Carl Leonzi, Sr. v. Town of Trumbull et al. (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE SPECIAL DEFENSES TO INTERVENING PLAINTIFF'S COMPLAINT (# 127)

This action arises out of a motor vehicle accident following a police pursuit in Trumbull Connecticut.   The plaintiff, Mr. Leonzi, brought an action against the Town of Trumbull and police officer, George Coleman alleging that Officer Coleman was negligent in the operation of his vehicle during the pursuit of an unidentified person, resulting in an accident between Mr. Leonzi and the unidentified person.   The defendants asserted several special defenses to the plaintiff's complaint, to include that the officer's conduct (and therefore the town) is protected by governmental immunity.   The City of Bridgeport is the Intervening Plaintiff seeking to recoup payments made to the Plaintiff, Mr. Leonzi, under the Workers' Compensation Act. The defendants filed the same special defenses to the Intervening Complaint, to include governmental immunity for Officer Coleman;  governmental immunity for the Town of Trumbull and immunity pursuant to CGS § 14-283(b).  The Intervening Plaintiff, the City of Bridgeport, moved to strike the special defenses.   For the reasons set forth below, the motion is DENIED.

Standard of Review

The role of the trial court in ruling on a motion to strike is to test the legal sufficiency of a pleading.  RK Constructors, Inc v. Fusco Corp., 231 Conn. 381, 384 (1994). “[w]hat is reasonably implied [in an allegation] need not be expressly alleged.”  (Citation omitted;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000).

For purposes of the motion to strike, the moving party admits all facts well pleaded.  RK Constructors, Inc., supra, at 383 n.2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges “mere conclusions of law that are unsupported by the facts alleged.”   Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).

Discussion

The Intervening Plaintiff moves to strike the defendants' special defenses on various grounds:  (1) that to the extent the defendants rely upon statutory government immunity as codified at CGS § 52-577n, they failed to comply with Practice Book § 10-3; ¹  (2) they fail to allege adequate facts in support of the special defenses;  and (3) governmental immunity does not apply to this case as officer Coleman was not performing a discretionary function for which immunity would be given.

The first and second special defenses each state that the defendants (Officer Coleman and through him, the Town of Trumbull) are “protected by the governmental immunity doctrine as [Coleman's] actions during the course of the pursuit were discretionary.” ²  It appears therefore that the defendants rely upon common law doctrine, rather than statutory immunity.   A failure to cite statutory authority would not therefore be a basis upon which to strike the special defense.   However, even if the defendants intend to assert statutory governmental immunity, the failure to cite the statute is not fatal.   Our Appellate Court has held that Practice Book § 10-3 is directory rather than mandatory, and its primary purpose is to ensure that a defendant is sufficiently apprised of the applicable statute during the proceedings.   See, Florian v. Lenge, 91 Conn.App. 268 (2005).

“[W]hen a party mentions a statute, or the concepts embodied therein, several times prior to trial, the opposing party was sufficiently apprised that the statute's applicability was claimed.”  (Citations omitted;  internal quotation marks omitted.)  Florian v. Lenge, 91 Conn.App. 268, 274, 880 A.2d 985 (2005).  “As long as the defendant is sufficiently apprised of the nature of the action ․ the failure to comply with the directive of Practice Book § 10-3(a) will not bar recovery.”  (Internal quotation marks omitted.)  Burton v. Stamford, 115 Conn.App. 47, 65, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009).

State v. Lamar Advertising of Hartford, Judicial District of Hartford, Dkt. No. CV 08 5020325 (Oct. 21, 2010) (Sheldon, J.).   While the court does not strike the special defense, the defendants are on notice that if they intend to assert statutory immunity, it is their obligation to adequately apprise the plaintiff.

Next, the court disagrees with Intervening Plaintiff's claim that the special defenses lack adequate factual foundation.   A special defense accepts the facts as pled by the plaintiff, yet avers that no cause of action can lie notwithstanding those facts.  New England Retail Properties, Inc. v. Maturo, 102 Conn.App. 476, 489 (2007).   Therefore, the allegations of the complaint may well include the factual basis for the special defense.   Such is the case here.   These allegations include that Officer Coleman was a Trumbull Police Officer;  that he was engaged in pursuit of an unidentified vehicle; ³  that the accident and plaintiff's injuries occurred as a result thereof.   The assertion, in the first and second special defenses that Officer Coleman was engaged in a discretionary act and therefore protected by governmental immunity is adequate.   See, Donaghy v. City of Bristol, Judicial District of New Britain, Dkt. No. CV 07 6001200 S (Jan. 20, 2009) (Tanzer, J.) (Having admitted that it is a municipality, the defendant has asserted a legally sufficient special defense of governmental immunity pursuant to both common law and Section 52-577n);  18 Brewer Associates, LLC v. Mormino, Superior Court, Judicial District of Hartford, Dkt No. CVH-01-6792 (July 9, 2002, Crawford, J.) (“[s]ince the defendants assert the fact that they are municipal officers in response to the conduct stated by the plaintiffs, the defense as stated is legally sufficient”).

Next, Intervening Plaintiff's motion avers that Officer Coleman was not engaged in a discretionary function, but rather a ministerial one, for which immunity does not apply.   This issue, under these circumstances, cannot be decided by way of a motion to strike.   Whether the conduct in question is ministerial or discretionary requires consideration of the circumstances in each case.   Thomes v. Duong, Judicial District of Hartford, Dkt. No. CV 05 5001223 (March 12, 2008) (Bentivegna, J.) (court identifies eight separate factors to be considered in assessing whether an act or omission of a municipal employee constitutes a ministerial duty).   Indeed, the Supreme Court has held that whether the acts of a municipal employee are governmental or ministerial is a “factual question which depends upon the nature of the act complained of.”  Gauvin v. New Haven, 187 Conn. 180, 186 (1982).

This complaint contains allegations of conduct by Officer Coleman which may be deemed “discretionary,” Foster v. Branford, 42 Conn. L. Rptr. 852 (January 30, 2007) (Munro, J.) (the decision to initiate a police pursuit is a discretionary decision and is afforded immunity), or which may be deemed “ministerial,” Id. (The manner in which a police officer engages in pursuit may be ministerial in nature.)   See also, Esposito v. Sapia, Superior Court, Judicial District of Stamford-Norwalk at Stamford, Dkt. No. CV 89 0103875 (July 1, 1993) (Lewis, J.) (whether a public official's conduct was discretionary or ministerial is a question of fact.)   These issues require consideration of many factors which fall outside the pleadings.   The pleadings themselves however are adequate.⁴

The Intervening Plaintiff also seeks to strike the third special defense which relies upon the so-called “emergency vehicle” immunity.⁵  The plaintiff's complaint alleges “statutory negligence” or “negligence per se” against Officer Coleman insofar as he “failed to operate his vehicle in the right lane in violation of Section 14-230 and 14-237 of the Connecticut General Statutes.”   While CGS 14-283(b) “does not relieve operators of emergency vehicles from their general duty to exercise due case for the safety of others” the statute does “displace the conclusive presumption of negligence that ordinarily arises from the violation of traffic rules.”  Tetro v. Stratford, 189 Conn. 601, 609 (1983).   Thus, only as to the statutory allegations of “negligence per se,” § 14-283(b) is a valid special defense.   Whether, if found to have occurred, Officer Coleman's violation(s) of the traffic statutes was negligent will remain a question for the jury.

The motion to strike is DENIED.

K.DOOLEY, J.

FOOTNOTES

FN1. Practice Book § 10-3(a) provides in relevant part:  “When any claim made in a ․ special defense ․ is grounded on a statute, the statute shall be specifically identified by its number.”.  FN1. Practice Book § 10-3(a) provides in relevant part:  “When any claim made in a ․ special defense ․ is grounded on a statute, the statute shall be specifically identified by its number.”

FN2. The second special defense refers simply to “the governmental immunity.”   It appears that the word “doctrine” was inadvertently left out..  FN2. The second special defense refers simply to “the governmental immunity.”   It appears that the word “doctrine” was inadvertently left out.

FN3. Intervening Plaintiff's claim that it is unclear as to the manner of pursuit, “whether by motorcycle, automobile, car, horse, etc.” is silly.   Intervening Plaintiff's own complaint makes perfectly clear that Officer Coleman was operating a motor vehicle..  FN3. Intervening Plaintiff's claim that it is unclear as to the manner of pursuit, “whether by motorcycle, automobile, car, horse, etc.” is silly.   Intervening Plaintiff's own complaint makes perfectly clear that Officer Coleman was operating a motor vehicle.

FN4. The court can envision a situation where the conduct alleged is, as a matter of established law, ministerial, or discretionary.   This is not such a situation given the breadth of the allegations against Officer Coleman.   See, Brown v. Branford, 12 Conn.App. 106, 111 n.3 (1987) (When “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.”)..  FN4. The court can envision a situation where the conduct alleged is, as a matter of established law, ministerial, or discretionary.   This is not such a situation given the breadth of the allegations against Officer Coleman.   See, Brown v. Branford, 12 Conn.App. 106, 111 n.3 (1987) (When “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.”).

FN5. CGS 14-283(b) provides that emergency vehicles, to include police vehicles, may “disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions.”.  FN5. CGS 14-283(b) provides that emergency vehicles, to include police vehicles, may “disregard statutes, ordinances or regulations governing direction of movement or turning in specific directions.”

Dooley, Kari A., J.