Gerard Rokicki et al. v. Putnam Fish & Game Club, Inc. et al. (2012)

RULINGS ON MOTIONS TO STRIKE DOC. NOS. 109.00, 125.00, 138.00 AND 139.00

This case is an action by the plaintiffs, Gerard Rokicki and his wife, Maryann Michaels.   Rokicki alleges that on August 31, 2009, while he was at the Woodstock Fairgrounds in Woodstock, CT, he was struck in the head by a bullet fired from a shooting range located on the adjacent property of the defendant, Putnam Fish & Game Club, Inc., also in Woodstock, and that, as a result, he sustained, inter alia, a concussion and an injury to his head requiring staples and stitches.   Michaels alleges that she contemporaneously witnessed the incident and her husband's injuries and that she, thereby, suffered emotional distress.   The operative amended complaint is in 15 counts against 5 defendants.   The defendant, Putnam Fish & Game Club, Inc., filed a cross claim complaint against its co-defendants, Putnam Police Officer Glenn Guay and the Town of Putnam;  and it filed an apportionment complaint in 4 counts, now amended, against Windham Police Officer Stanley Parizo, Jr. and the Town of Windham.   Pending before the court are four motions to strike.¹  For the following reasons, the club's motion to strike Count Two of the amended complaint (Doc. No. 109.00) is granted.   The Town of Putnam's motion to strike the cross claim complaint filed against it by the club (Doc. No. 125.00) is denied.   The motion to strike Counts Ten through Fifteen of the amended complaint by Officer Parizo and the Town of Windham (Doc. No. 138.00) is granted.   The motion to strike all counts of the amended apportionment complaint by Officer Parizo and the Town of Windham (Doc. No. 139.00) also is granted.   Accordingly, the remaining operative pleadings are Counts One and Three through Nine of the amended complaint, and the cross claim complaint by the club against the Officer Guay and the Town of Putnam.

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, Rokicki, alleges that on August 31, 2009, while he was at the Woodstock Fairgrounds in Woodstock, CT, he was struck in the head by a bullet fired from a shooting range located on the adjacent property of the defendant, Putnam Fish & Game Club, Inc. His wife, Maryann Michaels, is also a plaintiff in this case.   Other defendants are Putnam Police Officer Glenn Guay, who allegedly fired the bullet during firearms qualification exercises, and his employer, the Town of Putnam.   Additional defendants are Windham Police Officer Stanley Parizo, Jr., who allegedly was supervising the exercises at the time as Range Master at the Club, and his employer, the Town of Windham.   The motions to strike are resolved seriatim:

A

In Doc. No. 109.00, the defendant, Putnam Fish & Game Club, Inc., moves to strike the Second Count of the amended complaint.   That count alleges that the injuries and losses of the plaintiff, Rokicki, were caused by the defendant, Putnam Fish & Game Club, Inc., engaging in an ultrahazardous activity, i.e., operating a shooting range.   The defendant argues that this count must be stricken because (1) Connecticut has never recognized owning a firing range as an ultrahazardous activity;  and (2) the range was under the sole possession and control of the Putnam Police Department at the time and that it was the Police Department's officer who shot the bullet that hit the plaintiff.

The amended complaint essentially alleges, in pertinent part, as follows:  On August 31, 2009, the plaintiff, Gerard Rokicki, was lawfully upon the premises of the Woodstock Fairgrounds located at 281 Route 169 in Woodstock, CT. At that same time, and for some time prior thereto, the Putnam Fish & Game Club, Inc., owned, operated and/or maintained property located at 110 Stone Bridge Road, in Woodstock, CT. The club property was adjacent to and/or nearby the fairgrounds.   The club property contained a firearms shooting range that was designed, created, set up and/or maintained by an officer, agent, servant and/or employee of the club.   On that date, at approximately 1:28 p.m., police officers of the Town of Putnam were using the shooting range for firearms qualification exercises when a bullet, fired by one of the officers, traveled beyond the range and struck the head of Rokicki, thereby causing him to sustain injuries and losses.   The amended complaint further alleges:

12.  The injuries and losses of the plaintiff, Gerard Rokicki, were caused by the defendant engaging in an ultrahazardous activity.

Amended Complaint, Second Count, para. 12.

The club argues that this count should be stricken because a shooting range is not an ultrahazardous activity as a matter of law.   For the following reasons, the court agrees with the club.

This count is based on the doctrine of absolute or strict liability for ultrahazardous activities.   Under that doctrine, the plaintiff is not required to show that his loss was caused by the defendant's negligence.   It is sufficient to show only that the defendant engaged in an ultrahazardous activity that caused the defendant's loss.  Green v. Ensign–Bickford Co., 25 Conn.App. 479, 482, 595 A.2d 1383, cert. denied, 220 Conn. 919, 579 A.2d 341 (1991).   While no Connecticut court appears to have squarely addressed the issue of whether a shooting range operation is, per se, an ultrahazardous activity, a survey of cases from other jurisdictions shows that at least one appellate level court has held that it is not ultrahazardous.   See Miller v. Civil Constructors, Inc., 272 Ill.App.3d 263, 651 N.E.2d 239, app. denied, 163 Ill.2d 562, 657 N.E.2d 625 (1995) (plaintiff hit by stray bullet ricocheted during police target practice at gravel pit).   While that case is not binding on this court, its reasoning is applicable and persuasive, and this court concurs in its conclusion.

In Connecticut, the ultrahazardous activity doctrine has been applied only sparingly.   It has traditionally been applied in cases involving blasting and explosives.   See D. Wright, J. FitzGerald and W. Ankerman, Connecticut Law of Torts (3d Ed.) § 122.   Our appellate courts have extended application of the doctrine beyond blasting in cases of damage from concussion resulting from pile driving;  Caporale v. C.W. Blakeslee & Sons, Inc., 149 Conn. 79, 85, 175 A.2d 61 (1961);  and injury caused by explosion resulting from experimenting with highly volatile chemicals.  Green v. Ensign–Bickford Co., supra, 25 Conn.App. 483.   Superior Court Judges have also permitted use of the doctrine in additional types of cases.   See, e.g., Ramsay v. Och–Ziff Capital Management Group, LLC, Superior Court, judicial district of New Haven, Doc. No. CV 10–6007285 (September 8, 2010, Lager, J.) [50 Conn. L. Rptr. 537] (improper mold remediation);  Nash v. Herold, Superior Court, judicial district of Stamford–Norwalk, Doc. No. CV 09–5010750 (May 18, 2010, Blawie, J.) [50 Conn. L. Rptr. 45] (keeping an adult male chimpanzee);  Daum v. Stamford Propane, Superior Court, judicial district of Stamford–Norwalk, Doc. No. CV 94–139456 (September 29, 2000, Tierney, J.) (storage and sale of propane gas);  Lipka v. DiLungo, Superior Court, judicial district of New Haven, Doc. No. 407399 (March 8, 2000, Blue, J.) [26 Conn. L. Rptr. 654] (illegal discharge of fireworks).   Whether an activity is ultrahazardous is a question of law for the court to decide.  Green v. Ensign–Bickford Co., supra, 25 Conn.App. 485.

In these cases, our Connecticut courts have generally looked to the Restatement Second of Torts to determine whether an activity is ultrahazardous or, to use the term preferred by the Restatement, “abnormally dangerous.”   Id. Section 519 of 3 Restatement (Second) Torts provides, in pertinent part:  “(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.”   Comment (d) of the Restatement explains, “The liability arises out of the abnormal danger of the activity itself, and the risk that it creates, of harm to those in the vicinity.   It is founded upon a policy of the law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against that harm when it does in fact occur.   The defendant's enterprise, in other words, is required to pay its way by compensating for the harm it causes, because of its special, abnormal and dangerous character.”

The factors for a court to consider in determining whether an activity is abnormally dangerous are listed in § 520 of the Restatement as:  “(a) existence of a high degree of risk of some harm to the person, land or chattels of others;  (b) likelihood that the harm that results from it will be great;  (c) inability to eliminate the risk by the exercise of reasonable care;  (d) extent to which the activity is not a matter of common usage;  (e) inappropriateness of the activity to the place where it is carried on;  and (f) extent to which its value to the community is outweighed by its dangerous attributes.”   3 Restatement (Second) Torts § 520.  “In determining whether the danger is abnormal, the factors listed in Clauses (a) to (f) of this Section are all to be considered, and are all of importance.   Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability.   On the other hand, it is not necessary that each of them be present, especially if others weigh heavily.”  Id. at Comment (f).

Applying each of those factors, the court concludes that a shooting range tests positive under categories (a) and (b).  There is certainly a high degree of risk and likelihood of great harm from the operation of a shooting range.   That firearms are dangerous weapons that can inflict great harm is also beyond cavil.   However, the court does not believe that the risks cannot be eliminated by the exercise of reasonable care under category (c).  To the contrary, the risks of harm to persons or property, even though great, can be virtually eliminated by the exercise of reasonable or even “utmost” care under the circumstances.  Miller v. Civil Constructors, Inc., supra, 272 Ill.App.3d 270;  see, also, Mikuola v. Duliba, 94 A.D.2d 503, 506–08, 464 N.Y.S.2d 910 (1983) (hunting not abnormally dangerous activity);  Merrill v. Navegar, Inc., 75 Cal.App.4th 500, 561 n.34, 89 Cal.Rptr.2d 146 (1999), rev'd on other grounds, 26 Cal.4th 465, 110 Cal.Rptr.2d 370, 28 P.3d 116 (2001) (discharge of firearms not ultrahazardous);  Moore v. R.G. Industries, Inc., 789 F.2d 1326, 1328 (9th Cir.1986) (use of handguns not ultrahazardous).   Nor are shooting ranges an uncommon phenomenon under category (d).  Shooting ranges, and similar facilities offered at gun clubs and “turkey shoot” competitions are found in or near practically every community in our state, as any person who drives through towns across the state can readily observe.   Indeed, gun ownership is common throughout the United States.   In fact, the Supreme Court of the United States recently held that the right to keep and bear arms is both deeply rooted in the nation's history and tradition, and it is fundamental to our system of ordered liberty.  McDonald v. City of Chicago, 130 Sup.Ct. 3016, 177 L.Ed.2d 894, 914–21 (2010).

As for whether the location is appropriate, a consideration tested in category (e), there are no specific facts alleged in the amended complaint that shed particular light on that issue.   Other than alleging that the fairground property was adjacent to or near the club property, there are no facts alleged explaining the distance between the shooting range site and fairgrounds site in this case, whether there was a buffer area or barrier between the two, or whether the shooter in this case was aiming toward the fairgrounds or in the opposite direction.²  With respect to the final category (f), concerning the extent to which its value to the community is outweighed by its dangerous attributes, the court believes that the firearms qualification exercises by law enforcement officers, as alleged in this case, is of social utility to the community.   It improves police officers' skills in the handling of weapons.   Miller v. Civil Constructors, Inc., supra, 272 Ill.App.3d 271.

The use of firearms may not be universal, but firearms are unquestionably in common use in the United States at this writing.   Firearms are deadly weapons.  State v. Hardy, 278 Conn. 113, 132, 896 A.2d 755 (2006).   They are dangerous and harmful.   The harm posed, however, comes from the misuse of firearms rather than from their inherent nature alone.  Moore v. R.G. Industries, Inc., supra, 789 F.2d 1328.   While there are, no doubt, links between firearms and great harm to innocent victims, the connections often depend upon misuse or other harmful acts, and the numerous steps in between make the connection “too remote” and “too derivative” for many legal action purposes.   See, e.g., Ganim v. Smith & Wesson Corp., 258 Conn. 313, 355, 780 A.2d 98 (2001).   That circumstance further augers against application of strict liability in the instant case.   Tellingly, most cases alleging liability for injury or death resulting from shooting contests or target practices in the past have been based on theories of negligence;  Annot., 49 A.L.R.3d 762;  or nuisance;  Annot., 26 A.L.R.3d 661;  rather than strict liability.   Accord, Bashura v. Strategy Plus, Inc., Superior Court, judicial district of Ansonia–Milford, Doc. No. CV 95–0050871 (October 17, 1995, Comerford, J.) (paint ball war game not ultrahazardous;  motion to strike granted);  but see Hornack v. Koehler, Superior Court, judicial district of Litchfield, Doc. No. CV 93–061563 (May 11, 1995, Pickett, J.) [14 Conn. L. Rptr. 299] (complaint alleged that shooting range was ultrahazardous activity;  no record of disposition).

In light of the above, the court concludes that shooting ranges are not generally ultrahazardous activities subject to the strict liability doctrine.   The court is persuaded that the plaintiffs have failed to state a legally sufficient claim of ultrahazardous activity justifying invocation of strict liability under the present allegations of the amended complaint.   Accordingly, the defendant's motion to strike the second count of the amended complaint (Doc. No. 109.00) is granted on this ground.

Having resolved the motion on this ground, it is unnecessary to reach the second ground for striking the count advocated by the defendant.

B

In Doc. No. 125.00, the defendant, Town of Putnam, moves to strike the cross claim complaint filed by its co-defendant, Putnam Fish & Game Club, Inc. In that cross claim complaint, the club charges the town with negligence, and seeks money damages from the town for the town's failure to assume the club's defense in this case;  and to indemnify the club against its losses—presumably, any damages for which it might become liable in this matter.   An obligation to indemnify can arise under the terms of an express contract, or by operation of law.   The club seeks indemnification under the latter.   An obligation of that type, arising from a tort, such as negligence, is sometimes termed an implied obligation of indemnity.  Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 410, 207 A.2d 732 (1965).   In such an action, one tortfeasor seeks to impose total liability upon another tortfeasor.  Crotta v. Home Depot, Inc., 249 Conn. 634, 641, 732 A.2d 767 (1999).   In Kaplan v. Merberg Wrecking Corp., the court held that to pursue a viable claim under an implied obligation of indemnification, the presence of two tortfeasors is required:  one, whose passive negligence resulted in a monetary recovery by the plaintiff;  and a second whose active negligence renders him liable to the first by way of reimbursement:

Kaplan imposes an implied obligation of indemnity on a tortfeasor whose active negligence is primarily responsible for a plaintiff's injuries, thus superseding the indemnitee's passive negligence.  Id., 412.   To assert a claim for indemnification under Kaplan, an out-of-pocket defendant must show that:  (1) the party against whom the indemnification is sought was negligent;  (2) that party's active negligence, rather than the defendant's own passive negligence, was the direct, immediate cause of the accident and the resulting injuries ․;  (3) the other party was in control of the situation to the exclusion of the defendant seeking reimbursement;  and (4) the defendant did not know of the other party's negligence, had no reason to anticipate it, and reasonably could rely on the other party not to be negligent.  Id., 416.

Smith v. New Haven, 258 Conn. 56, 66, 779 A.2d 104 (2001) (emphasis in original).

The town argues that the club's cross claim complaint should be stricken because it has failed to allege facts supporting the third prong of the Kaplan test:  exclusive control of the situation.   Exclusive control over “the situation” means exclusive control over the dangerous condition giving rise to the accident.  Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 706, 694 A.2d 788 (1997).

The factual scenario in this test is that which is alleged in the cross claim complaint.  Skuzinski v. Bouchard Fuels, Inc., supra, 240 Conn. 706.   The cross claim complaint in this case incorporates, by reference, the plaintiff's complaint.   In sum, the allegations are that the plaintiff was hit by a bullet fired by Officer Guay of the Putnam Police Department using the shooting range owned, operated and maintained by the club.   The club is alleged to have designed, created, set up and/or maintained the shooting range.   Amended Complaint, First Count, para. 3. It is alleged that the club was negligent and careless in a variety of ways involving conditions and deficiencies at the range that failed to prevent bullets from traveling beyond the range, or for failing to giving warnings of the same.  Id., para. 8(a)-(n).  Officer Guay was allegedly engaged in firearms qualifications at the shooting range.   Amended Complaint, Fourth Court, para. 3. It is alleged that he was negligent in a variety of ways by firing his weapon in a manner and angle that caused bullets to travel beyond the range, endangering others.  Id., para. 5(a)-(d).  It is further alleged that the town is responsible for his actions or is liable for indemnification.   Amended Complaint, Counts Four through Nine.

The club also alleges that on the date of this incident, the club rented the facility to the town for a nominal fee, and that during the time that the town was utilizing the range for its officers, club members were prohibited from using the range.   Cross Claim Complaint, para. 6. It is alleged that the bullet that struck the plaintiff was fired by Officer Guay, and that he was not an agent of the club.  Id., paras. 1, 8. It is alleged that the town and its officer were negligent in a variety of ways involving their failure to provide adequate safety measures and procedures and that they failed to follow the rules of the shooting range.  Id., para 9(a)-(l).

The town argues that this factual situation fails to support a claim that the town was in exclusive control of the situation.   It argues that the club's allegations are conclusory, and that they do not show that the town had control of the design, creation, setup and maintenance deficiencies that are the basis for the club's potential liability.

The court does not agree.   The cross claim complaint provides sufficient facts to support a claim that the town had exclusive control of the property.   Whether or not one is in control of a situation is ordinarily a question of fact.  Weintraub v. Richard Dahn, Inc., 188 Conn. 570, 573, 452 A.2d 117 (1982);  Kaplan v. Merberg Wrecking Corp., supra, 152 Conn. 418.   The court ordinarily does not resolve such issues of fact on a motion to strike.   To the contrary, on a motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.  Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).   The club's allegations are adequate.   Accordingly, the motion to strike on this ground must be denied.

Also, the town argues that their motion to strike should be granted because the factual allegations of negligence against the club in the amended complaint are such that if the club is liable, it is entirely because of its own acts or omissions, or engagement in an ultrahazardous activity (active negligence), and not due to actions of the town or its officers.   The argument is not persuasive.   The club is accused of negligent management of the facility (passive negligence).   Plaintiffs' claim is that the club is, therefore, liable for the negligent actions of one of its customers who caused injury (active negligence).   This states a viable claim for an implied obligation of indemnity.   Cf. Crotta v. Home Depot, Inc., supra (customer allegedly liable for indemnification;  but liability denied on grounds of parental immunity).   The party seeking indemnification must show that the negligence with which it is charged is passive or secondary.   The allegation of negligent management in this case so qualifies.   See, e.g., City of Bristol v. Dickau Bus Co., 63 Conn.App. 770, 774, 779 A.2d 152 (2001).

For all of the above stated reasons, the town's motion to strike the club's cross claim complaint (125.00) is denied.   Correspondingly, the club's objection to the motion (Doc. No. 131.00) is sustained.

C

In Doc. No. 138.00, the defendants, Police Officer Stanley Parizo, Jr. and Town of Windham, move to strike the Tenth through Fifteenth Counts of the amended complaint.   The Tenth Count is a claim for negligence by Gerard Rokicki against Officer Parizo and the town.   The Eleventh Count is a claim for bystander emotional distress by Maryann Michaels against Officer Parizo and the town.   The Twelfth and Thirteenth Counts are corresponding claims for indemnity under General Statutes § 7–465;  and the Fourteenth and Fifteenth Counts are corresponding claims for municipal liability under General Statutes § 52–557n.   The motion to strike is based, essentially, on two arguments:  (1) that the claims are barred by governmental immunity, and (2) that the allegations of the Eleventh, Thirteenth and Fifteenth Counts are insufficient to state a claim for bystander emotional distress.   Because the court concludes that the claims are barred by governmental immunity, it is unnecessary to address the second ground.

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, 187 Conn. 147, 157, 444 A.2d 1379 (1982);  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.³  The corollary rule is that there is no immunity for ministerial acts.  Kastancuk v. East Haven, supra, 120 Conn.App. 287.   The word “ministerial” refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.  Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1171 (1989).   An act is ministerial where, for example, it is required to be performed in a prescribed manner by a city charter provision, ordinance, regulation, rule, policy or any other directive.  Violano v. Fernandez, supra, 280 Conn. 323;  Kastancuk v. East Haven, Id. “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.”  (Citations omitted;  internal quotation marks omitted.)  Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010).   Thus, in some circumstances, the issue may properly be decided on motion to strike.   See, e.g. Violano v. Fernandez, supra, 280 Conn. 325.

With respect to discretionary acts, another 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. Peterson, 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).   For the following reasons, in the instant case, the court concludes that the governmental immunity issue can be resolved in the context of the motion to strike.

The defendants argue that the plaintiffs have failed to state legally sufficient claims against them in this case because they have failed to allege facts showing applicability of either the ministerial duty exception or the identifiable person/imminent harm exception.   The court agrees.

The plaintiffs' allegations on point, common to Counts Ten through Thirteen, are set forth as follows:

2.  At that same time and place, the defendant, Stanley Parizo, Jr., was an officer, agent, servant and/or employee of the defendant, Town of Windham, and was acting within the course and scope of his employment with the defendant, Town of Windham.

3. At that same time and place, the defendant, Stanley Parizo, Jr., represented to the public and held himself out to be a “Range Master,” capable of safely training and conducting firearms qualifications for police officers.

4. At the same time and place, police officers for the Town of Putnam Police Department were engaged in firearms qualifications at the shooting range located at the Putnam Fish & Game Club, Inc., which was, and is, a property adjacent to and/or nearby the Woodstock Fairgrounds.

5. At that same time and place, the police officers for the Town of Putnam Police Department were under the supervision of the defendant, Stanley Parizo, Jr.

6.  At the same time and place, a bullet fired by one of the above-mentioned police officers traveled beyond the shooting range located on the property of Putnam Fish & Game Club, Inc. and struck the head of the plaintiff, Gerard Rokicki, thereby causing the plaintiff to sustain and suffer the injuries and losses hereinafter set forth.

7. This incident and the personal injuries and losses sustained and suffered by the plaintiff, Gerard Rokicki, were caused by the negligence and carelessness of the defendant, Stanley Parizo, Jr., in one or more of the following ways:

a. in that he failed to provide adequate safety measures in order to prevent bullets from traveling beyond the shooting range during his training;  and/or

b. in that he failed to take the steps necessary to prevent a bullet from leaving the range and endangering the public;  and/or

c. in that he failed to train the officers adequately to prevent them from shooting in a way where bullets could leave the range and endanger the public;  and/or

d. in that he failed to design a training course and/or shooting range to prevent the officers from shooting in a way where bullets could leave the range and endanger the public;  and/or

e. in that he failed to inspect the range to ensure its appropriateness for the type of training and/or qualification exercises to be performed that day;  and/or

f. in that he failed to determine if the range was adequate to safely conduct the type of training and/or qualification exercises expected that day;  and/or

g. in that he failed to follow the rules for the shooting range;  and/or

h. in that he failed to establish safety measures and/or procedures to prevent bullets from leaving the range and endangering the public;  and/or

i. in that he failed to notify the Putnam Fish & Game Club, Inc. that bullets could escape the range due to the nature of the training and/or qualification exercises he was expected to perform;  and/or

j. in that he failed to assess the risks associated with the training he was performing at the time;  and/or

k. in that he failed to act reasonably under the conditions then and there existing;  and/or

l. in that he failed to take reasonable precautions given the circumstances then and there existing.

8. The negligence and carelessness of the defendant, Stanley Parizo, Jr., in one or more of the aforementioned ways, breached a ministerial or private duty and/or subjected the plaintiff, Gerard Rokicki, an identifiable person and/or member of a class of foreseeable and/or identifiable victims, to a risk of imminent harm, apparent to the defendant, Stanley Parizo, Jr. Amended Complaint, Count Ten

The plaintiffs' allegations on point, common to Counts Fourteen and Fifteen, are set forth as follows:

3.  At that same time and place, Stanley Parizo, Jr. represented to the public and held himself out to be a “Range Master,” capable of safely training and conducting firearms qualifications for police officers.

4. At that same time and place, police officers for the Town of Putnam Police Department were engaged in firearm qualifications at the shooting range located at the Putnam Fish & Game Club, Inc., which was, and is, a property adjacent to and/or nearby the Woodstock Fairgrounds.

5. At that same time and place, police officers for the Town of Putnam Police Department were under the supervision of Stanley Parizo, Jr.

6.  At that same time and place, a bullet fired by one of the above-mentioned police officers traveled beyond the shooting range located on the property of Putnam Fish & Game Club, Inc. and struck the head of the plaintiff, Gerard Rokicki, thereby causing the plaintiff to sustain and suffer the injuries and losses hereinafter set forth.

7. The Town of Windham is legally responsible for the injuries and losses suffered by the plaintiff, Gerard Rokicki, which were caused by the carelessness and negligence of its officers, agents, servants, and/or employees, in one or more of the following ways:

a. in that it failed to train Stanley Parizo, Jr. adequately to ensure that he conducted training of other officers safely;  and/or

b. in that it failed to determine whether the range was adequate to safely conduct the type of training and/or qualification exercises expected to be performed;  and/or

c. in that it failed to notify the Putnam Fish & Game Club, Inc. that bullets could escape the range due to the nature of the training and/or qualifications exercises expected to be performed;  and/or

d. in that it allowed Stanley Parizo, Jr. to hold himself out as an expert and trainer in the field of firearms and/or as an officer capable of qualifying other officers without providing him with the necessary training and experience to capably and safely do so;  and/or

e. in that it failed to instruct or ensure that Stanley Parizo, Jr. follow the rules for the shooting range;  and/or

f. in that it failed to ensure that Stanley Parizo, Jr. established safety measures and/or procedures to prevent bullets from leaving the range and endangering the public during training and/or qualification;  and/or

g. in that it failed to notify the Putnam Fish & Game Club, Inc. that bullets could escape the range due to the nature of the training and/or qualification exercises expected to be performed;  and/or

h. in that it failed to inform the Putnam Fish & Game Club, Inc. that Stanley Parizo, Jr. was not qualified or properly trained to train and/or qualify other officers safely in advance of August 31, 2009;  and/or

i. in that it failed to inspect the range where the aforementioned training was to take place to ensure that it was safe and appropriate for the specific activities expected to take place;  and/or

j. in that it provided Stanley Parizo, Jr. with inadequate training regarding safety protocols and/or procedures of determining whether a range is adequate to conduct the specific types of activities necessary to train and/or qualify police officers on a new firearm;  and/or

k. in that it failed to act reasonably given the circumstances then and there existing.

8. The negligence and carelessness of Stanley Parizo, Jr. in one or more of the aforementioned ways, breached a ministerial or private duty and/or subjected the plaintiff, Gerard Rokicki, an identifiable person and/or member of a class of foreseeable and/or identifiable victims, to a risk of imminent harm, apparent to Stanley Parizo, Jr.

Amended Complaint, Count Fourteen

These allegations do not state facts showing a ministerial duty, i.e., there is no showing that Parizo was obligated under any set of statutes, regulations, ordinances, or rules to perform training in a prescribed manner without the exercise of judgment or discretion.  Bonington v. Westport, supra, 297 Conn. 306.   Plaintiffs argue, in their brief in opposition to the motion to strike, that police training is governed by statutes and regulations and rules of the Connecticut Police Academy or Police Officer Standards and Training Council.   However, there is no demonstration of the applicability of any rules on point to the events of this case, nor that the training was to be performed in a certain manner without judgment or discretion.   Furthermore, plaintiffs' points are in their brief, not in their amended complaint.   In a motion to strike, the court ordinarily is confined to reviewing the allegations in the pleadings.   Moreover, the allegations that are made with respect to those issues are merely conclusions without factual support in the amended 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;  emphasis in original.)  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).

Rather than a ministerial function, the allegations in this amended complaint show activity within the discretionary functions of the defendants.  “[T]he great weight of authority [holds] that the operation of a police department is a discretionary governmental function.”  (Citation omitted;  internal quotation marks omitted;  emphasis in original.)  Swanson v. Groton, supra, 116 Conn.App. 862.  “Police officers are protected by discretionary act immunity when they perform the typical functions of a police officer ․ The policy behind discretionary act immunity for police officers is based on the desire to encourage police officers to use their discretion in the performance of their typical duties.”  (Citation omitted;  internal quotation marks omitted.)   Smart v. Corbitt, 126 Conn.App. 788, 800, 14 A.3d 368, cert. denied, 301 Conn. 907, 19 A.3d 177 (2011).   In particular, numerous Superior Court judges have held that the acts of training and supervising police officers constitute discretionary acts as a matter of law.   See Doe v. Town of Madison, Superior Court, judicial district of New Haven, Doc. No. CV 09–5032869 (July 6, 2011, Woods, J.) [52 Conn. L. Rptr. 216] (collecting cases).   Thus, the amended complaint fails to show the applicability of the ministerial duty exception to governmental immunity.

The next issue is whether the allegations of the amended complaint show the applicability of the identifiable person/imminent harm exception to governmental immunity.   Under the above applicable tests, it is clear, again, that the plaintiffs have not pled facts supporting the necessary elements of their claims.   Even allowing all inferences and constructions in favor of the plaintiffs, the facts alleged do not show that it was or should have been apparent to Officer Parizo that the plaintiffs were in imminent harm.   Assuming, arguendo, that Officer Parizo knew or should have known that the shooting range and/or his use of it was unsuitable for safe operation for firearms qualification exercises, there is nothing in the amended complaint that shows that he knew or should have known that the plaintiffs were in harm's way.   The potential harm here was neither sufficiently immediate nor sufficiently certain.   Any person could have been injured at any time under the scenario alleged.   That circumstance does not qualify under the applicable legal tests.  “In short, the risk of harm was not imminent in terms of its impact on the plaintiff as a specific identifiable person.”  Cotto v. Board of Education, 294 Conn. 265, 279–80, 984 A.2d 58 (2009).

Accordingly, the defendants' motion to strike Counts Ten through Fifteen (Doc. No. 138.00) is granted on the grounds of governmental immunity.   Having stricken the counts, it is unnecessary to resolve the second issue of whether the allegations in Counts Eleven, Thirteen and Fifteen are insufficient to state a claim for bystander emotional distress.

D

In Doc. No. 139.00, the apportionment defendants, Police Officer Stanley Parizo, Jr. and Town of Windham, move to strike all four counts of the amended apportionment complaint filed by the Putnam Fish & Game Club, Inc. In that amended apportionment complaint, the club seeks to apportion all, or a proportionate share, of liability for the injuries alleged to have been sustained by the plaintiffs to Officer Parizo and the Town of Windham pursuant to General Statutes §§ 52–102b and 52–572(h).  The First Count alleges negligence by Officer Parizo.   The Second Count alleges vicarious liability in the town.   The Third Count alleges a claim against the town for indemnity under General Statutes § 7–465.   The Fourth Count alleges a claim for municipal liability presumably under General Statutes § 52–557n.   The motion to strike, essentially, is based on two arguments:  (1) that the claims are barred by governmental immunity;  and (2) that the town cannot be held vicariously liable under the doctrine of respondeat superior.

The factual allegations against Officer Parizo and the town in the amended apportionment complaint are the same as the factual allegations against Officer Parizo and the town in the plaintiffs' amended complaint.   For the same reasons that the court concluded that the claims in the amended complaint are barred by governmental immunity in Subsection C of this decision, supra, it, likewise, concludes that the identical claims in the amended apportionment complaint are barred by governmental immunity.   Having concluded that all of the claims alleged are barred by governmental immunity, it is unnecessary to address the apportionment defendants' second grounds for moving to strike the amended apportionment complaint.

In sum, the apportionment defendants' motion to strike (Doc. No. 139.00) is granted, and the corresponding objection by the club (Doc. No. 161.00) is overruled.

III

For the above stated reasons, the club's motion to strike Count Two of the amended complaint (Doc. No. 109.00) is granted.   The Town of Putnam's motion to strike the cross claim complaint filed against it by the club (Doc. No. 125.00) is denied.   The motion to strike Counts Ten through Fifteen of the amended complaint by Officer Parizo and the Town of Windham (Doc. No. 138.00) is granted.   The motion to strike all counts of the amended apportionment complaint by Officer Parizo and the Town of Windham (Doc. No. 139.00) is granted.   Accordingly, the remaining operative pleadings are Counts One and Three through Nine of the amended complaint, and the cross claim complaint by the club against the Officer Guay and the Town of Putnam.

THE COURT

Robert F. Vacchelli

Judge, Superior Court

FOOTNOTES

FN1. Since the filing of the motions to strike, the original complaint and apportionment complaint have been amended.   By agreement, the court will treat the motions and responses as applicable to the amended pleadings..  FN1. Since the filing of the motions to strike, the original complaint and apportionment complaint have been amended.   By agreement, the court will treat the motions and responses as applicable to the amended pleadings.

FN2. Plaintiffs argue in their brief, and their amended complaint alleges, that the fairgrounds were “downrange” of the firing range..  FN2. Plaintiffs argue in their brief, and their amended complaint alleges, that the fairgrounds were “downrange” of the firing range.

FN3. 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..  FN3. 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.