1986 ․ specifically delineates circumstances under which municipalities and its employees can be held liable in tort and those under which they will retain the shield of governmental immunity ․ Although the statute contains no express exceptions to governmental immunity for discretionary acts, [the Supreme Court] has assume[d], without deciding, that § 52-557n (a)(2)(B) codifies the common law relating to circumstances in which immunity is abrogated.”  (Citation omitted;  internal quotation marks omitted.)  Cotto v. Board of Education, 294 Conn. 265, 272-73, 984 A.2d 58 (2009) “[A] municipal employee ․ has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act ․ The word ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)   Id., n.8.

The factual allegations in the complaint allege a number of different acts ranging from the maintenance of the drainage system to the operation, staffing and construction of the piping, storm drains and catch basins.   The acts as alleged could be determined ministerial or discretionary.   Although, the defendant has a strong argument, the present pleadings do not clearly allow the court to find that the acts are discretionary and thus immune from liability.   Given, the factual allegations and the general rule that a determination as to whether the actions or omissions of a municipality are discretionary or ministerial is a question of fact for the jury ․” therefore, the motion to strike is denied as to each count alleging negligence pursuant to § 52-557n(a)(1)(A).

COUNTS AS TO THE WASTEWATER SYSTEM AND WPCA

The counts alleging conduct against an employee of the water pollution control authority, are the second counts for every plaintiff.   Every plaintiff alleges four counts against the defendant, sounding in negligence against the city of Stamford (road drainage system), negligence against the city of Stamford (waste water system), private nuisance, and public nuisance.   Count two ² alleges that the water pollution control authority (WPCA) is responsible for the construction, operation, and maintenance of the wastewater treatment plants, storm-water and sewer systems, hurricane barriers, and all pumping stations (wastewater system) located on real property owned by the defendant.   Count Two alleges that the wastewater system is under the control of the WPCA. (Paragraph 10.)   The plaintiffs further allege that the defendant is a political subdivision of the state and, thus, liable for the plaintiffs' damages.

The defendant moves to strike the second count brought by each plaintiff on the ground that it is legally insufficient to state a claim upon which relief can be granted because it alleges conduct by an employee of the WPCA, which is an autonomous entity distinct from the defendant.   Specifically, the defendants argue that the WPCA is created under § 7-246, and has powers under § 7-247, possession of which powers customarily indicate that the possessor is a body politic.

The plaintiffs respond that the WPCA is not a separate entity distinct from the defendant, as it is clear from both § 7-246 and the facts that the defendant is the governing and controlling body of the WPCA, as the city created it, it provides the funds to run it, and express consent must be given to it to exercise its power.³

General Statutes § 7-246 provides in relevant part:  “(a) Any municipality may, by ordinance, designate its legislative body ․ or create a new board or commission to be designated, as the water pollution control authority for such municipality ․ The water pollution control authority of the town within which there is a city or borough shall not exercise any power within such city or borough without the express consent of such city or borough, except that such consent shall not be required for any action taken to comply with a pollution abatement order issued by the Commissioner of Environmental Protection.”

“A sewer district established under chapter 105 of the General Statutes is a quasi-municipal corporation ․ which, through its sewer authority, has the power to acquire, construct, maintain, supervise, manage and operate a sewer system and perform any act pertinent to the collection, transportation and disposal of sewage.”  (Citations omitted;  internal quotation marks omitted.)   Wright v. Woodridge Lake Sewer District, 218 Conn. 144, 148-49, 588 A.2d 176 (1991).  “The Legislature has vested regulatory authority of municipal sewerage systems in the local entity known as the [WPCA]. General Statutes § 7-246.   The WPCA ․ is a separate municipal agency.   See Wright v. Woodridge Lake Sewer District, [supra 218 Conn. 149].”   D'Amato v. Plan & Zoning Commission, Superior Court, judicial district of Hartford, Docket No. CV 92 0506426 (February 5, 1993, Berger, J.) [10 Conn. L. Rptr. 444].  “As part of its operations, the WPCA uses the services of various departments and offices of the [the city] ․ The WPCA is an entity created by statute.   [General Statutes] § 7-246.   It is legally separate from the [city].”  (Emphasis added.)   New Haven v. Hamden, Superior Court, judicial district of New Haven, Docket No. CV 91 0318934 (April 2, 1997, Hodgson, J.)

“Under § 7-246, a municipal WPCA is empowered as part of its overall responsibility, to plan for the treatment and disposal of sewage within the municipality, to designate and delineate the boundaries of areas where sewers are to be avoided ․ A WPCA is a separate municipal entity created pursuant to General [Statutes] § 7-246.”  (Citation omitted;  internal quotation marks omitted.)   River Bend Associates, Inc. v. Simsbury Water Pollution Control Authority, Superior Court, judicial district of Hartford, Docket No. CV 00 0801052 (April 12, 2001, Peck, J.), aff'd 262 Conn. 84, 809 A.2d 492 (2002);  see also Ridgefield Housing Authority v. Ridgefield Water Pollution Control Authority, Superior Court, judicial district of Danbury, Docket No. CV 08 4008478 (May 7, 2008, Sheedy, J.) (45 Conn.L.Rptr. 506, 508), citing to Housing Authority v. Water Pollution Control Authority, Superior Court, judicial district of New London at Norwich, Docket No. 102447 (September 24, 1993, Hendel, J.) (8 C.S.C.R. 1090) (“[The water pollution control authority] is not a municipality as defined by [General Statutes § ] 8-113a(b) ⁴ but is rather a separate municipal entity created pursuant to General Statutes § 7-246”).

The Superior Court case law consistently provides that the water pollution control authority of any given city or town in Connecticut is an entity separate and distinct from its municipality.   The plaintiffs fail to cite to any case law contradicting the position of the Superior courts, but rely on their own interpretation of the relevant statutory authority.   Accordingly, because the WPCA appears to be an autonomous entity, separate from the named defendant, all of the various second counts by each plaintiff, alleging negligence as to the wastewater system is stricken.

NUISANCE COUNTS

The plaintiffs have included two separate counts for each plaintiff incorporating causes of action for private and public nuisance.   The defendant argues that the complaint fails to properly allege a cause of action in nuisance and thus the counts alleging nuisance should be stricken.   The third count entitled private nuisance as to each plaintiff states that the “water, sewage and filth entering the Plaintiff's place of business unreasonably interfered with the plaintiff's use and enjoyment of the Plaintiff's use and operation of its business, caused interruption of the plaintiff's business, loss of profits and damage to real and personal property, including but not limited to equipment” and that the City's negligence was the cause.   This count refers to the facts alleged in Count One. The fourth count for each plaintiff alleges a claim of public nuisance.   This count incorporates the factual allegations in the first count and then adds the additional fact that the city of Stamford participated in the construction of a Water Pollution Control Facility which “wastewater treatment facility directly affects the public health, safety and welfare of the inhabitants of the City of Stamford.”   The plaintiff then alleges that “the continual back-up of storm-water and sewer systems has a natural tendency to create danger and inflict injury upon the City of Stamford inhabitants, including but not limited to businesses operating in the City.” ⁵

General Statutes § 52-557n(a)(1)(C) provides, in relevant part, that “[e]xcept as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by ․ acts of the political subdivision which constitute the creation or participation in the creation of a nuisance ․”[I]n order to overcome the governmental immunity of municipal defendants where it applies, the plaintiff must prove that the defendants, by some positive act, intentionally created the conditions alleged to constitute a nuisance.”  (Emphasis added;  internal quotation marks omitted.)  Elliott v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27 (1998).   “[L]iability can be imposed on the municipality only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality.”  (Internal quotation marks omitted.)  Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996).  “Failure to remedy a condition not of the municipality's own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality.”  (Internal quotation marks omitted.)  Id.

“A public nuisance exists if:  (1) the condition complained of has a natural tendency to create danger and inflict injury upon person or property;  (2) the danger created is a continuing one;  (3) the use of the land is unreasonable or unlawful;  and (4) existence of the nuisance was a proximate cause of the plaintiff's injuries.  State v. Tippets-Abbott-McCarthy-Stanton, 204 Conn. 177, 183, 527 A.2d 688 (1987).   The plaintiff must also prove that the condition or conduct complained of interferes with a right common to the general public.”  Id., Kenney v. Old Saybrook, 267 Conn. 135, 163, 676 A.2d 795 (1996).

“The essential element of the concept of nuisance is a continuing inherent or natural tendency to create danger and inflict injury ․ [The Connecticut Supreme Court has] defined the concept as follows ․ where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public ․ [I]f the annoyance is one that is common to the public generally, then it is a public nuisance ․ The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights.   A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence ․” (Citations omitted) Ganim v. Smith & Wesson Corp., 258 Conn. 313, 369, 780 A.2d 98 (2001).

In the present case, the plaintiffs argue that the defendant city is responsible for back-up to their business that occurs when there are storms in the area.   The allegations in the count as to the private nuisance do not allege in any way that the defendant created a nuisance by some private act and do not include the allegations regarding the construction of the treatment plant or the creation of a danger by continual back-up of storm-water.   The plaintiffs have failed to sufficiently plead a cause of action for a private nuisance.

However, in the counts alleging a public nuisance the plaintiff seems to imply through the allegation that the city's participation in the construction of the wastewater facility created a nuisance.   First of all, this construction was to alleviate flooding and contrary to the plaintiffs' allegation that the construction was a nuisance, the plaintiffs also plead that when the pump is operated it has cleared up the flooding.   The construction is not a cause of the flooding or drainage difficulties.   What is of greater weight are the factual allegations set forth by each of the plaintiffs in the first count of their allegations in the complaint that enumerate factual allegations concerning ongoing and repeated difficulties that the plaintiffs contend existed from a time in 2002 until October 11, 2007 and caused the accumulation of water and the flooding to the plaintiffs' businesses.   The plaintiffs allege in their counts of public nuisance that:  “The continual back-up of storm-water and sewer systems has a natural tendency to create danger and inflict injury upon City of Stamford inhabitants.”   The facts alleged specifically set forth a series of failures to act over a prolonged time that amount to an intentional failing to abate a drainage problem that resulted in flooding to the properties.  (Count one, paragraph 13.)   The court in Keeney v. Town of Old Saybrook, 239 Conn. 786, 788-89, 676 A.2d 715 (1997), stated that:  “If the invasion results from continuing or recurrent conduct, ‘the first invasion resulting from the actor's conduct may be either intentional or unintentional;  but [if] the conduct is continued after the actor knows that the invasion is resulting from it, further invasions are intentional’ ․ Id., § 825, comment d.” The court went on to determine that the conduct of the Town in not addressing failing septic systems although having knowledge of the complaints could be liable for a public nuisance because the town knew that the public nuisance was “substantially certain to result from its conduct.”  (Citations omitted.)  Id., 789.

In determining the propriety of this motion to strike, the court must consider the facts as alleged in the complaint and construe them in a manner most favorable to sustaining the action.  Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003).   The court accepts for the purposes of this motion to strike, that the plaintiffs' allegations and facts that the defendant in failing to operate, inspect, clean, repair and provide adequately sized storm drains and pump stations of the public wastewater system caused a back-up of the storm water system.   Additionally, the plaintiffs contend these acts were over a five-year period which may amount to an intentional act of failing to abate the nuisance.   Each of the plaintiffs has alleged that there was a continual back-up that was not addressed by the city resulting in flooding to their property.   These factual allegations provide a basis with which to deny the motion to strike as to the claims of public nuisance set forth by each plaintiff.

INJUNCTION

The defendant has requested that the court strike paragraph four of the revised claim for relief which seeks “an injunction requiring the city to properly maintain the Road Drainage and Waste Water Systems.”

The standard for granting a temporary injunction is well settled.  “In general, a court may, in its discretion exercise its equitable power to order a temporary injunction pending final determination of the order, upon a proper showing by the movant that if the injunction is not granted, he or she will suffer irreparable harm for which there is no adequate remedy at law.”   Moore v. Ganim, 283 Conn. 557, 569 n. 25, 660 A.2d 742 (1995).   The primary purpose of a temporary injunction is to maintain the status quo until the rights of the various parties can be sorted out, after a hearing on the merits.  Clinton v. Middlesex Assurance Co., 37 Conn.App. 269, 270, 685 A.2d 814 (1995).   The temporary injunction is a preliminary order, granted at the outset or during the pendency of an action, forbidding the performance of matters such as threatened act ․ until the rights of the parties can be finally determined by the court.  Deming v. Bradstreet, 85 Conn. 650, 659, 84 A. 116 (1912).   A party seeking injunctive relief must demonstrate that:  (1) it has no adequate remedy at law;  (2) it will suffer irreparable harm absent an injunction;  (3) it will likely prevail on the merits;  and (4) the balance of equities tip in its favor.  Waterbury Teacher's Ass'n. v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994), Danso v. University of Connecticut, 50 Conn.Sup. 256 [42 Conn. L. Rptr. 697] (2007).

In viewing each of the elements of a claim for injunctive relief and the allegations in the complaint, it is clear that the plaintiff has failed to allege any set of facts that could satisfy the criteria for injunctive relief.

CONCLUSION

Based upon the above, the courts grants the motion to strike any claims for indemnification pursuant to General Statute § 7-465, all counts as to any plaintiff for the negligence of the Wastewater System, all counts of private nuisance as to each of the plaintiffs and the request for injunctive relief.   The court denies the motion to strike regarding all counts alleging negligence of the city of Stamford and public nuisance.

THE COURT

Brazzel-Massaro, J.

FOOTNOTES

FN1. Conn. Practice Book Sec. 10-26 provides for separate counts to be utilized for separate causes of action.   It is clear that a cause of action for indemnification is a distinct cause of action from a claim of negligence of an employee of a municipality..  FN1. Conn. Practice Book Sec. 10-26 provides for separate counts to be utilized for separate causes of action.   It is clear that a cause of action for indemnification is a distinct cause of action from a claim of negligence of an employee of a municipality.

FN2. The same allegations, only by each different plaintiff, are found in counts 6, 10, 13, 18, 22, 26, 30, 34, 38, 42, 46, 50 and 54..  FN2. The same allegations, only by each different plaintiff, are found in counts 6, 10, 13, 18, 22, 26, 30, 34, 38, 42, 46, 50 and 54.

FN3. Within its argument concerning the WPCA, the plaintiffs included several exhibits that are not part of the pleadings and a referral to a city web site.   The court did not consider these items or anything beyond the complaint in this matter for purposes of the motion to strike because “[i]t is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ [The 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.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005)..  FN3. Within its argument concerning the WPCA, the plaintiffs included several exhibits that are not part of the pleadings and a referral to a city web site.   The court did not consider these items or anything beyond the complaint in this matter for purposes of the motion to strike because “[i]t is well established that a motion to strike must be considered within the confines of the pleadings and not external documents ․ [The 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.”  (Internal quotation marks omitted.)  Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n.9, 865 A.2d 488, cert. denied, 273 Conn. 916, 871 A.2d 372 (2005).

FN4. General Statutes § 8-113a(b) states:  “Municipality” means any city, borough or town.  “ ‘The municipality’ means the particular municipality for which a particular housing authority is created.”.  FN4. General Statutes § 8-113a(b) states:  “Municipality” means any city, borough or town.  “ ‘The municipality’ means the particular municipality for which a particular housing authority is created.”

FN5. It should be noted that the complaint of the plaintiffs refers to the General Statute § 52-557n(a)(1)(A) as to the nuisance counts when in fact that section is specifically related to the claim of negligent acts.   The proper section with the General Statutes that refers to the allegations of nuisance is § 52-557n(a)(1)(C)..  FN5. It should be noted that the complaint of the plaintiffs refers to the General Statute § 52-557n(a)(1)(A) as to the nuisance counts when in fact that section is specifically related to the claim of negligent acts.   The proper section with the General Statutes that refers to the allegations of nuisance is § 52-557n(a)(1)(C).

Brazzel-Massaro, Barbara, J.