Alexis Duharte v. Town of Stratford et al. (2013)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Alexis Duharte, brings this action to recover for injuries and damages he claims to have sustained as the result of a January 31, 2011 incident.

On that date, the Plaintiff parked his car in the parking lot of the Stratford Public Library, 2203 Main Street, Stratford.   After he got out of his car, he slipped and fell on an icy area in the parking lot, causing him to be injured.

The action was originally commenced against the Town of Stratford, the Raymond Baldwin Center, and the Stratford Library Association, but the Town of Stratford is the only remaining defendant.

The operative pleading, the Second Amended Complaint dated October 5, 2012, contains three counts.

Count One is brought pursuant to § 13a–149 1 of the General Statutes, while Count Two is a claim alleging the creation of a nuisance.   Count Three alleges that the Town of Stratford, acting through its agents and employees, was negligent, and that negligence caused injury to the Plaintiff.

The Defendant, Town of Stratford, has moved to strike Counts Two and Three of the Second Amended Complaint.   It maintains that the Counts fail to state a cause of action, as a matter of law.

MOTION TO STRIKE—STANDARD OF REVIEW

The purpose of a motion to strike is to test the sufficiency of a pleading.   Faulkner v. United Technologies, 240 Conn. 576, 580 (1997);  Ferryman v. Groton, 212 Conn. 138, 142 (1989);  Practice Book § 39.   The motion assumes all well pleaded facts to be true, and if the facts as deemed proven would support a claim or defense, the motion to strike must be denied.  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003);  Waters v. Autuori, 236 Conn. 820, 825–26 (1996).

In ruling upon a motion to strike, the court's inquiry is limited to the facts alleged in a complaint.  Cavallo v. Derby Savings Bank, 188 Conn. 281, 285–86 (1982).   All facts alleged must be construed in the manner most favorable to the sustaining the complaint.  Novametrix Medical Systems v. BOC Group, Inc., 224 Conn. 210, 215 (1992).   In construing the allegations in the complaint, they must be read broadly, rather than in a narrow hyper technical manner.  Greco v. United Technologies Corp., 277 Conn. 337, 347 (2006).

Although facts properly pled in a complaint are deemed proven, conclusions of law are not.  Maloney v. Conroy, 208 Conn. 392, 394 (1998).

NUISANCE COUNT PROPERLY ALLEGED IN COUNT TWO

In Count Two, Alexis Duharte alleges that the Town of Stratford, acting through its agents and employees, created a nuisance.   He stated that by placing a pile of snow in a location where water would flow into the parking area when the snow melted, and would later freeze, a nuisance was created.

Section 52–557n(a)(1)(C) provides:

A political subdivision of the state shall be liable for damages to person or property caused by ․ acts of the political subdivision which constitute the creation or participation in the creation of a nuisance.

The statute codifies the common law requirement of a positive act on the part of the municipality, acting through its agents and employees, in order to impose liability.  Pico v. Voluntown, 295 Conn. 141, 156 (2010);  Wright v. Brown, 167 Conn. 464, 470 (1978).   The mere buildup of snow and ice is not sufficient, in and of itself, to satisfy the positive act requirement.   Lukas v. New Haven, 184 Conn. 205, 210 (1981).

In this case, the Plaintiff claims that the Town of Stratford deliberately and intentionally located a pile of snow in a particular area, resulting in continual melting and refreezing due to the vagaries of the temperatures, thus causing a danger to those using the parking lot.

He claims that the positive act was the piling of snow at the edge of the parking lot, and not creating any icy condition on the asphalt surface.   This piling of snow, he maintains, constituted conduct sufficient to satisfy the positive act requirement.

Construing all facts as pled most favorably to the Plaintiff, the motion to strike Count Two must be denied.

COUNT THREE FAILS TO ALLEGE PROPER NEGLIGENCE AGAINST MUNICIPALITY

The Town of Stratford claims that the Plaintiff cannot maintain his negligence claims as alleged in Count three, because those claims are barred by the doctrine of governmental immunity.

These claims are well taken, and Count Three is insufficient as pled.

At common law, a municipality was generally immune from liability for tortious acts.  Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165 (1988).   However, municipal employees could be held personally liable for their tortious conduct.  Evon v. Andrews, 211 Conn. 501, 505 (1989).

The General Assembly has abrogated the common-law immunity enjoyed by municipalities, with the adoption of § 52–577n(a)(1)(C) of the General Statutes, which reads:

Except 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.

That liability is expressly limited by § 52–577n(a)(2) of the General Statutes, which provides:

Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by:  (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct;  or (B) 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.

If a duty of a municipal official or employee is ministerial, rather than discretionary, the failure to perform it, or the negligent performance of the ministerial act or duty, may give rise to a cause of action.  Shore v. Stonington, 187 Conn. 147, 152 (1982).   A ministerial act is one which is performed in a prescribed manner without the exercise of judgment or discretion by an employee.  Martel v. Metropolitan District Commission, 275 Conn. 38, 49 (2005);  Fraser v. Henninger, 173 Conn. 52, 60 (1977).

The Plaintiff alleges that the Town of Stratford “was under a ministerial duty to keep the public parking lot in repair and free of ice.”

However, each of the specific allegations of negligence pled in paragraph 5 of Count Three, involve claims of failure to maintain the parking lot, failure to warn, failure to inspect, and other alleged duties, all of which involve the use of judgment or discretion on the part of the municipal employees.

The performance of duties involving inspection, maintenance and repair of alleged hazards is discretionary.  Grignano v. Milford, 106 Conn.App. 648, 656 (2008).   Only if a discretionary act is subject to a policy or directive, may it be rendered ministerial.  Kolaniak v. Board of Education, 28 Conn.App. 277, 281 (1992).   No policy or directive is alleged to have been violated by Stratford employees.

Courts have recognized three exceptions to the qualified immunity for the performance of discretionary acts:  1) where circumstances make it apparent to the public officer that his or her failure to act will subject an identifiable individual to the threat of imminent harm, 2) where a statute specifically provides for a cause of action against a municipality or a municipal official for the failure to enforce certain laws, and 3) where the alleged acts involve malice, wantonness or intent to injure rather than negligence.  Burns v. Board of Education, 228 Conn. 640, 645 (1994);  Evon v. Andrews, supra, 506.

None of the recognized exceptions are implicated, based upon the facts as alleged in the Plaintiff's complaint.

Because the acts of negligence alleged in Count Three all involve the exercise of judgment or discretion, the motion to strike Count Three is granted.

CONCLUSION

The motion to strike Count Two is DENIED.

The motion to strike Count Three is GRANTED.

RADCLIFFE, J.

FOOTNOTES

FN1. Section 13a–149, C.G.S.—”Any person injured in person or property by means of a defective road or bridge, may recover damages from the party bound to keep it in repair ․”.  FN1. Section 13a–149, C.G.S.—”Any person injured in person or property by means of a defective road or bridge, may recover damages from the party bound to keep it in repair ․”

Radcliffe, Dale W., J.