Marcilin Alvarez v. City of New London et al. (2010)

MEMORANDUM OF DECISION Motion to Strike, # 129

On May 5, 2010, the plaintiff, Marcelin Alvarez, filed a two-count “substitute complaint” against the defendants:  the city of New London, David Denoia and Edward Branson.   In count one of the complaint, the plaintiff alleges the following facts.   On June 21, 2009, the plaintiff was sitting in her parked car in front of real estate owned by Branson at 15 Parker Street in New London when a deteriorated tree limb ¹ snapped and fell on her car, causing damage to the car and various injuries and losses to the plaintiff.   The plaintiff's injuries and losses are a result of negligence of Denoia, who was the New London tree warden at the time of the incident.   Denoia was negligent in that “he did not perform ministerial duties, pursuant to [General Statutes] § 23-59, by removing the deteriorated tree limbs, which constituted an immediate public hazard,” “he did not trim and/or remove deteriorated tree limbs on Parker Street, when it had been the custom and habit of his office/department to remove dangerous and deteriorated tree limbs on an annual basis,” and “he violated policy to remove deteriorating tree limbs such as existed on Parker Street, when after receiving complaints about the condition he did not follow policy and remove the dangerous condition.”   Count two of the complaint alleges negligence against Branson, who “owed a duty of care to maintain his property in a reasonable manner and free from foreseeable hazards, such as the decaying and dangerous tree limbs that were visible to him as the homeowner.”

On June 4, 2010, two of the defendants, the city of New London and Denoia, filed a motion to strike count one of the amended complaint on the ground of governmental immunity.²  The motion is accompanied by a memorandum of law.   On July 28, 2010, the plaintiff filed a memorandum of law in opposition to the motion to strike.   The matter was heard on the short calendar on August 9, 2010.   On August 11, 2010, the plaintiff filed a supplemental reply to an additional case cited by the defendants, Bonington v. Westport, 297 Conn. 297, 999 A.2d 700 (2010).   On August 13, 2010, the defendants filed a supplemental response to the plaintiff's supplemental reply.

DISCUSSION

“Whenever any party wishes to contest ․ the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ․ that party may do so by filing a motion to strike the contested pleading or part thereof.”  Practice Book § 10-39(a).  “[I]n 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.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency ․ [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010).  “[G]overnmental immunity must be raised as a special defense in the defendant's pleadings.”  Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).  “Nevertheless, [w]here it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike.”  (Internal quotation marks omitted).  Id.

Governmental Immunity

General Statutes § 52-557n(a)(2) provides in relevant part:  “Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ․ 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.”  “The hallmark of a discretionary act is that it requires the exercise of judgment.”  (Internal quotation marks omitted.)  Bonington v. Westport, supra, 297 Conn. 306.  “In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion.”  (Internal quotation marks omitted.)  Grady v. Somers, 294 Conn. 324, 338 n.13, 984 A.2d 684 (2009).  “[F]or the purposes of [General Statutes] § 52-557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists.”  Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010).  “Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder ․ there are cases where it is apparent from the complaint ․ [that] [t]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to ․ § 52-557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint.”  (Internal quotation marks omitted).  Bonington v. Westport, supra, 297 Conn. 307.

General Statutes § 23-59 provides in relevant part:  “Whenever, in the opinion of the tree warden, the public safety demands the removal or pruning of any tree or shrub under the tree warden's control, the tree warden may cause such tree or shrub to be removed or pruned at the expense of the town or borough ․” The Appellate Court has ruled that “the duty to inspect and to care for trees undoubtedly involves the exercise of judgment, and, as such, is properly classified as a discretionary act” in a case in which a woman sued various municipal defendants after a rotted tree located on property owned by the city of New Britain fell on her car.  DeConti v. McGlone, 88 Conn.App. 270, 273, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005).   DeConti did not involve application of General Statutes § 23-59.   Several Superior Court decisions analyzing this statute have determined that “the duties of the tree warden are discretionary as a matter of law.”   Desjarlais v. Klezos, Superior Court, judicial district of Hartford, Docket No. CV 04 4002721 (January 19, 2006, Miller, J.) (40 Conn. L. Rptr. 588, 589);  see also Bouchard v. South Windsor, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV04 4001924 (November 21, 2005, Sferrazza, J.) (General Statutes § 23-59 “clearly defines the tree warden's role in caring for trees as an exercise of judgment, opinion, and discretion”);  Estate of Addario v. Yannes, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 00 0071510 (June 20, 2002, Sequino, J.) (32 Conn. L. Rptr. 347, 349) (Section 23-59 “clearly makes the decisions of a tree warden discretionary” and “clearly make[s] tree removal a discretionary act, particularly trees located on private property”).

In another decision, a complaint alleged that employees of a municipal fire department, while responding to a traffic accident on Interstate 95, placed the fire truck diagonally across the highway “in a manner that violated recognized and/or prescribed safety standards, rules, procedures, and/or regulations.”   (Internal quotation marks omitted).   Kumah v. Brown, Superior Court, judicial district of Fairfield, Docket No. CV 08 5015502 (January 7, 2009, Bellis, J.).   In ruling on the motion to strike, the court examined case law relating to public safety workers and “applie[d] the general rule that firefighters engage in discretionary acts when they are in the line of duty.”  Id. Another court has reached a different result with regard to whether a tree warden's decisions are ministerial or discretionary.   In Rivera v. Meriden, Superior Court, judicial district of New Haven, Docket No. CV 04 4000526 (February 11, 2008, Robinson, J.), which involved a municipal defendant's motion for summary judgment, the plaintiffs submitted into evidence a town ordinance that stated, “The Tree Warden shall have the duty to:  3) Remove or cause to be removed any tree or shrub which constitutes an immediate public hazard, without notice.”   The court observed that “[t]he term ‘shall,’ rather than ‘may,’ suggests that the Tree Warden's job is mandatory rather than discretionary.”  Id.³

In the substituted complaint, the plaintiff alleges that the tree warden “violated policy to remove deteriorating tree limbs such as existed on Parker Street, when after receiving complaints about the condition he did not follow policy and remove the dangerous condition.”   The defendants argue that “[d]espite the allegation of a ministerial duty, as a matter of law the claim must be stricken given the discretionary nature of the actions claimed” because “the fundamental act claimed to be negligent (identification and removal of deteriorating trees) is discretionary.”   The defendants further argue that “[c]onclusory allegations of ‘custom and habit’ and ‘policy’ ․ do not impose a ministerial duty upon the tree warden to remove this particular tree branch, for even assuming that such vague allegations are true, it can be construed from the Substitute Complaint that the determination of whether a given tree branch is dangerous or deteriorated remains within the discretion of the tree warden.”   The plaintiff counters that the defendants' motion to strike is premature and that further discovery is needed to determine city rules, regulations and policies pertaining to the tree warden.

The court finds that the duties of the tree warden are discretionary as a matter of law.   Connecticut case law treats General Statutes § 23-59 as imposing discretionary duties upon the tree warden.   The plaintiff has not sufficiently alleged that any specific rule, ordinance or policy treats the removal of tree limbs as a ministerial duty.   Thus, the court grants the motion to strike count one as to the defendant Denoia, on the ground of governmental immunity.

Statutory Indemnification

In their memorandum of law accompanying the motion to strike, the defendants argue that “[c]ount [o]ne fails to satisfy the prerequisite to recovery under § 7-465 due to the absence of liability as against any individual municipal employee.”   The defendants have included a section in the memorandum titled “b. The Plaintiff's Claim for Indemnification Under [General Statutes] § 7-465 Is Insufficient As A Matter of Law.” This ground for the motion to strike does not appear on the face of the motion.  “Motions to strike that do not specify the grounds of insufficiency are fatally defective and, absent a waiver by the party opposing the motion, should not be granted ․ Our Supreme Court has stated that a motion to strike that does not specify the grounds of insufficiency is fatally defective ․ and that Practice Book § [10-42], which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself.”   (Internal quotation marks omitted.)  Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007).  “If the plaintiffs had not objected to the form of the motion to strike, we would have considered the motion in the form presented to the trial court because Practice Book § 10-41 is not jurisdictional in nature.”  Id.

In the present case, the plaintiff has not objected to the form of the motion to strike and has in fact addressed the defendants' claim of insufficiency relating to General Statutes § 7-465.   This operates as a waiver of this defect in the motion to strike.

Under General Statutes § 7-465, municipalities must indemnify employees for damages that the employees become obligated to pay as a result of incidents that occur in the performance of the employees' duties and within the scope of the employees' employment.   Any recovery in this action pursuant to Section 7-465 hinges on the finding of liability against the tree warden in count one.   Because the tree warden engaged in a discretionary duty and is shielded by governmental immunity, the court grants the motion to strike as to count one as to the defendant City of New London on the additional ground that a claim under General Statutes § 7-465 is insufficient.

The Court

Cosgrove, J.

FOOTNOTES

FN1. The complaint references “a deteriorated tree limb in front of 15 Parker Street” as the limb that fell on the plaintiff's car but does not identify the owner(s) of the real estate on which the tree stood..  FN1. The complaint references “a deteriorated tree limb in front of 15 Parker Street” as the limb that fell on the plaintiff's car but does not identify the owner(s) of the real estate on which the tree stood.

FN2. Branson is not a party to this motion to strike.   In this memorandum, the city of New London and Denoia will be referred to as “the defendants.”.  FN2. Branson is not a party to this motion to strike.   In this memorandum, the city of New London and Denoia will be referred to as “the defendants.”

FN3. In the substituted complaint, the plaintiff does not cite to any specific New London ordinances, rules or policies but only alleges “custom and habit” and “policy.”   In the plaintiff's objection to the motion to strike, the plaintiff states that “discovery should first address the City rules, policies and regulations of the tree warden.”.  FN3. In the substituted complaint, the plaintiff does not cite to any specific New London ordinances, rules or policies but only alleges “custom and habit” and “policy.”   In the plaintiff's objection to the motion to strike, the plaintiff states that “discovery should first address the City rules, policies and regulations of the tree warden.”

Cosgrove, Emmet L., J.