Cumberland Farms v. Dean Dubois et al. (2013)

RULING RE MOTION TO STRIKE NO. 121 & MOTION TO DISMISS NO. 123

This action arises out of a motor vehicle accident that occurred after a high-speed police chase involving the co-defendant state trooper, Dean Dubois, who was chasing another co-defendant, Brian Miele, when Miele crashed his stolen vehicle into a tanker truck owned by the plaintiff, Cumberland Farms, Inc. In count one, the plaintiff alleges that the collision and the damages it suffered were caused by the negligence of Dubois and, vicariously, the state of Connecticut, in various ways, including, “in that [Dubois] negligently pursued the operator of the stolen vehicle in a high speed chase and pursuit,” and that such chase was “without due regard for the safety of the other motor vehicle operators in the vicinity.”  (Compl.¶ 26(a), (e).)   Furthermore, it is alleged that “[p]ursuant to [General Statutes] § 52–556, [the][d]efendant, [state of Connecticut] is liable for the property damages caused by the negligence of its employee, agent and/or servant, [Dubois].”  (Id., ¶ 29.)   In count two, the plaintiff alleges that these damages were the result of the state's failure to train the state troopers, supervise Dubois, and/or the alleged failure to terminate the pursuit.

The state and Dubois filed the present motions to strike and dismiss on April 4, 2013.   The plaintiff filed its objections thereto on June 13, 2013.   This matter was heard at short calendar on June 18, 2013.

Count One

With regard to the motion to dismiss count one, first, it is argued by Dubois that the claims against him individually should be dismissed because they are barred by General Statutes § 4–165.   Next, the state argues that count one should be dismissed because the claims alleged do not relate to the actual negligent operation of a motor vehicle as is required to fall within the purview of § 52–556.

In response, the plaintiff concedes that Dubois is not subject to personal liability for damages to the plaintiff's truck, but it maintains that Dubois is still liable for his reckless conduct.   Thus, the plaintiff has filed a proposed amended complaint to reflect such allegations of recklessness against Dubois.  (See Pl.'s Memo. Obj. Mot. Dismiss 1.) “[T]here is a significant difference between asserting that a plaintiff cannot state a cause of action and asserting that a plaintiff has not stated a cause of action, and therein lies the distinction between the motion to dismiss and the motion to strike.”   (Internal quotation marks omitted.)  In re Jose B., 303 Conn. 569, 577 n.3, 34 A.3d 975 (2012).   Here, there is no indication that the plaintiff cannot state a cause of action against Dubois but rather that it has not stated such a cause of action.   Because a motion to dismiss is an improper vehicle to attack such a deficiency;  see id.;   the motion to dismiss as to Dubois is denied.   Nevertheless, in view of the court's inherent authority to treat a motion to dismiss as a motion to strike;  Gold v. Rowland, 296 Conn. 186, 226, 994 A.2d 106 (2010);  the court hereby strikes count one as to Dubois.

Regarding count one as to the state of Connecticut, the motion to dismiss is also denied.   The reasoning for this denial is outlined below where the court addresses the motion to strike.   Because the state's argument regarding its motion to dismiss mirrors its argument in its motion to strike, both motions fall together.

Regarding the motion to strike, the state argues that count one should be stricken because “the claims alleged ․ do not relate to the actual negligent operation of a motor vehicle as is required to fall within the purview of § 52–556.”  (Def.'s Mot. Strike 1.) Specifically, the state argues that the plaintiff's claims challenge the decision to engage or disengage in a pursuit as opposed to the actual negligent operation of a motor vehicle, and, even if the court were to find that some of the plaintiff's claims pertain to the alleged negligent operation of the vehicle, the plaintiff's claims lack the necessary temporal congruence to fall within the purview of the statute.   (Def.'s Memo. Mot. Strike 9.) In response, the plaintiff contends that its claims entirely relate to the actual operation of the vehicle because it “is alleged that during the course of the operation of his patrol car, [Dubois] conducted the high speed chase in such a negligent manner as to cause the subject accident.”  (Pl.'s Memo. Obj. Mot. Strike 6–7.)   Furthermore, the “high-speed chase inherently involved that [Dubois] ‘set in motion of the operative machinery’ of his patrol car, and necessarily included the ‘movement of the vehicle.’  “ (Id., 8.) With regard to temporal congruence, the plaintiff argues that count one “clearly indicates that the negligent operation of the patrol car ․ caused the collision ․ which necessarily ‘implies the simultaneousness of negligent operation and injury,’ as required by ․ § 52–556.”  (Id., 9.)

“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.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “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.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).  “[P]leadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991);  see also Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010) (motion must be denied where provable facts support a cause of action).

The court has reviewed the allegations of the complaint and finds that after construing it broadly and realistically, the allegation of the complaint is not only that Dubois wrongfully chose to pursue the stolen vehicle but also negligently operated the vehicle as well, and that such operation negligently resulted in the accident.   Paragraph 26(a) alleges that Dubois “negligently pursued the operator of the stolen vehicle in a high speed chase and pursuit.”   The complaint does not isolate the decision to pursue from the negligent operation of a motor vehicle and thus squarely falls within the purview of § 52–556.   Accordingly, the motions to dismiss and strike are denied.

Count Two

With regard to the second count, the defendants argue that the count should be dismissed because the allegations relate to decision making and, therefore, are barred by governmental immunity.  (Def.'s Memo. Mot. Dismiss 9–10.)   Specifically, the allegations in count two are that the state failed to properly train the state troopers, failed to supervise Dubois, and failed to terminate the pursuit at issue.   The plaintiff offers no argument on point with regard to count two.¹

“[T]he great weight of authority [states] that the operation of a police department is a discretionary governmental function.”  (Internal quotation marks omitted.)  Coley v. Hartford, 140 Conn.App. 315, 323, 59 A.3d 811 (2013).   Consequently, the motion to dismiss count two is granted.

CONCLUSION

For the foregoing reasons, with regard to count one against the state, the motions to dismiss and strike are denied.   With regard to count one against Dubois, the count is stricken but not dismissed.   With regard to count two, the motion to dismiss is granted.

So ordered.

BY THE COURT

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. The plaintiff argues that count two “properly pleads a cause of action pursuant to ․ § 52–556 ․ because [count two] allege[s] that the defendant ․ was negligent in the operation of a motor vehicle.”   (Pl.'s Memo. Obj. Mot. Dismiss 3.) Upon review, however, count two of the complaint does not mention § 52–556 either explicitly or by incorporation.   The incorporated paragraphs, 1–25, do not mention § 52–556..  FN1. The plaintiff argues that count two “properly pleads a cause of action pursuant to ․ § 52–556 ․ because [count two] allege[s] that the defendant ․ was negligent in the operation of a motor vehicle.”   (Pl.'s Memo. Obj. Mot. Dismiss 3.) Upon review, however, count two of the complaint does not mention § 52–556 either explicitly or by incorporation.   The incorporated paragraphs, 1–25, do not mention § 52–556.

Wiese, Peter E., J.