Elizabeth Pellici v. Albert Plunske et al. (2014)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE (# 109)

Nature of the Proceedings

Pursuant to Practice Book § 10–39, the defendants, Albert Plunske and City of Middletown, have filed a Motion to Strike the First and Second Counts of the plaintiff's complaint, which allege negligence and vicarious liability (indemnification under Connecticut General Statutes § 7–465) as to the defendants Plunske and Middletown respectively.   The defendants assert that the allegations of the complaint bring this action within the purview of Connecticut General Statutes § 52–557n(a)(1), which provides that, “no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a–149,” and that the plaintiff's exclusive remedy is against Middletown under Connecticut General Statutes § 13a–149 (the highway defect statute).   The plaintiff claims that the defendants' motion to strike the first and second counts should be denied because the first count sets forth a valid cause of action against a municipal officer for the negligent operation of motor vehicle, a ministerial act to which immunity does not apply and that neither the first nor the second count implicates § 13a–149 of the Connecticut General Statutes.   Each party submitted a memorandum, and the court heard argument of the matter on January 27, 2013.

Discussion

“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).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  America Progressive Life & Health Ins. Co. Of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”   (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, Supra, 262 Conn. 498.   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. Of New York v. Better Benefits, LLC, supra, 292 Conn. 120.

The motion to strike requires no factual findings by the court.  Broadnax v. City of New Haven, 270 Conn. 133, 851 A.2d 1113 (2004).  “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.”  Coe v. Board of Education, 301 Conn. 112, 116–17, 19 A.3d 640 (2011).

“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);  but “[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).

Familiarity with the case law relevant to the issues presented, and the arguments recited by the parties is presumed and need not be generally repeated.   The court concludes that the basis of the first and second counts sound in negligent operation of a motor vehicle and not an injury by means of a defective roadway, and do not allege any wrong doing on the part of the defendants in creating or failing to remedy any such alleged defect.   The counts challenged by the defendants do not, construed in the manner most favorable to sustaining their legal sufficiency, impermissibly invoke the defective highway statute.

The motion to strike is denied.

Vitale, J.

Vitale, Elpedio N., J.