Christopher Aubin v. 10284 (2012)

RULING ON MOTION TO STRIKE BY THE DEFENDANTS SHAW AND TOWN OF PLAINFIELD

This case is an action by the plaintiff, Christopher Aubin, against six defendants.   The plaintiff alleges, inter alia, that he was a passenger in a car being driven by Samantha Reiss in May 2011, when she lost control of the car.   It is alleged that she was driving under the influence of alcohol at the time.   He alleges that the car went off Interstate 395 in Killingly, CT and struck a tree, causing him severe injuries.   Pertinent to the defendants, Police Officer Todd Shaw and the Town of Plainfield, the plaintiff seeks to hold Officer Shaw liable in negligence, and hold the town liable likewise pursuant to General Statues § 52–557n and for indemnity pursuant to General Statutes § 7–465 in Count Ten of the complaint.   Viability of the plaintiff's claim rests on the ability of the plaintiff to establish a duty that was breached in this case, and to establish that this case comes within the imminent harm/identifiable person exception to municipal immunity.   The defendants move to strike Count Ten on the grounds that the allegations are insufficient as a matter of law on those points.   For the following reasons, the court agrees and grants the defendants' motion to strike Count Ten.

I

“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.”  (Citations omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Citation omitted;  internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).  “The role of the trial court [is] to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [plaintiff has] stated a legally sufficient cause of action.”  (Citations omitted;  internal quotation marks omitted.)  Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).  “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 facts necessarily implied from the allegations are taken as admitted.”  (Citations omitted;  internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).

“[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Citation omitted;  internal quotation marks omitted.)  Id., 252.   Nevertheless, “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Citation omitted;  internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

II

As mentioned above, the plaintiff alleges, inter alia, that he was a passenger in a car being driven by Samantha Reiss in May 2011, when she lost control of the car.   It is alleged that she was driving under the influence of alcohol at the time.   He alleges that the car went off Interstate 395 in Killingly, CT and struck a tree, causing him severe injuries.   In Count Ten, with respect to Officer Shaw, the plaintiff alleges that “[o]n or about May 15, 2011 through May 16, 2011” the defendant Reiss was working at the liquor permit premises of the defendant's Moosup VFW Post 10284, and she was visibly intoxicated.   He alleges that Officer Shaw was on the premises “at said time” in an official capacity and that he spoke to Reiss.   He further alleges:

8.  At said time, the defendant, Todd Shaw, knew or should have known that the defendant, Samantha Reiss, was intoxicated.

9. At said time, the defendant, Todd Shaw, knew or should have known that the defendant, Samantha Reiss, intended to operate a motor vehicle.

10. At said time, the defendant, Samantha Reiss, left the Moosup VFW 10284 while operating a 1995 Ford motor vehicle.

11. At said time, the plaintiff, Christopher Aubin, was a passenger in said 1995 Ford motor vehicle.

12. At said time, the defendant, Samantha Reiss, was operating said 1995 Ford motor vehicle in a northerly direction on Interstate 395 in Killingly, Connecticut.

13. At said time, the defendant, Samantha Reiss, lost control of said 1995 Ford motor vehicle.

14. At said time, the defendant, Samantha Reiss, drove off of Interstate 395 and struck a tree.

15. As a result of the aforesaid collision, the plaintiff, Christopher Aubin, was pinned beneath said motor vehicle.

16. As a direct result of the aforesaid collision, the plaintiff, Christopher Aubin, sustained severe injuries and damages.

17. The aforesaid collision was caused by the negligence and/or carelessness of the defendant, Todd Shaw, in one or more of the following respects:

(a) In that he failed to prevent the defendant, Samantha Reiss, from operating a motor vehicle, even though he knew or should have known that she was intoxicated;

(b) In that he failed to identify, test, and/or determine whether the defendant, Samantha Reiss, was intoxicated and/or capable of legally operating a motor vehicle;  and

(c) In that he failed to prevent the defendant, Samantha Reiss, from operating a motor vehicle, even though he knew or should have known that she posed an imminent harm to the plaintiff, Christopher Aubin, as well as other drivers on the road.

Complaint, Count Ten

The defendants argue that these allegations are mere conclusions and do not set forth the requisite facts necessary to state a claim.   They argue that the facts do not establish that the officer owed a duty to the plaintiff, or that the town is not protected by governmental immunity.   To the contrary, because the events, as alleged, do not come within the imminent harm/identifiable person exception to municipal immunity, they argue that the count must be stricken.   The court agrees with the defendants on those points.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual damages.”   (Citation omitted;  internal quotation marks omitted.)  Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 32, 946 A.2d 839 (2008).   At common law in Connecticut, the power of police to enforce the law is generally a discretionary function, and a police officer has no general duty to exercise his or her discretionary authority to detain an inebriated driver in order to protect members of the motoring public.  Sarno v. Whalen, 233 Conn. 524, 524, 695 A.2d 181 (1995), citing Shore v. Stonington, 187 Conn. 147, 444 A.2d 1379 (1982).   An important exception exists.  “We have recognized the existence of such duty in situations where it would be apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm.”  Shore v. Stonington, supra, 187 Conn. 153, citing Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979).

Similarly, the town is protected by governmental immunity.   The law governing governmental liability and governmental immunity is now largely controlled by statute.  General Statutes § 52–557n sets out the rules, and the exceptions.   In pertinent part, the statute provides that municipalities “shall be liable” for “[t]he 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 ․ [e]xcept ․ 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.”  General Statutes § 52–557n(a).   This parallels the common law qualified immunity of the employee.  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 169 n.3, 544 A.2d 1185 (1988);  Shore v. Stonington, supra, 187 Conn. 157;  D. Wright, J. FitzGerald, W. Ankerman, Conn. Law of Torts (3rd Ed.1991) Sec. 93.   Thus, governmental immunity for discretionary acts is identical to the employee's immunity for discretionary acts.  Kastancuk v. East Haven, 120 Conn.App. 282, 287, 991 A.2d 681 (2010);  Myers v. Hartford, 84 Conn.App. 395, 401, 853 A.2d 621, cert. denied, 271 Conn. 927, 859 A.2d 582 (2004).   In other words, generally, municipalities and their employees may be exposed to liability for acts of negligence unless the function involved the exercise of discretion.¹  As with municipal employees, an important exception exists.   It is now well settled that municipal employees and municipalities are immune from liability for discretionary acts except “where 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.”  (Citations omitted;  internal quotation marks omitted.)  Grady v. Somers, 294 Conn. 324, 338, 984 A.2d 684 (2009);  Doe v. Petersen, 279 Conn. 607, 616, 903 A.2d 191 (2006);  Swanson v. Groton, 116 Conn.App. 849, 859, 977 A.2d 738 (2009).

Thus, to state a viable claim in this case, the plaintiff must show (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.   All three allegations must be pled by a plaintiff or the complaint seeking liability on these grounds will be stricken.  Bailey v. Town of West Hartford, 100 Conn.App. 805, 811–12, 921 A.2d 611 (2007).

Under these tests, it is clear that the plaintiff has not pled facts supporting the necessary elements of his claim.   Even allowing all inferences and constructions in favor of the plaintiff, the facts alleged do not show that it was or should have been apparent to Officer Shaw that the plaintiff was in imminent harm.   Assuming, as we must in this analysis, that Officer Shaw knew or should have known that Samatha Reiss was visibly intoxicated on the evening in question, having spoken to her when she was intoxicated, there are no facts suggesting that he knew or should have known that she was going to drive, and that the plaintiff was going to be her passenger.   The plaintiff's charges on those points are conclusions without factual support in the complaint.  “A motion to strike challenges the legal sufficiency of a pleading ․ It admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Citations omitted.)   Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985).   A motion to strike is properly granted where a party alleges mere legal conclusions of law unsupported by sufficiently alleged facts.  Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).

III

For all of the foregoing reasons, the defendants' motion to strike Count Ten is granted.

THE COURT

Robert F. Vacchelli

Judge, Superior Court

FOOTNOTES

FN1. Employees are generally indemnified, by their municipal employer, in cases of liability due to negligence, if the employees were acting in the performance of their duties and within the scope of their employment and not wantonly or wilfully.  General Statutes § 7–465..  FN1. Employees are generally indemnified, by their municipal employer, in cases of liability due to negligence, if the employees were acting in the performance of their duties and within the scope of their employment and not wantonly or wilfully.  General Statutes § 7–465.

Vacchelli, Robert F., J.