Michael Stavrakis v. Aaron Price et al. (2010)

MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE (# 106)

The town of New Milford and Karen A. Facey, two of the defendants, filed a motion to strike counts four and five from the complaint of Michael Stavrakis, the plaintiff.¹  The plaintiff's complaint was brought as a result of alleged untruths and falsehoods concerning a particular fire that occurred in New Milford on the plaintiff's premises on or about March 30, 2009.   The parties who allegedly told those untruths and falsehoods, Aaron Price and James Galbrath, who are also defendants in the present action, were volunteer firemen in New Milford at the time of the fire.²  Facey was the New Milford fire marshal.

In count four, the plaintiff alleges negligent supervision as to Facey on the ground that she was responsible for the training and supervision of volunteer firemen in New Milford.   The plaintiff alleges that Facey:  1) had a duty to supervise Price and Galbrath;  2) failed to monitor Price and Galbrath and their workplace premises for appropriate behavior;  3) knew or should have known that Price and Galbrath had a propensity for gossip and would cause injury to the plaintiff;  4) failed to use controls to curtail gossip “which created a rumor mill out of the firehouse;” and 5) failed to employ “capable, honest, virtuous, meritorious and laudable management.”   In count five, which is against the town of New Milford, the plaintiff alleges that he is entitled to indemnity from the town under General Statutes § 7-465 for Facey's carelessness and negligence because Facey was acting as an employee of the town and within the scope of her employment, and the allegations of count four do not involve Facey's willful or wanton action.

In their motion to strike, Facey and the town of New Milford argue, inter alia, that counts four and five should be stricken because of the statutory immunity provision in General Statutes § 29-298(b), and the qualified, governmental immunity afforded to local fire marshals.   Additionally, Facey and the town of New Milford argue that Facey did not have in obligation to supervise Price and Galbrath.   In his objection, the plaintiff does not address the applicability of § 29-298(b).  Additionally, although the plaintiff concedes that Facey does not have a statutorily mandated duty to supervise and monitor the fire department within her district, the plaintiff argues that “a fire marshal has a vested interest and a duty to ensure that such fire department is performing adequately.   As such, the fire marshal is in a position to supervise and monitor the activities of the fire department within her district [and] thus, count four, when read broadly rather than narrowly, sets forth a legally cognizable claim against ․ Facey.”   As to qualified immunity, the plaintiff asserts that the identifiable person/imminent harm exception applies and thus, qualified immunity does not apply to Facey.

General Statutes § 29-298(b) provides:  “No local fire marshal, deputy fire marshal, fire inspector or other inspector or investigator acting for a local fire marshal, who is charged with the enforcement of the Fire Safety Code and this chapter, may be held personally liable for any damage to persons or property that may result from any action that is required or permitted in the discharge of his official duties while acting for a municipality or fire district.   Any legal proceeding brought against any such fire marshal, deputy fire marshal, fire inspector or other inspector or investigator because of any such action shall be defended by such municipality or fire district.   No such fire marshal, deputy fire marshal, fire inspector or other inspector or investigator may be held responsible for or charged with the costs of any such legal proceeding.   Any officer of a local fire marshal's office, if acting without malice and in good faith, shall be free from all liability for any action or omission in the performance of his official duties.”

“Plainly, two types of immunity are granted to local fire marshals and their agents under [§ 29-298(b) ].  The first ․ is set forth ․ in the first sentence of the statute ․ This sentence offers the Fire Marshals immunity from personal liability for any affirmative action they are ‘required or permitted’ to take in the discharge of their official duties.   By its terms, however, the sentence does not confer immunity upon local fire marshals for their failures or omissions to perform acts required in the performance of their official duties, for such failures or omissions to act are obviously not permitted or required in the exercise of their official duties.

“The final sentence of the subsection, however, affords important additional protection from civil liability to all officers of local fire marshals' offices.   That sentence ․ confers complete immunity from civil liability upon all local fire marshals and their agents for actions or omissions they engaged in, while acting without malice and in good faith ․ in the performance of [their] official duties.”  (Emphasis in original;  internal quotation marks omitted.)   Rivera v. Sitaris, Superior Court, judicial district of Hartford, Docket No. CV 98 0584642 (April 28, 2003, Sheldon, J.)

In addition, General Statutes § 29-302 provides:  “The local fire marshal shall, in accordance with the provisions of section 29-311, investigate the cause, origin and circumstances of any fire or explosion within his jurisdiction, by reason of which property has been destroyed or damaged, or any person injured or killed, or any incidents which threatened any property with destruction or damage or any person with injury or death by reason of fire or explosion, and shall especially investigate whether such fire was the result of an incendiary device or the result of carelessness, design or any criminal act;  and the Commissioner of Public Safety as State Fire Marshal, or the deputy fire marshal under his direction, may supervise and direct such investigation.”

As to § 29-298(b), the plaintiff does not allege that Facey acted with malice when she engaged in her various alleged omissions pleaded here as negligent supervision.   Thus, Facey's alleged omissions and failures are protected by § 29-298(b).  Additionally, even if § 29-298(b) is inapplicable, § 29-302 does not require the fire marshal of any municipality to supervise volunteer firemen.   Based on the allegations of the complaint, the nature of the alleged wrongs are beyond the authority or foreseeability of any fire marshal or, for that matter, beyond the authority or foreseeability of anyone in a municipal, supervisory position.

Finally, even under the qualified immunity analysis, the plaintiff's allegations do not support the application of the identifiable person/imminent harm exception to governmental immunity.  “Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts ․ Governmental 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.”  (Citations omitted;  internal quotation marks omitted.)  Martel v. Metropolitan District Commission, 275 Conn. 38, 48-49, 881 A.2d 194 (2005).

“The imminent harm exception to discretionary act immunity applies when 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 ․ By its own terms, this test requires three things:  (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.”  (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 329, 907 A.2d 1188 (2006).  “Demonstration of less than all of these criteria is insufficient.”  Doe v. Petersen, 1279 Conn. 607, 620, 903 A.2d 191 (2006).

“Imminent harm is harm ready to take place within the immediate future ․ Imminent is defined as something about to materialize of a dangerous nature.   Imminent harm excludes risks which might occur, if at all, at some unspecified time in the future.   In order to meet the imminent harm prong of this exception ․ the risk must be temporary and of short duration ․ Such conditions that have been identified as imminent include ice on school grounds, tripping a student in the hallway, and the immediate opening of a door.”   (Citation omitted;  internal quotation marks omitted.)   Metallo v. Torrington Board of Education, Superior Court, judicial district of Litchfield, Docket No. CV 09 5007012 (May 25, 2010, Shaban, J.) The alleged actions of Price and Galbrath, which underlie the claim against Facey, spanned at least six days.   Thus, even reading the complaint in a light most favorable to the plaintiff, these actions cannot be described as “imminent.”   For all of these reasons, the court strikes count four.

As to count five, in which the plaintiff seeks indemnity from the town of New Milford pursuant to § 7-465 as a result of Facey's alleged negligence, the court first notes that § 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 infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and 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 Appellate Court has held that a motion to strike a count alleging indemnification under § 7-465 is properly granted if the underlying claim of negligence brought against the employee is struck due to governmental immunity.  Violano v. Fernandez, 88 Conn.App. 1, 12 n.11, 868 A.2d 69 (2005), aff'd, 280 Conn. 310, 907 A.2d 1188 (2006).”   Pringle v. Coleman, Superior Court, judicial district of New Haven, Docket No. CV 08 5020586 (January 12, 2009, Thompson, J.).   Based on this court's conclusion regarding the inapplicability of the identifiable person/imminent harm exception in count four, the court also concludes that count five must be stricken.

BY ORDER OF THE COURT,

Roche, J.

FOOTNOTES

FN1. Although their motion to strike states that they are moving to strike counts three, four and five, the town of New Milford and Facey only address counts four and five in their supporting memorandum of law..  FN1. Although their motion to strike states that they are moving to strike counts three, four and five, the town of New Milford and Facey only address counts four and five in their supporting memorandum of law.

FN2. Count one is a slander per se claim against Price, count two is a slander per se claim against Galbrath and count three is a negligent infliction of emotional distress claim against both Price and Galbrath..  FN2. Count one is a slander per se claim against Price, count two is a slander per se claim against Galbrath and count three is a negligent infliction of emotional distress claim against both Price and Galbrath.

Roche, Vincent E., J.