Shauvone Lytle v. Paredim Partners et al. (2010)

MEMORANDUM OF DECISION

The plaintiff, Shauvone Lytle, filed a single-count revised complaint on June 21, 2010.¹  The revised complaint alleges the following:  The defendant, the city of New Haven, was the record owner of the premises located between the sidewalk and the street at 148 Goffe Street, New Haven, Connecticut.   The plaintiff alleges that, on September 2, 2006, he was on the public sidewalk adjoining the premises located at 200 Goffe Street.   At that time, a branch from a tree located between the sidewalk and the street fell, struck the plaintiff and knocked him to the ground.   The plaintiff further alleges that as a result of being struck by the branch, the plaintiff suffered multiple severe injures;  some or all of which may be permanent.   In addition, the plaintiff alleges that his injuries and subsequent losses were caused by the negligence and carelessness of the defendant and its agents, servants and/or employees.   Specifically, the plaintiff alleges that the defendant allowed a tree to remain on the premises with branches or a limb that was ready to fall;  it had actual or constructive notice that the tree was unsafe and failed to inspect it;  it failed to inspect the tree adequately;  it had a policy in place to investigate and inspect trees for which complaints were received;  it failed to follow its policy for the investigation and inspection of trees;  it had no plan for inspecting trees within the limits of the sidewalk;  it failed to supervise and/or train its agents, servants and/or employees;  and the plaintiff was an identifiable person subject to imminent harm.

The defendant filed a motion to strike the plaintiff's revised complaint and a memorandum in support of the motion to strike on August 3, 2010.   The plaintiff filed an objection to the motion to strike and a memorandum in support of the objection on August 18, 2010.   The defendant filed a reply memorandum on August 27, 2010.   This court heard arguments on the motion to strike at short calendar on September 13, 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).  “[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252, 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 Connecticut Supreme Court “note[s] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged ․ It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well pleaded facts and those necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)  Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 252-53.   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).

The defendant, the city of New Haven, moves to strike the complaint on three grounds:  1) the breach of duty alleged by the plaintiff is a discretionary duty;  2) the plaintiff is not an identifiable person subject to imminent harm as a matter of law;  and 3) the plaintiff makes a claim under General Statutes § 52-557n(b)(8), which does not authorize a cause of action.   In its memorandum of law in support of its motion to strike, the defendant argues that the alleged duty to inspect and maintain the trees is a discretionary duty and that the plaintiff does not fall within one of the exceptions, that is-an identifiable person subject to imminent harm-as a matter of law.   Therefore, the defendant concludes that it is subject to a qualified municipal immunity and, because the plaintiff does not fall within one of the exceptions, the plaintiff has failed to state a cognizable cause of action.   Additionally, the defendant argues that the plaintiff makes a claim under General Statutes § 52-557n(b)(8) which does not create a cause of action.

In support of the objection, the plaintiff argues that the motion is procedurally improper because the defendant's arguments are based upon questions of fact and cannot be adjudicated on a motion to strike.   In the alternative, the plaintiff argues that he pleaded facts sufficient to allege that the duty is ministerial, and, even if it were not ministerial, the plaintiff is an identifiable person subject to imminent harm, therefore the complaint states a cause of action.

A

Nature of the Duty

“[T]he general rule developed in [Connecticut] case law is that a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity.”  Williams v. New Haven, 243 Conn. 763, 766-67, 707 A.2d 1251 (1998).  General Statutes § 52-557n(a)(1) 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:  (A) the negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties.”  General Statutes § 23-59 provides in relevant part that:  “The town ․ tree warden shall have the care and control of all trees ․ in whole or in part within the limits of any public road or grounds and within the limits of his town.”   In Muratori v. Stiles & Reynolds Brick Co., the Connecticut Supreme Court determined that “the legislative intent [behind § 23-59 and § 23-65(b) ] was to rest exclusive control in the tree warden of all trees within the limits of [the town].” ²  Muratori v. Stiles & Reynolds Brick Co., 128 Conn. 674, 675, 25 A.2d 58 (1942).

“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 [duty] 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.”  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).   Whether a duty is discretionary or ministerial “is a question of fact for the trier of fact.”  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988).  “[W]here it is apparent from the face of the complaint that the municipality was engaging in a [discretionary] 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.”  Violano v. Fernandez, supra, 321.

In Evon v. Andrews, the court held that “what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment” and such acts are discretionary in nature.  Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989).   In Violano v. Fernandez, the court held that to allege that acts are ministerial in nature, a party must allege that the actor is required by a “city charter provision, ordinance, rule, policy, or any other directive [to act] in [a] prescribed manner.”  Violano v. Fernandez, supra, 280 Conn. 323.   In Kolaniak v. Board of Education, the board of education “issued a bulletin to all custodians and maintenance personnel ․ indicating that the walkways were to be inspected and kept clean on a daily basis.”  Kolaniak v. Board of Education, 28 Conn.App. 277, 279, 610 A.2d 193 (1992).   The court held that, due to the bulletin outlining the policy on clearing the walkways, the “determination as to when to clear a sidewalk ․ [wa]s not a discretionary function.”  Id. Therefore, the court held that the maintenance personnel who failed to show “evidence that the walkway in question had been shoveled, salted or sanded prior to the plaintiff's fall” and “could [not] recall putting down any sand or salt,” “were involved in a ministerial function as a matter of law.”  Id., 279-81.

In the present case, § 52-557n(a)(1)(A) abrogates the common-law qualified municipal immunity when municipal employees or officials act negligently in carrying out ministerial duties.   When one acts negligently in exercising a discretionary duty, governmental immunity applies and no cause of action lies with respect to the individual's negligence.   When one acts negligently exercising a ministerial duty, governmental immunity does not apply and a cause of action against the municipality exists for the individual's negligence.   Section 23-59 relates to the tree warden and his exclusive duty to care for and control the trees in the city.   In fulfilling the duty to care for and control the trees, the tree warden has an implicit duty to inspect the trees to determine the care required.   As the issue raised by the defendant's motion to strike is whether the defendant breached a ministerial or discretionary duty, it must be determined whether the plaintiff alleged facts sufficient to demonstrate that the duty the defendant breached is ministerial in nature.

The plaintiff makes three separate and distinct allegations.   First, the plaintiff alleges that the duty to inspect the tree is ministerial in nature.   Secondly, the plaintiff alleges that the defendant breached that duty by inadequately inspecting the tree.   Thirdly, the plaintiff alleges that the defendant breached its ministerial duty when it failed to supervise and/or train its agents and servants and/or employees that were statutorily responsible for the maintenance of the tree.

Questions regarding the adequacy of inspections involve the exercise of judgment or discretion.   Thus, the plaintiff's allegation that the defendant inadequately inspected the trees is legally insufficient to allege that the duty to adequately inspect the tree is ministerial, because adequate inspection inherently involves an exercise of one's discretion.

The plaintiff's allegation that the defendant failed to supervise and/or train its agents and servants and/or employees is legally insufficient to support an allegation that the duty to supervise and/or train is a ministerial duty because the plaintiff failed to allege that a policy existed that provided the defendant with a directive on how to supervise and/or train agents, servants and/or employees.   Absent a directive instructing the defendant how to train its employees, the defendant's manner of training its employees, servants and/or employees is a matter of discretion.

Based on the reasoning in both Koloniak v. Board of Education and Violano v. Fernandez, the plaintiff sufficiently alleges that the duty to inspect the tree is ministerial in nature.   The plaintiff alleges that a protocol existed that required the defendant to investigate and inspect trees for which Parks and Recreation received a telephone complaint.   The plaintiff further alleges that the defendant failed to follow that protocol because the defendant failed to inspect the tree that caused his injuries after receiving a telephone complaint about that tree.   The plaintiff's allegations that a policy to inspect trees for which complaints were received and that the defendant failed to inspect the tree after receiving a telephone complaint are sufficient to support the allegation that the defendant's duty to inspect the tree in question is ministerial.   Taking the plaintiff's allegations as true and in the light most favorable to the plaintiff, the plaintiff sufficiently pleads facts to allege that the defendant breached a ministerial duty.

B

Exception to Governmental Immunity

“A municipal employee's immunity for the performance of discretionary governmental acts is ․ qualified by three recognized exceptions.”  Deconti v. McGlone, 88 Conn.App. 270, 272, 869 A.2d 271, cert. denied, 273 Conn. 940, 875 A.2d 42 (2005).   The relevant exception applies “when it is apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm.”  (Internal quotation marks omitted.)   Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 167.  “The [identifiable person] exception has been expanded to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims.”  (Internal quotation marks omitted.)  Deconti v. McGlone, supra, 88 Conn.App. 273.  “[T]he question of whether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to qualified immunity ultimately is a question of law for the courts.”  Durrant v. Board of Education, 284 Conn. 91, 100, 931 A.2d 859 (2007).

The qualified municipal immunity exception that provides a cause of action for an identifiable person subject to imminent harm presupposes a determination by the fact finder that the duty involved is discretionary in nature.   In the present case, the fact finder has not determined whether the duty the defendant owed the plaintiff is discretionary or ministerial in nature.   Because the court may only address the identifiable person subject to imminent harm exception subsequent to the fact finder determining the appropriate characterization of the duty, the issue of whether the plaintiff was an identifiable person cannot be addressed at this time.³

For the foregoing reasons, the court denies the defendant's motion to strike the revised complaint.

Woods, J.

FOOTNOTES

FN1. The plaintiff filed an original complaint on April 16, 2008, against Paredim Partners and the city of New Haven.   Paredim moved for summary judgment on September 23, 2008, which the court granted in Paredim's favor on October 16, 2008 [46 Conn. L. Rptr. 512]..  FN1. The plaintiff filed an original complaint on April 16, 2008, against Paredim Partners and the city of New Haven.   Paredim moved for summary judgment on September 23, 2008, which the court granted in Paredim's favor on October 16, 2008 [46 Conn. L. Rptr. 512].

FN2. General Statutes § 23-65(b) provides in relevant part that:  “[a]ny person, firm or corporation, other than a tree warden or deputy tree warden who removes, prunes, injures or defaces any shrub or ornamental or shade tree, within the limits of a public way or grounds, without the legal right or written permission of the town tree warden, the borough tree warden, the city forester, the Commissioner of Transportation, the Department of Public Utility Control or other authority having jurisdiction, may be ordered by the court in any action brought by the property owner or the authority having jurisdiction affected thereby to restore the land to its condition as it existed prior to such violation or shall award the landowner the costs of such restoration, including reasonable management costs necessary to achieve such restoration, reasonable attorneys fees and costs and such injunctive or equitable relief as the court deems appropriate.”.  FN2. General Statutes § 23-65(b) provides in relevant part that:  “[a]ny person, firm or corporation, other than a tree warden or deputy tree warden who removes, prunes, injures or defaces any shrub or ornamental or shade tree, within the limits of a public way or grounds, without the legal right or written permission of the town tree warden, the borough tree warden, the city forester, the Commissioner of Transportation, the Department of Public Utility Control or other authority having jurisdiction, may be ordered by the court in any action brought by the property owner or the authority having jurisdiction affected thereby to restore the land to its condition as it existed prior to such violation or shall award the landowner the costs of such restoration, including reasonable management costs necessary to achieve such restoration, reasonable attorneys fees and costs and such injunctive or equitable relief as the court deems appropriate.”

FN3. The defendant also argues that the plaintiff makes a claim under General Statutes § 52-557n(b)(8) which does not authorize or create a cause of action.   The plaintiff does not respond to this claim.   The defendant provides authority which the court concludes establishes that § 52-557n(b)(8) does not authorize or create a cause of action.   Baker v. Cheshire, Superior Court, judicial district of New Haven, Docket No. CV 07 5013602 (April 24, 2008, Robinson, J.) [45 Conn. L. Rptr. 452];  see also Curtin v. Brookfield, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 020178124 (April 14, 2005, Schuman, J.) [39 Conn. L. Rptr. 173], aff'd, sub nom.  Kondrat v. Brookfield, 97 Conn.App. 31, 902 A.2d 718, cert. denied, 280 Conn. 926, 908 A.2d 1087 (2006)..  FN3. The defendant also argues that the plaintiff makes a claim under General Statutes § 52-557n(b)(8) which does not authorize or create a cause of action.   The plaintiff does not respond to this claim.   The defendant provides authority which the court concludes establishes that § 52-557n(b)(8) does not authorize or create a cause of action.   Baker v. Cheshire, Superior Court, judicial district of New Haven, Docket No. CV 07 5013602 (April 24, 2008, Robinson, J.) [45 Conn. L. Rptr. 452];  see also Curtin v. Brookfield, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 020178124 (April 14, 2005, Schuman, J.) [39 Conn. L. Rptr. 173], aff'd, sub nom.  Kondrat v. Brookfield, 97 Conn.App. 31, 902 A.2d 718, cert. denied, 280 Conn. 926, 908 A.2d 1087 (2006).

Woods, Glenn A., J.