Loren L. Neddeau v. Town of North Stonington et al. (2015)

MEMORANDUM OF DECISION ON MOTION TO STRIKE (# 104) COMPLAINT

The plaintiff, Loren Neddeau, brings this action by her complaint dated July 17, 2014,¹ against, in counts one through three, respectively, the Town of North Stonington (“the town”),² Guy Boucher as school maintenance supervisor, and Christopher J. Sandford, as acting principal of North Stonington Middle School and High School (“the school”).³  On November 10, 2014, the defendants moved to strike all three counts on the ground that they are legally insufficient to avoid the bar of governmental immunity.   On December 11, 2014, the plaintiff filed an opposing brief.   The motion was argued on March 16, 2015.   On July 14, 2015, the court granted the motion, with this memorandum to follow.

FACTS

For present purposes, the court takes the facts to be those alleged in the complaint, construed in favor of its legal sufficiency.  New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012).   A motion to strike does not admit legal conclusions or the correctness of opinions.   Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).   Viewing the complaint in this light, the essential facts are as follows.

On August 20, 2012, at approximately 5:00 p.m., the plaintiff was at the school's gymnasium.   The plaintiff had been invited there by the school's soccer coach for a presentation about the school's soccer program, in which the plaintiff's daughter participated.   While in the gymnasium, the plaintiff was seen by a school maintenance man.   About an hour later, after the meeting, the plaintiff left the gymnasium and stepped into the hallway on her way to the building's exit.   She turned toward the building exit, immediately fell to the floor and experienced extreme pain.   After the fall, the plaintiff saw water or a watery substance on the floor that had leaked from a floor cleaning machine (“machine”).⁴  That machine was unattended and had been left against a wall near the gymnasium exit.   The maintenance man who had seen the plaintiff was the one who left the machine unattended, with fluids leaking from it into the hallway where the plaintiff fell.

There were at the time “specific school policies and rules that require[d] the floor cleaning machine be stowed away when not in use and that the machine never be allowed to remain unattended.” ⁵  The town, by its employees, officers and/or agents (count one), Boucher, acting as school maintenance supervisor (count two) and Sandford, acting as school principal (count three), caused, or allowed, fluids to leak from the machine;  failed to secure and store the machine;  failed to ensure fluids were not leaking from the recently-used machine;  failed to notice that water and cleaning fluid had leaked from the machine;  failed to remove the water and fluid on the hallway floor;  failed to post warning signage of the wet/slippery floor;  and failed to maintain a safe passageway from the gymnasium to the building's nearest exit.

DISCUSSION

Generally, “the exercise of duties involving inspection, maintenance and repair of hazards are considered discretionary acts entitled to governmental immunity.   See Evon v. Andrews, 211 Conn. 501, 506–07, 559 A.2d 1131 (1989) (defendants' acts discretionary in nature because what constitutes reasonable, proper or adequate inspection involves exercise of judgment);  Segreto v. Bristol, 71 Conn.App. 844, 857–58, 804 A.2d 928 (city's allegedly negligent design and maintenance of stairwell was discretionary because determinations of what is reasonable or proper under particular set of circumstances necessarily involve exercise of judgment), cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).   A municipality necessarily makes discretionary policy decisions with respect to the timing, frequency, method and extent of inspections, maintenance and repairs.”  Grignano v. Milford, 106 Conn.App. 648, 656, 943 A.2d 507 (2008).   A judge of this court has held that “a party must point to a policy or other rule of law directing a specific response in order to show that municipality's duty to warn was ministerial in nature.”   Deutsch v. Beacon Falls, Superior Court, judicial district of Ansonia–Milford, Docket No. CV12–6008883–S (July 23, 2013) (emphasis added).

Section 52–557n(a), enacted in 1986, is a legislative waiver of municipalities' immunity against negligence claims.  Section 52–557n(a)(1)(A) provides in relevant part that:  “Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by ․ [t]he 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 ․”

Like all waivers of what is essentially sovereign immunity, that waiver must be narrowly construed.   See Spring v. Constantino, 168 Conn. 563, 570–71, 362 A.2d 871 ( 1975).   It follows that the General Assembly's limitations on the waiver of immunity contained within § 52–557n itself must be broadly construed.  Section 52–557n(a)(2)(B) limits the right in § 52–557n(a)(1) to sue municipalities for negligence as follows:  “Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ․ 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.”   In this regard, the statute is consistent with the common law before the statute was enacted.

“[F]or the purposes of § 52–557n, municipal acts that would otherwise be considered discretionary will only be deemed ministerial if a policy or rule limiting discretion in the completion of such acts exists.”  Benedict v. Norfolk, 296 Conn. 518, 520 n.4, 997 A.2d 449 (2010).  “In order to create a ministerial duty, there must be a city charter provision, ordinance, regulation, rule, policy, or any other directive [compelling a municipal employee] to [act] in any prescribed manner.”  (Internal quotation marks omitted.)  Coley v. Hartford, 140 Conn.App. 315, 323, 59 A.3d 811 (2013), aff'd, 312 Conn. 150, 95 A.3d 480 (2014).  “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 ․ [that the nature of the duty] and, thus, whether governmental immunity may be successfully invoked pursuant to ․ § 52–557n(a)(2)(B), turns on the character of the act or omission complained of in the complaint ․ Accordingly, where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature,” the court can find the claim deficient as a matter of law.  (Internal quotation marks omitted.)  Coley v. Hartford, 312 Conn. 150, 162, 95 A.3d 480 (2014) (summary judgment for defense).   In particular, where a plaintiff has failed to offer evidence of a directive or policy limiting the discretionary nature of a municipal employee's duties, a court may properly conclude that the duty was discretionary in nature as a matter of law.   See Martel v. Metropolitan District Commission, 275 Conn. 38, 50–51, 881 A.2d 194 (2005).

Even construing the plaintiff's allegations in her favor, to the limit of reason, the court cannot find the complaint alleges violation of a ministerial duty.   The complaint alleges only in a conclusory manner violation of “specific school policies and rules that require[d] the floor cleaning machine be stowed away when not in use and that the machine never be allowed to remain unattended.”   Because these “policies and rules” are not quoted, let alone identified by date or manner of adoption, they are not deemed admitted.   Similarly, in the foregoing context, the allegations in the three counts that the defendants “failed to properly fulfill a ministerial duty,” and “by not following” are conclusions of law.⁶  In determining the sufficiency of the complaint, the court cannot consider legal conclusions, let alone construe them in favor of finding any of the three counts of the complaint legally sufficient.   The situation would be different if, hypothetically, the complaint alleged that, on a certain date, the North Stonington Board of Education adopted a written policy, in force on the day of the plaintiff's fall, that “no floor polishing machine shall ever be left unattended in a public area of the school.”   The court is skeptical that such a rigid policy exists but, if it does, it is a simple matter for the plaintiff to replead the specifics.⁷  In any event, none of the three counts of the complaint alleges sufficient facts, as distinguished from conclusions, to show breach of a ministerial duty by the town.   The non-conclusory acts and omissions alleged in the complaint in this case are inherently discretionary in nature.   See Evon v. Andrews, supra, 211 Conn. 506;  Grignano v. Milford, supra, 106 Conn.App. 656;  Segreto v. Bristol, supra, 71 Conn.App. 857–58;  Deutsch v. Beacon Falls, supra, Superior Court, Docket No. CV–12–6008883–S.

Although the alleged acts or omissions in this case were discretionary in nature, the court must still determine whether an exception to governmental immunity applies.   There are three exceptions to the bar of governmental immunity from suit for discretionary, as distinguished from ministerial, matters, only one of which is claimed applicable to this case.   That is the identifiable victim, imminent harm exception.  “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 ․ Failure to establish any one of the three prongs will be fatal to a plaintiff's claim that he comes within this exception.”  (Citation omitted;  internal quotation marks omitted.)  Cotto v. Board of Education, 294 Conn. 265, 273, 984 A.2d 58 (2009).   The identifiable person, imminent harm exception to municipal employees' qualified immunity applies to municipalities' immunity from claims for negligence in the performance of discretionary acts under § 52–557n(a)(2)(B).  Grady v. Somers, 294 Conn. 324, 349, 984 A.2d 684 (2009), superseded by statute on other grounds as stated in Kumah v. Brown, 307 Conn. 620, 630, 58 A.3d 247 (2013).

“[T]he proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm.”  Haynes v. Middletown, 314 Conn. 303, 322–23, 101 A.3d 249, 260–61 (2014).⁸  The “criteria of identifiable person and imminent harm must be evaluated with reference to each other.   An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm.   Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person ․ The exception is applicable only in the clearest cases.”  (Citation omitted;  internal quotation marks omitted.)  Thivierge v. Witham, 150 Conn.App. 769, 779, 93 A.3d 608 (2014).

As it pertains to the identifiable victim element, the plaintiff has failed to allege facts showing that a town employee or agent was aware that his or her acts or omissions were likely to subject the plaintiff, in particular, to imminent harm.   That she was seen by the maintenance worker in the gymnasium at an unspecified time before she fell does not make her a member of a class of one for purposes of risk of harm;  that is, for the purpose of alleging facts showing the maintenance worker had a duty to protect her, in particular, from liquid leaking from the machine (actual knowledge of which leak is not alleged).   Again to illustrate by contrast, the situation would be different if the plaintiff alleged that the town's custodian was standing by the puddle of liquid with a mop in his hand, watched the plaintiff approach the liquid on the floor, and did nothing to clean up the liquid or to stop her from stepping in it.

The “identifiable victim, imminent harm” exception can only apply if the plaintiff were a member of an identifiable class of foreseeable victims.   “[W]hether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this narrowly drawn exception to ․ immunity ultimately is a question of law for the courts, in that it is in effect a question of whether to impose a duty of care ․ In delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim ․” (Internal quotation marks omitted.)  Grady v. Somers, supra, 294 Conn. 351.

The “only identifiable class of foreseeable victims that [courts have] recognized for these purposes is that of schoolchildren attending public schools during school hours because:  they were intended to be the beneficiaries of particular duties of care imposed by law on school officials;  they were legally required to attend school rather than being there voluntarily;  their parents were thus statutorily required to relinquish their custody to those officials during those hours;  and, as a matter of policy, they traditionally require special consideration in the face of dangerous conditions.”  (Internal quotation marks omitted.)  Id., 352.  “Application of [this exception] has been similarly restrictive outside of the public school [student] context because, in addition to not recognizing any additional classes of foreseeable victims, the decisions reveal only one case [Sestito v. Groton, 178 Conn. 520, 423 A.2d 165 (1979) ] wherein a specific plaintiff was held potentially to be an identifiable victim subject to imminent harm for purposes of this exception ․” Id., 353.  “Under our case law ․ [the Supreme Court has] interpreted the identifiable person element narrowly as it pertains to an injured party's compulsion to be in the place at issue ․” (Citations omitted).  Id., 356.

The plaintiff alleges, essentially, that she is one of an identifiable class of participants in a voluntary one-hour gathering in the school gym, after school hours.   The identifiable victim, imminent harm exception should not be construed so broadly as to apply to any person attending an after-hours, voluntary meeting in the school.   See Cotto v. Board of Education, supra, 294 Conn. 279 (if plaintiff was identifiable victim of specific imminent harm, then so was everyone in youth program who used certain bathroom).   Although the plaintiff vigorously claims she meets the strict requirements for finding a class of foreseeable victims outside of the public school student context;  see Grady v. Somers, supra, 294 Conn. 353;  she is, in effect, arguing for a loosening of those requirements.   She offers no authority for doing so.   To loosen the criteria for what is ministerial would be to circumvent the principle that waivers of governmental immunity must be narrowly construed.   See Violano v. Fernandez, 280 Conn. 310, 328 n.10, 907 A.2d 1188 (2006) (alteration of common-law test of whether governmental immunity applies to municipal employee would alter municipality's liability as indemnitor under § 7–465).

Because the plaintiff has failed to allege sufficient facts showing her claims are within an exception to the defendants' governmental immunity, either that any of the defendants had and violated a ministerial duty to her or that she is an identifiable victim for purposes of the identifiable victim, imminent harm exception, the defendants' motion to strike counts one, two and three is granted.

Cole–Chu, J.

FOOTNOTES

FN1. The defendants' brief refers, at page 15, to a non-existent “revised complaint.”.  FN1. The defendants' brief refers, at page 15, to a non-existent “revised complaint.”

FN2. General Statutes § 52–557n allows a direct cause of action for negligence against municipalities.  Spears v. Garcia, 263 Conn. 22, 25, 818 A.2d 37, 40 (2003).   The defendants did not base the motion on the Town of Stonington having been sued, rather than the town's Board of Education.   See Cahill v. Board of Education of Stamford, 187 Conn. 94, 101, 444 A.2d 907 (1982) (town boards of education are agents of both the state and the town)..  FN2. General Statutes § 52–557n allows a direct cause of action for negligence against municipalities.  Spears v. Garcia, 263 Conn. 22, 25, 818 A.2d 37, 40 (2003).   The defendants did not base the motion on the Town of Stonington having been sued, rather than the town's Board of Education.   See Cahill v. Board of Education of Stamford, 187 Conn. 94, 101, 444 A.2d 907 (1982) (town boards of education are agents of both the state and the town).

FN3. All the defendants join in the present motion, which does not challenge the allegations in counts two and three that Boucher and Sandford are employees, or at least agents, of the town.   Since § 52–557n allows a direct cause of action for negligence against a municipality;  Spears v. Garcia, supra;  and since direct involvement of the individual defendants is not alleged, the point of counts two and three eludes this court.   But the plaintiff is entitled to choose her claims.   See Moore v. Sergi, 38 Conn.App. 829, 841–42, 664 A.2d 795 (1995) (plaintiff's right to recover is limited to his or her allegations)..  FN3. All the defendants join in the present motion, which does not challenge the allegations in counts two and three that Boucher and Sandford are employees, or at least agents, of the town.   Since § 52–557n allows a direct cause of action for negligence against a municipality;  Spears v. Garcia, supra;  and since direct involvement of the individual defendants is not alleged, the point of counts two and three eludes this court.   But the plaintiff is entitled to choose her claims.   See Moore v. Sergi, 38 Conn.App. 829, 841–42, 664 A.2d 795 (1995) (plaintiff's right to recover is limited to his or her allegations).

FN4. The plaintiff does not explicitly allege she slipped on the “water or a watery substance,” but she is entitled to the inference of that allegation.   See Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010) (necessarily implied allegations are accepted as true;  complaint is construed broadly and realistically)..  FN4. The plaintiff does not explicitly allege she slipped on the “water or a watery substance,” but she is entitled to the inference of that allegation.   See Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010) (necessarily implied allegations are accepted as true;  complaint is construed broadly and realistically).

FN5. The complaint alleges the effect of these policies and rules without quoting them, let alone citing their origin(s).  Practice Book § 10–3 requires that a statute on which a claim is founded be pleaded.   By analogy, the better practice is to specify any regulations and rules on which a claim is based.   See Deutsch v. Beacon Falls, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–12–6008883–S (July 23, 2013) (pleading must allege a policy or other rule of law directing a specific response in order to show that municipality's duty to warn was ministerial in nature).   In any event, the interpretation and legal effect of the alleged policies and rules are conclusions of law which are not admitted by the motion.  Faulkner v. United Technologies Corp., supra..  FN5. The complaint alleges the effect of these policies and rules without quoting them, let alone citing their origin(s).  Practice Book § 10–3 requires that a statute on which a claim is founded be pleaded.   By analogy, the better practice is to specify any regulations and rules on which a claim is based.   See Deutsch v. Beacon Falls, Superior Court, judicial district of Ansonia–Milford, Docket No. CV–12–6008883–S (July 23, 2013) (pleading must allege a policy or other rule of law directing a specific response in order to show that municipality's duty to warn was ministerial in nature).   In any event, the interpretation and legal effect of the alleged policies and rules are conclusions of law which are not admitted by the motion.  Faulkner v. United Technologies Corp., supra.

FN6. As to the individual defendants, the allegations that Boucher and Sandford were “responsible for the acts of other custodial/maintenance employees” is a conclusion of law.   The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).   A pleading must be construed reasonably to include full, fair meaning, not contorted to strain rational comprehension.  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006)..  FN6. As to the individual defendants, the allegations that Boucher and Sandford were “responsible for the acts of other custodial/maintenance employees” is a conclusion of law.   The interpretation of pleadings is always a question of law for the court.  Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).   A pleading must be construed reasonably to include full, fair meaning, not contorted to strain rational comprehension.  Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 778, 905 A.2d 623 (2006).

FN7. Even if there is such a policy, there could be a challenge based on whether its intent or enforcement required use of judgment, e.g., involved use of discretion of the Board of Education or of the town regarding what “stowed away” means..  FN7. Even if there is such a policy, there could be a challenge based on whether its intent or enforcement required use of judgment, e.g., involved use of discretion of the Board of Education or of the town regarding what “stowed away” means.

FN8. Haynes v. Middletown, supra, was decided before the present motion was filed and was cited by neither the movant nor the plaintiff, either in briefs or, as far as the court recalls, in oral argument.   However, applying the Haynes test for imminent harm does not change the outcome of the present motion..  FN8. Haynes v. Middletown, supra, was decided before the present motion was filed and was cited by neither the movant nor the plaintiff, either in briefs or, as far as the court recalls, in oral argument.   However, applying the Haynes test for imminent harm does not change the outcome of the present motion.

Cole–Chu, Leeland J., J.