Terry Hazelwood v. City of Bridgeport et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (Motion # 102.00)

Introduction and Summary of Facts

The plaintiff has filed a six-count complaint arising out of injuries she claims to have sustained as a result being bitten by a police dog in the service of the city of Bridgeport Police Department.   The defendants have moved to strike four of the six counts of the complaint, which allege strict liability under the dog bite statute, General Statutes § 22–357, against the defendants the city of Bridgeport and police officer Pasquale Feola and negligence against the same two defendants.   In relevant part, the plaintiff, Terry Hazelwood, alleges the following facts in the complaint.   On September 5, 2009, at 10:00 p.m., Officer Feola responded to a request for additional units to aid in controlling a house party at 516 Jane Street.   Feola was in control of a police dog owned by the city of Bridgeport.   The plaintiff alleges that he was attempting to assist the police in controlling the crowd when, suddenly and without warning, the police dog bit the plaintiff, causing him severe injuries.   The plaintiff served the six-count complaint, alleging strict liability under the dog bite statute, negligence, and recklessness, on September 2, 2011.   The defendants then moved to strike counts one through four, claiming they are barred by governmental immunity, on March 21, 2013.   The motion is accompanied by a memorandum of law.   The plaintiff filed a memorandum of law in opposition on May 24, 2013.   The defendants replied on May 24, 2013, and the plaintiff filed a supplemental memorandum in opposition on May 28, 2013.   The matter was heard at short calendar on May 28, 2013.   The issues presented are (1) whether the court should grant the defendants' motion to strike counts one and two of the complaint on the grounds that governmental immunity bars any action under the dog bite statute and (2) whether the court should grant the defendants' motion to strike counts three and four on the grounds that governmental immunity bars a negligence action based on mishandling of the dog in question because use of a police dog to control a crowd is a discretionary action.

Applicable Law

“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).  “[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.”  (Internal quotation marks omitted.)   New London County Mutual Ins. Co v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).   In general, “governmental immunity must be raised as a special defense in the defendant's pleadings ․ Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10–50] ․” (Internal quotation marks omitted.)  Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006).  “[T]here are instances when it is appropriate for defendants to raise the defense of governmental immunity in the context of a motion to strike.   Specifically, where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 116 n.4, 19 A.3d 640 (2011).

The defendants argue in their motion to strike and supporting memoranda that they cannot be sued under the dog bite statute, General Statutes § 22–357, because governmental immunity is not specifically waived for that statute.   The defendants also argue that they cannot be sued for negligence because controlling a police dog is a discretionary rather than a ministerial act.   The plaintiff responds in the alternative that he has alleged a private duty under the public duty doctrine, that he has alleged a violation of a ministerial duty or, that he meets the imminent harm exception to discretionary act immunity.¹

“[The Supreme Court] has previously stated that [a] municipality itself was generally immune from liability for its tortuous acts at common law ․ [The Court] also recognized, however, that governmental immunity may be abrogated by statute ․ Thus, the general rule developed in our case law is that a municipality is immune from liability for [its tortious acts] unless the legislature has enacted a statute abrogating that immunity.”  Pane v. Danbury, 267 Conn. 669, 677, 841 A.2d 684 (2004).  General Statutes § 52–557n provides in relevant part:  “(a)(1) 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 ․ (2) 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 willful 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.”

General Statutes § 22–357 states in relevant part:  “If any dog does any damage to either the body or property of any person, the owner or keeper, or, if the owner or keeper is a minor, the parent or guardian of such minor, shall be liable for such damage ․” “In the absence of explicit language in § 52–557n modifying the common law rule of governmental immunity for claims of strict liability pursuant to § 22–357, the statute should not be so construed, and we decline to do so ․ Section 22–357 creates a cause of action that did not exist at common law and, therefore, must be strictly construed ․ (Citations omitted.)   The statute does not provide that governmental immunity shall not be a defense to an action brought under it ․” Tryon v. North Branford, 58 Conn.App. 702, 722, 755 A.2d 317 (2000) (holding that common-law rule of governmental immunity barred an action against city pursuant to dog bite statute);  see also Silano v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 01 0387309 (August 3, 2004, Thim, J.) [37 Conn. L. Rptr. 606] (same, for police dog);  Figueroa v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 95 0335860 (August 20, 2002, Sheedy, J.) (same).

The court in Tryon, supra, conducted a reasoned analysis of the doctrine of governmental immunity as it applies to the facts of this case.  “One purpose of governmental immunity is to avoid injecting monetary claims of the public alleging harm arising out of the day-to-day operation of discretionary municipal functions.  (Citations omitted.)   Without express statutory language abrogating the doctrine of governmental immunity in order to allow claims of strict liability under 22–357, we see no reason to disturb the doctrine.   Limited governmental immunity and governmental immunity rest on the principle that government acts should be shielded from liability except in discrete instances, whereas strict liability statutes rest on the principle that certain acts, in and of themselves, without proof of any negligence require liability to arise.   Governmental immunity limits liability and 22–357 expands and extends liability.   The dichotomy between these principles militates against any further intrusion into the doctrine of governmental immunity.”  Id. 723.

Applying the preceding analysis and authority to the present case, because General Statutes 22–357 does not contain any language abrogating governmental immunity from strict liability under the dog bite statute, neither the city of Bridgeport, nor the police officer engaged in the act of handling a police dog in order to control an unruly crowd can be held strictly liable as alleged in count one.   Accordingly, the motion to strike counts one and two is granted.

Bridgeport's liability for negligence, on the other hand, is dependent on whether control of the dog was an act requiring discretion as defined in General Statutes § 52–557n(a)(2)(B).  Feola's liability, both under the dog bite statute and under common-law negligence, is also dependent on whether his action was discretionary.²  “Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts ․ Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature ․ In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.”   (Citations omitted;  internal quotation marks omitted.)  Spears v. Garcia, 263 Conn. 22, 36, 818 A.2d 37 (2003).  “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.”  Martel v. Metropolitan District Commission, 275 Conn. 38, 49, 881 A.2d 194 (2005).   Where “the plaintiffs also have failed to allege that there was any rule, policy, or directive that prescribed the manner in which [the challenged action was to be taken] ․ the complaint alleged conduct that was solely discretionary in nature, and, accordingly ․ qualified governmental immunity applied to [the defendant's] alleged acts and omissions.”  Violano v. Fernandez, 280 Conn. 310, 324, 907 A.2d 1188 (2006).  “The hallmark of a discretionary act is that it requires the exercise of judgment.”  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 628, 749 A.2d 630 (2000).

The defendants' alleged actions were discretionary in nature.   The complaint alleges that Feola was “in control and responsible for the control of the dog” and that the defendants “failed to contain, leash and/or restrain the dog thereby allowing the dog to be a threat to plaintiff” and “knew that the dog was dangerous by virtue of its training.”   The complaint does not allege that the city or state had promulgated rules or standards for the use of dogs in this situation.   The plaintiff therefore has failed to meet the threshold burden of alleging the violation of any ministerial duty.

“The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary:  first, 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 ․” Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).  “[T]he identifiable person, imminent harm common-law exception to municipal employees' qualified immunity also applies in an action brought directly against municipalities pursuant to § 52–557n(a)(1)(A) ․” Grady v. Somers, 294 Conn. 324, 348, 984 A.2d 684 (2009).   The exception “applies when 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 ․ By its own terms, this test requires three things:  (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 ․” (Internal quotation marks omitted.)  Id., 350.  “An individual may be ‘identifiable’ for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition ․ For the harm to be deemed imminent, the potential for harm must be sufficiently immediate.”  (Citations omitted;  internal quotation marks omitted.)  Cotto v. Board of Education, 294 Conn. 265, 275–76, 984 A.2d 58 (2009), citing Tryon v. North Branford, supra, 58 Conn.App. 710–11.

In Tryon v. North Branford, supra, 58 Conn.App. 717, the Appellate Court reversed the trial court's grant of summary judgment on the plaintiff's claims for negligent handling of a dog at a parade by a government employee, a firefighter.   The Appeals Court found that the plaintiff, another firefighter in close proximity to the firefighter holding the dog's leash, was an identifiable person and that there was sufficient evidence for a jury to find that when the plaintiff approached the dog and grabbed its head she was in a position of imminent harm.  “The question is not whether a dog at a parade creates a condition of imminent harm per se, but whether the act or failure to act of [the defendant] in preventing his dog from being in close proximity to the plaintiff created a situation of imminent harm to the plaintiff.”  Id.

Reading the facts in the light most favorable to the nonmoving party for the purpose of the motion to strike, the plaintiff has sufficiently alleged facts from which the trier could find that he qualifies for the imminent harm exception to discretionary act immunity.   Specifically, the plaintiff alleged that he was in close proximity to the dog when the dog was being used to control the crowd;  he had separated himself from the crowd and was aiding the police;  that Feola failed to restrain the dog;  and that Feola knew of the dog's dangerous propensities.   Taking these allegations as true, it can be inferred that the harm was imminent, the plaintiff was an identifiable victim and it was apparent to Feola that the plaintiff could be in danger from the dog.

CONCLUSION

For the above stated reasons, the court grants the motion to strike the counts one and two of the complaint, alleging liability against Bridgeport under the dog bite statute, on the grounds that governmental immunity has not been abrogated by the dog bite statute.   The court denies the motion to strike as to counts three and four, alleging strict liability against Feola and negligence against Feola and Bridgeport, on the grounds that the plaintiff has sufficiently pled the identifiable person imminent harm exception to governmental and qualified immunity.

SOMMER, J.

FOOTNOTES

FN1. The plaintiff initially responded that municipal immunity must be explicitly listed by the statute in order to apply, but later changed his argument..  FN1. The plaintiff initially responded that municipal immunity must be explicitly listed by the statute in order to apply, but later changed his argument.

FN2. The plaintiff also references the public duty doctrine, which the court in Marceau v. Norwich, 46 Conn.Sup. 197, 746 A.2d 836 [25 Conn. L. Rptr. 33] (1999), held permitted negligence and strict liability claims against both a city and a police officer.   While this is on point with the present case, involving a police dog biting an individual who was assisting the police, the more recent Appellate and Supreme Court cases cited above note that a city is immune from liability absent a statute abrogating that immunity.   In addition, while the public duty doctrine is still referenced, “governmental immunity precludes liability regardless of whether the duty is public or private as long as the act complained of is discretionary in nature and none of the three recognized exceptions to discretionary act immunity applies.”  Violano v. Fernandez, 280 Conn. 310, 332, 907 A.2d 1188 (2006).   The court will therefore analyze the allegations under the discretionary/ministerial rubric..  FN2. The plaintiff also references the public duty doctrine, which the court in Marceau v. Norwich, 46 Conn.Sup. 197, 746 A.2d 836 [25 Conn. L. Rptr. 33] (1999), held permitted negligence and strict liability claims against both a city and a police officer.   While this is on point with the present case, involving a police dog biting an individual who was assisting the police, the more recent Appellate and Supreme Court cases cited above note that a city is immune from liability absent a statute abrogating that immunity.   In addition, while the public duty doctrine is still referenced, “governmental immunity precludes liability regardless of whether the duty is public or private as long as the act complained of is discretionary in nature and none of the three recognized exceptions to discretionary act immunity applies.”  Violano v. Fernandez, 280 Conn. 310, 332, 907 A.2d 1188 (2006).   The court will therefore analyze the allegations under the discretionary/ministerial rubric.

Sommer, Mary E., J.