Roger Emerick v. Connecticut Department of Public Health et al. (2012)

MEMORANDUM OF DECISION ON MOTION TO STRIKE (No. 161)

On June 27, 2011, the plaintiff, Roger Emerick, filed a revised complaint (docket entry 110).   One of the named defendants, the Connecticut Interlocal Risk Management Agency (CIRMA), filed a motion to strike the counts applicable to it on August 11, 2011 (docket entry 115).   The court, Peck, J., granted CIRMA's motion to strike counts two, five, eight and twelve on January 26, 2012 (docket entry 148).   On March 13, 2012, the plaintiff filed a second revised complaint (docket entry 152).   This complaint contains thirteen counts that sound in negligence, negligence per se, reckless and wanton conduct, violation of public policy and fraud.   Count thirteen is a request for declaratory relief under General Statutes §§ 52–29 and 4–175.   In addition to CIRMA, the other named defendants include the Department of Public Health and the Town of Glastonbury.

This dispute concerns the removal of a diving board from the Grange Pool, a Town-owned pool in Glastonbury.   The plaintiff is a resident of Glastonbury, and alleges to have used both the Grange Pool and its diving board.   The plaintiff alleges that CIRMA, which acts as risk manager and insurer for the town of Glastonbury, gave incorrect advice to Glastonbury, which the town then relied upon when deciding to remove the diving board.   On April 26, 2012, CIRMA filed the present motion to strike.   On June 8, 2012, the plaintiff filed a memorandum in opposition (docket entry 172).

CIRMA moves to strike counts two, five, eight and twelve.   These are the same counts which Judge Peck ordered stricken when defendant filed its first Motion to Strike.   This court must therefore determine whether plaintiff has properly repleaded these claims so that they are no longer subject to being stricken.   The plaintiff has failed to do so.

In count two, the plaintiff alleges that the defendant was negligent in recommending a risk and liability position to Glastonbury regarding the diving board in question.   The court granted CIRMA's previous motion to strike this count because the plaintiff failed to allege that the defendant breached any duty.   In count two of his second revised complaint, the plaintiff includes paragraph nine:  “CIRMA owed a duty to provide competent services to the [Town of Glastonbury] and to Plaintiff and his fellow citizens, for whom the [Town of Glastonbury] existed.”

The plaintiff's additional allegation does not render the new count two legally sufficient.   The plaintiff cannot avoid the simple fact that based on the allegations here, CIRMA owed the plaintiff no legal duty. As

In count five, the plaintiff alleges that CIRMA was negligent per se.   He alleges that the defendant violated the Connecticut Public Swimming Pool Design Guide (CPSPDG) by ruling that the diving board should be removed.   While the plaintiff has changed the wording of count five in his second revised complaint, the plaintiff still points to the same CPSPDG regulations as the basis of this claim.   Plaintiff alleges that the regulations he cites are “intended to protect the public from unsafe pool design, and to prevent substantial risk to public health and safety.”  (Second Revised Complaint, Ct. 5, ¶ 3.)

“A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act ․ Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct ․ [T]he two-pronged test applied to establish negligence per se is:  (1) that the plaintiff was within the class of persons protected by the statute;  and (2) that the injury suffered is of the type that the statute was intended to prevent.”   (Citations omitted;  internal quotation marks omitted.)  Shukis v. Board of Education, 122 Conn.App. 555, 579–80, 1 A.3d 137 (2010).

The complaint does not allege that the injury suffered is of the type that the “statute” ¹ “was intended to prevent, i.e., actions that would result in an unsafe pool design or create substantial risk to public health and safety.   Rather, the injury alleged is removal of the diving board.”  (Second Revised Complaint, Ct. 1, ¶ 11.)   This is the same basis that the court used to previously strike the plaintiff's count five.   Accordingly, because the plaintiff has again failed to establish the second prong of the test to establish negligence per se, CIRMA's motion to strike the Fifth Count is granted.

In count eight, the plaintiff alleges reckless and wanton conduct by CIRMA.   The plaintiff alleges, as he did in his previous complaint, that CIRMA's refusal to acknowledge the requirements of the CPSPDG regulations show “an extreme departure from the ordinary standard of professional care, with a conscious indifference to the negative consequences.”  (Second Revised Complaint, Ct. 8, ¶ 3.)   The plaintiff adds the allegation that CIRMA's refusal to acknowledge its “errors” constitutes “aggravated negligence” that is “now more than any mere mistake resulting from inexperience, and more than mere thoughtlessness or inadvertence, or simply inattention.”  (Second Revised Complaint, Count. 8, ¶ 2.)

“Recklessness is a state of consciousness with reference to the consequences of one's acts ․ It is more than negligence, more than gross negligence ․ The state of mind amounting to recklessness may be inferred from conduct.   But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․

“While we have attempted to draw definitional distinctions between the terms willful, wanton or reckless, in practice the three terms have been treated as meaning the same thing.   The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ․ It is at least clear ․ that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.”  (Internal quotation marks omitted.)  Craig v. Driscoll, 262 Conn. 312, 342–43, 813 A.2d 1003 (2003).   As stated above, reckless and wanton conduct is something “more than negligence.”  Id. Thus, a “claim for recklessness cannot survive without a foundation in negligence, and specifically, a duty.”   Warren v. Connecticut Community for Addiction Recovery, Inc., Superior Court, Judicial District of Windham, Docket No. CV 095005416 (September 15, 2010, Riley, J.).   Count eight relies upon the allegations made in counts one and two.   Since the court has found that the Second Count does not properly state the existence of a legal duty owed by CIRMA to the plaintiff, the Eighth Count is also legally insufficient, and the motion to strike it is granted.

In count twelve, the plaintiff alleges that CIRMA committed fraud.   The plaintiff alleges here, as he did in his previous complaint, that CIRMA's “risk assessment and recommendations” were made knowing there was no applicable data to support “such danger, risk, and insurance related risk assessment.”  (Second Revised Complaint, Ct. 12, ¶ 4.)   The plaintiff now adds that the risk assessment and recommendations were made by CIRMA despite CIRMA's knowledge that “it was not a competent professional in the field of CPSPDG.”  (Second Revised Complaint, Ct. 12, ¶ 4.)   As the court indicated in its memorandum of decision on the previous motion to strike:  “The essential elements of an action in common law fraud ․ are that:  (1) a false representation was made as a statement of fact;  (2) it was untrue and known to be untrue by the party making it;  (3) it was made to induce the other party to act upon it;  and (4) the other party did so act upon that false representation to his injury ․ Under a fraud claim of this type, the party to whom the false representation was made claims to have relied on that representation and to have suffered harm as a result of the reliance.”  (Internal quotation marks omitted.)  Sturm v. Harb Development, LLC, 298 Conn. 124, 142, 2 A.3d 859 (2010).

Judge Peck's ruling that the Twelfth Count was legally insufficient because it does not allege that defendant made any false representation to the plaintiff is still applicable here, despite the plaintiff's amendments to that count.   Since plaintiff does not allege that CIRMA ever made any statements at all to him, the plaintiff cannot possibly satisfy the requirements for a prima facie fraud claim.   Specifically, the plaintiff cannot claim that he acted in reliance upon CIRMA's allegedly false representation and suffered harm as a result of the reliance.   CIRMA's Motion to Strike the Twelfth Count is also granted.

In the plaintiff's new Thirteenth Count, he seeks a declaratory judgment pursuant to General Statutes §§ 52–29 and 4–175.²  The plaintiff specifically asks the court to determine:  “a. Is exact compliance with 1982 ‘new construction’ diving well standards required for a pre 1980 pool which has been previously approved for a given diving board? b. Is ‘exact make/model’ required for a replacement board? c. Are pre 1980 Diving Well dimensions safe?”  (Second Revised Complaint, Ct. 13, ¶ 12.)

“Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable.   Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute ․ (2) that the interests of the parties be adverse ․ (3) that the matter in controversy be capable of being adjudicated by judicial power ․ and (4) that the determination of the controversy will result in practical relief to the complainant.”  (Citation omitted;  emphasis in the original;  internal quotation marks omitted.)  In re Jorden R., 293 Conn. 539, 555–56, 979 A.2d 469 (2009).  “A case that is nonjusticiable must be dismissed for lack of subject matter jurisdiction.”   Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 86, 952 A.2d 1 (2008).   The plaintiff has failed to allege that determination of the issues presented in count thirteen will provide him with any practical relief.   The diving board has already been removed from the pool, and there is no indication that the diving board will be returned under any circumstances.   It is not apparent that plaintiff can obtain any practical relief through a declaratory judgment.   This means that the Thirteenth Count must also be stricken because it does not state a justiciable claim.

Because this court has stricken all four of the counts against CIRMA, the court does not reach the standing issue.   The motion is granted as to Counts Two, Five, Eight, Twelve and Thirteen.   It is so ordered.

Miller, J.

FOOTNOTES

FN1. This assumes, arguendo, that the relevant portion of the CPSPDG can properly be considered a “statute” for purposes of making out a negligence per se claim.   While the plaintiff refers to the provisions of the CPSPDG as “regulations,” it is worth noting that on the Department of Public Health's website, the CPSPDG is referred to under the heading “Application Information” rather than “Regulations” (the “Regulations” heading appears above the “Application Information” heading). ct.gov/dph, Public Swimming Pools, http://www.ct.gov/dph/cwp/view.asp?a=3140 & q387654 & dphNav_ GID=1828 & ddphPNavCtr= phPNavCtr= (last visited October 4, 2012)..  FN1. This assumes, arguendo, that the relevant portion of the CPSPDG can properly be considered a “statute” for purposes of making out a negligence per se claim.   While the plaintiff refers to the provisions of the CPSPDG as “regulations,” it is worth noting that on the Department of Public Health's website, the CPSPDG is referred to under the heading “Application Information” rather than “Regulations” (the “Regulations” heading appears above the “Application Information” heading). ct.gov/dph, Public Swimming Pools, http://www.ct.gov/dph/cwp/view.asp?a=3140 & q387654 & dphNav_ GID=1828 & ddphPNavCtr= phPNavCtr= (last visited October 4, 2012).

FN2. General Statutes § 52–29 provides:(a) The superior court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed.   The declaration shall have the force of a final judgment.(b) The judges of the superior court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section.General Statutes § 4–175 provides:(a) If a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency (1) does not take an action required by subdivision (1), (2) or (3) of subsection (e) of section 4–176, within sixty days of the filing of a petition for a declaratory ruling, (2) decides not to issue a declaratory ruling under subdivision (4) or (5) of subsection (e) of said section 4–176, or (3) is deemed to have decided not to issue a declaratory ruling under subsection (i) of said section 4–176, the petitioner may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question or the applicability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances.   The agency shall be made a party to the action.(b) When the action for declaratory judgment concerns the applicability or validity of a regulation, the agency shall, within thirty days after service of the complaint, transmit to the court the original or a certified copy of the regulation-making record relating to the regulation.   The court may order the agency to transcribe any portion of the regulation-making record that has not been transcribed and transmit to the court the original or a certified copy of the transcription.   By stipulation of all parties, the record may be shortened.   A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs..  FN2. General Statutes § 52–29 provides:(a) The superior court in any action or proceeding may declare rights and other legal relations on request for such a declaration, whether or not further relief is or could be claimed.   The declaration shall have the force of a final judgment.(b) The judges of the superior court may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section.General Statutes § 4–175 provides:(a) If a provision of the general statutes, a regulation or a final decision, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff and if an agency (1) does not take an action required by subdivision (1), (2) or (3) of subsection (e) of section 4–176, within sixty days of the filing of a petition for a declaratory ruling, (2) decides not to issue a declaratory ruling under subdivision (4) or (5) of subsection (e) of said section 4–176, or (3) is deemed to have decided not to issue a declaratory ruling under subsection (i) of said section 4–176, the petitioner may seek in the Superior Court a declaratory judgment as to the validity of the regulation in question or the applicability of the provision of the general statutes, the regulation or the final decision in question to specified circumstances.   The agency shall be made a party to the action.(b) When the action for declaratory judgment concerns the applicability or validity of a regulation, the agency shall, within thirty days after service of the complaint, transmit to the court the original or a certified copy of the regulation-making record relating to the regulation.   The court may order the agency to transcribe any portion of the regulation-making record that has not been transcribed and transmit to the court the original or a certified copy of the transcription.   By stipulation of all parties, the record may be shortened.   A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs.

Miller, Grant H., J.